Opening statement is one of the most powerful tools in the lawyer’s arsenal of persuasion. At no other point in the trial will counsel so completely have the undivided attention and interest of the jurors. In opening, counsel has the first opportunity to mold the jury’s impression of the parties and the case. Make the opening compelling. This week, we’ll be looking at the influence of confirmation bias, and the law of opening statements.
I. WHY OPENING STATEMENTS ARE SO IMPORTANT
Social scientists who have studied the jury deliberation process tell us that early in the trial, perhaps after the first or second witness appears, jurors develop a mindset or bias as to which side should win. The bias, once accepted by the jury, has a tendency to become more fixed with time. Indeed, jurors often develop an unconscious loyalty to the bias and defend it against attack. After the bias develops, jurors tend to look more favorably at evidence which confirms their bias, and look more skeptically at evidence which contradicts their bias. This is what is known as “confirmation bias”.
Because biases are significant in jury decision making, it is especially important to deliver a powerful opening statement which helps jurors create an early bias favorable to your client. This almost invariably sets the tone for the rest of the trial.
II. THE LAW OF OPENING STATEMENT
“The purpose of an opening statement is to acquaint the jury with the nature of the case they have been selected to consider, advise them briefly regarding the testimony which it is expected will be introduced…and generally to give them an understanding of the case…” Henwood v. People, 57 Colo. 544, 143, p. 373 (1914). See Stines v. Hertz Corporation, 45 A.D.2d 751, 356 N.Y.S.2d 649 (2d Dep’t 1974).
As one commentator succinctly stated:
A party is always free (and is usually expected) to state the issues in the opening and set the framework for trial. In so doing, the parties should be allowed in the openings to define the issues in the case by reference to claims, cross-claims, counterclaims, and defenses. A party may reveal the substance of the pleadings in the openings, including any statements, admissions and allegations…
The right to deliver an opening statement is formalized in CPLR 4016, which states as follows:
Before any evidence is offered, an attorney for each plaintiff having a separate right, and an attorney for each defendant having a separate right, may make an opening statement. At the close of all the issues tried, an attorney for each party may make a closing statement in inverse order to the opening statement.
The right to make an opening statement is important enough that a denial of that right is deemed to be reversible error. See Conselyea v. Swift, 103 N.Y. 604 (1886), DeVito v. Katsch, 157 A.D.2d 413, 556 N.Y.S.2d 649 (2d Dep’t 1990); Lohmiller v. Lohmiller, 140 A.D.2d 497, 528 N.Y.S.2d 586 (2d Dep’t 1988).
The right to open follows the burden of proof. That is, the party with the “affirmative of the issue” has the right to open first. While the plaintiff almost always opens first, there are circumstances when the defendant proceeds first, such as when plaintiff’s claims are conceded and only the affirmative defense or counterclaim requires trial. The priority of openings is determined by the trial court. See DeVito v. Katsch, 157 A.D.2d 413, 556 N.Y.S.2d 649 (2d Dep’t 1990) (and cited cited therein).
The permissible boundaries of opening statement are vested largely in the discretion of the trial judge. See Walsh v. People, 88 N.Y. 458 (1882). Mistrials can result if prejudicial or false representations are made in opening, when the prejudice cannot be removed by curative instructions. See Cohn v. Meyers, 125 A.D.2d 524, 509 N.Y.S.2d 603 (2d Dep’t 1986); Humiston v. Rochester Institute of Technology, 195 A.D.2d 961, 601 N.Y.S.2d 751 (4th Dep’t 1993); O’Connell v. Jacobs, 181 A.D.2d 1064, 583 N.Y.S.2d 61 (4th Dep’t 1992), order aff’d, 81 N.Y.2d 797, 595 N.Y.S.2d 388, 611 N.E.2d 289 (1993).
