“The opening statement is intended generally to inform the [finder of fact] concerning the nature of the action and the issues involved and to give them an outline of the case so that they can better understand the testimony….Counsel may summarily outline what he expects the evidence admissible at the trial will show but no statement may be made in opening which counsel does not intend to prove or cannot prove.” Gillson v. GM & ORR CO., 246 NE 2d 269 – Ill: Supreme Court 1969
In Illinois, the finder of fact is a judge NOT a jury. “There shall be no trial by jury” 50 ILCS 5/103
In an Illinois divorce case, by the time you get to trial the judge is going to know you and your case pretty well already. There will probably have been hearings on temporary matters, statuses on discovery and even a pretrial which already summarized your entire case. Because of this, opening statements don’t have the same import as it would in a trial by jury.
So, what does a judge want to hear in an opening statement?
“Judges can be persuaded only when three conditions are met:
(1) They must have a clear idea of what you’re asking the court to do.
(2) They must be assured that it’s within the court’s power to do it.
(3) After hearing the reasons for doing what you are asking, and the reasons for doing other things or doing nothing at all, they must conclude that what you’re asking is best—both in your case and in cases that will follow.” Antonin Scalia & Bryan A Garner, Making Your Case The Art Of Persuading Judges (2008)
If you are the petitioner/movant, tell the judge what you are specifically asking for, point out the law that allows you to ask the judge for that, then summarize the evidence which you will present that makes what you’re asking for the best solution FOR EVERYONE.
If you are the respondent, tell the judge what you are asking for, point out why the law allows what you’re asking for and NOT what the other side is asking for, then summarize the evidence you will present and the evidence you presume the other side will present and how that evidence (or lack thereof) makes what you’re asking for the best solution FOR EVERYONE.
An opening statement is a great time to remind the judge of any stipulations both parties have jointly submitted. The stipulations are likely foundation for the rest of your evidence so you’ll need the judge to be aware of them in order for the judge to follow your case.
Don’t worry about summarizing everything. You’ll have plenty of time to present the actual evidence.
“We also have held that a party is not confined, so far as his right to introduce evidence is concerned, to the outline of evidence presented in his opening statement” Blanton v. Denniston, 294 NE 2d 283 – Ill: Supreme Court 1973
Pay attention to your opponent’s opening statement. If the other party promises the court that they’re going to present some kind of evidence and they later do not present that evidence, you’ll want to remind the court of that promised evidence’s absence in your closing argument.
Additionally, you’re going to want to bring to the court’s attention anything inappropriate is mentioned. This is almost always an allusion to evidence which has already been excluded via a motion in limine.
“[C]omments by an attorney in an opening statement concerning evidence to be introduced at trial are not improper if made in good faith and with reasonable belief the evidence is admissible, although the intended proof referred to is later excluded… In the absence of good faith, however, or where prejudice is clearly shown, the rule is to the contrary. No statement should be made in counsel’s opening statement which counsel does not intend to prove or cannot prove.” Nassar v. County of Cook, 775 NE 2d 154 – Ill: Appellate Court, 1st Dist., 4th Div. 2002
Saying something dumb in an opening statement isn’t going to cause some kind of mistrial. But, it can’t hurt to point it out if you hear it.
“Improper comments generally do not constitute reversible error unless the party has been substantially prejudiced.” Magna Trust Co. v. Illinois Cent. R. Co., 728 NE 2d 797 – Ill: Appellate Court, 5th Dist. 2000
What If There Is No Opening Statement In An Illinois Divorce Case?
Often the judge will be so familiar with the case already that opening statements are superfluous. Both parties will agree to waive an opening statement especially if it’s just a hearing and not a full trial.
If you insist on an opening statement, the judge is likely to grant you one.
But, if the judge does not allow for the initial argument provided in an opening statement, your due process rights have not been compromised.
“Requirements of due process are met by conducting an orderly proceeding in which a party receives adequate notice and an opportunity to be heard.” Reichert v. Court of Claims of State of Illinois, 203 Ill. 2d 257, 261 (2003).
A judge telling you they don’t want opening statements means they don’t think much of your case.
“[T]he right of oral argument as a matter of procedural due process varies from case to case in accordance with differing circumstances, as do other procedural regulations. Certainly the Constitution does not require oral argument in all cases where only insubstantial or frivolous questions of law, or indeed even substantial ones, are raised.” Federal Communications Commission v. WJR, The Goodwill Station, Inc., 337 U.S. 265, 275-76 (1949).
If you know that your divorce case is eventually going to hearing or trial, you need prepare an opening statement. Contact my Chicago, Illinois family law office to schedule a free consultation with an experienced Chicago divorce attorney.