Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

Sitting in a courtroom during a recent trial, I had the opportunity to hear opening statements from both the Plaintiff and the Defendant. Both sides devoted a portion of their time during these openings to stress the well-worn theme of, “What I say isn’t evidence.” Both sides emphasized that evidence only comes from documents and testimony, and not from their own comments made in opening statement. One side even went so far as to reassure the jury, “You are free to ignore what I say and wait for the evidence.” As a communications professional, it felt odd to see individuals engaged in high-stakes communication who seemed to be trying so hard to limit the relevance of what they had to say. But, it is still common for the “not evidence” refrain to be delivered at least once in opening statement.

And, of course, it is also accurate. What an attorney says, either in questioning, opening or closing, is not evidence, and evidence does indeed come in only through admitted documents and testimony. But why stress that? I imagine that attorneys do so because it is a conventional part of their routine, or because it seems humble and respectful. But thinking from the perspective of the jurors who have already been instructed that attorney statements are not evidence, I believe that these statements are at least wasted time and, at most, an implied message that their content should be considered less important to jurors. In this post, I’ll make the argument that lawyers should banish this phrase from their own content and leave the message to the judge.

Why Would You Stress that What You Say Isn’t Evidence?

Because It Is True? 

Okay, it is true. But the judge has already said it, and to the extent that this distinction is important to jurors, they already know it. An opening statement has a different function and why interfere with that function by playing down the importance of what you say?

Because It Reflects Well on You?

You might think it is a good thing to say because it shows that you respect your role and you understand and follow the rules. Okay, I suppose. But at this “first impressions” phase of the trial, I would argue that it is less important to show humility and more important to show helpfulness and confidence.

Because the Court Expects It?  

No, I don’t think so. While the judge will get a little upset if you explicitly get argumentative during opening, or if you claim or suggest that what you say is evidence. But, generally, judges want to be the ones instructing the jury. They also like to believe that, once instructed, the jury is going to understand and follow those instructions.

Because You Think It Plays Down the Importance of the Other Side’s Good Opening?

Okay, this is the only reason that comes close. Maybe, if you’re sure that your adversary’s opening statement story is more compelling than your own story could ever be, then maybe you want to play down the importance of openings generally. But the better course is usually going to be to tell a better story.

What Should You Say Instead?

Say What an Opening Is Instead of What It Isn’t

If you believe jurors need a better understanding of the opening, tell them more about what its proper purpose is. As much as it is a cliché, it isn’t a bad idea to use the line about an opening statement being like the picture on top of the puzzle box that serves as a guide to where the pieces will fit. Other ways of saying that is to note that your opening identifies the buckets that the evidence might fall into, or identifies the chapters that will keep the story clear.

Avoid the Procedure and Just Get Into the Content

In the early stages of trial, jurors are hungry for information, and that is a very valuable time. So just tell them who’s who, what happened, and why. Tell them what your position is and what you will prove over the course of trial. At this point, they won’t be so focused on the law or the specifics of the verdict form, they just want to hear the story from your perspective.

Focus on What is Helpful to the Jury

Importantly, the jurors don’t make the same distinctions that you do. They’re probably not thinking at this stage about what is “evidence” and what isn’t. Instead, they’re thinking about what is meaningful, relevant, and helpful, and what isn’t. That is the true danger of stressing that attorney statements are not evidence: It sounds like you are suggesting that they aren’t important. But what you say in opening is important, even vital, because it guides them on what they should do with the evidence once they hear it.


Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current case, contact me now.

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