“Mini-opening statements,” or short opening statements to potential jurors before jury selection (“voir dire”), are a little understood but critical aspect of trial practice.
Parties are often required to submit joint materials before the pretrial conference including a short statement of the case. See LASC LR 3.25(f)(1). As a stipulated document, though, it will be sanitized to the point of revealing little about the case other than identification of the parties and claims. On the day of jury selection, a “panel” or “venire” (“to come,” from the jury summons) of thirty to forty potential jurors will enter the courtroom and sit in the gallery. (I don’t why the French terms “venire” and “voir dire” are used for jury selection since French courts typically don’t have juries and our jury system came from the English.) The judge will greet the potential jurors, quiz for hardship and perhaps read some preliminary instructions and the short statement of the case.
After these proceedings, the clerk would ordinarily call potential jurors by name to sit in numbered chairs to be questioned in jury selection. At that moment the potential jurors would know next to nothing about the evidence or issues. For this reason, before individual jurors are called, counsel can ask for the opportunity to present a brief, or “mini,” opening statement. I am not aware of a federal rule that authorizes or bars this proceeding. California law was recently amended as of January 1, 2018: “Upon the request of a party, the trial judge shall allow a brief opening statement for counsel by each party prior to the commencement of the oral questioning phase of the voir dire process.” CCP § 222.5(d) (emphasis added).
Practice guides are relatively silent on how to use this opportunity if allowed. California Practice Guide: Civil Trials and Evidence (Rutter Group), which has entire chapters on jury selection and opening statement, only notes the existence of the brief opening statement with no tips on what to do. § 5:141.7.
The trial judge has latitude to define “brief,” but if I asked or knew another party would ask for brief opening statements, I would prepare five minutes and know what to cut if the judge allows less. Jury consultants – professionals for hire who study the art/science of decision making and consult on jury selection – recommend “losing” or “throwing” your brief opening statement, highlighting the weaknesses of your case, hopefully getting potentially biased jurors talking up the other side, thus providing grounds for dismissal for “cause,” namely bias or prejudice. (See my blog post on jury de-selection.) On the other hand, the Rutter practice guide on jury selection warns that, when revealing weaknesses, “[r]esearch indicates jurors may give greater weight to negative information conceded by counsel than they would otherwise.” California Practice Guide: Civil Trials and Evidence (Rutter Group) § 5.281.
Until someone comes up with a well-documented study, I use a muted mini-opening that discloses weaknesses and the other side’s themes without appearing to concede the case. I think it is important to have the jury see me as genuine and a reliable forecaster of the evidence. I start with who I represent, introducing my client in the courtroom, saying whether they are presenting claims or denying liability. If there is a problem on which I want to precondition the jury, such as a plaintiff asking for millions or a large corporation against an individual, I disclose that in the hopes of eliciting potential bias in voir dire. I don’t tell the potential jurors what they facts are, because they are to determine the facts. I stick to the cadence that I or the other side will present evidence tending to show something or which may persuade jurors of the facts. If there is a weakness, I tell the jury the other side will have evidence showing this weakness and say in general terms we’ll have other evidence showing this alone does not prove the claim or defense. I thank the prospective jurors and let them know I look forward to asking them questions in jury selection.
If handled well, hopefully I will get jurors potentially biased toward the other side saying things in jury selection that would provide grounds for a challenge for cause or underscore the need to remove them with a peremptory challenge.
Most trial lawyers are hard-wired to persuade. If the other side spikes the ball in the end zone during mini-opening, this provides an opportunity to get jurors talking about plaintiffs exaggerating injuries or corporations screwing the little guy, so I know whose removal to seek. I would ask jurors, directly or indirectly, for their reaction to the other side’s mini-opening, finding out who gravitated toward the other side’s braggadocio. Brief opening statements are a critical, and likely increasingly utilized, technique to talk to potential jurors. I look forward to more literature about how they can best be employed.