Practice and Procedure Column

W.F. Gallagher

OPENING STATEMENT

It has been fifteen years since opening statement was introduced into Connecticut practice in civil actions. The opening statement is one of the two occasions during the trial that the trial lawyer can talk directly to the jury about the case. It is generally regarded as the best opportunity the trial lawyer has to create a favorable impression about the facts of his or her case. It is the principle of primacy, that is, what is heard first, that makes a difference in what people believe. It seems to be an article of faith among plaintiff trial lawyers that if you could make only one statement to the jury, it would be the opening statement rather than final argument.

The following is a summary of the law of opening statement, and some basic pointers on delivery.

1. Connecticut Practice Prior to 1978.

Opening statement did not exist in Connecticut practice prior to the adoption of §296 of the Practice Book in 1978. The practice was to read the pleadings. Counsel for the plaintiff read the complaint and reply while the defendant's attorney read the answer and any special defenses. Most judges prior to 1978 permitted the attorneys to paraphrase or summarize the contents of the pleadings, but no more. Opening statement as we know it today did not exist. As a result there are no reported Connecticut cases on opening statement prior to 1978, and only two since, State v. Ridley, 7 Conn. App. 503, 506, 509 A.2d 546 (1986) (noting that opening statement is not allowed by rule or statute in criminal cases) and Naughton v. Hager, 1991 Ct. CaseBase 5853 (7/26/91) (holding comments concerning defendant's dismissal from a professional association harmless).

2. §296 of the Practice Book.

§296 of the Practice Book captioned "Argument by Counsel - Opening Argument" provides:

Major revisions were made to the Rules of Practice in 1978, supplanting the 1963 Practice Book with the 1978 looseleaf edition. A committee, chaired by Hartford attorney Ralph Elliot, assisted in drafting these Practice Book revisions. Attorneys Robert Allen and Robert Ciulla, both of New Haven, served on the Elliot Committee and assisted in the drafting of the rules. When the Practice Book was published, Attorneys Ciulla and Allen published a series of articles in the Connecticut Law Tribune commenting on the then new Practice Book revisions effective July 1, 1978. Their comments were reproduced in a pamphlet which was widely circulated by the Connecticut Law Tribune. The numeration of the rules changed shortly after adoption. At the time that §296 took effect on July 1, 1978 it was numbered 232A. Ciulla and Allen state (pp. 48-49):

The rule provides no time limit on opening statement, although §297 provides that the "argument on behalf of any party shall not occupy more than one hour, unless the court, on motion for special cause, before the commencement of such argument, allows a longer time." §297 has been in existence since 1855, and is identical to §52-209. It is generally regarded as applying to final argument, not opening statement, although §296 is captioned "Argument by Counsel - Opening Argument." There is a colorable claim that §297 applies. Because §296 refers to a "brief" opening statement to apprise the trier "in general terms" to the nature of the case, it is extremely unlikely that an opening statement would be allowed anywhere near the full hour. The practice of trial judges varies widely. The general view is that opening statement usually takes no more than 10 to 20 minutes per party.

As note in the Ciulla and Allen comments, it appears that counsel can still read the pleadings.

The rule is be mandatory in a jury case, viz. " . . . counsel for any party shall be permitted to make a brief opening statement to the jury in jury cases . . ." In court cases, the opening statement is at the discretion of the presiding judge.

The purpose for the "brief opening statement" is to "apprise the trier in general terms as to the nature of the case being presented for trial."

Because of the last sentence of the rule, vesting discretion "as to the latitude of the statements of counsel" in opening statement, a wide disparity of practice first emerged, which seems to have settled down into a general practice of a 10 to 20 minute factual opening statement. There are still some trial judges before whom anything goes, and others who severely restrict the opening statement to a summary of the essential facts, and no more.

Federal practice generally does not permit opening statement. The trial preparation orders now contain a category for a "short factual summary for use by the trial judge in opening statement to the jury." On occasion individual federal judges have been known to permit opening statement, but it is not the general rule. Pursuant to Local Rule 12(d) "[O]pening statements by counsel in jury trials are not allowed, except on application made to the presiding judge out of the hearing of the jury."

