OPENING STATEMENTS:
GENERAL RULES AND GUIDELINES
Patrick J. McGroder, III
Gallagher & Kennedy P.A.
Phoenix, Arizona
Amy E. Furness
Carlton Fields
Miami, Florida
Orla A. Brady
U.S. Department of Justice
Washington, D.C.
Deborah A. Elsasser
Clyde & Co US, LLP
New York, New York
Lawyers are typically given fairly wide latitude in presenting opening statements in civil
cases. There are general rules outlining appropriate conduct for opening statements but, in
practice, courts deal with objections to opening statements with curative instructions to the jury
and only in cases of unfair prejudice will a court set aside a verdict based on comments made by
an attorney during his or her opening statement. That being said, it is necessary to understand
the reasonable limits of opening statements so as to avoid having your time before the jury
interrupted by opposing counsel's objection or an admonishment from the bench.
I.
GENERAL RULES
An opening statement is a statement of the admissible evidence that will be presented to
the jury during the course of the trial. Experienced trial attorneys use opening statements to the
fullest advantage as their first opportunity to present their client's case to the jury, particularly in
courts that do not allow extensive voir dire.
During opening statement, an attorney should not:

Mislead by reference to inadmissible evidence,

Present argument
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Express personal views/opinions

Make statements regarding credibility

Use inflammatory language

Comment outside the evidence

Discuss finances of a party

Discuss counsel’s own experience

Make "Golden Rule" statements

Refer to facts of the case not substantiated by evidence

Ask the jury to send a message
Use of demonstrative evidence may be allowed during an opening statement but must be
shared with opposing counsel in advance and used only with permission from the court.
Counsel must object to any improper comment to preserve the argument for appeal. Be
sure to state the specific grounds for your objection so that you do not waive any error that may
have occurred. If the objection is sustained, you should move for mistrial. A motion for mistrial
must be made before the jury is instructed.
A.
New York Cases
In civil cases in New York, references to insurance coverage, inadmissible evidence or
inapplicable law during an opening statement can require the granting of a new trial if the
appellate court finds that a timely objection was made and a curative instruction either was not
given or was insufficient to remedy the prejudicial impact of the statement. However, appellate
courts are hesitant to second-guess a trial judge’s conduct or the sufficiency of curative
instructions. Courts also will scrutinize a party’s response to objectionable conduct during the
trial and will often find waiver if an objecting party is not diligent in raising and preserving its
objections. It is important to be specific and as noted above, if the objection is sustained move
for mistrial before the jury is instructed. In order for the motion for mistrial to be timely based
on improper argument, it should be made no later than the end of the offending counsel’s
opening statement.
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Below are some New York cases addressing the permissible boundaries and general rules
applicable to opening statements.
Peterson v. County of Nassau, 995 F. Supp. 305, 319-320 (E.D.N.Y. 1998): "Trial courts
possess broad discretion to determine when the conduct of counsel is so improper as to warrant a
new trial.” Not every improper or poorly supported remark irreparably taints the proceedings.
Pappas v. Middle Earth Condominium Ass'n, 963 F.2d 534, 540 (2d Cir.1992): Only if
counsel's conduct created undue prejudice or passion, which played upon the sympathy of the
jury, should a new trial be granted. See also Matthews v. CTI Container Transport Int'l Inc., 871
F.2d 270, 278 (2d Cir.1989); Smith v. National R.R. Passenger Corp., 856 F.2d 467, 470 (2d Cir.
1988).
Rohring v. City of Niagara Falls, 192 A.D.2d 228, 230-231, 601 N.Y.S. 2d 740 (4th
Dep't 1993): "When the conduct of counsel has "permeated the trial and created a climate of
hostility that effectively destroyed the defendant's ability to obtain a fair trial, reversal is the
appropriate remedy." (citing DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184, 290 N.Y.S.2d 1
(1992)).
Johnson v. Lazarowitz, 4 A.D.3d 334, 771 N.Y.S.2d 534 (2d Dep’t 2004): Court ordered
a new trial based on inappropriate reference to insurance coverage and several “vituperative
remarks made by the attorney for the sole purpose of inducing the jury to decide the case on
passion rather than on the basis of evidence.”
Valenzuela v. City of New York, 2008 N.Y. Slip Op 9733, 59 A.D.3d 40, 869 N.Y.S.2d 49
(1 Dep’t 2008): Court reversed jury verdict and ordered new trial based on counsel’s conduct in
injecting his own view of how the accident occurred, bolstering his own credibility to the jury by
asserting that he had visited the accident scene, and accusing the defendant of fabricating
evidence.
st
GSGSB, Inc. v. New York Yankees, 1997 U.S. App. LEXIS 17433, 122 F.3d 1056 (2d Cir.
1997): Second Circuit affirmed trial court’s finding that inappropriate remarks by counsel during
opening statement were not prejudicial due to curative instructions. Counsel’s remarks included
