Mock Trial Strategies

Opening Statements

Upson County Courthouse, Thomaston, Georgia, built in 1908 at a cost of $50,000 in the Neoclassical style.

Objectives

“The opening statement outlines the case it is intended to present. The attorney for plaintiff delivers the first opening statement and the defense follows with the second. A good opening statement should explain what the attorney plans to prove, how it will be proven; mention the burden of proof and applicable law; and present the events (facts) of the case in an orderly, easy to understand manner.” Mock Trial Material from State of Oregon v. Dulsa (2017-18 Season)

An opening statement is not an argument or a discussion of the law, but rather tells the jury what the evidence will show and serves as a road map for the jury to follow.  Objections by the opposing counsel are not permitted. 

What to know before drafting an opening statement

  • Can you tell a brief story about what happened from your side’s point of view?
  • What is your theory of the case?
  • What are the key elements that have to be proved (by you or the other side)?
  • What do you anticipate the evidence will show?
  • What are the important facts your side’s witnesses will testify to?
  • What themes (words and phrases that convey emotions) do you want to emphasize?
  • Who has the burden of proof and what is it?
  • What do you want the jury to do?
  • How much time do you have? (usually 5 minutes)

Anatomy of an opening: the basics

  1. An Introduction:
    • Attorney identifies themself (or not)
      • A typical introduction: “Your Honor, members of the jury, my name is (full name), representing the prosecution/defendant in this case.”
      • If they have already been introduced,  some attorneys just go right into their opening to save time, create drama, and make it look more like a real trial.
    • A theory of the case
      • One or two sentences which tell the jury what your case is about
      • “My client, Landry Lopez, was fired for reporting an illegal activity to his employer, the restaurant Buddies Burgers.”
    • Briefly tell the jury why they are there
      •  “This case is brought under Oregon whistle blower law, which prohibits employers for retaliating against employees who have a reasonable belief that an illegal activity has occurred and report it. ” 
  2. A brief overview (story) of what the evidence will show
    • Presented from your side’s perspective
    • Purpose is to give the jury the big picture 
    • “The facts of this case are straightforward.  The evidence will show that on May 5, 2016, Landry Lopez saw . . .”
  3. A brief explanation of what has to be proved
    • “Under Oregon whistle blower law there are three elements that must be proven.   First . .”
  4. Identify the witnesses 
    • “We will call three witnesses: Landry Lopez, Sam Jackson, a former Buddies Burgers employee, and Tyler Erickson, a journalist student.”
  5. Tell what the key testimony of each witness will be
    • “Mr. Lopez will tell you that . . .”
    • “Next, Plaintiff will call Ms. Jackson, a former BB employee . . “.
    • “Finally you will the testimony of Tyler Erickson, who was with Mr. Lopez . . . “
  6. A conclusion
    • Discuss the burden of proof  (some put this near the beginning)
      • This is a civil case and Plaintiff Landry Lopez must prove his case by a preponderance of the evidence.” (Explain briefly and illustrate with hands what a preponderance of the evidence means)
    • Restate the theory of the case
      • “Oregon’s whistle blower law exists to protect, and encourage, employees to report illegal activity in the workplace. Mr. Lopez engaged in such whistle blower activity and was fired for doing so. “
    • Tell the jury what you want
      • “For these reasons, after you have heard all the evidence, at the end of this trial we will ask you to return a verdict in favor of Landry Lopez.”
      • “At the end of the trial the State of Oregon will ask you to find the Defendant guilty of . . . . .”
      • “Based on the evidence you will hear, at the end of the trial the Defendant will ask you to return a verdict of not guilty

Going Deeper: Ways to Improve the Opening Statement:

  • In a Mock Trial the attorney is judged on:
    • Substance and technique . . . AND 
    • Performance and style