3. Purpose, Scope and Importance of Opening Statement.

Chief Justice Burger, concurring in United States v. Dinitz, 424 U.S. 600, 612, 96 S.Ct. 1075, 1082, 47 L.Ed.2d 267 (1976) stated:

The importance of opening statement cannot be overemphasized. In the Spring 1990 Trial Diplomacy Journal (13 Trial Diplomacy J. 51, Spring 1990, hereinafter 13 TDJ) William Haskins and Greg Gardner, both Ph.D.s and communication consultants, in an article captioned "Organizing Opening and Closing Statements" state (13 TDJ at 52):

Truly astounding statistics; an illustration that first impressions are extremely important. As humans we tend to make a decision early on, and once we do later facts and experiences will normally buttress those feelings. The ones that don't are ignored, distinguished or condemned. This is widely experienced in viewing sporting events.

The phenomenon has been judicially recognized in State v. Washington, 182 Conn. 419, 438 A.2d 1144 (1980) wherein our Supreme Court condemned as error of constitutional dimension a trial judge's express authorization to the jurors that they could discuss the case among themselves prior to its submission to them as long as they did not "deliberate" or come to any decision in the case. The Supreme Court held that by permitting the jurors to discuss the case among themselves, either as a whole or in groups, the trial court authorized and encouraged them to give premature consideration to the evidence presented, considerations unaided by final instructions of the trial court as to the law to be applied to the facts of the case. It reasoned (182 Conn. at 426):

The court, agreeing with the Eighth Circuit in Winebrenner v. United States, 147 F.2d 322, 329 (8th Cir. 1945) went further and pronounced that (182 Conn. at 426):

These are precisely the mental processes at play on the part of jurors in opening statement. If a juror is persuaded in opening statement, he or she is committed and what occurs thereafter is either discarded or strengthens and confirms the view already committed to.

The inclination to decide on first impressions gained through opening statement is a fact of life and inherent in the nature of the process and the nature of the people participating in that process. A lawyer who fails to recognize this and does not attempt to persuade the jury in opening statement is deficient in his duty to his client, and may well be a loser in the case, as his opponent is unlikely to overlook the importance of the opening statement.

Although Chief Justice Burger states that the opening "is not an occasion for argument," Belli (Modern Trials, §52.1, p. 490) correctly states that it is "emphatically an occasion for persuasion."

4. "Not an Occasion for Argument."

The line between opening statement and argument is often difficult to draw. What is and is not "argument" in a given case, and what is "strictly factual" is frequently a matter of opinion, and in our practice, deferred to the wide discretion given the trial judge as to the latitude of counsel's remarks. In Naughton v. Hager, supra, 1991 Ct. CaseBase 5853, 5854, Judge Flynn noted that "[i]f there are to be opening statements counsel must be extended some reasonable latitude to tell the jury what they intend to prove before they have proved anything."

Webster's Third International Dictionary, p. 117 (1966), defines argument as "a form of rhetorical expression intended to convince or persuade." Based on this definition, opening statement must be an argument - but a former Chief Justice of the United States says it's not. The Rule of Practice which authorizes opening statement is captioned "Argument by Counsel - Opening Argument."

It is not exactly clear where the line is to be drawn, how it is to be drawn, or indeed whether it need be drawn. There is authority that the opening statement to a jury is "argument" of counsel. Waits v. Hardy, 102 S.E.2d 590, 593 (Ga. 1958).

Black's Law Dictionary, p. 984 (5th Ed. 1979) describes "opening statement of counsel" as:

Black's Law Dictionary, p. 231 (5th Ed. 1979) defines "closing argument" as:

Belli, Modern Trials, §52.2, pp. 490-493, in discussing techniques to get the jury interested, talks about Boston Attorney Joseph Schneider's practice of focusing the jury's attention by labeling each case with an intriguing title. Schneider had cases labeled the case of the "human radio station," the case of the "perfect fit," the case of the "mystery of love," etc.

