Opening Statements: Doing it Right

16 Apr Opening Statements: Doing it Right

Posted at 21:04h in Publications by Element6

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By: Daniel Dooley and Erin H. Durant

Dooley Barristers Professional Corporation

Barrie, Ontario

Civil Litigation Skills Certificate Program: Trial from A to Z

April 16, 2013

Toronto, Ontario

“A huge portion of what [counsel] said after ‘Good morning’ needed remedial attention.”

Justice J.Q. Quinn[1]

A basketball player named LeBron James recently “posterized” an opponent. The basketball play where an offensive player leaps high in the air and slams the ball into the basket over a defender who invariably ends up on the floor is called a “dunk”. To posterize is to dunk so spectacularly over a defensive player that it leaves the player so embarrassed and exposed that it warrants reproduction on a printed poster.[2] LeBron James’ dunk over the opposing player was with such force and effect that Wikipedia satirically declared the defending player “dead” in a mock obituary.

No defender wants to be posterized during a play that is so memorable it warrants reproduction in a large poster. The posterized defensive player is usually captured for posterity in open-mouthed awe at what his opponent has just done to him.

Open-mouthed and humiliated is not how an athlete wants to be immortalized.

Being judicially-posterized is not how an advocate wants to be immortalized. We do not want to be the trial lawyer who gives a trial judge an opportunity to be witty at our expense. We do not want to be the lawyer described in the quote that opens this paper.

More than that, we do not want to be the lawyer who delivered the opening statement that just caused a mistrial. Mistrials result in significant wasted expense and unhappy clients. As well, lawyers who cause mistrials may be immortalized in reported decisions that may or may not be witty at the lawyer’s expense but which will almost certainly be critical of the lawyer’s performance.

You do not have to be a great public speaker to deliver an informative and even persuasive opening statement. You do not have to rise to heights of righteous indignation or dive to depths of despair. Great rhetoric has little to do with the task. You simply need to tell the jury where you are going with the evidence you call and the cross-examination you conduct. The evidence will do the rest.

The principles are straightforward. They just need to be followed. As will be seen, doing an opening statement “right” is as much about not doing it wrong as it is about doing it correctly.

Purpose of the Opening

There are two general purposes of the opening statement. The first is to provide the trier of fact with a brief summary of counsel’s theory of the case and the main evidence that will be called in support of that theory. The second is to explain to the trier of fact the significance of the evidence that will be presented and the relationships that may exist between different parts of the evidence.[3] The opening statement should assist the finder of fact in understanding the evidence as it unfolds at trial and the submissions of counsel at the end of the trial.[4]

In Baillargeon v. Paul Revere Life, Justice Ducharme quoted the following from Justice Sopinka’s text, The Trial of an Action, 2nd ed., as a thorough summary of the purpose of the opening:

The object of the opening is to give the court a general notion of what will be given in evidence…. In his opening, counsel states what he submits are the issues and the questions between the parties which have to be determined, what are the facts of the case, the substance of the evidence he had to adduce and its effect on proving his case…. the opening is not the occasion for detailed argument on legal questions.[5]

Indeed, the opening statement is not the occasion for any argument on legal or factual matters. Counsel who cannot resist the temptation to argue the case in the opening statement risk being rebuked by the court, and accordingly embarrassed in front of the jury, as well as having a mistrial declared.

Delivering Your Opening

General Procedure

The Rules of Civil Procedure permit counsel to make an opening statement before presenting evidence. The plaintiff’s lawyer makes an opening address at the beginning of trial. The Rules provide that the defendant’s lawyer may make an opening after the end of the plaintiff’s evidence and before calling the defendant’s evidence. However, the defendant’s lawyer may, with the trial judge’s permission, make an opening statement immediately after that of the plaintiff’s lawyer – in other words, before the plaintiff’s lawyer calls any evidence.

Where the burden of proof with respect to all matters at issue lies on the defendant in an action, the trial judge may reverse the order in which opening statements are given.[6] A reversal of the order of opening addresses is rare as the plaintiff inevitably has the burden of proving at least one issue in the case.[7]

The trial judge will usually allow the defendant’s lawyer to make an opening statement immediately after that of plaintiff’s counsel if the defence undertakes to call evidence. [8] This has been described as consistent with the letter and spirit of Rule 52.07(1), since, as noted, opening statements are to outline the positions of the respective parties and the evidence they will call.[9] However, in his text entitled On Trial, Geoffrey Adair argued that the undertaking to call evidence should not be necessary since one function of the opening statement is “to educate the trier of fact to the position of each side at an early stage”. This “tends to promote the fair trial of an action.”[10]

