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71 N.D. L. Rev. 701 (1995)
Opening Statements in Jury Trials: What Are the Legal Limits

handle is hein.journals/nordak71 and id is 715 raw text is: OPENING STATEMENTS IN JURY TRIALS: WHAT ARE THE LEGAL LIMITS? MICHAEL J. AHLEN* I. INTRODUCTION All good trial attorneys realize the importance of opening state- ments. At very least, opening statements are an opportunity to give the jury an idea of what the case is about,' and to outline the evidence which will be presented.2 Opening comments also give the jury the opportuni- ty to study the attorneys and determine who can be trusted to help them reach a just verdict.3 Most litigators would agree that an effective opening statement can be a great advantage in ultimately persuading the jury.4 Some go as far as to say that trials are won or lost in openings.5 It seems beyond dispute that lawyers are paying increased attention to the importance of opening statements.6 Attorneys are being urged to be more aggressive in opening re- marks. One litigator advises attorneys to be dramatic and cast a spell during opening statements,7 while another suggests a theme for the defense in criminal cases to be Attack! Attack! Attack!8 A nationally prominent civil counsel suggests that attorneys use emotion-packed language9 and emphasize to jurors in opening that they can control the destiny of more than just the plaintiff, but also that of the defendant and all truck drivers and haulage companies in the community.'0 Some * Professor of Law, University of North Dakota School of Law; J.D., 1968,Vanderbilt University; B.A., 1965, Denison University; Private practice,1968-1970, Marion, Indiana; Deputy Prosecuting Attorney, 1969-1970, Grant County, Indiana: Trial Attorney, 1970-1979, United States Department of Justice; Assistant Chief, Criminal Section, Tax Division, 1979-1981, United States Department of Justice. Professor Ahlen has served as an instructor in trial advocacy seminars for the United States Attorney General's Advocacy Institute, The National Institute For Trial Advocacy, The National Judicial College, the North Dakota Supreme Court, the North Dakota Association of State's Attorneys, and the State Bar Association of North Dakota. I. LEONARD DECOF, ART OF ADVOCAcY- OPENING STATEMENT § 1.01 [2] (1995). 2. State v. Marmon, 154 N.W.2d 55, 62 (N.D. 1967). 3. See I FRED LANE, GOLDSTEIN TRIAL TECHNIQUE § 10.01 (Scott D. Lane ed., 1994 Supp.) (3d ed. 1984 & 1994 Supp.) (noting that opening statements can help build the jury's confidence in the attorney's theory of the case); DECOF, supra note 1. §1.01[2] (stating that establishing trust in the attorney can motivate the jury to find an adequate remedy). 4. See Weyman I. Lundquist, Advocacy in Opening Statements, in THE LITIGATION MANUAL 425, 425 (John G. Koeltl ed., 2d ed. 1989) (noting the particular importance of first impressions in litigation). 5. ALFRED S. JULIEN, OPENING STATEMENTS § 1.01 (1980 & 1993 Supp.). 6. DECOF, supra note 1, § 1.01. 7. Rikki J. Klieman, Opening Statements: How To Deliver a Convincing Opening in a Criminal Defense Case. TRIAL, Sept. 1987, at 41,42. 8. JULIEN, supra note 5, § 5.01. 9. Peter Perlman, The Compelling Opening Statement, TRtAL, May 1994, at 64, 64. 10. Id. at 67.