Definition
In legal practice, an opening is the initial address made by counsel to the jury (or, in some contexts, to the court) at the commencement of a trial or hearing. It is the first formal opportunity for a party's attorney to speak to the fact-finder, typically occurring immediately after the jury is impaneled. The opening serves two primary functions: to orient the fact-finder to the case and to preview the evidence the party expects to present.
The term carries two related but distinct uses in practice:
1. Opening statement (trial): Counsel's preliminary address to the jury before evidence is presented. The opening statement is not argument — it is a narrative preview of what the evidence will show. Both the plaintiff (or prosecution) and the defendant have the opportunity to open, with the party bearing the burden of proof typically opening first.
2. Opening argument (appellate or bench proceedings): In proceedings addressed to the court rather than a jury, "opening" may refer to the initial portion of oral argument before a tribunal, or the introductory section of a written brief.
Common Language
Modern common usage (Wiktionary): Present participle and gerund of "open"; broadly, the act or process of beginning something, a breach or gap, or an available opportunity.
Historical common usage (Webster's 1913): "The act or process of opening; a beginning; commencement; first appearance" and "a vacant place; an opportunity."
The common meaning — any beginning or commencement — maps loosely onto the legal meaning, but the legal term is a term of art with a defined procedural context and specific rules governing content and timing. The colloquial sense of "opening" as any opportunity or gap has no legal analog in this usage. A researcher encountering "opening" in legal materials should recognize it as referring to counsel's address, not merely a beginning in the general sense.
Common Confusion
Opening statement vs. opening argument: Courts and practitioners sometimes use these interchangeably, but the distinction matters in some jurisdictions. "Opening statement" is the preferred and technically correct term in jury trials, precisely because counsel is not permitted to argue at that stage — only to state what the evidence will show. Calling it an "argument" can be technically misleading, and some courts will sustain objections to argumentative openings on that basis. In bench trials and appellate proceedings, "opening argument" is more appropriate because the line between previewing and arguing is less sharply policed.
Why It Matters in Research
The historical dictionaries treat "opening" almost exclusively as a jury-trial concept. Researchers examining pre-twentieth-century practice materials should be aware that the procedural architecture of the opening — who goes first, whether the defense may reserve its opening, and what content is permissible — varied considerably by jurisdiction and era. The modern norm of deferring the defense opening until after the plaintiff's or prosecution's case-in-chief was not universal in earlier practice.
In corpus research, "opening" appears in trial transcripts, practice manuals, and procedural treatises. Its meaning is almost always context-dependent: an "opening" in a trial record is counsel's address; in a real property or future-interests context, "opening" carries an entirely different technical meaning (see the "subject to open" doctrine in class gifts). Researchers should not conflate these uses.
The term also surfaces in equity practice, where "opening" a decree or judgment refers to the procedural act of vacating or setting aside a prior ruling to allow further proceedings — a meaning not captured in any of the historical dictionary entries here and easily overlooked.
Historical Dictionary Support
The three historical sources agree closely. Black's (both editions) offers a spare, two-clause definition. Bouvier's is the most useful of the three, adding that the opening "embraces the reading of such of the pleadings as may be necessary, and a brief outline of the case as the party expects to prove it." This detail — that openings historically included reading from the pleadings — reflects a practice now largely abandoned in American courts, where pleadings are rarely read aloud to a jury.
All three sources anchor the term in "American practice," an editorial signal that the concept as defined is not directly transported from English common law procedure. Bouvier's note that an opening may be addressed to the court (not only the jury) in non-trial settings is a useful expansion that Black's omits.
What the historical dictionaries miss entirely: the distinction between opening statement and opening argument; the rules governing waiver or reservation of the defense opening; and the separate usage of "opening" to mean vacating a prior order or decree.
Jurisdictional Note
Procedural rules governing openings — including timing, permissible content, and whether the defense may reserve its opening — are set by court rules and vary by jurisdiction. Federal courts and most state courts follow the general model described above, but the enforcement of the "statement not argument" rule differs significantly in practice across trial courts.
Encyclopedia Cross-Reference
Property Law Encyclopedia: Future Interests — Remainder (Vested, Contingent, Subject to Open) — for the distinct property-law meaning of "opening" as applied to class gifts, entirely separate from the procedural sense defined here.