The DelliCarpini Law Firm
Melville Law Center
225 Old Country Road
Melville, NY 11747
877.917.9560
fax 631.923.1079
www.DelliCarpiniLaw.com
John M. DelliCarpini
Christopher J. DelliCarpini (admitted in NY and DC)
What Can You Say?
The Permissible Scope of Opening Statements
by Christopher J. DelliCarpini
and John M. DelliCarpini
When it comes to opening statements, each trial lawyer relies on certain wellhoned techniques to make a favorable impression upon the jury. But what
happens when the trial judge curtails your efforts? Can you prove that you
are entitled to open as you always have?
The law on this issue is scant, but you can still prepare for opening with an
authoritative understanding of what we may and may not do.
The Right to an Opening Statement, Whatever It Is
CPLR 4016(a) contains all that the Consolidated Laws have to say on opening
statements: ―Before any evidence is offered, an attorney for each plaintiff
having a separate right, and an attorney for each defendant having a
separate right, may make an opening statement.‖
The practice commentary accompanying CPLR 4016 in McKinney’s discusses
the importance of the right to open, denial of which can warrant a new trial.1
The commentary also discusses the mentioning of dollar values in
summation, now permitted under CPLR 4016(b).2
But what is an opening? Without knowing what constitutes an opening, we
cannot know when we are denied this right.
Professor Siegel’s treatise New York Practice is of little help as to the content
of an opening statement, discussing only who has the right to open first,3 as
1
7B McKinney’s CPLR 4016 Practice Commentary. See Heilbronn v.
Herzog, 165 N.Y. 98 (1900); Lohmiller v. Lohmiller, 140 A.D.2d 497 (2nd
Dept. 1988).
2
Id. See also Carmody-Wait § 56:6.
3
David D. Siegel, New York Trial Practice § 395 (5th ed. 2011).
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well as the rare situation in which a party’s opening contains such damning
admissions as to warrant judgment against the party under CPLR 4401.4
Weinstein, Korn, & Miller’s New York Civil Practice likewise offers nothing
as to the permissible content of openings.5 What is clear, however, is that the
right to open first belongs with the party having the burden of proof, almost
invariably the plaintiff.
Fortunately, case law indicates the purpose of opening statements, and in
doing so identifies the essential elements of openings that courts must
respect.
Tisdale: The Purpose of Opening Statements
In Tisdale v. President the Court of Appeals restated, albeit in dicta, the
proper scope of openings.6 The defendant had appealed the verdict, alleging
as error the plaintiff’s counsel’s reading of the pleadings in summation. In
affirming the judgment, the Court mentioned the purpose of pleadings and
their place in openings:
The object of pleadings is to define the issue between the parties and
when an issue of fact is tried before a jury they cannot appreciate the
evidence, as it is given, unless they know the nature of the issues to be
decided. Hence it is customary and proper for counsel, in opening,
to tell the jury what the issues are as well as what they expect to
prove.7
Clearly, then, trial courts must follow precedent lest they deny parties the
right to an opening.
But counsel cannot be entitled to unfettered latitude. As shown below,
particular conduct of counsel in opening has been found so egregious as to
warrant a mistrial. What, then, are the proper boundaries on opening
statements?
4
See id. § 402. Cf. De Vito v. Katsch, 157 A.D.2d 413 (2nd Dept. 1990)
(reversing judgment where inadequacies in plaintiff’s opening did not
warrant dismissal).
5
8 Weinstein, Korn & Miller, New York Civil Practice: CPLR § 4016.00 et
seq. (2nd ed. 2005).
6
116 N.Y. 416 (1889).
7
Id. at 419 (emphasis added).
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Carrasquillo: The Rules Are The Rules
In Carrasquillo v. City of New York the court faced this question.8 Plaintiffs
moved in limine to exclude deposition testimony of an infant and to preclude
defendants from mentioning that testimony in opening. In granting the
motion in both respects, the court held that attorneys in opening are
governed by the same rules that govern attorneys generally:
The case law reveals that, at a minimum, the substance of a party’s
opening statement is limited by the lawyer’s Code of Professional
Responsibility or what is otherwise prohibited by the court as unfairly
prejudicial to another party. In so doing, the parties should be allowed
in the openings to define the issues in the case by reference to claims,
cross-claims, counterclaims, and defenses.9
In 2009 the Code was reenacted as the Rules of Professional Conduct, 22
NYCRR Part 1200.10 The regulations still broadly indicate, however, that
counsel are entitled to pursue the aims of opening—stating the contentions
and what the evidence will prove toward those contentions—as long as they
conduct themselves ethically.
Rule 3.1: Non-meritorious Claims and Contentions bars lawyers from
raising claims and defenses that are frivolous, i.e., either unwarranted under
existing law, known to be materially false, or with no purpose save delay.11
This appears more applicable to the pleadings stage,12 but on its face would
bar counsel from trying to resurrect in opening any contentions that have
already been dismissed or stricken from the pleadings. 13
Rule 3.2: Delay of Litigation also forbids tactics with no substantial
purpose other than delay or needless expense.14 This rule has no analogue in
the old Code, but it would appear to support trial judges in imposing time
limits on opening, particularly where those limits apply to both parties. One
could imagine, though that some time limit could be found on appeal to be so
low, especially in complex trials, as effectively denying the right to an
opening.
