Maureen A. Howard, Opening Statement: Persuading Without Argument, Feb. 2010 De Novo 8 (2010), https://digitalcommons.law.uw.edu/faculty-articles/528
A basic rule of trial practice is that a lawyer cannot argue in opening statement. A lawyer who breaks this rule runs the risk of drawing an objection from opposing counsel and having it sustained by the judge. Of course, as with most rules of trial practice, a lawyer can get away with de minimus violations in most cases and wholesale disregard in cases where opposing counsel—whether as a result of inexperience, inattention or trial strategy—doesn’t object. Although simple in concept, lawyers commonly falter in practical application of the “no argument” rule in two ways: 1) failing to understand what “argument” is, and 2) failing to appreciate that argument is not the most persuasive tool in opening statement, even if they can get away with it.