PRELIMINARY JURY INSTRUCTIONS

After the jury has been selected, the judge will give the jury some preliminary instructions about its duties, and an overview of the procedure for the remainder of the trial.

OPENING STATEMENTS

Rule 40(b)(2) of the Arizona Rules of Civil Procedure states:

“Each party may make a concise opening statement regarding the facts that it proposes to establish by evidence at trial. “

It sounds simple enough, but this rule makes some important non-obvious implications and also raises some questions that must be considered when you are preparing an opening statement.

…concise?

What constitutes a “concise” opening statement? The answer is — as always — it depends on the particular facts of the case. The length of time allowed for opening statements is generally directly related to the complexity of the case. In a simple case, I would probably plan for a 20-30 minute opening. In a more complex case, I might extend it to 60-90 minutes. I would be reluctant to ever go much longer than that because I would be concerned about losing the jury's interest or alienating them.

…regarding the facts?

The rule says you can make a concise statement “regarding the facts.” It does not explicitly say that you are not allowed to argue the inferences and conclusions that should be drawn from those facts; however, that is how the rule is universally interpreted and applied. That means you will not be permitted to make arguments in your opening statement. I know from personal experience that this can be a tricky concept for young lawyers to master. In my first trial, I drew several objections for my “argumentative” opening statement. I think the best way to summarize this rule is as follows: In your opening, you can tell the jury what you intend to prove, but you cannot tell the jury what conclusions it should draw from the facts you will prove.

…propose to establish by evidence at trial?

The rule limits the scope of your opening to the facts that you “propose[ ] to establish by evidence at trial.” That means that you cannot disclose any fact to the jury unless you are prepared to establish that fact by evidence at trial. For example, you would not be able to “there was a huge crowd of people who saw the truck run the red light” unless you are prepared to introduce evidence to prove that fact at trial. 

The philosophies, strategies, and tactics I've outlined above are the principles that guide our actions at Cluff Injury Lawyers. I've outlined them pedagogically to help anyone who wants to better understand these principles or improve their skills in utilizing them. 

Author: Brigham Cluff