In our experience, most defence counsel prefer to deliver their opening statement immediately after plaintiff’s counsel opens. This is certainly our preference. However, Mr. Adair suggests that counsel consider not only the timing of the opening but also whether an opening is required at all. In Mr. Adair’s view, the general rule is that “defence counsel should not deliver an opening statement to the jury unless there is an identifiable specific benefit to be gained from the same and the advantage of the opening outweighs the potential advantages of first exposing the point on cross-examination.”[11]

Subject to the considerations suggested by Mr. Adair, if the defence decides to deliver an opening statement it is usually preferable that this be done right after the plaintiff’s opening. Doing so helps to blunt the plaintiff’s opening by presenting another context in which to consider the evidence called on the plaintiff’s behalf.[12]

Exhibits, Handouts and Demonstrative Aids

The use of demonstrative aids such as diagrams, models and PowerPoint presentations during an opening address is becoming increasingly popular, particularly in jury trials. Roger Oatley wrote in his text entitled Addressing the Jury that “we live in a very visual age. If your case is about vehicle damage and you describe the damage for 15 minutes, the juror will be wondering – why didn’t the lawyer show me a picture?”[13] Counsel should not use such aids without first obtaining leave from the trial judge in a preliminary motion before trial.[14] Counsel will be granted considerable latitude by the court to use non-contentious demonstrative aids in the course of an opening address.[15]

PowerPoint presentations have been recognized as an effective tool to assist a jury to understand an opening statement and the issues in a case.[16] If counsel intends to use PowerPoint in an opening statement, it is best practice to make opposing counsel aware and provide counsel with a copy of the PowerPoint. If there is an objection to the use of PowerPoint or other demonstrative aids, this can be addressed through a pre-trial motion.[17]

Of course, counsel must ensure that their PowerPoint presentation does not violate the previously-mentioned rules relating to opening statements.[18]

Smith v. Morelly was a personal injury action arising out of a car accident. Plaintiff’s counsel sought to use certain demonstrative aids in his opening address. Defence counsel objected. Justice C.A. Gilmour was called upon to rule on the use of these demonstrative aids: the motor vehicle accident report, photographs of vehicle damage, medical diagrams, x-rays and photographs of the plaintiff, excerpts from expert reports and a three-dimensional anatomical model.[19] Her Honour enunciated a four-part test to determine whether or not demonstrative aids can be used in an opening statement:

Will counsel using, or proposing to use, the demonstrative aid undertake to prove it?

Is the demonstrative aid relevant?

Will the demonstrative aid assist the trier of fact in understanding the case?

Is there anything unusually prejudicial about the demonstrative aid that would require it to be excluded?

Justice Gilmour ruled that all but one of the demonstrative aids could be used in counsel’s opening statement. The plaintiff would prove each demonstrative aid in evidence, they were all relevant, none were exaggerated or misleading and each would be helpful to the jury. [20] However, to address the concerns expressed by the defendant’s lawyer, Her Honour agreed to include a short statement in her introductory remarks to the jury that plaintiff’s counsel was not an expert who was giving evidence and that reference to the demonstrative aids during counsel’s opening statement was simply a mechanism by which to assist the jury with what they were going to hear in the case.[21]

On the other hand, Justice Gilmour ruled that the excerpts from expert reports should not be put before the jury in the opening statement. After cross-examination of the expert, the jury might not accept some of the conclusions in the expert’s report.[22]

Counsel will generally be granted permission to use a demonstrative aid in counsel’s opening statement if the demonstrative aid will assist the jurors, is relevant, counsel undertakes to prove it and it is not unduly prejudicial.[23]

In non-jury trials, additional aids should be considered for the benefit of the trial judge. For example, it is not only permissible but good practice to give the judge an outline or even the full text of counsel’s opening statement as well as a timeline of the key events at issue in the litigation.[24]

Interrupting

In a non-jury trial a judge will occasionally ask counsel during their opening for clarification on certain points. Generally, opposing counsel should not interrupt during an opening address. [25] In a jury trial, neither the judge nor opposing counsel should interrupt an opening address except in the most extreme circumstances.[26] The authors of Ontario Courtroom Procedure warn that while it is never appropriate for opposing counsel to interrupt an opening statement simply to disrupt the effect of the address, it is also not appropriate to interrupt on any of these grounds:

disagreement with the accuracy of a statement of fact;

disagreement with a theory or interpretation of facts;

discomfort with the tone;

disagreement with what is raised as an issue of fact or law; or

disagreement with what the address says about the law.[27]