references to inadmissible testimony, references to the death of his client for the purpose of
evoking sympathy; and unsubstantiated allegations of fraud.
Cohn v. Meyers, 509 N.Y.S.2d 603 (2d Dep't 1986): Court found that defense counsel's
opening and false remarks that the plaintiff was responsible for defendant's wrongful arrest and
three-day incarceration, were made with utter disregard for the truth and created a "substantial
possibility of injustice" which was not cured by the trial judge's jury instruction.
Patrick J. McGroder, III Amy E. Furness  Orla A. Brady Deborah A. Elsasser
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Estes v. Big Flats, 41 A.D.2d 681, 340 N.Y.S.2d 950 (3d Dep't 1973): Court reversed
judgment for plaintiff in action to recover for personal injuries and property loss sustained in an
automobile accident where counsel for the plaintiff referred to the fact that defendant had
insurance for the claim and misrepresented defendant's statements in its pleadings. The court
stated that "in such a close case of liability this prejudicial conduct cannot be condoned and
constitutes reversible error."
Cherry Creek Nat. Bank v. Fidelity & Casualty Co. of New York, 202 N.Y.S. 611, 614
(4th Dep't 1924): "The rule allowing counsel when addressing the jury the widest latitude in
discussing the evidence and presenting the client's theories falls far short of authorizing the
statement by counsel of matter not in evidence, or indulging in argument founded on no proof, or
demanding verdicts for purposes other than the just settlement of the matters at issue between the
litigants, or appealing to prejudice or passion."
O’Connell v. Jacobs, 181 A.D.2d 1064, 583 N.Y.S.2d 61 (4th Dep’t 1992): Plaintiff’s
counsel’s assertion in opening that plaintiff suffered from nightmares linking the defendant to the
assault violated court’s pre-trial ruling excluding admission of that evidence, and thus resulted in
prejudice notwithstanding trial court’s curative instruction to the jury.
B.
Aviation Cases
By their nature, aviation accident cases present many opportunities for counsel to stray
beyond the reasonable limits of opening statements. As the cases below reveal, however, courts
will consider the comments in the context of the overall opening statement in determining
whether the remarks could improperly influence the jury.
Ferguson v. Bombardier Servs. Corp., 244 Fed. Appx. 944 (11th Cir. 2007): Court found
that defense counsel's comments during opening statement referring to an accident investigation
report did not violate 10 U.S.C. § 2254(d) and was not improper because counsel "made it clear
that the defense would rely upon the CIB report for factual findings and the expert testimony
would establish the cause of the crash."
Glenn v. Cessna Aircraft Co., 32 F.3d 1462 (10 Cir. 1994): Defense counsel's remark
insinuating that the jury would never hear testimony from the pilot because he did not support
the plaintiffs' claims, coupled with the judge's refusal to allow the plaintiffs to introduce evidence
that the pilot died in the accident, was highly prejudicial to the plaintiffs. However, plaintiffs
failed to object to the remarks at trial and did not request a curative instruction. Thus, the court
denied plaintiffs' request for a new trial stating, "Counsel … cannot as a rule remain silent,
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interpose no objections, and after a verdict has been returned seize for the first time on the point
that the comments to the jury were improper and prejudicial."
Farley v. Cessna Aircraft Co., 1996 U.S. Dist. LEXIS 941 (E.D. Pa. 1996): Court held
that defense counsel's remarks in opening statement about Cessna's theory of how the accident
happened, and that the plaintiff pilot "should look in the mirror and accept responsibility" for the
crash, were merely explanations of the facts of the case from Cessna's point of view and were not
unfairly prejudicial. Likewise, defense counsel's display of a magazine cover, that was not
admitted in evidence, during closing argument, does not "rise to such a level that they were
'reasonably probable' to have improperly influenced the jury's verdict," when viewed in the
context of the entire four-week trial and where the court gave curative instructions.
Arnold v. Eastern Airlines, Inc., 712 F.2d 899 (4th Cir. 1983) (en banc), cert denied, 464
U.S. 1040 (1984): On motion for rehearing, court held that improper comments made by counsel
for the plaintiffs during opening statements and closing arguments required reversal of verdict
against defendant airline, notwithstanding curative instructions given to the jury. The
misconduct was described as egregious and included: invoking the "Golden Rule" by asking the
jurors to place themselves in the plaintiffs' shoes; direct appeals for sympathy from the jurors,
inflammatory remarks about defense witnesses and counsel, and comments regarding settlements
entered into by the airline with other claimants.
II.
GENERAL GOALS AND TIPS
Jurors are at their most attentive and open-minded at the beginning of the trial so it is
vital to make a favorable first impression. It is equally essential to have a theme that evokes a
strong emotional response from the jury so that your jury becomes emotionally invested in your
case. You do not want to use opening to simply recite evidence that the jury is going to hear.
Structure the opening in the form of a story that weaves the facts (even the bad facts) and the
theme.

