Question 1

I. Purpose of Opening Statement

Accepted Answer

To thoroughly outline what the party expects to prove in support of the cause of action or defense; to provide overview of evidence to be presented; to make it easier for jurors to understand what is to follow and to relate parts of the evidence to the whole; it is not an occasion for argument. Arizona v. Washington, 434 U.S. 497, fn. 32 (1978).
To allow counsel to outline facts expected to be proved at trial; it is not the appropriate time or place for argument. First v. State, 696 So.2d 1357 (2nd DCA 1997).
“The &#8216;opening statement&#8217; of counsel is an outline of the anticipated proof, a forecast or preview of what counsel expects the testimony to show. Its primary purpose is to inform the court and the jury in a general way of the nature of the case, the outline of the anticipated proof and the significance of the evidence as it is presented; the purpose is not to test the sufficiency or the competency of the evidence.” State v. Fleming, 523 S.W.2d 849 (Mo. Ct. App., St. Louis Dist., Div. 3, 1975).
Opening statement should not go into great detail of facts in the case, but merely state general conclusions from facts as they will develop at trial. Primary purpose of opening statement is to provide pattern for jury into which they may fit the facts as they unfold at the trial.  True function of opening statement is to briefly outline what party expects to prove in support of his claim or defense. Juhasz v. Barton, 1 So.2d 476 (Fla. 1941).
“[I]t is not improper for a prosecutor to make comments in opening statement that anticipate the defendant’s theory of the case.” Gonzalez v. State, 136 So.3d 1125 (Fla. 2014).
“[O]pening remarks are not evidence, and the purpose of opening argument is to outline what an attorney expects to be established by the evidence.” Gonzalez v. State, 136 So.3d 1125 (Fla. 2014).
To briefly outline what a party expects to prove in support of his cause of action or defense. “[A] properly presented opening statement familiarize[s] the jury with the evidence, the nature of the case, and each party’s theory of recovery and defense.  It allows jurors to better understand the evidence as it is introduced and to more accurately discern its force, effect and weight.” Chin v. Caiaffa, 42 So.3d 300 (3rd DCA 2010).

Question 2

II. Importance of Opening Statement

Accepted Answer

“Indeed, many experienced trial lawyers contend, and the available empirical jury studies tend to confirm, that an opening statement is frequently the most critical stage in the trial of a lawsuit, as here, the jury forms its first and often lasting impressions of the case.”  Maleh v. Florida East Coast Properties, Inc., 491 So.2d 290 (3rd DCA 1986).

Question 3

III. Time Limits

Accepted Answer

“Although the right to present an opening statement in a civil case is part of a party&#8217;s constitutional right to be represented by an attorney, and the court may not preclude counsel from making an opening statement to the jury, &#8220;there is discretion in the trial court to regulate addresses by counsel to the jury; and so long as no clear abuse of discretion appears and no right of due process has been violated, the court&#8217;s exercise of discretion will not be reversed.&#8221; Butler v. Flo-Ron Vending Co., 557 A.2d 730, (PA Super. Ct. 1989), citing Speer v. Barry, 503 A.2d 409, 411 (PA 1985).
5-minute time limit is arbitrary and unreasonable.  Maleh v. Florida East Coast Properties, Inc., 491 So.2d 290 (3rd DCA 1986); Bullock v. Mt. Sinai Hospital of Greater Miami, Inc., 501 So.2d 738 (3rd DCA 1987); Quarrel v. Minnervini, 510 So.2d 077 (3rd DCA 1987)
  10-minute time limit is unreasonable and constitutes reversible error. Knapp v. Shores, 550 So.2d 1155 (3rd DCA 1989), disapproved of on other grounds by Bulldog Leasing v. Curtis, 630 So.2d 1060 (Fla. 1994).
15-minute limit in complex and difficult medical malpractice wrongful death case was reversible error. Cohn v. Julien, 574 So.2d 1202 (3rd DCA 1991).
 20-minute time limit imposed by trial court was permissible. Butler v. Flo-Ron Vending Co., 557 A.2d 730, (Pa. Super. Ct. 1989).
Where there are multiple defendants with different theories of defense, plaintiff must be allowed same time as all defendants combined. Bullock v. Mt. Sinai Hospital, 501 So.2d 738 (3rd DCA 1987).