The case of the "breathing house" involved poisoning by inhalation of illuminating gas by an old man who was laying on his couch near a window. The gas had escaped on the outside of the house because of some defect in an outside apparatus transmitting the gas. The gas entered through the window. It was wintertime. The window was tightly shut, and the old man was found a day and a half after the gas had escaped. He was asphyxiated, but not dead. He was then hospitalized for a lengthy period. He had absorbed the gas in a very minor concentration because it had been mixed with open air. Schneider's problem was to prove that it was reasonable and probable that the "house could breathe the gas in." He brought in an expert from the School of Public Health at Harvard, who specialized in the construction of buildings, and who had been engaged by the British government during World War II in making a study of the properties of various types of construction. The expert was called and testified that no matter how fine the construction of a house is, no matter how tight the windows and doors are, if there are windows and doors, air must change within one hour totally, and if the construction is of second class, it changes in a half hour. The professor stated that in his opinion the air in the room was changing constantly, and the elderly man was breathing in just enough gas to keep him comatose all the time.

After the verdict in the case, Schneider asked one of the jurors how the jury liked the plaintiff. The response was that the plaintiff was okay, but the jury really liked the expert explaining about the breathing house.

Interestingly, although most courts would seem to allow labeling of a case, some regard it as a personal opinion or "argument" and do not allow it. Consider the following exchange in United States v. Dinitz (96 S.Ct. at 1077):

The case involved a drug arrest. Shortly after the arrest of the defendant, someone had telephoned him and said that for $2,000.00 he would make sure that the case never came to court. The defendant and FBI agents set a trap to catch the caller, but the unidentified man got away with the money, called the "bait envelope."

It developed in the courtroom after discussion of the above incident, that Wagner claimed that if the description of the man who got away with the "bait envelope" fit the principal witness against the defendant, an FBI agent, the credibility of this chief governmental witness would be placed in doubt. The judge then ordered that the FBI agents be called to determine if the person who took the envelope resembled the principal governmental witness. When the agents arrived, Wagner was forced to admit that he had never seen or talked to the agents. The judge threw Wagner out of the courtroom, and when the defendant refused to proceed with co-defense counsel, a mistrial was declared.

Labeling the case is probably permissible in Connecticut in opening statement. In Bodak v. Masotti, 14 Conn. App. 347, 540 A.2d 719 (1988) the plaintiff sought damages for personal injuries sustained by a minor plaintiff when his bicycle was struck by a truck operated by the defendant. Defendant's counsel in final argument stated to the jury that (14 Conn. App. at 350):

The Appellate Court held that although the plaintiffs did not object to this argument at the time it was made, or at the conclusion of the arguments, and that the plaintiff's claim was not properly preserved for review, "even if it had been, we do not consider it to be of merit." 14 Conn. App. at 350.

If labeling is permissible by a defendant in closing argument, there is no rational basis for holding it impermissible for the plaintiff in opening statement.

5. "Emphatically an Occasion for Persuasion."

Belli (Modern Trials, §52.1, p. 490) states that even if the court allows a rather extended voir dire, the opening statement will be counsel's first real opportunity to present his theory of the case to the jury. He believes that the opening statement "should include a full and complete detail of the plaintiff's case, presented as compellingly as possible. It should be factual, yet dynamic, in order to capture and maintain the jury's attention."

There can be no question that Belli's observation that the opening statement is "emphatically an occasion for persuasion" is correct. The statistics bear him out, and a trial lawyer would be remiss in his duty to his client if he did not utilize the opportunity to "win the case in the opening statement."

Some of our judges seem to have the notion that the difference between opening statement and final argument is tone of voice. Once voices are raised in opening statement, the admonitions from the bench are forthcoming. The essential difference, however, is not tone of voice or demonstration of emotion. Rather, it is that in opening statement the theme is established immediately through the telling of the story of the case in a factual yet nevertheless persuasive manner. This should be accomplished in the first minute or two of opening. Final argument is similarly an effort to persuade or convince, but by means of the force of logic, by comparison of facts, comparison of credibility of witnesses, and by openly urging the jury to decide in your favor.

There are some basic ground rules that facilitate persuasion in the opening statement.

(a) Get to the Point Quickly.

