The importance of mini-opening statements for the trial lawyer
Mini-opening statements are a relatively new phenomenon that is catching on in most states. A mini-opening statement is simply a 3 to 5 minute opening statement that takes place before the jury is questioned on the case. Each counsel presents an overview of the case from his or her client’s perspective and previews the issues jurors will have to decide. They are non-argumentative and are not a substitute for opening statements. It sets forth the basic positions of the parties and allows to jurors to understand what issues may spark a bias or concern for a particular juror. It follows that basic premise that a juror should know the subject matter of the litigation before exploring personal biases.
Should the juror know that “texting and driving” is going to be a big issue in the case? Or that there will be a significant amount of medical photos that some may find particularly gruesome? Or that the case involves a gang member who grew up in poverty and is now accused of a crime for which he is claiming an alibi, but the alibi witness is also a gang member? Do you think that jurors may have some biases if a personal injury lawyer Phoenix turns to is allowed to give a brief mini-opening statement concerning the fundamental outline facts of the case? Indeed, in these difficult cases, jurors will be able to give much better information concerning their biases if they are given some facts upon which to reflect on those biases. Hey, I love football, but I hate the Dallas Cowboys. I could be “fair and impartial” to the NFL, but if the specifics of the case involved an advantage that the Dallas Cowboys may achieve with a trial win, I may have to reveal some of my biases and dislike for the Dallas Cowboys and let the lawyer decide whether I am right for the case.
In certain states it can be difficult to get a judge to allow mini opening statements, even though they save time and money and will result in a better equipped jury panel to decide any case—criminal or civil. Judges are usually slow to change. It is up to the lawyers to argue effectively for the use of mini-opening statements. Below are particular arguments that have been helpful and successful in the past.
Courts should allow mini-opening statements for two reasons. First, mini-openings make the voir dire process more efficient, complete, and meaningful. These mini opening statements bring issues and relevant factors into focus for prospective jurors and the parties, and elicit better informed and candid responses during questioning. This helps parties and the court quickly uncover concerns, biases, and prejudices from the venire, and allows parties to make more effective and intelligent use of their peremptory strikes. Second, mini-openings have a time-saving and attention-grabbing advantage over a written and read “joint statement of the case.” Based on several pilot programs in California, mini-openings generate interest in the case so that prospective jurors will be less inclined to claim marginal hardships and waste time. One study also reported that mini-openings elicit greater interest from prospective jurors in fulfilling jury service.
These are not novel findings. The courts are essentially allowing the jurors to preview the back jacket of the book to determine if the book is of interest to them or if, for some reason, they have moral or philosophical objections to the book’s subject matter. Mini-openings are neither argumentative nor a substitute for opening statements. They instead permit counsel to outline their case to the venire, raise questions and concerns, and facilitate a more productive and comprehensive questioning process by providing context and interest to jurors.
Diligent counsel needs to push hard for mini opening statements as they are the best way to discover true bias of any prospective juror. The goal is to begin a case with a fair set of jurors. This tool helps facilitate that goal better than any other.