Tips for the practitioner regarding the function of and rules governing opening statement

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.

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.

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. [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

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.”

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

to say, as they had in the past, that the plaintiff should not have had the surgery or should not have had it done by a particular doctor. Similarly, a party does not waive an objection by referring to an issue in opening after the court has denied a motion in limine. E.g., Porter v. Vista Building Maint. Serv, Inc., 630 So.2d 205 (Fla. 3rd DCA 1994).

Opening Statement Is More Restricted than Closing Argument

The parameters of opening statement are more restrictive than those of closing argument. Because of its limited purpose to give the jury an overview of, and context for, what the evidence is expected to show “an opening statement ... is not an occasion for argument.” U. S. v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J., concurring). Florida courts have required new trials when they found the opening statement to be “overly argumentative.” See R.J. Reynolds Tobacco Co. v. Calloway, 201 So.3d 753, 765 (Fla. 4th DCA 2016).

Opening statement must be confined to what the party intends to prove with evidence. Chin v. Caiaffa, 42 So.3d 300, 307 (Fla. 3rd DCA 2010). It is legally and ethically improper for counsel in opening to tell the jury something he or she does not reasonably expect to prove. Id. If there are significant evidentiary issues that have not been resolved before trial, counsel should consider requiring a ruling that “iffy” evidence will not be mentioned in opening statement. Padovano, 5 Fla. Prac., Civil Practice §18.2: Opening Statements: Permissible Comment (2018).

Counsel is not permitted to tell the jury who got the ticket, or that nobody got a ticket, because that is not admissible in evidence. Lindo’s Rent a Car v. Standley, 590 So.2d 1114 (Fla. 4th DCA 1991). It was improper to tell the jury in opening that an expert reviewed additional tests, when counsel knew his or her testimony about those tests had been excluded. Irizarry v. Moore, 84 So.3d 1069 (Fla. 5th DCA 2012).

In addition, arguments and comments that are improper in closing argument are improper in opening statement.

Appeals to sympathy and comments on wealth or poverty are prohibited, as are golden rule arguments Id. at 308; Samuels v. Torres, 29 So.3d 1193 (Fla. 5th DCA 2010) (disclosure of defendant’s “meager income” in opening required new trial); Gov’t Employees Ins. Co. v. Kisha, 160 So.3d 549 (Fla. 5th DCA 2015). In a case against an insurer, it is improper to discuss in opening the length of time the plaintiff has been insured. Kisha, 160 So.3d at 552-553.

It is also improper in opening statement to chastise the defendant for failing to apologize, Calloway, 201 So.3d at 765; or to denigrate the defense; or to suggest that the defendant should be punished for contesting the plaintiff’s claim. Fasani v. Kowalski, 43 So.3d 805 (Fla. 3rd DCA 2010). “Conscience of the community” arguments are improper in opening statement, but they may not be reversible if not accompanied by a request to punish the defendant, where a curative instruction is given. Hood v. Valle, 979 So.2d 961 (Fla. 3rd DCA 2008).

And, while it is improper for defense counsel, in opening statement, to accuse the plaintiff of challenging the defendant’s livelihood, a curative instruction may be sufficient to cure the prejudice. Gatten v. Zachar, 932 So.2d 543 (Fla. 5th DCA 2006).

It should go without saying that appeals to racial or religious prejudice are improper. However, discussions of racial or religious issues that are relevant to the case are permissible. Engle v. Liggett Group, 945 So.2d 1246, 1272-73 (Fla. 2006).

Objections and Preservation of Issues for Appeal

The same rules for preservation of objections apply in opening and closing. See generally, e.g., Carnival Corp. v. Jiminez, 112 So.3d 513, 519-22 (Fla. 2nd DCA 2013), citing Murphy v. Int’l Robotics Sys., Inc., 766 So.2d 1010 (Fla. 2000). Preservation of objections will be the subject of a forthcoming article. Briefly, a specific, contemporaneous objection is required. If the objection is overruled, nothing further needs to be done during trial. If it is sustained, a request for curative instruction and motion for mistrial are required. Unpreserved error may be raised in a motion for new trial, but a higher, fundamental error standard applies. Murphy, supra. But see White v. Consolidated Freightways Corp., 766 So.2d 1228 (Fla. 1st DCA 2000) (specific objection to assertion in opening statement that nobody told the investigating officer that defendant’s driver had anything to do with accident was preserved when plaintiffs moved for mistrial at conclusion of opening statement, and stated that proposed curative instruction was insufficient).

A party may ask the court to reserve ruling on a motion for mistrial made during opening statement, and the court has discretion to do so. Ricks v. Loyola, 822 So.2d 502 (Fla. 2002).

Preemptively mentioning something in opening statement, in an effort to limit its impact, after a court has definitively denied that party’s motion in limine, does not waive the objection. Porter v. Vista Building Maint. Serv., Inc., 630 So.2d 205 (Fla. 3rd DCA 1993), decision approved, Sheffield v. Superior Ins. Co., 800 So.2d 197 (Fla. 2001).