Haskins and Gardner, 13 TDJ at 52 state that an opening statement needs to hit the jury or court squarely between the eyes, and that an excellent way to do this is by communicating the key statements of the case in the first few minutes. The article quotes Dr. Richard Crawford's recommendation: "You must immediately take your best shot, so fire your silver bullets."

(b) Tell a Story.

Belli states that there should be a "full and complete detail of the plaintiff's case, presented as compellingly as possible." It is not possible to present compellingly and persuasively a disorganized and disjointed confused summary of the case. If the presentation is organized into a chronological or topical pattern that makes sense, the "story" approach generally lends itself to a convincing, sincere, and easily remembered presentation. The statement must invite the interest of the jury so that they see and seize a view of plaintiff's case quickly.

(c) Use Visual Aids.

Belli says that the "lawyer who can talk with the chalk" has a distinct advantage because he can appeal to a jury's visual as well as audio senses. Belli, Modern Trials, §52.1, p. 490. It makes sense that a juror who has seen a drawing of the accident scene will have a much firmer conception of the plaintiff's theory of the case. Counsel can also use parts of the courtroom: desks, chairs, and furniture relationships to describe factual situations. Similarly, when taking distance, instead of three car lengths, it may be that this equals the "length of the courtroom." Instead of making reference to ten feet, reference can be made to "as high as the ceiling," or "to the top of the flagpole in the corner."

If a blackboard is to be utilized, or a chart, model, or photograph, it is vital to get the trial judge's permission in advance. If it is clear that the use of the blackboard, or the photo, chart, model, or sketch will aid the jury in following the opening statement, the wide discretion of the trial judge is certainly not going to be reversed on appeal if it is permitted. It is vital, however, to clear this in advance.

(d) Don't Read, Recite or Lecture.

An opening statement, to be a dynamic and interesting presentation designed to persuade, should not be read. It should not be a mere recitation of memorized facts, nor should it take the form of a lecture from extensive notes. The appearance of extemporaneous delivery and eye contact is vital to persuasion, and should be utilized. This is not to say notes cannot be referred to. These, however, can be utilized on a lectern, held in the hand, or placed on the table in a convenient location, but by all means not read.

Although technique of delivery varies widely with the individual, it is generally useful to make a careful outline, commit the sequence of events to memory, and speak in a manner that appears to be extemporaneous. Some lawyers utilize a lectern where their carefully organized notes are there for ready reference. Others take to their feet with no notes, and prefer no table or lectern between them and the jury. Choose the style and technique that is most comfortable and natural, but whatever you do, don't read, don't be boring, and don't lecture or speak down to the jury.

(e) Discuss the Law Carefully and Only if Necessary.

The purpose of an opening statement is to afford an opportunity to discuss the facts and tell the jury about your case. It is not to permit discussions of the law. It is, however, not unusual in an opening to hear lawyers refer to the law. Subtle references, interwoven with the facts, or in a statement of the duty of counsel, are common.

The plaintiff may wish to illustrate to the jury that the burden of proof in a civil case is not the same as in a criminal case, where the burden is much greater. Use the language that the court will use in its charge, and admonish the jury to consider most carefully the instructions to be given by the court. A clear purpose should exist before getting into the discussion of any aspect of the law.

(f) Define Complicated Terms.

If the principal injury is that as a result of the fracture the plaintiff now suffers from chronic osteomyelitis, the time should be taken to explain what osteomyelitis is. Similarly, in an intervertebral disc injury, the discs might be presented as the shock absorbers of the spine, placed between the vertebrae to act as cushions.

(g) Discuss Weaknesses.

All commentators agree that weaknesses in a case must be disclosed in the opening. Criminal records, prior injuries, consumption of alcohol, etc., if admissible, must be discussed in a way in which they are least harmful and focus the jury on the issues favorable to the case.

6. Ground Rules for Opening Statement.

(a) Reference to Inadmissible or Unprovable Facts.

It is manifestly inappropriate to overstate the facts, or to play fast and loose with them. The Fourth Circuit has held that the test is generally one of good faith, and in the absence of substantial error, if the attorney's statement is made "with reasonable ground to believe" the evidence is admissible, even though proof of it may afterwards be excluded, there is no misconduct warranting a new trial. Maxworthy v. Horn Electric Service, Inc., 452 F.2d 1141, 1143 n. 3 (4th Cir. 1972).

