From 100 days through
Opening Statement:
Course 3: Opening
Statement
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com
How to Be Prepared to Prepare
Your Opening Statement

Tab in Trial Binder
◦ Ideas for themes
 Plaintiff case
 Defendant case
◦ Key documents
 Plaintiff
 Defendant
◦ Key witness testimony
 Plaintiff
 Defendant
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com
Legal Principles Governing
Opening Statements

Purpose: To prepare the minds of the jury to
follow the evidence and to more readily discern
its materiality, force and effect through an
overview of the issues involved in a case
and the facts each party expects the
evidence will prove. P. v. Arnold (1926) 199 Cal.
471, 486.

Matter of Right: California Code of Civil
Procedure § 607 (jury trial); 631.7 (bench trial)
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com
Court Rules & Procedures

Time limits

“No man’s (or no women’s) land”

Mechanics of technology

Availability of podium, chalkboard, etc

Propriety of statements of law (discretionary)

Propriety of referring to pleadings (discretionary)
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com
Order of Presentation

Possible mini-opening before voir dire

Standard order: Plaintiff goes first

Defendant may follow or reserve

Court has discretion to change order for
“special reasons” (CCP § 607)
◦ Example: Sole issue is an affirmative defense
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com
Scope of Opening Statement

Description of facts & supporting evidence
◦
◦
◦
◦
Duty
Breach
Causation
Damages

Theory of case

Brief statements of law (discretionary)

References to pleadings (discretionary)
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com
Opening Statement Techniques

Use of demonstratives (e.g., PowerPoint)

Use “Rules of the Road”

Reference Burden of Proof

Start thematically—tie to evidence

Factual persuasion aka “aggressive advocacy”
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com
Aggressive Advocacy is Proper…

Trial attorneys permitted considerable
latitude:
◦ “Aggressive advocacy is not only proper but desirable. Our
jurisprudence is built upon a firm belief in the adversary
system…. Juries, characteristically composed of average men
and women, may be assumed able to withstand substantial
blandishments without surrendering their ability to reason
soberly and fairly. Recognizing these factors, reviewing courts
are not, and should not be, overly eager to reverse for conduct
which is merely moderately captious.”
◦ Love v. Wolf (1964) 226 Cal.App.2d 378, 393.
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com
…Flagrant Misconduct Isn’t

But there is a limit:
◦ “The misconduct here was intentional, blatant, and continuous
from opening statement, throughout the trial, to closing
argument.”
Love v. Wolf (1964) 226 Cal.App.2d 378, 393.
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com
Example: Love v. Wolf

After Parke-Davis “started to use this stuff all over the
country came reports of people dying from it, people
suffering from aplastic anemia and dying.”

Chloromycetin should never have been on the market and
that “what I have talked about now so far is evidence of
absolute flagrant, wanton, negligence of failure to have any
regard at all for humanity and the safety of people using
this stuff.”

“And all this time they knew that what it [chloromycetin]
caused was nothing-it was only death. That is what it was
causing, death.”

Unfounded allegations that Parke-Davis had bribed the FDA
to get approval
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com
The price of crossing the line:

“Misconduct of plaintiff's trial counsel,
egregious beyond any in our experience
or that related in any reported case
brought to our attention has resulted in
an unfair trial, a miscarriage of justice
and requires us to reverse the judgment.”
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com
Prof. Lubet’s “Argument” Tests

Witness Test: If a witness will be able to
testify to the “facts,” then opening is
permissible.

Verification Test: Can the assertion be
verified?

Link Test: Do “facts” have independent
evidentiary value or must counsel provide
“rhetorical link in probative chain?”
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com
Opening Statement Structure

Allocating time: Liability (negligence/causation) vs. Damages Ratio

Importance of outlining key areas:
Introduction
The Rules & their application here
Description of harms and losses
What I am doing in Opening
The Event
Impact of event to date (e.g.)
What doctors found*
Relevant anatomy*
Course of treatment*
Condition today*
Impact of event on plaintiff in the future
Future Medical Care*
Vocational impact*
*weave in general damages;
compare & contrast witness testimony
*weave in general damages
compare & contrast witness testimony
Discussion of dollar damages-special and general
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

Challenges to Legal Sufficiency

Nonsuit: Challenge to plaintiff’s case

M. for Directed Verdict: Challenge to
defendant’s case

Standard: “[I]t is clear that counsel has
undertaken to state all of the facts which he
expects to prove, and it is plainly evident that
the facts thus to be proved will not constitute a
cause of action or a defense, as the case may
be.”
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com
Curing Legal Insufficiency

Counsel normally permitted to reopen
statement and cure defects:

Reasonable opportunity should be given to set up
a cause of action if there is one.

Permission to enlarge opening statement
primarily in discretion of trial court

Discretion to be exercised liberally so plaintiff
with a cause of action can present it to jury even
when counsel initially failed to state in detail
necessary facts proposed to proven.
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com
References

Levine, Opening Statement (TRG 2005)

David Ball on Damages (2d ed. 2005)

Keenan & Ball, Reptile (2009)

AAJ Rules of the Road seminar
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com