Strategies Behind Powerful Opening Statements in Injury Trials

A strong opening statement is critical to helping a jury engage with a case at trial. Effective opening statements do more than communicate the facts of a case to the jury: they establish the tone for everything that follows. By setting the right mood in the courtroom, your attorney takes a decisive first step toward the result you need.

When your attorney makes an opening statement, the substantial work of the trial hasn’t been done yet: both the plaintiff and defense sides still need to present their evidence, examine their witnesses, and reveal the material that makes up the substance of their respective cases. This is why an attorney’s opening is framed as a statement, unlike his or her closing, which is framed as an argument.

In theory, opening statements are limited to the anticipated evidence that the jury will hear, not attempts at argument or persuasion based on those facts. Your attorney’s presentation of the evidence is not supposed to take the form of an argument, but an experienced and talented attorney knows how to present an opening statement that is forceful, persuasive and, perhaps, subtly adds some argument to the opening statement. 

A good attorney knows how to incorporate and highlight material that supports your case, packaging it in a way that leaves a distinct impression on the jury. Below, we reveal strategies that our trial lawyers use to craft compelling opening statements, setting the stage for a successful verdict.

Need to Know:

• A good opening statement advocates for the client through the shrewd use of factual statements.
• Good opening statements introduce the themes of the case your attorney intends to employ, engage the jury effectively, and make the facts of your case easy to understand.
• In civil cases like personal injury lawsuits, information obtained at deposition may be used as evidence during trial. Therefore, they are fair game to be used during an opening statement, broadening your attorney’s power to make your case accessible to the jury.

In This Article:

• Using “Will” Statements
• Making the Facts More Concrete
• Quoting Directly From Depositions
• Authentically Connecting With the Client’s Story
• How Attorney Scott Occhiogrosso Set Up the Opening Statement of a $110 Million Case
• Getting Ahead of The Defense

Using “Will” Statements

By the time your attorney is preparing an opening statement, he or she not only knows what facts to cite at trial, but has likely developed a strong idea of what facts will be discussed by the defense. Anticipating the arguments of your adversary and presenting them to the jury first can serve as part of the opening statement.

Statements that contain the word “will” — such as “You will learn,” “You will hear,” or “The evidence will show” — go a long way. They allow your attorney to walk the line between statement and argument, alerting the jurors to what they should be looking for as the case proceeds.

This type of approach is especially helpful in civil cases, such as your personal injury case, because your attorney can reference information obtained during deposition. This information includes not only the deposition testimony itself, but any other material that was a part of questioning at the deposition, such as photographs and contracts.

Let’s say you were injured when you slipped on a wet floor in the lobby of your office building. Early in the proceedings, your attorney deposes a witness for the defense: a building employee who claims that there was no wet floor at the time of your accident. However, your attorney realizes that the same person filed an accident report, in which he wrote that the floor was wet. The witness has now changed his story, and, if the case goes to trial, he might well change it again.  

By citing his deposition in your opening statement, your attorney can call his testimony into question before it even happens. An attorney might phrase it like this: “During this trial, you’re going to notice two things. One is a report from the day of the accident, where a witness for the defense wrote that the floor was wet where my client fell. The other is a deposition that this same witness later gave under oath, curiously offering that the floor was not wet. When this witness testifies, you will see one of two things: he will either admit that he lied under oath during his deposition or maybe he will concede that he was not telling the truth in his report, continuing to claim that the floor was not wet. You will have to ask yourself why he is changing his story.” The attorney may suggest that “stories can change, but the truth is a constant.”  

Making the Facts More Concrete

Picture an attorney whose client has been undergoing treatment for chronic pain ever since he was involved in a serious car accident several years earlier. If that attorney were to give the year that the accident occurred, describe the accident and the injury that resulted, and explain the treatment that the client has needed since that day, those facts would make a serviceable opening statement. Serviceable is not the goal, at least not at Block O’Toole & Murphy. For a great opening statement, the attorney needs to dig deeper, asking the jury to truly appreciate the plight of their client. 