The principle reasons for not objecting during opposing counsel’s opening are civility and collegiality.[28] Justice Groves of the British Columbia Supreme Court has written that “there is a long-established practice that you interrupt an opening or closing of an opponent at your peril. In the somewhat collegial way in which law is practiced in this province it is viewed as a tremendous interruption, disadvantage and inappropriate action to interrupt a counsel in their opening or closing.”[29]

If counsel believes that he or she is witnessing an inappropriate opening address, the usual and preferred method for dealing with this is to raise the matter with the trial judge after the opponent’s opening is completed and after the jury has been excused. Inappropriate openings can be dealt with by the trial judge in a variety of different ways, including, in extreme cases, the declaration of a mistrial.[30]

What not to do in your opening

There are many ways that counsel can run into trouble with their opening statement, particularly in jury trials. As noted, this usually occurs when counsel deviates from the general purpose of the opening and tries, intentionally or inadvertently, to do something improper – such as argue the case. Common pitfalls are described below. A comprehensive list is found in Ontario Courtroom Procedure at Appendix 16.21 and 16.22.[31]

Argument

As must be emphasized by repetition, the opening statement is not counsel’s opportunity to argue the case.

Counsel may sometimes find it difficult to distinguish between what Justice Ferguson has described as “persuasive narrative”, which is entirely proper, and “overt argument”. Justice Ferguson has provided this guidance:

There is a significant distinction between overt argument and persuasive narrative. As the late John Sopinka put it, “The evidence should be marshalled in such a way that the conclusion to be drawn is obvious so that to state the issue is to answer it.” John Olah puts the point this way: “Remember, that you cannot argue your case in your opening remarks. Persuasion is achieved by arranging the evidence in a compelling manner and by the choice of language….

If the remarks of counsel do not consist of mentioning evidence which will be called, of mentioning a point of law in issue or of an explanation of how the anticipated evidence will relate to an issue, then they are irrelevant and probably constitute argument.[32]

[citations omitted]

Put another way, if counsel goes beyond informing the jurors of the evidence that will be adduced and tells the jurors what they are to do with the evidence, this is argument.[33]

Roger Oatley recommended following these three rules: a) let the facts speak for themselves; b) do not express personal opinions about the facts or the issues in the case; and c) do not tell the jury what conclusions to draw on any issue.[34]

Steven Lubet wrote of “tests” that help counsel determine if elements of their opening have descended into argument: the witness/verification test and the link test. Counsel using the “witness test” asks if a witness will actually testify to the “facts” described in the opening or if the facts will be otherwise proven. If so, the inclusion of the facts in the opening statement is proper. If not, the “fact” is really argument. The “link test” involves asking if the facts in the opening statement have independent evidentiary value or if counsel has included them in the opening statement in an attempt to tell the finder of fact how to reach a decision.[35]

Personal Opinion

It is not appropriate for counsel in an opening, or at any stage in a trial, to offer what purports to be counsel’s personal opinion.[36] Doing so is not only objectionable, but also contrary to the Rules of Professional Conduct. The commentary to Rule 4.01(1) of the Rules of Professional Conduct provides that “When acting as an advocate, a lawyer should refrain from expressing the lawyer’s personal opinions on the merits of a client’s case.”[37] Counsel may not express his or her personal beliefs about an issue, a witness (including the credibility of), opposing counsel, or the merits of the case in general.[38]

There have been several recent cases where counsel has been found to have provided inappropriate personal opinion in their opening statements. Examples of the types of remarks that have been found to violate this rule include:

“[A motorcycle] is mobile and dangerous and motorcycles try to gain an advantage in rush hour – it is particularly dangerous in rush hour when you drive, the vehicles and people become impatient and want to go into others’ lanes.”[39]

“I think it is fair from my perspective and I believe society, that the companionship between a parent and a child is fundamental. It’s fundamental to our society.”[40]

“- he was divorced from his wife in 1998 or 1999. His wife used to do his books and records. It was a bad divorce. He caught her, what’s the word – philandering – a serial philanderer. It devastated him.”[41]

“And as I was thinking last night about what I would say to you today about that loss. I had two or three drafts that I was working on and I found that I couldn’t properly put in words and I became convinced that I couldn’t communicate to you effectively about the significance of that loss as you will hear from Liz and from the family members. So I will leave it to them to tell you their story.”[42]

“This case is really about taking a stand against cases that are frivolous, and are undermining our healthcare system.”[43]

Explaining the Law

Counsel should not purport in the opening statement to explain the law to the jury. The trial judge instructs the jury on the law and how it is to be applied to the facts of the case.

