Opening statement is one of only three times where you can speak directly to the jury, the other two being jury selection and closing argument. Each of the three has its specific function and your preparation and strategy for each will differ accordingly, but there is no question that many cases are won or lost during opening statement. Some cite statistics that 80 percent of all jurors make up their minds during opening statement. It is not debatable that initial impressions made during opening statements, favorable or otherwise, often will form the basis of the ultimate jury verdict.

What you cannot do in opening. In brief: You cannot discuss matters you know cannot be proven, matters of personal knowledge of counsel, matters excluded by motions in limine, privileged matters, the size and wealth of a corporate defendant, settlement offers, subsequent repairs, tax consequences, insurance, or violate the "golden rule" (i.e., asking the jurors to award an amount that they would want to recover if they were in the same position and had suffered the same injuries as the plaintiff). What takes more time and thought is what can you do in opening.

Always make an opening statement. There is no requirement that a party give an opening statement. But it is a colossal mistake not to do so. As for a defendant, the opening statement can be made either at the beginning of the case or reserved until the close of the plaintiff’s case (and the beginning of the defendant’s case). But even then it is a huge mistake to defer the opening statement. If the plaintiff makes its opening statement at the beginning of the case and you as the defendant do not, the jurors have no context as to your arguments, the importance of witnesses, the importance of documents, the issues they should focus on, etc. All they have is the favorable impression of plaintiff’s case. If the plaintiff and its attorney have done their job, by the time you make your opening at the close of plaintiff’s case, you are likely all but done. If the plaintiff gets an opportunity to make a favorable impression at the beginning of the case, you need immediately to jump in and make your favorable impression as well. You need to rebut the plaintiff’s road map and tell the jury why the plaintiff’s witnesses and other evidence are not of the significance that the plaintiff is arguing. Waiting until the close of plaintiff’s case may be too late.

Do not tell the jurors your opening statement is "not evidence." True, it is not evidence, but it is beyond me why lawyers go out of their way to tell that to jurors. It is like telling the jurors, "What I am about to tell you is not all that important and you might as well not even listen." Don’t do it.

Never underestimate the intelligence of your jurors. I cringe when I hear lawyers blame the jurors. "I lost the case because those dumb jurors didn’t understand my complicated case." Whose fault is that? If the case is complicated and the jurors do not initially understand it, it is the lawyer’s job to make the case understandable. The failure is the fault of the lawyer, not of the juror.

However, even the smartest juror will not understand a complicated case immediately as well as the lawyer who has spent a year or more working on it. The art is to take a complicated subject and reduce it to terms so that a juror newly exposed to the facts will understand them. For example, the case is not about a contract, but is about "a promise made and expected to be kept." Find ways to explain it so the jurors will understand your case.

Focus groups are invaluable. As discussed above, sometimes the lawyer who has worked on the case for two years has difficulty seeing the forest for the trees when it comes to making its themes, theories, facts and documents understandable to a juror laying eyes upon it for the first time. Focus group exercises are a great way to test your opening. Whether it be hiring an expensive jury service or simply rounding up some employees from your firm’s copy room, give your opening statement to them and see what they understand and what they do not.

Establish your credibility in your opening statement. You can only lose your credibility once. Make sure you can prove everything you say in your opening. Anything you overpromise in opening will hurt your credibility and hurt your client’s case.

Argue the burden of proof wherever possible. Too few lawyers argue the burden of proof, whether they have it or not. This is a mistake, and I use all three opportunities (jury selection, opening and closing) to reiterate to the jury how large the burden is if I don’t have it, and how small or irrelevant it is if I do. In many cases, the evidence of one side will be fairly even compared to the evidence of the other side, with witnesses and experts canceling each other out in the eyes of the jury. If it is even, the party that has the burden of proof loses, but only if the other party makes certain the jury understands this. If you are the defendant, it is important to point out to the jury that you do not have to prove anything at any time and you can still win the case. It is important for the jurors to understand that you do not need to disprove one thing and yet they should still rule in your favor if the plaintiff has not met its burden on every issue.

Conversely, and there are many lawyers who disagree with me on this, I like to argue the burden of proof even when I do have it. That is because so many jurors have a misunderstanding of what the burden of proof is. Most of their experiences with jury trials comes from O.J., Martha Stewart, Enron or other criminal trials. If I represent the plaintiff, the jury needs to understand that I do not need to prove anything beyond a reasonable doubt; I simply need to present evidence 1 percent stronger than that which is presented against me. If my evidence is on one side of a seesaw and the other side’s evidence is on the other side, if my evidence weighs enough to make my end move 1 millimeter, they must rule in my favor. Many jurors come to the process expecting a higher burden, and they must be disabused of this notion.

Similarly, if I have the burden of proof as the plaintiff, but the important issues of the case are issues where the defendant has it, I need to hammer on that as well. For example, if I represent the plaintiff in a personal injury case, but the largest issue in dispute is comparative fault, the defendant has that burden of proof, and I need to make certain that the jury understands that I do not need to prove one thing to disprove comparative fault — that is entirely the other side’s burden.

"The evidence will show." Never (almost) say "the evidence will show." Your credibility is on the line, and (as discussed above) you would not be saying anything unless you knew it was true and you knew you could prove it. Saying it sounds like lawyer talk.

The one exception regarding "the evidence will show." The law books say an opening statement is supposed to be a vanilla statement of the facts, whereas closing argument is where you can actually argue your case. However, the best opening statements are those that verge closely to the line between statement and argument. (Arguing burden of proof might be an example.) If you argue too much, however, the other side likely will object and the judge likely will sustain it. Nothing ruins your momentum during your own opening statement like the judge lecturing you in front of the jury (i.e., you losing your credibility) because you have somehow bent the rules by arguing too far. When I am getting ready to argue as close to the line as possible, I will usually preface it with "the evidence will show." For some reason sanitizing it with that statement makes it sound like I am just stating the facts (as opposed to arguing my case). I have never had an objection sustained to such a statement, although many times I probably deserved it.

Provide a road map. After you have established your themes, tell the jury about every important piece of evidence, every important document and every witness, and why each is important. Do not expect them to figure it out on their own in the middle of trial and do not make them guess. If they understand how each piece of evidence relates to your case and know it is coming, they will have a much easier time understanding it when it does come through.

Discuss the weaknesses of your case in your opening. If you have a weakness in your case, such as a bad document or an adverse witness, you should bring it up first in your own opening statement. Then you have the ability to spin that weakness to explain to the jury why it is not actually a weakness, why it is irrelevant, etc., stealing the other side’s thunder. When opposing counsel tries to jump up and yell, "Aha, the other side is hiding X from you," the jury already heard about it.

Avoid legalese and humor. The former is difficult to understand when plain words work much better, and the latter almost never works.

Use visual aids and technology. This is the entertainment age and even jurors expect to be entertained.

Be brief to the extent possible. In a perfect world, an opening statement would never exceed 30 minutes. Some cases are simply too complicated to do everything described above in that amount of time, but do your best.

Have fun. Take your time, catch your breath, go slowly and have fun with it. Very few lawyers ever get to talk to a jury. Make it a memorable experience, for them and for you.

John S. Worden is a partner in the San Francisco office of Schiff Hardin. He has tried dozens of cases in state and federal court, in front of judges, juries and binding arbitration panels. He can be reached at jworden@schiffhardin.com.