opening statement

New Trial Warranted for Prejudicially Inflaming the Jury

Posted by David Adelstein on December 16, 2017
Trial Perspectives / Comments Off on New Trial Warranted for Prejudicially Inflaming the Jury

Jury trials do contain a degree of theatrics, particularly when it comes to opening and closing statements. The objective is to persuasively demonstrate to the jury your theme of the dispute – what the evidence will show (in the opening statement) and what the evidence reveals that supports your theme and the application of the law (in the closing statement). This does not mean, however, that you can intentionally and prejudicially inflame the passions of the jury. Doing so will result in a new trial, and oftentimes, an unnecessary new trial.

An example of this can be found in the case TT of Indian River, Inc. v. Fortson, 42 Fla. L. Weekly D2655a (Fla. 5th DCA 2017). This case involved an automobile accident where liability had been stipulated. The defendant was not interested in trying the liability of the case. The jury trial was ONLY as to damages. Liability was therefore irrelevant. Nonetheless, at trial, the plaintiff’s counsel, over the objection of the defense, called a corporate representative of the defendant and inquired as to issues concerning liability to create the perception that the defendant engaged in indifference and misconduct regarding the underlying automobile accident. The plaintiff also used the term of “guilt” to describe the defendant’s stipulation as to liability and the term of “innocence” to describe the plaintiff’s conduct.   After a final judgment was rendered against the defendant in accordance with the jury’ verdict, the defendant appealed for a new trial on damages. The appellate court agreed reversing the final judgment and mandating a new trial on damages due to conduct designed to inflame the jury.

When a defendant admits the entire responsibility for an accident and only the amount of damages is at issue, evidence regarding liability is irrelevant and prejudicial.  Moreover, as this court has recognized, it is improper to refer to “guilt” or “innocence” at a civil trial on negligence

Fortson, supra (internal quotations and citations omitted).

Please contact David Adelstein at or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Purpose of Closing Argument

Posted by David Adelstein on May 28, 2015
Appeal, Trial Perspectives / Comments Off on Purpose of Closing Argument

We talked about the purpose of opening statements. Now, let’s talk about the purpose of closing argument.

One of my favorite all-time shows is Law and Order. Jack McCoy can certainly deliver a closing argument like no other where the purpose of his closing argument always seems abundantly clear. 

The purpose of closing argument is to help the jury understand the evidence presented to the law. See Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla. 2000).   It serves as the final opportunity for the lawyer to fully connect his/her client’s theme of the case (possibly explained during opening) based on the evidence presented at trial and the applicable law. See id. at 1028 (“Attorneys should be afforded great latitude in presenting closing argument, but they must confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.”) (internal quotation omitted); Jean v. State, 27 So.3d 784, 786 (Fla. 3d DCA 2010) (“Counsel should be permitted to present all legitimate argument [during closing]. In doing so, the trial court must afford counsel wide latitude in presenting the closing argument.”) (internal citations omitted).

The value of closing argument cannot be overstated. It allows the lawyer to summarize the evidence in the client’s favor while persuasively serving as an advocate for the client.

After the jury is selected and sworn, the judge should read a preliminary jury instruction (per Section 202.2 of Florida’s Standard Civil Jury Instructions) that explains when a lawyer will give a closing argument:

Instructions Before Closing Arguments: After all the evidence has been presented to you, I will instruct you in the law that you must follow. It is important that you remember these instructions to assist you in evaluating the final attorney presentations, which come next, and, later, during your deliberations, to help you correctly sort through the evidence to reach your decision.
Closing Arguments: The attorneys will then have the opportunity to make their final presentations to you, which are called closing arguments.

There are, of course, things a lawyer should not do during closing argument such as personally vouch for the credibility of a witness or inject personal beliefs into the case. But there are indirect ways for a lawyer to go into the credibility of a witness or his/her theory of the case by focusing on that evidence supporting the theory and tying that evidence to applicable law.

If a party believes that the opposing party is giving an improper closing argument, it is imperative that they object. But, if they don’t object during closing argument, they must at least move for a new trial arguing that the opposing party’s argument constituted harmful or reversible error—that the unobjected to closing contained argument that is highly prejudicial and impaired fair consideration by the jury. See Murphy, 766 So.2d 1010 (explaining, however, that it is not improper to identify a witness as a liar or that he/she lied if supported by the evidence). Additionally, the party must establish that the unobjected to improper closing argument was incurable by a jury instruction (had it been timely objected to). See id. And, finally, the party must establish that the unobjected to, improper, harmful, and incurable closing argument damaged the fairness of the trial such that the public’s interest in the jury system requires a new trial. See id. Yes, this is a very difficult hurdle further supporting the importance of timely objecting to improper closing argument.

On the other hand, if a trial court gratuitously restricts an opposing party’s closing argument, such restriction could amount to an abuse of discretion. “[A]” trial court abuses its discretion when it fails to afford such latitude to defense [and plaintiff’s] counsel and, as a result, counsel is precluded from presenting his or her theory of the case to the jury.” See Jean, 27 So.3d at 786.

Ok, let’s get back to some more Jack McCoy:



Please contact David Adelstein at or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Purpose of Opening Statements

Posted by David Adelstein on May 19, 2015
Trial Perspectives / Comments Off on Purpose of Opening Statements


We’ve all seen movies that reflect the power of an opening statement.   Remember the movies “The Devil’s Advocate” or “Philadelphia” or “A Few Good Men?”   All of these show powerful opening statements with a purpose.  Remember the movie “My Cousin Vinny?”  This movie does not reflect a powerful opening statement with a purpose, although it sure is funny!


“The purpose of opening statements is to outline what an attorney expects the evidence will establish, and control of opening statements is within the trial court’s discretion.” Bush v. State, 809 So.2d 107, 118 (Fla. 4th DCA 2002). The opening statement allows a party’s attorney to tell the jury what the case is about and the salient factual details of forthcoming testimony and evidence. To this point, Florida Standard Jury Instruction 202.2 which is read to the jury after it is sworn in contains a preliminary jury instruction that provides:

In a few moments, the attorneys will each have a chance to make what are called opening statements. In an opening statement, an attorney is allowed to give you [his] [her] views about what the evidence will be in the trial and what you are likely to see and hear in the testimony.”

The opening statement gives the attorney the opportunity to persuasively convey the party’s theme or theory of the case along with those facts that will be supported by the evidence that fit into that theme. In other words, the opening statement allows the lawyer to tell the jury what the evidence will establish in the context of that party’s theory or theme of the case.

The opening statement should not be taken lightly. It is a vital part of persuasively presenting a case to a jury so that, among other things, the jury understands what evidence you are trying to present and what you are trying to prove with the evidence.


Please contact David Adelstein at or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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