8
22 Misc.3d 171 (Sup.Ct., Kings Co. 2008).
Id. at 173–74.
10
A chart correlating the new Rules to the former Code can be downloaded
at <www.nysba.org>.
11
22 NYCRR 1200.23.
12
See Matter of Sandvoss, 223 A.D.2d 1 (2nd Dept. 1996).
13
See Nambiar v. Alexander, 30 Misc.3d 341, 349 (Co.Ct., Suffolk Co. 2010)
(rejecting argument for admitted lack of basis in law or fact).
14
22 NYCRR 1200.24.
9
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Rule 3.3: Conduct Before a Tribunal forbids misleading conduct in a
variety of ways, even imposing an affirmative duty on counsel to remedy
fraudulent conduct known to the attorney.15 Subsection (f) even requires
lawyers to comply with local customs or practice and not to engage in
―undignified or discourteous‖ conduct. Thus Rule 3.3 seems most applicable
to opening statements.
Rule 3.4 Fairness to Opposing Party and Counsel bars lawyers from
asserting facts unsupported by admissible evidence, asserting personal
knowledge of facts in issue or expressing personal opinion as to the justness
of a cause or the credibility of witnesses.16 Certainly counsel could fall afoul of
this rule if swept away by their own oratory, though openings are typically
more scripted than closing. Nor may a lawyer simply disregard a standing
rule of a tribunal, though one may test its validity in good faith.17
Carasquillo is only a trial court decision. But in grounding opening
statements in the Rules of Professional Conduct, it offers a reliable,
predictable rule for governing openings, and balances the need for order with
the rights of litigants. Counsel would do well to bear these regulations in
mind when crafting openings.
Order In The Court
How far, then, may a judge constrain counsel in opening without effectively
denying the right to an opening statement? Case law offers examples of
behavior in opening statements that warranted a mistrial, which a trial judge
would have been right to proscribe in advance. These cases do not necessarily
apply either the Rules or the Code. They do, however, agree with the spirit of
the regulations.
• In People v. Bonnen a prosecutor’s representation in opening that he
would produce evidence of an additional victim, when no such evidence
was introduced at trial and the prosecutor eventually admitted he had
no idea of the supposed victim’s whereabouts, warranted a reversal.18
• In O’Connell v. Jacobs, the verdict could not stand after plaintiff’s
counsel stated in opening that the plaintiff suffered from nightmares
and reenactments of the attack, when the trial court had ruled pretrial
15
22 NYCRR 1200.25.
22 NYCRR 1200.26(d).
17
22 NYCRR 1200.26(c).
18
236 A.D.2d 479 (2nd Dept. 1997).
16
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that no such evidence would be admissible.19
• In Rhoden v. Montalbo the Second Department, in ordering a new trial
on damages, directed plaintiff’s counsel not to give expert medical
testimony in his opening as he had done at the first trial.20
• In Kojala v. Horner the Second Department ordered a new trial after
defendant’s counsel claimed in opening that plaintiff’s attorney had
asked the defendant to sign a false statement, when in fact plaintiff’s
counsel had never visited the defendant.21
• In Estes v. Town of Big Flats the Third Department held it was
reversible error for plaintiff’s counsel to comment on the defendant’s
insurance policy, even in the context of proving defendant’s ownership of
the bridge on which the subject motor vehicle accident occurred.22
Courts therefore should be able to impose limits on opening to prevent any
possible violations of the Rules, based on the circumstances of the case.
Carrasquillo seems a good example of how this should work: a party moves in
limine well before trial to head off a particular problem, and the court
unambiguously resolves it before openings begin.
Closing Thoughts on Opening Statements
A few practical points derived from experience are worth noting. It is often
said that an opening is an opportunity for a second summation. Trial counsel
should keep this in mind. It is wise, however, in opening never to overreach,
and leave at least one or two important pieces of evidence for trial and
comment upon in summation.
Counsel preparing an opening statement need remember what an opening is
supposed to do, and what counsel are never supposed to do. We are free to
state the parties’ contentions and what the evidence will reveal regarding
those contentions, as long as we do not engage in conduct that is generally
proscribed.
With this in mind, an attorney should be able to craft an opening for
maximum impact with minimum interference from the court or opposing
counsel. And when a court’s limits on opening are too, well, limiting, the
19
181 A.D.2d 1064 (4th Dept. 1992).
127 A.D.2d 645 (2nd Dept. 1987).
21
40 A.D.2d 1016 (2nd Dept. 1972).
22
41 A.D.2d 681 (3rd Dept. 1973).
20
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authority above should help to persuade the court otherwise, or at least allow
counsel to make a record should those limits become an issue on appeal.
Fear not, as long as an opening is presented in the form of a good faith
statement that ―The evidence will show....‖ the diligent trial attorney should
be able to deliver a forceful, comprehensive, and effective opening.
The authors are principals of The DelliCarpini Law Firm with offices in
Melville, representing plaintiffs in personal injury matters.
Reprinted with permission, Nassau County Bar Association.