Question 4

IV. Scope of Opening Statement

Accepted Answer

Scope of opening statement is only to briefly outline what party expects to prove in support of his or her position.  Juhasz v. Barton, 1 So.2d 476 (Fla. 1941); State v. Fleming, 523 S.W.2d 849 (Mo. Ct. App., St. Louis Dist., Div. 3, 1975) – (case contains excellent discussion on purpose of opening statement and discusses what it means to “inform jury” of what case is about and to outline proof that will be used).
As a general rule, opening statement “should be brief and general, rather than detailed, and should be confined to statements based on facts which can be proved and should not include facts which are plainly inadmissible.” State v. Fleming, 523 S.W.2d 849 (Mo. Ct. App., St. Louis Dist., Div. 3, 1975).
“As a general rule, more latitude is accorded to opening statements, which are not considered as a part of the evidence, than to those made in the course of the trial itself”. Jones v. State, 194 So.2d 24 (3rd DCA 1967) – (comment in dissent by Judge Swann); See also 23A C.J.S. Criminal Law §1085).
Opening statement is not an occasion for argument. U.S. v. Dinitz, 424 U.S. 600 (1976); R.J. Reynolds v. Calloway, 201 So.3d 753 (4th DCA 2016).
Openings must be confined to what party intends to prove with evidence. It is improper to tell jury something that counsel does not reasonably expect to prove. Chin v. Caiaffa, 42 So.3d 300 (3rd DCA 2010).
Appeals to sympathy, comments on wealth or poverty of party, and golden rule arguments are improper. Samuels v. Torres, 29 So.3d 1193 (5th DCA 2010); Geico v. Kisha, 160 So.3d 549 (5th DCA 2015);  , 979 So.2d 961 (3rd DCA 2008).
In case against insurer, improper to tell jury how long plaintiff has been insured. Geico v. Kisha, 160 So.3d 549 (5th DCA 2015).
Appeals to racial or religious prejudice are improper, but discussions of relevent racial or religious issues are permissible. Engle v. Liggett Group, 945 So.2d 1246 (2006).
Where defense gives notice it will rely on particular defense, prosecutor may address that defense in opening statement. Jacobs v. State, 600 So.2d 1199 (5th DCA 1992).

Question 5

V. Disparaging or Offensive Remarks

Accepted Answer

During opening statement, counsel may not make remarks that are disparaging or offensive to opposing counsel, opposing parties, opponent’s case or witnesses, and may not make inflammatory, prejudicial comments. Theriot v. Mercer, 262 F.2d 754 (5th Cir. 1959).
Comment by prosecutor during opening statement that defendant’s alibi witness was a liar, was improper argument and personal opinion, which warrants reversal of conviction. First v. State, 696 So.2d 1357 (2nd DCA 1997).
Improper to disparage defendant for failing to apologize. R.J. Reynolds v. Calloway, 201 So.3d 753 (4th DCA 2016).
Improper to suggest defendant should be punished for contesting plaintiff’s claim. Fasani v. Kowalski, 43 So.3d 805 (3rd DCA 2010).
Improper to accuse plaintiff of challenging defendant’s livelihood, but curative instruction may be sufficient to cure any prejudice. Gatten v. Zachar, 932 So.2d 543 (5th DCA 2006).
“[W]e can envision no case in which it would be proper to insult, belittle, or demean any person or legal defense or to engage in sarcasm or disrespectful levity.  Weiand v. State, 701 So.2d 562 (Fla. 2nd DCA 1997).
Comments “impugning the integrity or credibility of opposing counsel” are improper and generally amount to fundamental error. Wicklow v. State, 43 So.3d 85 (Fla. 4th DCA 2010); Rudolph v. State, 832 So.2d 826 (Fla. 3rd DCA 2002).
“The impropriety of a prosecutor disparaging or denigrating&#8230;defense counsel is now well established.” Barnes v. State, 743 So.2d 1105 (4th DCA 1999).
For cases addressing impermissible comments in closing argument, see the Trial Toolbox outline on Closing Arguments. Comments found improper in closing argument will almost always be improper in opening statement.