However, it is recognized that it is virtually impossible for counsel to avoid some reference to the law during the opening address, “[i]t is the law, after all, that determines the relevance and importance of the facts being previewed.”[44] It is therefore permissible to frame the legal issues in general terms. A brief explanation of the legal significance of evidence will usually be allowed. However, if the remarks become intricate, lengthy or controversial, the opening statement becomes objectionable.[45]

Counsel who refer to the law in the opening statement must ensure that the reference is correct and not controversial. A slight misstatement of the law may not result in a mistrial, however counsel will probably be embarrassed by a correcting statement from the Bench. In Hoang v. Vicentini Justice Darla Wilson declared a mistrial in a jury trial for reasons that included plaintiff’s counsel having misstated the law. However, Her Honour commented that if the only error in the plaintiff’s opening address had been a misstatement of law, this could have been remedied by a correcting statement to the jury, rather than a mistrial.[46]

Appealing to Emotion, Inflammatory Statements and Irrelevant Considerations

Comments intended to arouse hostility or emotions rather than reason are prohibited. The comments are seen as encouraging jurors to decide the case on irrelevant considerations.[47] The Ontario Court of Appeal has ruled that comments made to a jury which impede the objective consideration of the evidence or that encourage assessment based on emotion and irrelevant considerations are objectionable. Such comments are “inflammatory”, in the sense that they appeal to jurors’ emotions and invite prohibited reasoning.[48]

Examples include:

“[Damages are the] only means we have of expressing the sympathy and humanity of our society.” [This is inappropriate because sympathy plays no role in the proper assessment of damages].[49]

“[The plaintiff] was an only child…. [The plaintiff’s] mother… was 75 years old at the time of this accident. If any of you have grandparents or senior parents, there’s also a sense of guidance at that phase of an individual’s life, to help guide them through the stresses that modern society is now creating for all of us.” [This statement invites the jurors to take into account their own family situations.][50]

“By the way, [the plaintiff] has never stiffed a worker in his life. Anyone who works for him is paid that day for his day’s wages. Never stiffed a person…. His concern is they have families, mortgages, rent….” [These comments are inflammatory, irrelevant and an attempt by counsel to raise sympathy for the plaintiff in a personal injury action. It was also an expression of counsel’s personal opinion.][51]

“Only the six of you have the power to right a wrong. Only the six of you have the power to award full and fair compensation. Only the six of you have the power to do justice in this case.” [This statement is inflammatory as it appeals to the jury’s emotions and mischaracterizes the role of the jury.][52]

Credibility of Witnesses

It is improper in an opening statement to comment directly on the credibility of a witness.[53] The general rule is that counsel should avoid commenting on the credibility of a potential witness, except in rare cases when credibility will be a central issue. In those circumstances it is permissible to alert the trier of fact that credibility will be a primary issue to be considered, without presenting argument on the point.[54]

Inadmissible Evidence

Counsel should not include evidence in his or her opening when the admissibility of the evidence is contested or if the evidence would only be admissible after a ruling from the trial judge.[55] If counsel is aware that the admissibility of a piece of evidence is contested, it is imperative to request a ruling from the trial judge on the admissibility of the evidence in advance of the trial if counsel wishes to mention the evidence in an opening.

Evidence from Examination for Discovery

It is inappropriate for counsel to read to the jury answers given by a party at an examination for discovery in an opening statement.[56] In Hoang, supra, plaintiff’s counsel enlarged a portion of the discovery transcript of the defendant on a screen during his opening address and told the jury that the defendant had admitted at his discovery that his actions were not those of a reasonable parent. Justice Darla Wilson noted that while the Rules provide that a party can read in discovery evidence of an adverse party as part of their case, the right to do so is subject to limitations.[57] In that case, the portion of the discovery evidence that was relied upon suggested that the defendant had admitted responsibility for the accident. Her Honour ruled that the statement would likely have been inadmissible at trial since it dealt with the very issue that was to be decided by the jury at the end of the case. As well, the excerpt was read out of context. Given that the impropriety dealt with a central issue in the case, it was seen as highly prejudicial to the defendant. Justice Wilson accordingly exercised her discretion to declare a mistrial, ruling that the prejudice caused by counsel’s improper opening statement could not be alleviated by a strong corrective statement from the Bench.[58]

