If a trial is a skeleton, the opening statement is key, Fullenweider tells students

A trial is nothing more than a skeleton – and it’s the trial lawyer who gets to dress it up and make it walk.  Noted family law attorney Donn C. Fullenweider ’58 makes no bones about it: in his book, the most important component of a trial is the opening statement.

“Jurors start making up their minds with voir dire and opening statements,” he told a group of Law Center students attending the third and final session of the Trial Lawyer's Craft Speaker Series sponsored by the Blakely Advocacy Institute.   “By that time, if you don’t have half the jury on your side, you’re sunk.”

The half who wind up on your side, he added, can help convince the half-nots when deliberations begin. 

While some attorneys (especially younger ones, according to Fullenweider) believe final arguments and careful voir dire spell the difference in a courtroom, the 50-year courtroom veteran believes otherwise.  He told the group he strongly believes in laying the groundwork for a strong case – and then delivering on what you promise.

Opening statements serve as a “guide” when jurors and the judge are at their most attentive. “Have you ever been on a jury?” he asked students. “It’s God-awful!” he lamented, adding that many panelists see their task as only a long and tedious duty.  Most of them “just want it to be over,” he said.

“The concept (in the opening statement) is to lay out your case without a lot of details,” said Fullenweider.  It should never extend more than 30 minutes, even in the most complex cases.

A theme or “hook” is key, he added.  Like a good writer at the start of a novel, a good attorney must grab the jury’s attention from the beginning and hold it until the very last page of testimony.

One of his high-stakes cases revolved around the issues of faithfulness, greed, honesty, vulnerability and fraud – with the clincher being an offhand statement from the wayward husband to a marriage counselor: “I played Mary like a violin.”

Fullenweider says he alluded to the quote in his opening statement and then used it over and over throughout the trial, including in large letters on a poster board.  The jury not only awarded his client $1.2 million in punitive damages, but also added the River Oaks house and stocks she had once given to her husband.

Fullenweider offered a practical guide to opening statements, including:

• Develop the “ethos” of a case – which should include the character, credibility and values of both the client and the attorney.
• Do your homework – know and understand your case and be absolutely truthful.
• Make an outline of the case with each point noted.
• Make sure you can deliver what you promise.
• Use visual aids, but make sure they are pre-approved so the opposition won’t constantly object and disrupt the flow of the statement.
• Present the case chronologically because most people think that way.
• Mention any facts that might shed a bad light on your client, even if they are peripheral to the case. “Better you bring them up than your opposition,” he noted. 
• “Courtesy, courtesy, courtesy.” Don’t argue with the other attorneys; make your objection clear and follow the rules.
• Don’t give conclusions. Stick to the facts, ending with “What can we conclude from this?” or “…you will conclude that….” And then tell the jurors what you are asking them to do for your client.
• Remain confident of your client’s position. “You’ve got to feel it in your bones,” Fullenweider said. 

When the bones of a case are arrayed during an effective opening statement – and are then allowed to properly knit during a trial – Fullenweider says attorneys get exactly what they seek: a skeleton that can walk, talk and convince a jury to do the right thing.