Tell the story as the witnesses will present it.

Do not get bogged down in detail – you may lose the jury. Remember that jurors
expect to be entertained and get easily bored sitting and listening to lawyers talk.

Be careful about what you promise a jury in opening – your opposing counsel will
be quick to comment in summation about your failure to deliver and the jury will
hold you accountable.
Patrick J. McGroder, III Amy E. Furness  Orla A. Brady Deborah A. Elsasser
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
Establish credibility with the jury – make sure you only tell the jury about facts
that the evidence will support. If you emphasize facts that will be established
early on in the trial you can enhance your credibility from the start of the trial.

Simplify and explain technical issues so as to educate the jury and show your
knowledge of the case.

Don't use notes – show the jury that you know every aspect of your case.

Tell the jury that they are the ones who decide the facts and credibility of
witnesses – this gives them a vested interest in the process.
TIPS FROM THE PLAINTIFFS BAR
Make sure the jury hears everything from you first. Don't be afraid to introduce your
weaknesses to the jury, don't hide or ignore them. Opening Statement in the minds of many
plaintiffs' counsel is the most important moment of the trial. You have primacy on your side.
You have the ability to capture many, if not all, with your story. Make sure your themes (no
more than 2 or 3) are clearly enunciated in opening by illustrating how the evidence supports
those themes.
Never tell the jury what you say is not evidence, the Judge has already done that.
Capture their attention with several sentences right at the beginning that will captivate their
interest. Use as much demonstrative evidence as the Court will allow, doing so allows
visualization, evidences preparation and speaks to the uniqueness of your case.
IV.
TIPS FROM THE DEFENSE

Studies have shown that most jurors make up their minds at the end of opening
statement, often aligning themselves with one side and not shifting thereafter

So, it is important to develop a bond and connect with the jurors

Be prepared and organized – this is the time to put the evidence and witnesses
into proper context

Be sure to announce your theme and tell the jurors the full and complete story of
what happened
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
Remember the opening statement is a tool of persuasion

Give the jurors the facts to make their own decisions by explaining the evidence
in a way that fits into your story

Present the facts that support the defense theory in an organized, clear and
understandable manner

Use documents/photos, lists, timelines and exhibits to support the facts in an
orderly presentation

Reduce your theory to simple, understandable concepts

Introduce the jurors to technical terms

Discuss key records and experts

Disclose weaknesses and integrate them into the overall case theme

After telling the story, list for the jurors the key reasons why your client is not
liable including witnesses, evidence, events, and important legal
standards/principles

Respond to claims of the plaintiff and acknowledge facts and theories on which
there is agreement

Do not read your opening directly from a script

Remember extended discussions of the law or applicable legal principles are
premature during the opening
o However, if substantive instructions are given as preliminary instructions
before opening, then it is advisable to approach the court before opening
and ask the court for permission to discuss the law in greater detail in light
of those instructions

End by telling the jury what you are seeking
Patrick J. McGroder, III Amy E. Furness  Orla A. Brady Deborah A. Elsasser