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Massachusetts Personal Injury Opening Statements Dos and Don'ts

There are certain things that happen in a Massachusetts case that, when they do occur, their mere occurrence raises concern for lawyers like me. In fact, any indication that the case it is about to go to trial or is in trial is an indication that something has likely gone wrong in the case. That is not to say that the plaintiff's lawyer has made a mistake or that the case is fundamentally flawed. It may simply mean and that the issue of liability is unsettled, that the possible spectrum of damages is too broad, or that there is some other characteristic of the case that puts each attorney and his or her respective party too far apart at the negotiation table.

If you're going to trial, your personal injury lawyer should have his or her opening statement well prepared. It also doesn't hurt if you, the plaintiff, understand what must be included in an opening statement and what should not be included.

Let's start with the must-haves. First, the prima facie case must be set forth in the opening statement. That is really the first job of your lawyer once he or she starts speaking at the commencement of trial. A prima facie case means a summary of the facts of the case and how they satisfy the elements of the cause of action. Basically, setting forth the case in this manner is explaining, in the simplest terms, why the law provides for a recovery to you, given the facts of this case.

If your lawyer fails to set forth a prima facie case against each defendant in the opening statement, the judge may direct a verdict on the opening if one of the defendants so moves. Although the judge may give your lawyer some additional leeway to set forth the case, if this were to occur, it certainly would not be the best start the case, nor would it create the best first impression with the jury. To properly do this, the statement should set forth the elements of the law which create an entitlement to recovery, and then explain how the facts of this case justify a recovery under the law.

In setting forth the law of the case, it would clearly be an error to misstate the law--that would be misleading to the jury and objectionable by opposing counsel, the defense lawyer. Misstating the law has a great likelihood of having the trial judge interrupt and correct your attorney during the opening statement. That would clearly have a great negative effect on the jury's perception of your attorney's competence. To avoid any such occurrence, your lawyer should cleare how the law will be explained with the judge, and preferably stipulate with opposing counsel.

You are technically not permitted to argue during the opening statement. You are, however, permitted to state the facts of the case. Because the opening statement is really the first opportunity for the plaintiff's lawyer to create an impression with the jury, the facts are often set forth with some passion. Walking the fine line of setting forth facts while not turning it into argument can be a challenge.

I have found that many new lawyers first in the position of providing an opening statement have a tendency to try to relate the facts to the jury on a personal level--trying, rightfully so, to connect with the jury. In doing so, however, some lawyers set forth their opinion as to facts, evidence, or witnesses, which will be set forth during the remainder of the trial. This is impermissible. As the lawyer, it would not be permissible to set forth your opinion of these things because as the lawyer, you will not be testifying. The attorney should set out the facts of the case, provide the jury with the proper evidence, and make arguments when appropriate. After all, it is the opinion of the jurors which is important in the case.

As a lawyer in a Massachusetts trial, you would know before walking into court as to whether a piece of evidence is likely or doubtful to be admissible. Accordingly, it is impermissible to mention or reference evidence that is likely to be inadmissible in your opening statement. To do so would be to influence the jury, at the outset of the case, with inadmissible evidence. That is obviously not allowed.

My best advice is to carefully screen and choose your Massachusetts lawyer before entering into a retainer agreement. Although the substantial majority of Massachusetts negligence cases are settled prior to the commencement of litigation, your case is stronger, even pre-litigation, when you have strong trial counsel by your side. Consult with lawyers until you feel you found the right fit.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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