Can You “Argue” in Opening?
Everyone agrees that opening statements matter. One of the most commonly circulating pieces of trial-lawyer “folk wisdom” is that most jurors make up their minds during opening statements. The actual research on that point is limited and somewhat more equivocal, [1] but it is difficult to dispute that an effective opening can put you in a very strong position, tending to color how the jury perceives witnesses and evidence as it comes in.
For a part of trial with that much importance, the rules governing openings are few and fuzzy. Apart from court-by-court eccentricities like where you can stand and what kind of demonstratives you can use, the rule that you will hear most frequently is the prohibition on argument. A lawyer must not “argue” his or her case in opening, even if “outlining” or “previewing evidence” is encouraged. But what does the prohibition on argument really mean? And if the rule isn’t terribly clear, how can you avoid or defeat objections to your opening statement on “argument grounds?”
You will not have difficulty finding authority for the prohibition on argument in the opening. But much of it, like Justice Burger’s often-cited concurrence in United States v. Dinitz is rather circumspect about what improper argument actually is:
An opening statement has a narrow purpose and scope. It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument. To make statements which will not or cannot be supported by proof is, if it relates to significant elements of the case, professional misconduct. Moreover, it is fundamentally unfair to an opposing party to allow an attorney, with the standing and prestige inherent in being an officer of the court, to present to the jury statements not susceptible of proof but intended to influence the jury in reaching a verdict. [2]
This all sounds very nice, but what is a statement “not susceptible of proof?” Is it an opinion? A factual claim for which there is no evidence? And neither of those things fits squarely into conventional use of the word argument. If you’re scheduled for oral argument before the court, you’re probably expecting to “prove” that you should prevail, not indulge in opinions or irrelevant facts. In this regard, you might think that “argument” refers to statements of law, but those do not fit well into Justice Burger’s description. And virtually every opening contains some kind of statement of law, even if it’s couched in conventional terms. Every defendant, civil or criminal, is accused of doing something that the law prohibits, and very normal in opening statement to point a person is not allowed to drive recklessly, lie for money, break their commercial agreements, or whatever else the claim happens to be.
Complicating the matter, some courts describe “argument” and “irrelevant facts” as separate flaws in an opening that the court can prohibit. For example, in United States v. Zielie, the 11th Circuit, in upholding the trial court’s right to control openings, noted that the judge “can exclude irrelevant facts and stop argument if it occurs.” [3] Still others appear to use the term “argument” more generically as a label for any statement that is inappropriate for opening, even ones that fall squarely outside of any “argumentative” definition and are prohibited on other grounds, like mentioning insurance or commenting on a defendant’s silence in a criminal case. [4]
As a result, multiple legal academics [5] have described the prohibition on argument through reference to Justice Potter Stewart’s oft-quoted statement about obscenity – i.e. “I know it when I see it,” hardly a model of legal clarity. Indeed, a more cynical definition of an “argumentative opening” might be “one that subjectively sounds like a closing statement to the judge, particularly if he or she does not like your client.” In an effort to improve things somewhat, legal scholars have developed their own categorizations of the approaches that courts use to apply the argument rule. They fall into two broad camps, the “witness test,” and the “argument test.”
The “witness test” asks whether any witness will testify to the statement by the attorney in opening. If so, the statement is deemed to be a “preview” of evidence rather than inadmissible argument. [6] The “witness” need not be an actual person, as an admissible documentary exhibit that provides the “testimony” will also suffice. Not that this test would tend to exclude statements from counsel based upon circumstantial rather than direct evidence. This can be problematic. If no witness saw the defendant crash his car, the plaintiff’s lawyer could not say that he did, even if process of elimination, the defendant’s medical records, and photos of damage to the vehicle strongly suggest that that is what occurred.
While this test has a certain analytic appeal and dovetails nicely with prohibitions on discussing evidence or claims that have been excluded in limine, it is quite restrictive. As a result, it is probably cited as a rule substantially more frequently than it is rigidly enforced.
The second approach, the “inference test” asks if the lawyer’s statement in opening is either directly supported by testimony or evidence or is a “reasonable inference” from that evidence. [7] So, in the car crash example, a lawyer could claim that the defendant wrecked the car so long as circumstantial evidence supported the reasonable inference that that occurred. This approach has the benefit of more closely resembling what judges actually do – it’s a rare court that would preclude logical conclusions from indirect evidence. But in the process, much of the analytic rigor is lost – an inference is a slippery thing, particularly if attorneys are given any leeway to “predict” how the evidence will come in.
So, if the law is fuzzy and even the academic tests are highly speculative, how do you maximize the chances that your opening will stand against objections or avoid them entirely? While there is no magic bullet, there are a few things to keep in mind.
The first is the words “the evidence will show” or “you will hear,” invoked as a talisman before any statement that you think might draw an objection. This is an extremely crude, extremely unsubtle approach, but you will see it with frequency because it often works. When the only guidance that a court has from the appellate authorities is that attorneys are supposed to preview evidence in opening, saying, in effect, “I am now about to preview evidence” can sometimes be good enough.
Second, you should avoid, if possible, the matters which most frequently draw objections in opening. These may not technically be “argument,” but are sometimes characterized as such. They include:
Excluded Evidence
Comments on Witness Credibility
Rhetorical Questions
Personal Beliefs
Vouching For Witnesses or Evidence
Statements that the Jury Should “Send a Message”
Third, you need to calibrate your rhetoric to what the judge will permit. Some courts call openings “argumentative” when they really mean “inflammatory,” “prejudicial,” or just “over-the top.” In this regard, there is no substitute for knowing where you are. In some courts any emotion or passion is deemed to insult the dignity of the proceedings. But in others, the court will expect you to put on a show and/or impart the appropriate emotional gravity to the claims being adjudicated.
There are no guarantees. But if you avoid obvious landmines, sprinkle a healthy dose of “the evidence will show,” and keep a close eye on how much emotional energy the court is comfortable with, you can maximize your chances of successfully executing on what many people believe to be the most important part of trial.
[1] See Thomas M. O’Toole, Do Jurors Make Up Their Minds After Opening Statement, 49 SEP Mont. Law 16 (2004).
[2] 424 U.S. 600, 612 (1976).
[3] 743 F.2d 1447, 1455 (11th Cir. 1984).
[4] Michael J. Ahlen, Opening Statements in Jury Trials: What are the Legal Limits?, 71 N.D. L. Rev. 701, 709 (1995).
[5] See, e.g., Jules M. Epstein, Opening Statement v. Argument – Where is the Line?, Temple University Advocacy Blog, available at: https://law.temple.edu/aer/2019/03/23/opening-statement-v-argument-where-is-the-line/ ; see also L. Timothy Perrin, From O.J. to McVeigh: The Use of Argument in the Opening Statement, 48 Emory L.J. 107, 117 (1999)
[6] L. Timothy Perrin, From O.J. to McVeigh: The Use of Argument in the Opening Statement, 48 Emory L.J. 107, 120-121 (1999)
[7] Id. at 121-122.