Using Numbers to Illustrate the Plaintiff’s Injuries

While some facts are powerful enough to speak for themselves, others may be more abstract to a jury. An attorney’s job is to make them concrete. One way of doing this is by using numbers.

Let’s say that the client’s accident occurred four and a half years ago. If you only name a year, the members of a jury will think about a time that, to them, may seem recent. By stating that the accident occurred four and a half years ago, an attorney communicates the kind of time that does not pass quickly: the time that follows an accident which divides a life into “before” and “after.”

What did that time consist of? An attorney could say, correctly, that it consisted of many surgeries and medical treatments. But once again, precision is a helpful way of communicating with the jury. A smart attorney might obtain the data and do the math, revealing, for example, that his client had 423 doctor’s visits and took 4,000 doses of pain medication. The essential facts are the same, but the impact is different: it reflects the grueling nature of medical treatment following an injury, enabling the jury to share briefly in that emotional experience.

Reminding the Jury That the Plaintiff Is a Real Person

An attorney may also choose to introduce his or her client to the jury. The members of the jury have probably seen the client already at this point. It doesn’t matter. Many cases — particularly those that involve serious injury — force a jury to consider emotionally difficult and distressing subjects, and jurors will automatically create some mental distance between themselves and the situation. Introducing the client reminds the jury of the full weight of what the case involves — and why their presence in the room is necessary.

Quoting Directly From Depositions

As noted above, quotes from depositions can be a useful tool for pointing out inconsistencies in the defense’s case early on. But deposition quotes can also be a powerful way of catching the jury’s attention and directing it toward the reality of a client’s circumstances.

Partner Joseph Donahue used this tactic when he handled a medical malpractice case on behalf of a client who had suffered a stroke following surgery to remove a brain tumor. During deposition, our client testified about how he felt when he woke up from that surgery to find one side of his body completely paralyzed: he felt “like a fish out of water.” Donahue sought to use this during trial, feeling it would allow the jury to better understand how challenging this experience was for the Plaintiff.

Donahue used the phrase “Like a fish out of water” as the very first line of his opening statement, an effective first punch during a hotly-contested trial. The immediacy of that firsthand description forged an emotional connection between our client and the jury, and at the end of trial, they awarded him a verdict of $9,700,000 for his injuries.

Authentically Connecting With the Client’s Story

A good opening statement helps the members of the jury to sympathize with the client. No attorney can expect this type of reaction if he or she does not also strive to connect with that person.

Partners Scott Occhiogrosso and Frederick Aranki once handled a case on behalf of a 45-year-old union carpenter who fell from a scaffold, suffering knee, ankle and shoulder injuries that left him with chronic pain.

This accident didn’t just permanently disable our client from work: it deeply impacted him on a personal level. He had been a carpenter since he was in high school, and his career had enabled him to be his family’s sole provider. He was left not only unable to provide for them, but unable to interact with them as he had before. With tears in his eyes, Occhiogrosso told the jury how our client was no longer able to play basketball with his teenage son.

After Occhiogrosso delivered a powerful and emotional opening statement, it was evident to everyone in the courtroom that Occhiogrosso was connected to and invested in his client. While courtroom spectators remained unaware, Aranki already knew that Occhiogrosso had a son that was the same age as their client’s son, and it happened that they too loved to play basketball together. This bond allowed the BOM lawyers to personalize the fight.

In other words, Occhiogrosso’s reaction was authentic, and that authenticity helped his client. It was one of many factors that enabled him and Aranki to achieve a $6,080,408 jury verdict, providing for their client’s medical needs and for the needs of the family he had once supported.

How Attorney Scott Occhiogrosso Set Up the Opening Statement of a $110 Million Case

In one of the largest cases our firm ever handled, we represented a client who was struck by a falling railroad tie while riding his bike through a construction zone that a worker had told him was safe. Our client, only 23 years old at the time of his accident, was paralyzed from the waist down and would be for the rest of his life. Partners Daniel O’Toole and Scott Occhiogrosso, who handled this client’s case, sued the New York City Transit Authority in an intense trial that spanned eleven days.

