OPENING STATEMENT
(1) The Rule: You are supposed to talk only about the facts you intend to prove; you may not argue.
a. You may discuss the evidence, except:
You may not refer to inadmissible evidence. Judges will rarely sustain this objection unless the evidence is clearly inadmissible (e.g., privileged, involves insurance), and will permit the statement is the evidence is potentially admissible (Rule 403; hearsay). The courts use a good-faith-basis test: you may refer to any evidence that you have reasonable grounds to believe is admissible, and that you intend to offer.
You may not exaggerate or overstate your evidence.
Plaintiff may not discuss evidence the defendant will introduce that will not be part of plaintiff's case.
b. "Argument" is prohibited.
If it is something you intend to prove, it is not argument. If you make a statement that is not susceptible of proof, it is argument.
Whenever you make a statement, if a witness could take the stand and make the same statement, it is not argument. However, if the rules of evidence would prevent such testimony, or if no such witness exists, the remarks are argumentative.
Many judges will allow you to make fair inferences from the evidence, such as "We will prove that the defendant shot the victim for no good reason."
Many judges permit you to state your legal claim or defense in basic terms and to describe the nature of the case or the issues.
Asking the jury to resolve disputes in your favor is argument; e.g., referring to your witnesses as "disinterested," and therefore more worthy of belief that your opponent's.
Making negative comments about your opponent is argument; e.g., calling the defendant a "big cow."
Using colorful labels that characterizes facts in a way distinctly favorably to your side is argument; e.g., the prosecutor characterizing a killing as a "slaughter."
Discussion of the law is prohibited, except to mention the issues and disputes.
c. It is generally inadmissible, and always a waste of time, to read the pleadings or tell the jury how much was sued for.
