Are You Promising Too Much in Opening Statement?”

In your opening statement, you're presenting them an image of what they should expect to experience during your trial.  But many lawyers seem tempted to oversell their cases during opening statements.  They talk about evidence that will “probably” get admitted, about statements they're “pretty sure” will be be admissible, and develop theories of their cases that will “likely” come to fruition.

Don't fall into the trap of overselling your case during opening statement.  What happens when your case doesn't live up to the image you created?  Even though you present a legally sufficient and persuasive case, when you hold yourself up to a higher standard, that's what the jury will expect.  If you don't attain that standard, they won't come back with a verdict in your favor, even if that standard is higher than what the law requires.

For example, imagine a criminal trial where the defense attorney promises to prove his client is “innocent.”  Why do that?  He doesn't need to prove the guy's innocent, he just needs to show why the government is unable to prove their case beyond a reasonable doubt.  When he assumes the extra burden of proving that his client is innocent, the jury will hold him and his case to that higher standard.  If he can't prove the defendant is innocent (even if he proves that there's a reasonable doubt in the case) his jury may vote “guilty” because they think he's failed to prove his case.

Don't make it harder to prove your case than it needs to be.  You're better off underselling your opening statement and letting the jury discover your case is actually stronger than they thought it would be during opening statement.  Unlike the airline message, where the actual experience didn't live up to the hype, you can't afford to present an image you can't live up to or make promises that you can't keep during trial.  Present a strong opening statement, but then overdeliveron your promises during your case in chief.  When your jurors discover that your case has exceeded their expectations, they'll return with the only possible verdict -- the verdict that favors your client.

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