 Substance and Technique

  1. Keep revising your opening until it is exactly as you want it
    • Opening statements go through many edits and revisions 
    • Seek out the input from others
    • Try things out – if they don’t work,  don’t use them
  2. Consider a hook in the introduction
    • A hook is a sentence or very short paragraph in the introduction which serves as an attention-grabbing element
    • The effectiveness of the hook is defined by its ability to interest and motivate the jury to listen more closely 
    • The hook should arouse interest but not be argumentative
  3. Tell a good story
    • Story telling is at the heart of a good opening
    • A story paints a vivid picture – walk jury through it with each witness
    • Use active voice
    • Use language that reinforces your themes
    • Create interest but don’t tell everything
  4. Do not argue the case
    • The opening statement is not an argument
    • Do not argue the facts or law
    • Save arguments for closing
    • It is OK to state and develop your theory of the case
    • Stick with what the facts will show and what they will not show
  5. Use future tense when talking about what the evidence will show 
    • Proper phrasing includes statements like:
      • “The evidence will indicate that . . .
      • “The facts will show that …”
    • Use a few of these lines but not too many, don’t overdo it
  6. Stay in control of the picture you paint in the jury’s mind
    • Everything you say should have a purpose
    • Don’t ask questions during opening statements (it allows the jury to come up with answers you might not want)
    • Do not waste your time on unimportant things or go into excessive detail (may make the jurors lose focus)
    • Use descriptive emotional content in describing the most important facts
  7. State the facts affirmatively – do not negate  the other side’s facts or position
    • The more you repeat something the more it is remembered and believed
    • If you say the evidence will show that “Mrs. Smith did not run the red light,” the ‘not’ is lost.
    • The jury remembers the phrase “ran the red light”
    • Instead say the evidence will show “Mrs. Smith came to a complete stop at the signal.”
    • The jury remembers “came to a complete stop at the signal.”
  8. Personalize your side’s witnesses
    • Use their names
    • Depersonalize the opposition’s witnesses with language like ‘Defendant”  or  “Plaintiff”
  9. The Prosecution in a criminal case is the Government
    • Don’t be shy to take on this role
    • Refer to yourself  “The State of ___”  not just the “prosecution.”
  10. Talk about facts that are not in dispute (look at  the stipulations)
    • “There are certain facts in this case that are not in dispute . . . “
    • “The Defense/Prosecution have agreed . . .”
    • “The parties have agreed that . . . “

Performance and Style

Body language is a very powerful tool. We had body language before we had speech, and apparently, 80% of what you understand in a conversation is read through the body, not the words. – Deborah Bull, English dancer, writer, and broadcaster

  1. Practice, practice, practice
  2. Find your focus, energy and commitment
  3. Memorize the Opening Statement
    • Memorize content, movement, inflections, and gestures 
    • This will maximize the points you will get
    • If notes are needed
      • Use them sparingly
      • Use a legal pad or clip board so they do not flop around 
  4. Talk directly to the jury 
    • Look them in the eye
    • Educate  them about the case
    • Move closer (5-10 ft.) but not too close
    • Be natural to keep their attention
  5. Use conversational language that is engaging
    • Let the type of case dictate your style and tone
      • Example: A prosecutor might want to be more forceful whereas a defendant might want to evoke sympathy
    • Use legal terminology sparingly
  6. Use body posture and movement deliberately and consciously
    • Maintain upright body posture (do not slouch)
    • Keep shoulders back to show confidence
    • Stay balanced
    • If you move, make the movement coincide with transitions between points
    • Try not to change position more than 7 times in 5 minutes
    • Try not to fidget or have unnecessary gestures or body movements
  7. Use gestures 
    • Use gestures to create interest and drama
    • Gestures include the give, the show, the tell, and signposting
    • Don’t shy away from pointing to individuals in the court – the type of point may vary
      • If you are the prosecution and point to the defendant it will be using a harder accusatory “tell” gesture with a pointed finger
      • If you are pointing to your own witnesses it will be using an inviting open handed “give” gesture  
  8. Act professional and confident – even if you are nervous

Resources

Preparation Sheet

Professor Rose Teaches Opening Statement

How to Deliver an Opening Statement (For Defendant) - Mock Trial University

Opening Statement – University of South Carolina Mock TrialOpening Statement by Student

Opening Statement and Closing Argument, Judge David Barker

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