Delaware Trial Handbook § 7:2. RIGHT TO MAKE AN OPENING STATEMENT

The party who has the burden of proof is generally permitted to make the initial opening address to the jury. In criminal cases this will be the prosecuting attorney. In civil cases it will usually be the attorney for the plaintiff. In cases where the burden of proof is on the defendant, such as eminent domain cases (known in Delaware as condemnation cases), it may be expected that the defendant will be entitled to make the initial opening statement. This is a matter that may be subject to the court’s discretion.1

Counsel for the party or parties who are not entitled to make the initial opening statement then  have the option of making their opening addresses either immediately after the initial opening statement or statements or at the close of the evidence offered by the plaintiff.2 Where two or more defendants are represented by separate counsel, counsel may attempt to get the benefit of both options by arranging that counsel for one defendant will open immediately after the opening address of opposing counsel and that counsel for another defendant will reserve his or her opening statement to follow the close of the plaintiff’s evidence. A court may, but will not necessarily, exercise its discretion to frustrate such a plan.

The court has the discretion to place limits on opening statements.2.1

1. See V.B. Woolley, Practice in Civil Actions and Proceedings in the Law Courts of the State of Delaware § 659 (1906).

2. Super. Ct. Civ. R. 42.1.

2.1. Gattis v. State, 637 A.2d 808, 818 (Del.), cert. denied, 513 U.S. 843 (1994); Gray v. State, 441 A.2d 209, 225 (Del. 1981).

© 2010  David L. Finger