The opening statement should exclude any reference to matters that the attorney knows he cannot prove or would not be admissible, and where there is reference to inadmissible or unprovable facts in such a manner as to affect the fairness of the trial, a mistrial can be declared. Maxworthy, 452 F.2d at 1143-1144 (which held that no prejudice existed in counsel's reference to the likelihood of divorce as an element of damage in a suit for loss of consortium).

In State v. Burnette, 353 So.2d 989 (La. 1977) prejudicial error was found where the prosecutor implied that the defendants had attempted to kill two prosecution witnesses. In Commonwealth v. Haynes, 245 Pa.Super. 17, 369 A.2d 271 (1976) harmless error was found where a prosecutor claimed without foundation that the defendant put a victim's penis on a table and banged it with a bowling pin, and then set it on fire with lighter fluid and finally poured boiling water on it, where the actual crime was so gruesome that the jurors were "unlikely to be inflamed" as a result of the above description.

In Naughton v. Hager, supra, 1991 Ct. CaseBase 5853 (7/26/91) the court refused to set aside a plaintiff's verdict where plaintiff's counsel claimed in opening statement that the defendant had been dismissed from a professional society, but offered no evidence on the subject. The court was disinclined to do anything about the remarks of plaintiff's counsel because defendant's counsel "opened the issue" by questioning the defendant about the dismissal, resulting in extensive cross-examination by plaintiff. The court's reasoning seems somewhat circular.

(b) Reference to Admissible Facts Not Proven.

If the opening statement of the opponent talks about admissible facts he intends to prove through a specific witness, and then does not prove that evidence, if it is important enough it can be the predicate of reversible error. In Hall v. State, 138 Ga. App. 20, 225 S.E.2d 705 (1976), reversible error was found where the prosecutor told of what was seen by a policeman who was not called as a witness. Similarly, if in opening statement counsel tells the jury what a witness is intended to say, or what the evidence will show, and that witness is known to be unavailable, or the evidence not admitted, and the matter is important enough, it cannot be overlooked and can clearly become the basis of reversible error. See, Commonwealth v. Haynes, supra.

(c) Appeals to Sympathy.

There is a long line of cases finding error in personal injury cases for inappropriate appeals to sympathy, such as mention of the plaintiff's spouse and children where it is irrelevant and prejudicial. Cases go both ways, but the general proposition appears to be that where the evidence is irrelevant and is offered for the purpose of appealing to the sympathy of the jury in an effort to increase the amount of damages, harmful error may be found. Reference to the plaintiff in opening statement as the "breadwinner for the wife and four children" was found to be reversible error in Golian v. Stanley, 334 S.W.2d 88 (Mo. 1960). In Murphy v. Hook, 21 Ill. App.3d 1006, 316 N.E.2d 146 (1974) prejudicial error was found where the decedent's widow and five children rose, stated their names, and then burst into tears.

However where the plaintiff has a legitimate purpose in introducing his family into the case, no harmful error is found. For example, references to a family are permitted where it is shown that the plaintiff could no longer engage in certain activities with his children, such as sledding, ice skating, square dancing with the family, etc., See Annot. Admissibility of Evidence of Family Circumstances of Parties in Personal Injury Action, 37 A.L.R. 3d 1082 (1971) See also St. Martin v. New York, New Haven, and H.R. Co., 89 Conn. 405, 411, 94 A. 279 (1915) (Any improper evidence that may have a tendency to "excite the passions, awaken the sympathy, or influence the judgment, of the jury, cannot be considered as harmless.")

(d) Disparaging Remarks.

Generally the transgressions resulting in reversal involve accusations that the lawsuit has been "trumped up" by the plaintiff or his attorney. Waits v. Hardy, 214 Ga. 41, 102 S.E.2d 590 (1958); or it is claimed that plaintiffs are habitual litigants who know how to win money with lawsuits. Paris v. Keefhaver, 512 S.W.2d 892 (Mo.App. 1974).

(e) Golden Rule.