Responding to an Inappropriate Opening

When faced with inappropriate remarks in an opening statement to a jury, opposing counsel should object once the opening address is completed and the jury has left the courtroom. If counsel does not object during the trial, an appeal on the basis of an improper opening will not be permitted as the impropriety is deemed to have been waived.[59] There are three potential remedies when elements of an opening are objected to by opposing counsel. A judge may provide a corrective statement to the jury, strike the jury and continue the trial as a judge sitting alone or declare a mistrial, which results in the trial starting over from the beginning with a new jury.[60]

Correcting Statement

In most circumstances, a properly crafted instruction to the jury can remedy the prejudice arising from inappropriate content in an opening statement.[61] It is only where a party suffers undue prejudice that cannot be remedied with a correction that dismissing a jury or declaring a mistrial will be considered appropriate.[62]

Justice Lauwers, who now sits on the Court of Appeal, explained that the task of the judge when faced with a motion following an inappropriate opening is to determine what rules have been offended, how serious the prejudice is to the other party, and what should be done in respect of each challenged statement and all of them collectively.[63]

Both the Supreme Court of Canada and the Ontario Court of Appeal have encouraged trial judges to, wherever possible, craft correcting statements in order to preserve the right to a jury trial and also avoid declaring a mistrial.[64] The content of the corrective statement will depend upon the transgression(s) at issue. In Trypis v. Lavigne, the trial judge included a copy his corrective statements to a jury as an appendix to his reasons.

A jury will be discharged only where the improper statements are “sufficiently serious to undermine the fairness of the trial” and they cannot be remedied by a corrective statement to the jury. [65]

Discharge Jury and Continue as Judge Sitting Alone

If the trial judge decides that the jury must be discharged, the parties will choose between continuing the trial with the judge sitting alone or having a mistrial declared and a new jury selected. Where a party who has served a jury notice insists on a jury trial, the court will not continue the trial by judge sitting alone. If the parties agree to have the matter heard by a judge sitting alone, this will be ordered.[66]

Mistrial

Although appellate courts urge trial judges to remedy inappropriate comments in opening statements by corrective statements to the jury, there are circumstances in which there is no alternative to declaring a mistrial.

A mistrial will be declared where the prejudicial effect of an improper comment cannot be overcome by a corrective statement. Improper comments may be too numerous to be remedied. In Burke v. Behan, the case that resulted in the quote at the opening of this paper, Justice J.Q. Quinn found that so much of counsel’s opening address needed “remedial attention” that providing corrective statements on all of the errors would undermine the offending counsel in the eyes of the jury. As such, the plaintiff would not receive a fair trial.[67]

In Carleton v. Beaverton Hotel, Justice J.E. Ferguson, similarly, found that counsel’s opening was “so replete with inflammatory language that even at this early stage I fear the defendants will be denied a fair trial” and that this prejudice “cannot be remedied by a caution or by limiting instructions to the jury.”[68]

Although declarations of mistrial are relatively rare, Hoang v. Vincenti saw Justice Wilson twice declare a mistrial after plaintiff counsel’s opening address. On the first occasion, Justice Wilson ruled that the opening address contained a substantial amount of argument as well as fundamental misstatement of the law. Her Honour ruled that “the cumulative effects of these comments have had a serious prejudicial effect that compromises a fair trial” and that the possible detailed corrective statement that could alleviate the problems would, at the onset of a lengthy trial, leave a negative impression of plaintiff’s counsel for the jury. [69] During the second trial, Her Honour declared a mistrial after plaintiff’s counsel referred to evidence that had been ruled inadmissible by way of pre-trial motion. The improper references had not been made “in passing” but had been “discussed for a great deal of time by plaintiff’s counsel.” Madam Justice Wilson ruled that even a strong corrective statement to the jury that they must ignore all of the comments about inadmissible evidence would not be sufficient.[70]

Costs

If a lawyer’s improper opening statement results in a mistrial, the offending party will almost always be responsible for the opposing party’s costs thrown-away for trial preparation and for attendance at trial.[71] Although we have found no reported decision fixing the amount of costs in a mistrial situation, probably because the amount has been settled, the court has directed the parties in terms of the submissions to be received concerning costs. It therefore appears that costs thrown-away are recoverable on a substantial indemnity scale.[72] Costs are also likely payable by counsel personally because the client should not to suffer from a costs award resulting solely from counsel’s choice of tactics.[73]

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Opening Statements: Doing it Right

16 Apr Opening Statements: Doing it Right

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