party must make a like statement. Opening statements may be waived
with the consent of the court and the opposing attorney.
Even when a statute seems to set a specific order for opening statements, the
trial judge has discretion to change the order of opening remarks in unusual
circumstances.
10
One such unusual situation is a multi-party lawsuit. Where several attor-
neys represent multiple plaintiffs or defendants, or the case involves a third-
party complaint, the order of statements customarily is resolved among the
parties at pretrial conference. If the parties are unable to set the order
themselves, the trial judge will do so. The party with the most to gain will
usually go first for plaintiffs, and the party with the primary liability or the
largest financial exposure will usually go first among defendants. Attorneys
representing multiple defendants might be allowed the customary option of
reserving their openings until the start of their own cases, but this can result
in unfairness if one defendant opens immediately following plaintiff, and
another waits until the start of the defense case. For that reason, most judges
will require that multiple parties arrayed on one side make their opening
statements all at one time.
11
Jurisdictions differ on whether a party may waive its opening statement
altogether. Some states require the party with the burden of going forward
(the plaintiff in most cases) to give an opening statement;
12
others permit the
plaintiff to waive it. Almost all states permit a defendant who does not have
a burden of proof to waive opening remarks, although a few require statements
from both sides even in criminal cases.
In some jurisdictions, each party with a burden of going forward with
evidence is required to make a complete opening statement demonstrating
that it has enough evidence for a legally sufficient case. Such opening
statements must include enough facts to make out a prima facie case on all
essential elements of the claim or defense.
13
Failure to state a case may result
in dismissal, nonsuit, or a judgment as a matter of law against that party
before any evidence is introduced. Such a drastic resolution of the case
threatens to deprive a party of its basic due process rights to be heard and
to present evidence, so a judgment as a matter of law will be granted only
if it appears that counsel has stated all of his or her evidence and has been
given the opportunity to supplement the statement with additional facts to
satisfy this requirement.
14
Courts exercise this power sparingly, and the law
prefers that the case be tried on the merits.
15
The courts are split on the
10
See, e.g., Cal. Civ. Proc. Code § 607 (the trial must proceed in normal order “unless the court,
for special reasons otherwise directs”); State v. Guffey, 468 P.2d 254 (Kan. 1970) (court has
inherent discretion to vary order seemingly required by statute).
11
See Commonwealth v. Weitkamp, 386 A.2d 1014 (Pa. Super. 1978) (codefendants being tried
together must all open at the same time).
12
See, e.g., Rev. Stat. Mo. § 546.070(1).
13
E.g., People v. Kurtz, 414 N.E.2d 699 (N.Y. 1980).
14
See Commonwealth v. Lowder, 731 N.E.2d 510, 518 (Mass. 2000).
15
See Giles v. Amer. Family Life Ins. Co., 987 S.W.2d 490, 492 (Mo. Ct. App. 1999) (procedure
is highly unusual and rarely justified).
152 OPENING STATEMENT CH. 4
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