The Three Stages of Preparing an Opening Statement

My first jury trial was scheduled to start next Monday. So I’ve spent the last few weeks preparing my opening statement. It has been a much more daunting process than I imained from all of the fake opening statements I’ve done. It was exhilirating, draining, and terrifying. And I haven’t even stood up in front of the jury yet.

Stage One: Calm Confidence

At first blush I thought: hey, I know this case backwards and forwards. I know the law. How hard could it be to craft something and put it in an order that the jury will understand? Four months ago I assumed it wouldn’t be very hard at all. I understood the importance of an opening statement. I had done dozens of mock trials and given plenty of opening statements. All that was left was putting together an outline of my case and the law.

No problem, right?

Stage Two: Freaking Out

After the first draft or two, I realized the wholly daunting task in front of me. I had to explain my side of the facts to the jury. But the problem is there are a lot of facts. That’s where the panic sets in. How could I possibly fit in everything I wanted to discuss without dragging on for an hour? What was important? What wasn’t? How much should I leave open to change based on the District Attorney’s opening statement? Was it ever a good idea to wait until after the state’s case to give my opening?

As these things floated around in my head, I found the easiest thing to do was put pen to paper and just start writing. The first draft was, more than anything, a stream of consciousness. But it allowed me to get my thoughts down on paper, which was a terrific start.

Stage Three: Revise, Practice, Revise Again

After several attempts, I organized the opening into a one page outline. That’s my preferred method. I don’t like having a script because it’s hard to follow. The bullet points make it easy to refer back to my notes if necessary. They also make it easy to memorize the order I want to do things in.

But what is the point in crafting an argument for a jury if I’m the only one who has weighed in? To help with this problem I bought pizza and invited over a bunch of my non-lawyer friends. In exchange for some free food and drinks they listened to the opening and gave very constructive feedback. Their feedback helped me with organization, wording, and explaining some of the concepts.

Now it’s time to revise. Then rinse and repeat with my girlfriend, my law partner, and finally twelve random people who couldn’t get out of jury duty.


  1. Only three stages? What about the feeling you may have missed something as you sit before the jury and the calm once it starts.

  2. I found that preparing an opening statement is immensely more difficult when you know that there are actual consequences on the line. Mock trials are great for getting you familiar with the way the procedure works, but they do little to actually prepare you for the amount of stress you feel when you start preparing. I also feel like the most difficult and stressful part of the process is sorting through what is important versus non-important. The desire to mention every positive fact has to be reigned in, but you also have to make sure you don’t leave out a pivotal fact. Opening statements are far more work than most folks would imagine.

  3. Freaking out is only step 2? I think freaking out is step 1(a), 2(a), 3 (a) … Personally, I think freaking out, in a controlled and focused way, is the hallmark of a trial attorney. It is certainly the hallmark of an attorney who gives a damn about his client and the consequences for him or her.
    If your case is a personal injury matter, I would recommend you read David Ball’s “Damages” (original, 2 or 3). Excellent overall strategy but particularly strong on opening statement.

    Now, have you freaked out about voir dire yet? Because if your jury is stacked with folks who are predisposed toward your opponent, no amount of crafting your opening, closing or anything else in between is going to matter. And I’m only partly kidding. It is that important.

  4. Gerry Spence has written about jury trials and said that, at the start. you hand your guts to the jury and hope you get them back at the end of the trial. Trials are dramatic story telling. Juries don’t reason to a conclusion deductively. They choose the narrative or story line than reflects their own predispositions and views of justice and the way the world works. Drop the legalese, tell a compelling story in the opening, leave some mystery, but make the jury want to follow your story.

  5. Avatar Guest says:

    I suggest writing out, and memorizing verbatim, your first 3 sentences and last 3 sentences. This is a good crutch. No matter how badly you screw up, you will begin and end smoothly. Have an outline about the points that you want to make in the middle. Practice your opening OUT LOUD to yourself. Don’t just mentally say it.

    Don’t argue. (i.e. DON’T say “the government cannot prove this case beyond a reasonable doubt because the the witness did not make a good identification”. Do say “You will hear that Mr. Smith identified my client, but you won’t hear him say the color of my client’s hat, or that my client had a mustache…”.

    Remember that the assistant district attorney will start preparing his case an hour before trial, and, assuming that your first trial is misdemeanor (unlike a certain other young lawyer whose mention by name will get me sued), the misdemeanor ADA won’t be much more experienced than you are.

    Good luck!

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