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A Good Start: The Power of an Opening Statement (July 31, 2016)

A jury trial includes several parts. In the normal course, it includes jury selection, opening statements, the cases-in-chief, any rebuttal, jury instructions, and closing arguments. The jury will then deliberate and return a verdict. Each stage is important.

The opening statement, in particular, is critical. An opening statement is your chance to introduce jurors to your theory of the case. Typically, it should be chronological, fairly short, and focused on the key facts you will attempt to present. And, in my view, it should be descriptive.

A good opening should tell a good story. It should paint a vivid picture for jurors and, if possible, capture their attention—even captivate them. You want to draw them into your theory, as much as possible, while building credibility with them.

Of course, there is no magic formula. Every case is different, and thus every opening should be too. But I do think good openings, like good recipes, share certain ingredients in common. And I believe strong, descriptive language—speech that vividly evokes the senses—is a key ingredient.

I hope I included that ingredient, among others, in my opening for a recent trial. There, the defendant was charged with causing the death of another while driving a vehicle under the influence. That’s a serious charge, a felony. Though a tragic, deeply emotional case, the jury did not lose sight of the key facts, followed the law, and ultimately returned a guilty verdict. If you’re interested, here is my opening statement in that case (with alterations to protect the identities of parties and witnesses):

Ladies and gentlemen of the jury, thank you . . . for your time and for your attention.

The early morning hours of Saturday, November 15, 2014 ended tragically for Victor.

Victor’s best friend Desmond, the defendant, had been drinking alcohol at a party. Still, Desmond got behind the wheel of a car—a gray Ford Mustang in fair condition, with a spoiler on the back. Victor rode along as a passenger in the front seat.

Around 3:10 A.M., Desmond drove on 12th Street in Sparks, just south of Oddie Boulevard, near Sparks High School. He was driving southbound on 12th Street, where there’s an S-curve with a curve on the right followed immediately by a curve on the left. Desmond, who had been drinking earlier and was now speeding, could not maintain his travel lane. He lost control, spun out, and crashed into a wooden utility pole on the passenger side.

The impact on the passenger side was crushing. The passenger side cratered from the force of the impact. Wooden splinters embedded themselves in the passenger side. The no-parking curb, which was painted red, left a red streak on the front passenger-side hubcap. A body panel broke off the passenger side and stuck to the utility pole, wrapped firmly around it.

Desmond was lucky; he emerged relatively unscathed, with only a small cut on the right side of his neck and a bruise on his left shoulder. Not so for Victor.

Victor, by contrast, was severely injured and seriously wounded. As the front passenger on the passenger side, Victor had borne the brunt of the impact. He sustained multiple skull fractures. He bled profusely. Bright, thick layers of blood caked his head and face. He was unconscious and nonresponsive. He could only gargle blood and groan.

Desmond was frantic. He fled the crash scene and drove to the nearby Courtside Garden Apartments, located at 1100 15th Street, only a block or so away. He parked in an empty parking space with David inside the passenger seat, still gargling blood and groaning. Desmond knew he had to call 911; Victor was dying.

At approximately 3:20 A.M., Desmond called 911. You will hear his 911 call. You will hear him, desperate and panting. You will hear him, in the heat of the moment and in his own words, say:

“I just got in a crash accident. . . . I hit a curb.”

“Just one vehicle—just me and my friend.”

“I’m not hurt at all, but my friend is. . . . My friend is not responding, please. . . . He is not breathing, please.”

Several witnesses were on scene at the Courtside Garden Apartments, just before and right after the car crash, and before the authorities arrived.

You will hear from Wayne, an employee at the nearby Walmart, who was working the graveyard shift that morning. He clocked out just after 3 A.M. to drive home to the Courtside Garden Apartments for his one-hour meal break. He drove westbound on Oddie, yielded to oncoming traffic, then turned left to go southbound on 12th Street. It was three o’clock in the morning, so there was only one car, which turned to go southbound on 12th Street. William turned in directly behind the car and followed it. He will tell you the car was going faster than the speed limit; by the time he reached the back entrance of the apartment complex, the car was already out of sight. He will tell you that it bore a striking resemblance to Desmond’s car—a gray or light-colored car with a spoiler on the back. And he will tell you that, only 10–15 minutes later, he heard sirens and later told the police what he had seen.

