CLOSINGARGUMENTS
Opening Statement by Philip M. Burlington, Barbara Green and Christopher V. Carlyle
Function of Opening Statement
Issues concerning closing argument and opening statement frequently arise in the same case. The rules limiting closing argument generally apply to opening statement, but there are also important differences arising from their different purposes. This article discusses the function of opening statement and the rules that apply to it. Opening statement is an essential part of any trial. Despite this, there is no statute or rule giving the parties in civil cases the right to make opening statements. In fact, an early Florida Supreme Court case stated outright that there was no right at all to make an opening statement; it was within the trial court’s discretion. Juhasz v. Barton, 1 So.2d 476 (Fla. 1941). In Juhasz, the court held it was not error to limit the plaintiff’s opening to reading the pleadings to the jury. Since Juhasz, however, the concept of opening statement has evolved through case law. Courts now recognize that “many experienced trial lawyers contend, and the available empirical jury studies tend to confirm, an opening statement is frequently the most critical stage in the trial of a lawsuit, as here the jury forms its first and often lasting impression of the case.” Maleh v. Fla. E. Coast Prop., Inc., 491 So.2d 290, 291 (Fla. 3rd DCA 1986). According to the current view, opening statement must be “more than a bland, bare-bones overview of the case with no opportunity to delve into the critical details of the forthcoming testimony.” 491 So.2d at 291.
[A] properly presented opening statement familiarize[s] the jury with the evidence, the nature of the case, and each party’s theory of recovery and defense. It allows jurors to better understand the evidence as it is introduced and to more accurately discern its force, effect and weight. Chin, 42 So.3d at 307 (citation omitted).
Opening Statement Is Not Evidence and Should Not Be Used as the Basis for a Directed Verdict
Opening statement is not evidence. Therefore, a court should not direct a verdict based solely on the overview presented in opening statement, before the plaintiff has had the opportunity to present any evidence. Van Hoven v. Burk, 71 So.2d 158 (Fla. 1954); Porro v. Franco, 448 So.2d 614 (Fla. 3rd DCA 1984). Nor is an opening statement by counsel an admission “in the technical sense.” Plaks v. Fla. E. Coast Ry. Co., 175 So.2d 216, 217 (Fla. 3rd DCA 1965). In Plaks, the court held that, even though defense counsel admitted in opening that his client was the engineer of the train involved in a collision, the plaintiff was still required to prove that fact with evidence at trial.
Opening Statement May Open THe Door to Certain Evidence
Still, opening statement has a “limited purpose” — “to set out the relevant, and only the relevant, facts of the case.” Music v. Hebb, 744 So.2d 1169 (Fla. 2nd DCA 1999). To briefly “outline what a party expects to prove in support of his cause of action or defense.” Chin v. Caiaffa, 42 So.3d 300, 307 (Fla. 3rd DCA 2010), quoting Juhasz, 1 So.2d at 478. Opening statement gives the jury a context for the evidence it is going to see and hear.
Even though it is not itself evidence, an attorney’s opening statement may open the door to certain kinds of evidence that might otherwise be inadmissible. For example, in Smith v. Hooligan’s Pub & Oyster Bar, Ltd., 753 So.2d 596 (Fla. 3rd DCA 2000), the court held that the defendant opened the door to evidence of the decedent’s good character by attacking his character in opening statement. Similarly, in Simmons v. Roorda, 601 So.2d 609 (Fla. 2nd DCA 1992), the plaintiff opened the door to the defendant’s “work achievements” by talking in opening about the defendant’s “poor work performance.”
Jurors are instructed that, in opening statement, “an attorney is allowed to give you [his] [her] views about what the evidence will be in the trial and what you are likely to see and hear in the testimony.” Fla. Std. Jury Inst. 202.2.
On the other hand, in Dungan v. Ford, 632 So.2d 159 (Fla. 1st DCA 1994), the court held that the plaintiff’s counsel did not open the door to evidence that the surgery plaintiff had undergone was inappropriate merely by stating in opening that he expected defendant
54 | November/December 2018 | www.FloridaJusticeAssociation.org