The "golden rule" argument refers to the claim by counsel in argument that the members of the jury deal with the plaintiff as they would wish to be dealt with if they were in the plaintiff's position. This argument is not permitted in most states, and probably not permitted in Connecticut. The cases arise from final argument, but the prohibition is equally applicable to opening statement.

In Begley v. Kohl & Madden Printing Ink, Co., 157 Conn. 445, 452, 254 A.2d 907 (1969), the court held that the comment of defense counsel as to whether the jury "would like to be sued or have their company sued under the circumstances" of this case was an off-hand remark and contained nothing to arouse the sympathy of the jurors or inflame their passions. The court characterized the argument as "this `golden rule'" argument, and deferred to the trial court's large discretion with regard to the arguments of counsel, holding that it should interfere only where the discretion was exceeded or abused to the manifest injury of some party. It is not at all clear from this holding whether Connecticut permits the "golden rule" argument. Most courts do not permit it, and the use of it is very risky.

A new trial was ordered where the "golden rule" argument was used as follows:

Stanley v. Elegood, 382 S.W.2d 572 (Ky. 1964).

The use of the "golden rule" argument does not necessarily result in reversal. Although holding that the use of the argument was error, where it did not have a "studied purpose" to inflame or prejudice the jury, there was no reversible error in Anderson v. Harry's Army Surplus, Inc., 117 Mich. App. 601, 324 N.W.2d 96 (1982). Accord, McNally v. Eckman, 466 A.2d 363 (Del. 1983)(golden rule argument de minimis, and any prejudice cured by cautionary instruction).

(f) Vouching for the Credibility of Witnesses.

Closing argument invariably includes a discussion regarding the weight of the evidence and the credibility of witnesses. The discussion must be based upon the evidence without any statement by the attorney that it is made from his or her personal knowledge. The prohibition of counsel vouching for the credibility of witnesses in final argument is equally applicable to opening statement.

Rule 3.4 of the Rules of Professional Conduct, captioned "Fairness to Opposing Party and Counsel," expressly provides that a lawyer shall not:

In State v. Boone, 15 Conn. App. 34, 544 A.2d 217, cert. den. 209 Conn. 811, 548 A.2d 443 (1988), the court held that stating a personal belief in the lack of credibility of a witness is improper and beyond the parameters of legitimate argument, but found the following remarks of the prosecutor harmless (15 Conn. App. at 53-54):

Besides being unprofessional, this argument can lead to reversible error. A statement in closing argument that the attorney and the witness have been raised as boys together and loved each other like brothers and that the witness's veracity was beyond question was held to be improper, prejudicial, and warranted a reversal of the judgment in Western Union Telegraph Co. v. Furlow, 121 Ark. 244, 180 S.W. 502 (1915).

(g) Nonsuit on Opening Statement.

Although the opening statement is not evidence and is primarily used to acquaint the jury with the case, deficient opening can cause catastrophe. This can come about either by counsel failing to state facts sufficient to support a cause of action, or by making admissions damaging to his client's case.

Connecticut no longer has the evidentiary nonsuit. §302 of the Practice Book provides for dismissal for failure to make out a prima facie case at the conclusion of the plaintiff's case. It is uncertain whether the Supreme Court would hold that the Superior Court has the inherent power to dismiss a cause of action at the conclusion of opening statement for failure to make out a prima facie case, or to direct a verdict or enter an evidentiary nonsuit pursuant to the practice which existed before the adoption of §302 in 1978. (See §52-210 of General Statutes; Comments by Moller and Horton to §302 of Practice Book Annotated).

Under such circumstances, dismissing a case after opening statement is an extreme measure which should be used with extreme caution. The better rule appears to be that mere insufficiency of facts in the opening statement is not, standing alone, sufficient justification to direct a verdict or to dismiss the case. Counsel ought to be given an opportunity to correct or add to his opening statement after the motion for direct verdict or motion for dismissal has been made, and the trial court should always ascertain if the opening statement as made embraced the entire anticipated proof. See Natoli v. Johnson, 490 S.W.2d 275 (Mo.App. 1973) (which held a mere insufficiency of facts in the opening statement was not "of itself, standing alone, sufficient justification to direct the verdict").

In Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 489, 78 L.Ed. 882 (1934) the United States Supreme Court held that the exercise of this power (dismissal at conclusion of opening statement) is not only unobjectionable in a proper case, but is "convenient in saving time and expense by shortening trials."

Although there is no Connecticut authority, reference can be made to Connecticut's caseflow management justification for dismissing cases where counsel is 20 minutes late for court, Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 474 A.2d 787 (1984); or granting a motion to strike or dismiss because a memorandum is filed one day late, Burton v. Planning Commission, 209 Conn. 609, 553 A.2d 161 (1989); Blonder v. Hartford Helicopters, Inc., 209 Conn. 618, 552 A.2d 427 (1989). It is unclear whether these cases reflect an inclination in the Supreme Court to approve of a dismissal, nonsuit, or directed verdict because of a deficient opening statement. The cases are collected in Annot. Dismissal, Nonsuit, Judgment or Direction of Verdict on Opening Statement of Counsel in Civil Action, 5 A.L.R. 3d 1405 (1966).

It is clear that a statement made in final argument by an attorney can bind his client conclusively. Kanopka v. Kanopka, 113 Conn. 30, 38-39, 154 A. 144 (1931); Collens v. New Canaan Water Co., 155 Conn. 477, 496, 234 A.2d 825 (1967) (statements of counsel in a brief). Such admissions can be made in an opening statement as well. It would appear that the precedent exists to hold counsel to his word and construe judicial admissions made in opening statement as binding on the client. If the admission is conclusive on the liability issue, a nonsuit, dismissal, or directed verdict would seem to logically follow.

In Samuels v. Spangler, 441 S.W. 2d 129 (Ky. 1969), the court acknowledged that mere insufficiency of facts did not justify a summary disposition after the opening statement, but it found that the plaintiff's counsel had established contributory negligence as a matter of law during the course of his opening statement, and that this was an absolute bar to recovery.

In Scott v. Rainbow Ambulance Service, Inc., 75 Wash. 2d 494, 452 P.2d 220 (1969) in opening statement plaintiff's attorney stated that "there will be no testimony that anyone can determine the extent of the injuries which Mrs. Scott sustained as a result of her second fall." Mrs. Scott had sustained two falls, and the second fall was in litigation. Plaintiff's attorney in opening statement went on to state that "it is absolutely medically impossible for anyone to know to what extent Mrs. Scott was injured in her second fall." The Washington Supreme Court, after observing that occasionally "the opening statement deliberately and understandably invites the court's ruling at that stage of the proceeding," affirmed the dismissal, holding that where two separate torts were involved and plaintiffs claimed injuries from each, the liability was several, not joint, and that plaintiff had the burden of proof as to injuries from each tort.

In Manzi v. Zuckerman, 157 N.J. Super. 63, 384 A.2d 541 (1978) the Appellate Division of the Superior Court of New Jersey refused to affirm the dismissal on opening statement of a medical malpractice case where the plaintiff represented in opening statement that the malpractice was based on medical abandonment of the plaintiff by the defendant doctor, and that plaintiff did not intend to establish her cause of action by presenting expert testimony. The court reasoned that the issue was not the sufficiency of the plaintiff's cause of action, but an advisory opinion as to whether expert testimony was essential to the plaintiff's cause of action. It held that it was inappropriate to give such an advisory opinion and reversed.

In Roach v. Union Pacific Railroad Company, 162 Colo. 542, 428 P.2d 352 (1967) the Colorado Supreme Court reversed the trial court's dismissal after plaintiff's opening statement - on the grounds that the statement established contributory negligence as a matter of law. The court condemned this type of ruling, stating that "controversy should rarely, if ever, be determined on the basis of an opening statement by counsel." 428 P.2d at 353. It characterized this practice as "a very risky procedure, at best." It held that such motions should be considered "with extreme caution" and that the granting of such a motion on opening statement is "an exceedingly unsafe method of resolving a lawsuit." 428 P.2d at 353. Its holding was that unless "exceptional circumstances" "imperatively" require the granting of such a motion, it should be denied.

