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Opening Statement
When the jury has been chosen and is sitting in the jury box, the presentation of the case will begin with opening statements. The plaintiff, having the burden of proof, usually goes first. I will begin by explaining the distinction between opening statements and closing arguments. The names actually give away this distinction. Opening statement is a statement; a closing argument is an argument. In other words, arguments are not appropriate in opening statements. In an opening statement, the personal injury attorney summarizes for the jury what facts he or she intends to prove during the course of the trial. The speech will usually include an introduction to what the case is about, introduction of the plaintiff, a summary of each witness and what they are expected to testify about and a summary of the documentary evidence that will be presented. Naturally, the summary presented by the plaintiff’s counsel will be presented in a favorable light to the plaintiff and the defendant’s opening will be presented in a favorable light to the defendant.
Although some inferences are typically made in the opening statement as to what the personal injury attorney wants the jury to find based on the evidence, it is technically improper to tie any “facts” into the legal principles involved. This is because the personal injury judge does not instruct the jury about what laws are applicable in the case until after all of the evidence and testimony has been presented. To illustrate this sometimes difficult distinction, in opening statement, the plaintiff’s personal injury attorney might tell the jury:
Ladies and gentlemen of the jury, you will hear testimony from the plaintiff, as well as three disinterested witnesses to the accident, that the defendant, Mr. Jones, ran the stop sign. The evidence and testimony will show that he did not slow down, but rather sped up as he approached the intersection and that as he drove through the stop sign, he crashed into Mr. Smith’s car. It would be inappropriate in the opening, but proper in closing argument, for the following, similar speech:
Ladies and gentlemen of the jury, in this state, it is illegal by statute to run a stop sign. Also, in this state, people are liable for damages caused by failing to follow their legal duties. The evidence in this case is clear that Mr. Jones breached his statutory duty to Mr. Smith by running a stop sign and crashing into Mr. Smith’s car on March 12 of last year. As such, you should find in favor of and give damages to Mr. Smith.
Do you see the difference? In the first speech, the personal injury attorney sticks just to the facts. In the second, the personal injury attorney tells the jury what duties the law imposes and argues that certain conduct of the defendant has breached such a duty. Argument must be saved for closing argument. Finally, in most courts, the defendant has the right to defer his or her opening statement until after the plaintiff’s personal injury attorney has put on all of his or her evidence. In other words, the defendant’s injury lawyer may choose to give his or her opening statement immediately after the plaintiff’s injury lawyer…or wait until the plaintiff’s personal injury attorney has put on all witnesses and evidence and then give opening statement right before putting on his or her evidence.
This is almost a moot point because it is extremely rare for the defendant to defer opening statement.
Testimony
After each side has given their opening statement, the questioning of witnesses will begin.
Witness testimony is the highlight the “meat and potatoes” of the trial. All of the plaintiff’s witnesses will testify and then, when the plaintiff is totally done presenting witnesses, the defendant’s witnesses will testify. Occasionally, a defense witness may testify during the plaintiff’s case, out of order, if necessary to accommodate a reasonable schedule. This is particularly true of doctors and other expert witnesses. When after each side has given its opening statement it is time to present witnesses, the personal injury judge will tell the plaintiff’s injury lawyer something like “call your first witness.” The plaintiff’s injury lawyer will then announce the name of the first witness and, if in the courtroom, the witness will come forward. Otherwise, the bailiff or some other court official will go out of the courtroom into the hallway to bring the witness into the courtroom.
This is a good place to talk about the concept of “witness sequestration.” This may sound like a painful type of surgery, but it is just a complicated word for an easy concept. Most courts have a policy that witnesses should not hear each other testify, because it makes it too easy to orchestrate lies. Therefore, witnesses will often not be allowed to sit in the courtroom during the testimony of other witnesses until after they have testified. They are therefore said to be “sequestered” from the courtroom and have to wait in the hallway or a witness room if provided. Many courts make an exception to the requirement of sequestration for expert witnesses, under the theory that often their testimony is based to a large degree on the testimony of other witnesses.
For example, it may be useful for an expert who heard another expert testify earlier to comment on the validity of the earlier expert’s testimony. Also, once a witness testifies, he or she is usually allowed to remain in the courtroom and hear the testimony of other witnesses. One final note: all named plaintiffs are allowed to be in the courtroom during all testimony.
This is another reason why it is good for an injured plaintiff’s spouse to bring a loss of consortium claim. If the plaintiff’s spouse is not a plaintiff, they can be sequestered and therefore not allowed to be in the courtroom to comfort and support the plaintiff. If they bring a consortium claim, they can be there.
So, the plaintiff’s personal injury attorney announces his or her witness, the bailiff gets them from the hallway and brings them into the courtroom. What next? The witness will then be asked to swear an oath administered by the personal injury judge, a court clerk, the court reporter or some other court official. A typical oath will ask the witness to swear that they will “tell the truth, the whole truth and nothing but the truth....” The witness will then be seated and questioning will begin.
“Direct examination” consists of the questions asked by the personal injury attorney who called the witness to testify. Direct examination will typically begin by asking the witness background questions such as his name, where he lives, where he works, where he went to school, etc. Then, the witness will be asked questions more pertinent to the case. For example: If the witness saw the accident, the plaintiff’s injury lawyer will ask him to describe what he saw, anyone he talked to, etc. in order to show the jury what information that witness has to offer.
Once the personal injury attorney who called the witness is finished asking questions, he or she will sit down and “pass the witness” to the other side. The injury lawyers for the other side will then be entitled to cross examine the witness. The personal injury attorney cross examining the witness will usually ask questions to discredit testimony that, on direct examination, was harmful to her client’s case and highlight testimony that was helpful to her client’s case.
For example: If the witness was called by the plaintiff’s personal injury attorney on direct examination and testified that she saw the defendant’s car run a stop sign, the defendant’s counsel on cross examination might ask how the witness knows it was the defendant’s car, how far away from the intersection was she standing, at what point did she begin watching the intersection and so on. In other words, anything at all that might discredit the witness.
The goal of cross examination is not usually to make the witness look like a liar (juries often get angry with an personal injury attorney who is “picking on” or “bullying” a witness). The goal is to make it look like the witness might not have a reliable memory or might not have perceived the event as clearly as it seemed during the direct examination.
Another example: If, on direct examination, the witness testifies that she thought the car running the stop sign was green and the defendant’s car was actually blue, the defendant’s counsel will want to point out to the jury that the witness’s memory is flawed as to the color of the car and therefore might be flawed as to other details, such as whether the car stopped at the stop sign.