UNIT 8 OPENING STATEMENT / ADDRESS
8.1 During the different stages of a trial a lawyer may have to face questions from
the judicial officer (s) and she should be intuitively prepared to reply to these
questions and concerns. She may also have to make submissions resulting from
legal points raised by the opponent or himself. She should ensure that she is able to
persuade the court. It is not possible to anticipate each and every legal point which
might be raised during the trial, but preparation and preparedness enable the lawyer
to be in a position to respond effectively to all concerns and questions which arise
during the course of the trial. Whenever the lawyer adopts a particular viewpoint she
should support her views with sound reasons. The reasoning must be supported by
either legal rules or principles or the evidence presented before court. Finally, she
should draw a conclusion from her reasons.
8.1.1 Opening Statement / Address
The main purpose of the opening statement is “to explain to the judge what the case
is about to enable him or her to follow the evidence.” 1 The statement briefly sets out
the client’s claim or defence. It deals with the elements of the defence or claim and
identifies the issues. It also highlights how the evidence is going to be presented in
court and the number of witnesses to testify. Here great care should be taken not to
disclose too much information as it could be used by the opponent in cross-
examination to weaken one’s client’s case.
1
Mullins and Da Silva, Morris Technique in Litigation (6th edition) page 198.
8.1.2 Palmer & McQuoid-Mason suggest that ‘The most important aspect of the
opening statement is to ensure that the court fully understands every aspect of your
case.’2 It means, therefore, that persuasion exemplified by good communication
skills should be displayed. Opening statements should commence and end with
compelling force. The advantage of an opening statement is that it provides a party
with the opportunity of creating an impression in the mind of the court that it has a
prima facie case and that puts the other party at the risk of having to convince the
court that the contrary version of the story is correct. It is debatable however,
whether an opening address gives the party who makes it an insurmountable
advantage over their adversary.3 It is important to bear in mind that an opening
statement is about facts and not argument.
8.2.2 Marnewick advices as follows about the structure of an opening statement:
“ ● At the commencement of the opening address, state what the cause of action
is, for example:
“M’Lady, this is an action for damages for personal injuries arising from a motor
collision.”
...
● State material facts of the claim (or defence, if the defendant is opening in a
case where the defendant bears the onus of proof).
● Identify, in summary form, the issues between the parties by reference to the
pleadings.
2
Palmer & McQuoid-Mason, supra 51.
3
Willem Gravett, “Opening Address: Powerful tool of persuasion or a waste of time?” De Jure (Pretoria) vol.51
n.2 Pretoria 2018. http//dx.doi.org/10.17159/2225-7160/2018/v51n2a1
● Indicate the extent to which the issues have been reduced by any subsequent
agreement, such as at the Rule 374 conference.
● Indicate where the onus of proof lies on the relevant issues and what has been
agreed between the parties in this regard. If there is any dispute about where the
onus lies, tell the judge. (The parties were supposed to discuss this at the Rule
37 conference).
● Summarise the facts for the plaintiff (or the defendant, if the defendant is
opening). During this part of the opening address, the facts which constitute the
proof upon which the court will ultimately be asked to rule in the plaintiff’s favour
are given in chronological order. The facts should be stated simply, without
adornment, so that they are allowed to speak for themselves. Argument and
exaggeration are to be avoided. The tone is moderate, even understated.
Arrangement and order are crucial...
● Identify the witnesses you will call and summarise the evidence each will give.
Deal with the oral and documentary evidence briefly.
● Indicate to what extent, if any, the evidence of particular witnesses or the
contents of relevant documents are common cause. If necessary, hand in
bundles of documents that are to go by consent. Explain any agreement with
regard to the content of the documents.”5
4
That would be Rule 36 under the Lesotho High Court Rules, 1980.
5
The author provides an example of an opening address in a criminal case at pages 290 to 292 of the 3 rd edition.
