Opening Statements

Opening statement may be the parties' first opportunity to tell the story of their case to the jury (in Harris County, an unwritten local rule, followed by some judges, prevents the lawyers from talking about the facts of the case in jury selection). So opening statement is extremely important.

Opening statement is technically supposed to be a statement of what the evidence will show, not including argument. For example, if one witness will testify that the defendant was in the next county fifteen minutes before the murder and another will testify that it takes 30 minutes to drive from where the defendant was to the scene of the murder, those two facts would be proper to describe to the jury in opening statement. But the conclusion to be drawn from these facts -- that the defendant couldn't have committed the murder -- is argument and, technically, improper opening statement.

The great challenge of opening statement is to tell the client's story in a compelling way while staying close enough to what is technically proper that the other side's objections are overruled. That is, we want to tell the story in an innovative enough way that the jury pays attention and remembers it, without departing so far from what the judge is used to that she sustains the government's objections.

Sometimes the government will give up its opening statement. When it does so, the defense may not be able to make an opening statement until after the government has rested its case.