Question 6

VI. Reference to Inadmissible Evidence

Accepted Answer

Counsel must be careful not to refer during opening statement to evidence that is or may be inadmissible.  If reference is made during opening statement to evidence which is later ruled inadmissible, mistrial may result, and sanctions may be imposed.  If reference is made in good faith and with reasonable belief that evidence is admissible, reference may not result in mistrial or sanctions. Frazier v. Cupp, 394 U.S. 731 (1969); People v. Martinez, 207 Cal. App. 3rd 1204 (Cal. Ct. App., 6th Dist., 1989); Goutis v. Express Transp., 699 So.2d 757 (4th DCA 1997).
Improper for defendant’s attorney to comment in opening statement that nobody at crash scene told officer that truck driver caused crash, as it was impermissible comment on inadmissible evidence by violating accident report privilege. White v. Consolidated Freightways Corp., 766 So.2d 1228 (1st DCA 2000).
If you feel that commenting on questionable admissible evidence during opening statement is necessary, consider filing motion in limine or memorandum of law regarding the issue prior to trial.  If judge makes ruling before trial, you can act accordingly.  If judge reserves ruling until during trial, your motion or brief will demonstrate your good faith and reasonable belief in the admissibility of the evidence. State v. Lyskoski, 47 Wash.2d 102 (Wash. 1955).
Improper to tell jury who got ticket, or that nobody got ticket, because that is not admissible evidence. Lindo’s Rent A Car v. Standley, 590 So.2d 1114 (4th DCA 1991).
Improper to tell jury that expert reviewed additional tests when counsel knew such testimony had been excluded. Irizarry v. Moore, 84 So.3d 1069 (5th DCA 2012).
Improper for plaintiff’s counsel to tell jury that defendant is “a furniture store with approximately 90 stores doing over a billion dollars in sales.” Werneck v. Worrall, 918 So.2d 383 (5th DCA 2006).

Question 7

VII. Improper Bolstering of Witness

Accepted Answer

Improper for prosecutor to comment during opening statement that jury will find police officer to be “very credible”, as it is impermissible bolstering of the witness. Buckner v. State, 689 So.2d 1202 (3rd DCA 1997).

Question 8

VIII. Opening the Door

Accepted Answer

Opening statement may open door to otherwise inadmissible evidence. By attacking decedent’s character during opening statement, defendant opened door to allow plaintiff to present evidence of decedent’s good character. Smith v. Hooligan’s Pub, 753 So.2d 596 (3rd DCA 2000).
Plaintiff opened door to defendant’s work achievements by talking about defendant’s poor work performance in opening. Simmons v. Roorda, 601 So.2d 609 (2nd DCA 1992).
Plaintiff’s counsel did not open door to evidence that plaintiff’s surgery was inappropriate by stating in opening that he expected defense to argue surgery was not appropriate. Dungan v. Ford, 632 So.2d 159 (1st DCA 1994).
Party does not waive objection by referring to issue in opening after court has denied motion in limine. Porter v. Vista Building, 630 So.2d 205 (3rd DCA 1994).
Comments made in opening statement do not open door for rebuttal or impeachment testimony as to matters not placed at issue by evidence. Simpson v. State, 824 So.2d 280 (4th DCA 2002).