A similar ruling can be found in Phillis Development Company v. Commercial Standard Insurance Company, 457 P.2d 558 (Okl. 1969), where the court held that a motion for judgment on opening statement should be granted only where the opening statement "positively affirms or admits facts" clearly precluding recovery by plaintiff, or clearly showing no defense by defendants. 457 P.2d at 559. In Baker v. Case Plumbing Manufacturing Company, 423 S.W.2d 258 (Ky. 1968) the court held that directed verdicts on opening statement should be given only when counsel has "made admissions that are fatal to his client's case." 423 S.W.2d at 259.

(h) Per Diem Basis for Damages in Opening Statement.

Belli states that in the course of explaining what the evidence will disclose, plaintiff's counsel should "always" discuss the amount of damages he hopes to recover for his client. Melvin Belli apparently has never practiced in Connecticut, were discussion of the amount of damages is now permitted in final argument only by statute, and if the Supreme Court had its way, nothing would be said about the amount of damages an attorney hopes to recover for his client at any stage of the lawsuit.

See Belli, Modern Trials, §52.3, pp. 493-494.

The per diem argument, the rationale that a plaintiff should recover a given amount for each day, hour, minute, or second of suffering is now permitted in Connecticut, along with a conclusory statement as to the amount of damages the jury should award.

The ruling of the Supreme Court in January of 1989 in Pool v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989) and Carchidi v. Rodenhiser, 209 Conn. 526, 551 A.2d 1249 (1989) that arguing money is not permissible in Connecticut was changed by statute effective October 1, 1989. The statute, Public Act 89-319, codified as §52-216b, provides:

This statute was attacked as unconstitutional but upheld in Bartholomew v. Schweizer, 217 Conn. 671, 587 A.2d 1014 (1991).

It appears that a colorable claim can be made that counsel should be permitted to tell the jury in opening statement the amount of damages he is claiming, and the basis for them. In Baum v. Woodfield, 244 Md. 207, 223 A.2d 364 (1966) the Maryland Court of Appeals held that it is permissible for counsel to use a per diem argument in the opening or closing argument to the jury. The Court stated (223 A.2d at 373):

7. Resolving Problems Before Opening.

(a) Visual Aids.

It has been mentioned that it is desirable in certain circumstances to use a blackboard, or other visual aids, such as photos, sketches, charts, diagrams, etc. If these are to be used, it is indispensable that permission to do so be obtained from the trial judge. The use of such visual aids has become commonplace in Connecticut trial practice. There is limited experience in Connecticut with the use of the aids in opening statement, as obviously at this stage of the proceedings nothing has been marked into evidence, whereas at final argument the visual aids have either been marked as exhibits or been approved for use for demonstrative purposes. The cases permitting these visual aids are collected in an article previously published by CTLA in April 1985. W.F. Gallagher, "Use of Visual Aids: Use of Charts to Illustrate the Basis for Medical Testimony", CTLA Seminar Materials, April 25, 1985.

It is most unwise not to clear use of any visual aid, even the use of the blackboard, with the presiding judge prior to opening statement. The ruling of the presiding judge, unless the most extraordinary of circumstances are presented, is probably not reviewable, based on his or her broad discretion. In other words, if granted or denied, it is not worth pursuing on appeal.

The criteria for use in opening statement should be no different than the criteria for admissibility. Will the use of the visual aid assist the jury in following the opening statement, just as the use of the visual aid, to be admissible, must assist or aid the jury in following the testimony, or in illustrating it.

The opening has to be planned prior to the day it is to be delivered. If the ruling does not come well in advance, the opening has to be prepared to be delivered without the use of the visual aid, as well as with it.

(b) Motions in Limine.

The excellent article by Carolyn Spencer in the January/February 1990 Forum (8 Forum No. 1, p. 1 (1990)), sets out the Connecticut case law and practice on motions in limine. It is vital that the motion be ruled upon prior to opening statement, and frequently even prior to the voir dire. For example, if the plaintiff has a criminal record which may not be admissible on credibility, and counsel wishes to at least attempt to keep it out, the motion in limine has to be filed and ruled upon prior to the opening statement. Indeed, it is useful to obtain rulings on these issues before voir dire, so that questions can be asked concerning them or precluded at the earliest possible stage.