Please note: This node relates to the opening address or statement that a legal practitioner would make to a court at the beginning of a case. This node does not relate to speeches in general, although one could glean some information from it for that purpose.
The purpose of an opening statement is to provide an overview of the plaintiff's (the defendant's opening address is be dealt with below) case to the court. The opening address should be mainly objective, providing the court or trier of fact with information as to certain aspects such as the onus and the number and names of witnesses that will be called for the plaintiff.
The opening statement may contain some aspects of persuasiveness, but should not amount to argument (especially legal argument) or emotive persuasion.
The opening address is the plaintiff's first opportunity to impress his version of the facts on the court, and this opportunity should not be taken lightly. Using persuasion subtly, the legal practitioner should provide the judge (or jury, if your legal system is a jury system) with an overview of the plaintiff's version.
It is important for the legal practitioner making the opening address to remember not to tie himself down to specifics. If this is done, the client, or witnesses for the plaintiff may be cross examined later on the discrepancies between the witnesses version and the version of the legal practitioner! It is thus generally advisable to stick to simple and unadorned facts.
The structure of the defendant's opening address will be quite different from the plaintiff's in that:
- The plaintiff will have already put the issues in dispute to the court
- The plaintiff will have already put the common cause facts to the court.
- The defendant will rely on rebutting the plaintiff's claim, rather than making out a claim of his own (unless a counterclaim is present).
I have included below an example of a written opening address which i gave today (my presentation was terrible). The address below will give a basic idea of the structure that is necessary.
Please also note that the example below (and this node generally) relates to South African law, and may not be applicable to your particular legal jurisdiction. In other words hire your own lawyer.
Cause of Action.
- My Lord, I appear for the plaintiff.
- This is an action for patrimonial damages caused by negligence.
- The action is concerned with a motor vehicle accident that took place on 5 July 1995 at the intersection of Smashing Way and Bashing Street.
- The action contains a counterclaim by the defendant.
- That the collision occurred at the place set forth in the plaintiff’s particulars of claim, between the parties as set out in the plaintiff’s particulars of claim.
- That the plaintiff’s particulars of claim correctly describes the vehicles involved in the collision.
- That the accident caused damages to both vehicles.
Summary of the Issues in Dispute.
- The exact date of accident.
- Plaintiff’s ownership of the motorcycle in question.
- Whether the defendant's negligence cause the collision.
- The quantum of damages caused by the accident to plaintiff’s motorcycle.
- In respect of the counterclaim, the quantum of damages to the defendants vehicle.
- In respect of the counterclaim, whether negligence (sole or contributory) was present on the part of the plaintiff.
Onus/Burden of Proof.
- The onus is on the plaintiff to show the following:
- That the collision took place on 5 July 1995.
- That he is the owner of the Honda motorcycle, which was involved in the collision.
- That the cause of the collision was the negligence of the defendant.
- That the plaintiff could take no actions to avoid the collision.
- The amount of damages suffered by the plaintiff.
- If the plaintiff succeeds in creating a prima facie case on these issues, the defendant will bear the onus to rebut the plaintiff’s case.>
- In respect of the counterclaim, the defendant will bear the onus of proof.
Witnesses and Evidence to be Lead by Plaintiff.
- James Crasher, the plaintiff will be the first witness called. He will inform the court of:
- His ownership of the motorcycle, and will produce a certificate of ownership of the motorcycle in question, registered in his name.
- When where and how the accident took place.
- That the defendant was negligent, and how so.
- That he could not have avoided the accident.
- What happened after the accident.
- The pre and post accident value of the motorcycle, and the method used to arrive at these amounts.
- The damages he suffered.
- The plaintiff’s second witness will be Constable Copskiller, policeman who made out the accident report pertaining to this case. He will inform the court of:
- The date of the accident.
- The plaintiff’s third witness will be Peter Beater, a panel beater. He will inform the court of:
- The extent of the damages to the plaintiff’s motorcycle.
- The pre and post accident values of the plaintiff’s motorcycle.
Chronological Facts In Support of the Plaintiff’s Claim (which will be lead by the above witnesses).
- On 5 July 1995, the plaintiff was riding his motorcycle down Bashing Street, towards the intersection of Smashing Way and Bashing Street.
- The plaintiff noticed a car ahead of him parked on the left hand side of Bashing Street.
- The parked car was situated immediately after the intersection of Smashing Way and Bashing Street.
- The plaintiff checked his mirror and saw that it was safe to overtake the parked car.
- The plaintiff made a visual check over his right shoulder and saw that it was safe to overtake the parked car.
- The plaintiff turned on his right indicator.
- The plaintiff began to overtake.
- The plaintiff then noticed that the defendant who had been driving along Smashing Way towards Bashing Street had not stopped at the intersection, which is marked, by a stop sign and solid white line.
- The defendant then drove his vehicle into the path of the plaintiff’s oncoming motorcycle.
- The plaintiff applied his brakes, but could not stop in time.
- The plaintiff then collided with the back left of the defendant’s vehicle.
- The accident caused damages to the plaintiff’s motorcycle.
- The pre collision value of the motorcycle was R25 000.00
- The post accident value of the motorcycle amounts to R5 000.00 being the scrap value of the motorcycle.
- The difference between these values amounts to R20 000.00
Nullifying the Defence.
- The onus is on defendant to prove the counterclaim and or contributory negligence.
- The Plaintiff will lead evidence to show that the sole cause of the accident was the negligence of the plaintiff.
If anyone out there can tell me how to create a running numerical list with headings, without indenting the headings, please msg me.
Thanks to Lord Brawl for the HTML hints!