A. Dismissal After Opening
Dismissal of the case based on counsel’s statements made in opening is available against any cause of action, whether stated in the complaint, counterclaim, cross-claim or third-party claim. See DePaolis v. City of New York, 105 Misc.2d 307, 432 N.Y.S.2d 322 (N.Y. Sup. Ct. 1980). Dismissals based on opening statements are not favored by the Courts. See, e.g., Fudge v. North Shore-Long Island Jewish Health Services Plainview and Manhasset Hosp., 117 A.D.3d 783, 986 N.Y.S.2d 490 (2d Dep’t 2014); Jones v. Davis, 307 A.D.2d 494, 763 N.Y.S.2d 136 (3d Dep’t 2003); Gleyzer v. Steinberg, 254 A.D.2d 455, 679 N.Y.S.2d 154 (2d Dep’t 1998); Seminaro v. Iadanza, 131 A.D.2d 457, 515 N.Y.S.2d 878 (2d Dep’t 1987). However, they are not unheard of. See Perretti v. City of New York, 132 A.D.2d 537, 517 N.Y.S.2d 272 (2d Dep’t 1987); Alexander v. Seligman, 131 A.D.2d 528, 516 N.Y.S.2d 260 (2d Dep’t 1987).
Dismissal of the complaint after opening is warranted when counsel for a party makes an admission or statement of fact which so completely compromises the claim that the Court must award judgment as a matter of law. That is, if the admission in the opening dooms the case to defeat. See Westchester Mall, LLC v. Hedvat, 104 A.D.3d 678, 961 N.Y.S.2d 214 (2d Dep’t 2013); Beshay v. Eberhart L.P. # 1, 69 A.D.3d 779, 893 N.Y.S.2d 242 (2d Dep’t 2010); Bellantyne v. City of New York, 19 A.D.3d 440, 440-41, 797 N.Y.S.2d 506 (2d Dep’t 2005); Clifford v. Sachem Central School District at Holbrook, 271 A.D.2d 470, 707 N.Y.S.2d 133 (2d Dep’t 2000); Schomaker v. Pecoraro, 237 A.D.2d 424, 425-426, 654 N.Y.S.2d 830 (2d Dep’t 1997); DeVito v. Katsch, 157 A.D.2d 413, 416-417 (2d Dep’t 1996); Musso v. St. Thomas Aquinas Church, 213 A.D.2d 529, 624 N.Y.S.2d 912 (2d Dep’t 1995).
For an example of a case where counsel’s opening doomed the case to defeat, dismissal based on opening was properly granted in a motor vehicle accident case where the plaintiff’s counsel, in open court, revealed the contents of a letter from the plaintiff’s own expert medical witness indicating that the plaintiff did not sustain a “serious injury” within the meaning of the Insurance Law. The statements of the plaintiff’s counsel that the expert might change his opinion at trial were highly speculative and insufficient to defeat the motion, especially since the expert reportedly said that he might not change his opinion at all. See Henderson v. Henderson, 172 A.D.2d 956, 568 N.Y.S.2d 664 (3d Dep’t 1991).
The better practice is to incorporate the basic elements of your prima facie case or defense in opening and avoid the issue of dismissal entirely. Remember, however, if your opening is challenged as inadequate, the Court has the authority to permit the attorney to repair the damage by reopening or making an offer of proof. DeVito v. Katsch, supra.
B. The Right to Open in Multi-Party Cases
The order of opening and closing can become more complicated in multi-party cases, consolidated cases or cases jointly tried. In those circumstances, the order of openings generally follows the caption.
In some cases, one party is represented by two counsel. For example, an injured plaintiff in an auto case may be simultaneously defended by insurance company counsel as a defendant and personal injury counsel as a plaintiff in the same case. In Tomassi v. Tanemunen, 58 A.D.2d 670, 395 N.Y.S.2d 747 (3d Dep’t 1978), modified on other grounds, 46 N.Y.2d 91 (1978), the Third Department held that the insurance carrier counsel representing the plaintiff as a defendant on a counterclaim could be prohibited from making an opening and closing statement. The Court held that the opening and closing statements made on behalf of that party were effectively delivered by his plaintiff’s attorney. However, the Court did find that the attorney on the counterclaim could participate in the cross-examination of witnesses. For a comprehensive review of the law governing opening statements, see Devito v. Katsch, supra.
Next week we’ll begin to look at the tools of persuasion in opening statements, and examine a few good rules to follow, as well as the rules that must be followed. Stay tuned.