Opening Statement In A Personal Injury Case
As a trial attorney, I must always be prepared to litigate a claim to preserve the rights of my client and fight for their benefits. While it is true that most personal injury claims settle before trial or even before a law suit is filed, it would be foolish, if not negligent, for any trial attorney to proceed under that assumption. We always try to settle our client’s cases without subjecting them to the rigors of trial; but sometimes settlement offers are insufficient and litigation is necessary.
When I first meet with a client and listen to their grievance, I immediately, if not subconsciously, began to formulate an opening statement about their case. This is not to suggest that I always believe litigation will be forthcoming. On the contrary, I know this case before will in all likelihood settle. But, I nonetheless begin the important process of gathering input from my client and mentally organizing it my head as if I was presenting that information to a jury. In the final analysis, even if the case does not require litigation for my client to be made whole, I will be presenting the same “opening statement” to the insurance adjuster when I send out my settlement demand letter or present the case on the phone while negotiating a settlement.
With that in mind, I think it is imperative that we look at what factors go into the makeup of a good opening statement:
1.Every victim of a personal injury has a story to tell. While many share multiple similarities; every story is different. Telling the plaintiff’s story means introducing the plaintiff to the audience (the jury). Who is this person making a claim? What is his/her background? Are they gainfully employed? Going to school? Do they have a family? What interests or hobbies do they have? These things and many more help the audience identify with the plaintiff. It also helps to humanize, or put a face to the claim. This case is not just about money. It is about how the underlying bad conduct deprived the plaintiff from enjoying their life. How it interfered with their progress, their direction, maybe even their destiny. Telling the plaintiff’s story means incorporating all of these things while describing what transpired that brought these two parties (plaintiff and defendant) here today. This leads us to number 2.
2. Defendant’s bad conduct: Generally, when you file a claim against someone who hurt you, it is not to “punish” that person. While some cases afford a plaintiff the opportunity to seek punitive damages (damages aimed at punishing the defendant or deterring similar future conduct); most cases do not. The quintessential claim in a personal injury case is intended to make the plaintiff whole. So, we don’t focus on punishing the perpetrator, but we do explain his transgression. In our society we are all expected to follow the rules (laws). This is necessary to maintain a civil, safe, and deferential populace. We are also expected to be responsible for the consequences resulting from our breaking of those rules. Therefore, it is important that the jury understands during opening statement that the defendant failed to follow the rules everyone else is expected to follow and as a result the plaintiff was hurt.
3. What are the plaintiff’s injuries: As stated above, the objective of the trial is to compensate the plaintiff for their injuries and damages. It is critical that the opening statement identify those injuries and how they impacted the plaintiff’s enjoyment of life. An injury is a vague general concept. The opening statement must reduce it to specifics and personalize them. An injured back will impact people differently. Describe how the injury will create a hardship for the plaintiff specifically.
4. Why should we care: A jury will be moved to act if they feel this is important. It is imperative that you provide the jury with a logical basis for supporting the conclusion you seek. For example: “If we don’t hold the defendant accountable for the consequences of his/her bad conduct how can we hope to prevent repetition of the same.”
An opening statement allows you to organize your case in a logical and persuasive fashion. By thinking about this early in the case you can prepare early and gather the evidence you will later need; before it is too late. Good luck!
The above information is NOT a substitute for legal advice and should not be interpreted as the dissemination of legal advice. It is only meant as general guidance on various issues which may be applicable to your situation. It is critical that you consult with an experienced attorney before taking any legal action or have specific questions addressing your particular case answered