Question 9

IX. Personal Opinion of Attorney

Accepted Answer

Improper for attorney to state personal opinion in opening statement. Sacred Heart Hospital v. Stone, 650 So.2d 676 (1st DCA 1995) (New trial required where plaintiff’s counsel commented that witness’s testimony was “ridiculous” and repeatedly injected personal opinion into opening statement).

Question 10

X. Opening Statement is Not Evidence

Accepted Answer

Opening statement is not evidence and should not be basis for directed verdict. Van Hoven v. Burk, 71 So.2d 158 (1954).
Statement by counsel during opening statement is not an “admission” by party. Opposing party must still prove fact with evidence. Plaks v. Fla. East Coast Railway, 175 So.2d 216 (3rd DCA 1965).

Question 11

XI. Use of Demonstrative Aids in Opening

Accepted Answer

A. Use of exhibits, depositions, videos, charts, visuals and other demonstrative aids during opening is within the court’s discretion. Brown v. State, 550 So.2d 527 (1st DCA 1989); Shoaf v. Geiling, 960 So.2d 41 (5th DCA 2007); Gills v. Angelis, 312 So.2d 536 (2d DCA 1975); Standard Acc. Ins. Co. v. Simpson, 10 So.2d 85 (1942); Ratner v. Arrington, 111 So.2d 82 (3d DCA 1959)

Question 12

XII. Objections and Preservation for Appeal

Accepted Answer

Same rules generally apply for opening and closing. Carnival v. Jiminez, 112 So.3d 513 (2nd DCA 2013).
If improper comment is made, opposing party must make specific, contemporaneous objection.  If overruled, nothing further is necessary.  If sustained, request for curative instruction and mistrial are required to preserve issue. Murphy v. Int’l Robotics, 766 So.2d 1010 (2000).
Party may ask court to reserve ruling on motion for mistrial made during openings, and court has discretion to do so. Ricks v. Loyola, 822 So.2d 502 (2002).

Question 13

XIII. Twelve Cardinal Principles for Opening Statement

Accepted Answer

Motivate jurors by instilling overwhelming desire to return verdict in your client’s favor.  Right from start, make jury see why there is necessity to bring you a verdict.  Do this by keying in on three primary tools of morality, emotion, and fairness.
Generate attitude of sincerity, confidence, and enthusiasm.
Create common identity between jurors and your client (and yourself).
Take wind out of opponent’s sails by exposing your weaknesses.
Use impact words and eliminate fillers and weak words such as “you know,” “kind of,” “let me suggest,” “I think.”
Make delivery exciting and interesting.  Let jurors feel they will be active participants in truth-finding process, rather than passive observers.
Remember “K.I.S.S.” – Keep it simple, stupid.
Prepare, organize and use “key phrase” outline.
Be thorough, but be concise.
Give your opening in terms of the “touchstones” of every creative and effective opening:  who, what, why, where, when, how.  Tell your story as the evidence shows it and not by the way each witness will say it.
Use demonstrative evidence.
Use strong, focused, and direct eye contact with each individual juror.

Question 14

XIV. The “Don’ts” of Opening Statement

Accepted Answer

Don’t tell jury what you are about to say is “not evidence.”
Don’t tell jury what they are about to hear is a roadmap or outline of the evidence.  Go directly into story.  Remember, a trial is in theory a “competition of stories.”
Don’t use confusing legal terminology or fancy words.
Don’t make promises you can’t keep.
Don’t divulge information which may cause your opposition to change its case or position to the detriment of your case.
Don’t rush.
Don’t cover the evidence in too much detail.
Don’t waive opening statement.
Don’t glue yourself to a podium.
Don’t be afraid to deviate from your notes or outline.

Question 15

XV. Other Considerations

Accepted Answer

Consider using a parallel opening statement, in which you parallel the activities of the tortfeasor and the plaintiff from a specified time up until incident in question.
Remember to persuade.  The case law is clear that arguing the facts or law during opening statement is improper.  However, there is no rule, statute or case that prohibits you from persuading the judge or jury during opening statement.

Opening Statements in Florida

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