By: Thomas A. Moore and Matthew Gaier
August 5th, 2014
The importance of an effective opening statement cannot be overstated for any trial, and it may be heightened in actions involving complicated medical issues. Opening statements are the lawyers’ opportunity to introduce the jury to their clients, to the significant issues in the case, and to the pertinent facts that will be proven. While the primary purpose of the opening statement is the impression it creates for the jury, it can also have legal ramifications that could impact whether the jury gets to decide the disputes. This column addresses the components of an effective opening for the jury, as well as the potential legal implications.
The opening statement sets the stage for the jury. It should start with a brief explanation of the purpose of the opening and its limitations, so as to accurately fix the jury’s expectations. You do not want the jury anticipating the whole case to be laid out or a description of all of the evidence during the opening, if that is not what will be delivered.
A plaintiff’s attorney should specifically introduce the clients to the jury, and then proceed to tell the story of what happened that has led to their being in court. It should be emphasized that before these events occurred, the plaintiff never envisioned bringing a medical malpractice lawsuit. The goal is to make the jury identify with the plaintiff as a patient whose only intention was to receive appropriate medical treatment. Background information about the plaintiff also often helps set the stage for the damages and their impact.
The discussion of the facts should include the underlying events and circumstances that led to the negligent treatment. Describe the underlying condition or the patient’s symptoms and complaints. Explain specifically what the defendant did wrong and, at least more generally, how that was related to the ultimate outcome. Phrases like departures from accepted practice or medical malpractice need not be employed, but it should be made obvious to the jury that what was done was not right.
It is important to use the opening statement to educate the jury on the medicine. This includes defining the pertinent medical terms and explaining the significance of the signs, symptoms, conditions or treatment, as the case may be. Since the first witness is typically a defendant doctor, an adequate medical background is necessary for the jury to understand the terminology and principles that will be brought out during the examination. Providing this information to the jury also helps establish the lawyer’s knowledge and credibility on these technical matters, and preempts the defendant’s effort to be the one to teach the medicine to the jury. However, care must be taken to make these concepts understandable to jurors in plain, everyday English. While the medicine should not be oversimplified, it is vital that the jury not be intimidated or confused by complex medical concepts.
One of the pivotal tasks of devising an effective opening is discerning just how much detail to provide, and what to hold back. It is absolutely critical to leave an element of surprise for the jury as the case unfolds before them. The jury should be able to experience the courtroom drama during the trial. That will not happen if jurors are told in advance of every important piece of evidence that will be revealed. The key is to identify that which they need to be told, and that which may safely be stored for the right moment.
In making this determination, it is paramount to remember that the defense counsel will have the opportunity to discuss that which the plaintiff’s lawyer opted not to. This may give the defense the advantage of addressing something the plaintiff has not, but it also poses perils. The defense may inadvertently alert plaintiff’s counsel to something they did not realize. Conversely, defense counsel may make representations concerning a subject not covered by plaintiff’s counsel, only to have evidence elicited during the trial that undermines defense counsel’s representations and credibility.
The plaintiff’s attorney faces a similar dilemma with respect to a weakness or problem in the plaintiff’s case. It should be addressed on opening, at least, to take the wind out of the defendant’s sails and, if possible, to explain it away. However, doing so may sometimes involve the risk of bringing out something of which the defense was unaware. It is always the best rule not to underestimate your opponent, and if you fail to address a problem that the defense brings out on opening, it may hurt your credibility.
Credibility is everything. Therefore, no trial lawyer should ever promise something she cannot deliver. During summations, the attorneys will be held accountable for what they said in their openings. The jurors should be told up front that you expect them to hold both sides to what they promised on openings.
Damages should not be addressed in detail on the opening statement. The jury should broadly be informed of the seriousness of the injury. If the injury is not catastrophic or disabling, the severity should not be overstated, but the jury should be made to understand that it is significant to the plaintiff.