You will hear from Whitney, a young lady who lives with her mom at the Courtside Garden Apartments, who was hanging out with a friend that morning. She drove her friend home and, when she returned 10–15 minutes later, she saw a gray car parked in her parking stall. She noticed the car looked, in her own words, “weird,” as if it had been T-boned on the passenger side. She will tell you that she saw Desmond in the driver seat and Victor in the passenger seat with, as she put it, a “busted and bloody face.” She wasted no time; she raced upstairs to have her mom call 911.

You will her from her mom, Wilma, who will tell you that, when her daughter ran into their apartment to tell her that someone was dying in the parking lot, Wilma immediately called 911 at 3:23 A.M. She rushed downstairs, phone in hand, and saw Desmond in the driver seat leaning over Victor, who was in the passenger seat. You will hear her 911 call. You will hear her say to Desmond: “Get off of him [Victor]; you’re making it hard for him to breathe.” And you will hear her say of Victor, “Oh my God, I don’t think he’s going to live.”

Soon after, police, fire, and others arrived.

You will hear from Officer Walker of the Sparks Police Department, who was the first law-enforcement officer on scene. Whitney flagged him down and showed him where Desmond and Victor were. Officer Walker will tell you what he saw and what he heard. He will tell you that Desmond told him: “I was drinking”; “I was driving”; and “I crashed.” Officer Walker suspected Desmond of driving under the influence.

You will hear from Fireman Washington of the Sparks Fire Department, who extricated Victor from the driver seat because he could not do so from the passenger seat; it was too damaged, and the front passenger door would not open. He will tell you that he tried life-saving measures on Victor, to no avail.

Victor was rushed to Renown Hospital where, hours later at 7:09 A.M., he was pronounced dead.

The coroner, Dr. Wagner, will testify that Victor died from massive head trauma.

You will hear from Officer Wallace of the Sparks Police Department, who conducted the DUI investigation. He will tell you that Desmond’s eyes were red, Desmond smelled like alcohol, and Desmond admitted to drinking alcohol at a party before driving. Officer Wallace arrested Desmond for DUI.

You will hear from Wendy, a licensed phlebotomist at Renown Hospital, who will tell you that she drew three samples of blood from Desmond, spaced about a half hour between draws in what is called a descending, or series, blood draw. She will tell you that she double checked that the vials of Desmond’s blood were labeled properly, the forms completed correctly, and all procedures followed carefully.

You will hear from Wanda, a criminalist at the Washoe County Crime Lab, who analyzed Desmond’s blood samples in accordance with the strict procedures of her lab. And she will testify to the presence of alcohol in Desmond’s blood.

Finally, you will hear what happened, in a recorded phone call just days after the car crash, from Desmond himself. You will hear it straight from his mouth, unadulterated and unedited. And you will hear him say, in his own words:

“I saw him [Victor] . . . basically dying in front of me.”

“That’s something I’m taking with me to the grave.”

“It was expected—it was expected—because I shouldn’t have been drinking and driving like that.”

Desmond put it best. He admitted that he expected the car crash that killed Victor. He expected it because he had been drinking and driving. And he knew that he shouldn’t have been drinking and driving like that.

That is why Mr. Lee and I are here today. That is one reason, among many, why we have charged Desmond with causing the death of Victor while driving a vehicle under the influence of alcohol. And that is why—once all the evidence is in, and based on all the facts, and by Desmond’s own words—we will ask you to return a verdict against Desmond . . . a verdict of GUILTY.

I have made this blog available for educational purposes only, not to provide specific legal advice. By using this blog, you understand that there is no attorney–client relationship between you and me. This blog should not be used as a substitute for independent legal advice from a licensed professional attorney in your state.