Occhiogrosso carefully examined all of the details of the case, enumerating all the things that had to go wrong — failure to inspect the railroad ties, failure to properly dispose of debris, failure to clear the “drop zone” under the site, and more — for our client to have been injured as he did. He reasoned that if even one of the safety measures these circumstances called for had been correctly implemented, our client would not have been harmed.

In his opening statement, Occhiogrosso told the jury that the trial would show them eight different ways that the people responsible for protecting our client had let him down. With this declaration, he ensured that the jury was deeply engaged throughout the proceedings, watching closely for the eight different errors that the defendants in the case had made. (In fact, the process of trial uncovered a ninth error, something Occhiogrosso did not hesitate to point out in his closing argument.)

As Occhiogrosso’s use of numbers demonstrates, there is no substitute for thorough knowledge of a case when it comes to opening statements. Neither is there a substitute for thorough knowledge of the client.

Occhiogrosso had spent many hours with our client at a rehabilitation facility where he was staying during the case. One day, when they were outside together, Occhiogrosso asked his client’s permission to take several photos of him as he was — sitting in his wheelchair with the legs of his sweatpants rolled up, showing clearly how paralysis had atrophied his muscles. He also asked him to roll up his shirt and expose his back, allowing him to photograph the scars made by the railroad tie.

Occhiogrosso displayed these photographs during his opening statement. Although the jury had already seen our client in court, the photographs showed him in his daily life, profoundly and personally affected by his injuries, yet not destroyed by them.

In the first of these photographs, our client had a smile on his face. Occhiogrosso directly invited the jurors to notice that smile, pointing out that even in this unthinkable circumstance, our client still had hope. At the close of the case, the jury would return with a verdict of $110,174,972 — as of writing, the largest non-medical malpractice jury verdict in the history of New York State.

Getting Ahead of The Defense

A good opening statement does more than help the jury to sympathize with and understand a client: it also accounts for anything that a defense might use to hurt your case. In the previously-described case, for example, our client had been diagnosed with bipolar disorder in his teens — a condition that he managed appropriately with prescription medication.

We knew, however, that the defense planned to argue that he acted against common sense when he attempted to ride through the construction zone, despite the fact that an employee had waved him on. Because their case depended on the idea that our client had behaved recklessly, we knew that they might cite his diagnosis in order to paint him as unreliable and unstable.

In his opening statement, Scott Occhiogrosso mentioned our client’s diagnosis. He named the medication that his client had been prescribed for his disorder, explaining that he had been taking it since he was fifteen years old. He did not frame this explanation in a defensive way: not only was he not arguing at this point, but there was nothing to defend. He brought the situation up in passing, naming it as one of many challenges his client dealt with growing up.

When the details of the case had been laid out, it was as clear to the jury as it was to us that our client had behaved responsibly, getting express permission from an employee on the construction site to ride his bike where he did. By mentioning the diagnosis in advance, Occhiogrosso demonstrated an awareness of the defense’s strategies — and made it clear that we weren’t afraid of them.

If your personal injury case goes to trial, you may be intimidated by the idea of having your attorney lay out difficult details of a case in an opening statement — for example, a prior criminal record, or even information that gives you partial liability. But total honesty, as early in a case as possible, is the best policy when it comes to getting the results you need. Being open with the jury will strengthen your credibility as a plaintiff, and a good attorney will know how to place information that a defense might otherwise use against you in the context of your larger story, helping the jury to understand you as a complex and complete person.

If you or a loved one has been injured in a serious accident, the attorneys at Block O’Toole & Murphy are here to help. We serve all five boroughs of New York City as well as the entirety of New York State. Contact us to receive a free legal consultation by calling 212-736-5300, or by filling out our online contact form.