Adequate Time for Opening Statement

Consistent with the modern view that opening statement should be “more than a bland, bare-bones overview of the case with no opportunity to delve into the critical details of the forthcoming testimony,” Maleh, 491 So.2d at 291, the Third DCA repeatedly has held that adequate time must be permitted for opening statement. Courts consider factors such as the length and complexity of the trial and the number of witnesses.

In Maleh, the court held that it was reversible error to limit the plaintiff’s opening statement to five minutes, and closing argument to fifteen minutes, in a “hotly contested” case in which nine witnesses testified about liability and seven witnesses testified about damages, resulting in a “rushed, scatter-gun presentation which had no real coherence to it.”

Similarly, in Cohn v. Julien, 574 So.2d 1202 (Fla. 3rd DCA 1991), the court reversed because the trial court restricted plaintiff’s counsel to 15 minutes for voir dire and 15 minutes for opening statement in a “complex and difficult” medical malpractice wrongful death case. And, in Knapp v. Shores, 550 So.2d 1155 (Fla. 3rd DCA 1989), disapproved on other grounds, Bulldog Leasing Co. v. Curtis, 630 So.2d 1060, 1061 (Fla. 1994), the court reversed because of unreasonable time limits on voir dire and closing argument, and said that a 10-minute limit on plaintiffs’ opening statement would have been an alternative ground for reversal, if it had been preserved. Knapp involved an automobile collision with two plaintiffs. Liability was admitted and, although only damages were at issue, one of the plaintiffs alleged brain damage; the medical evidence was complex, twenty witnesses testified, and the trial lasted seven days.

Other courts have used similar reasoning and made similar rulings with respect to time limits on closing argument. E.g., Bell v. Harland Rayvals Transp., Inc., 501 So.2d 1321 (Fla. 4th DCA 1987); Strong v. Mt. Dora Growers Coop., 495 So.2d 1238 (Fla. 5th DCA 1986). So, it may be logical to anticipate similar views by those courts with respect to opening statements.

The Third District also has held that, where there are multiple defendants with different theories of defense, the plaintiff must be allowed the same total amount of time as the defendants’ total time. Bullock v. Mount Sinai Hosp. of Greater Miami, Inc., 501 So.2d 738 (Fla. 3rd DCA 1987).

While we have not found a clear holding of what exactly must be done to preserve the issue of time limits for review, the courts sometimes discuss an attorney’s efforts to do so. Counsel would be wise to include, in any request for time or objection to time limits, a brief discussion of the number of witnesses and the complexity of the issues and testimony that they expect. In Maleh, for example, the attorney “strongly protested” the time limit when the court announced it, told the jury he was “going to have to talk a little fast,” and apologized to the jury “for going so fast.” The court said that the appellant demonstrated that “it was plainly a rushed presentation in which counsel was unable to preview the testimony of each of the sixteen witnesses or to go into any detail concerning the critical testimony relating either to the accident or the injuries and other damages ...” 491 So.2d at 291.

Conclusion

Opening statement is a critical part of a trial. Counsel should use opening statement to give the jury a road map to the evidence they expect to be presented, to tell the story of their case, without being argumentative, and without violating any of the rules that apply to closing argument.

PHILIP M. BURLINGTON

is a partner in the law firm of Burlington & Rockenbach, P.A. He is a Board Certified Appellate Practice attorney, who limits his practice to trial support and appeals in civil cases. Admitted to The Florida Bar in 1979, he received his B.A. degree at Johns Hopkins University in 1975 and his J.D. degree at the University of Florida in 1978. Burlington has served as chairman of the FJA Amicus Curiae Committee and is a member of the FJA Board of Directors. Burlington is the recipient of the 2000 S. Victor Tipton Award for achievement in legal writing.

CHRISTOPHER V. CARLYLE

is board certified in appellate practice and practices exclusively in the area of civil appellate litigation as a shareholder with The Carlyle Appellate Law Firm. Carlyle is chair of the Appellate Practice Section of The Florida Bar, and he has served on the Bar’s Appellate Court Rules Committee since 2009. He graduated in 1993 from the Pepperdine University School of Law, cum laude, where he served as an associate editor of the Pepperdine Law Review. Carlyle, along with his wife Shannon, received the 2012 S. Victor Tipton Award for superior achievement in legal writing.

BARBARA GREEN

handles appeals and litigation support for plaintiffs in civil cases. Admitted to The Florida Bar in 1978, Green received her B.A. from the University of Florida in 1973 and her J.D. from the University of Miami in 1978. Active in the FJA since 1982, Green serves on and has written numerous briefs for the FJA Amicus Committee and provides the Caselaw Update for the Miami-Dade Justice Association. She is a recipient of the S. Victor Tipton Award for superior achievement in legal writing and the Dade County Trial Lawyers Association. Stalwarts Award for continuous contribution to the cause of justice.