Speeches

Winning Techniques From the Beginning: Opening Statement

National College of Advocacy/Association of Trial Lawyers of America
Essentials of Litigation Trial College
Houston, TX

October 2001

John Elliott Leighton
Leesfield Leighton & Partners , P.A.

A lawyer and an actor are akin. It is true I have no mask, I have no set lines, I have no black cloth and I have no floodlights to help bring illusion; but out of the miseries and the joys and the strivings and experience of men, I must create an atmosphere of living reality so that it may be felt and understood by others, for that is advocacy.

–Sir Edward Marshall Hall

I. Introduction

Law School teaches us that the opening statement is the time to set forth a concise statement for the jury of what the evidence will prove in the case. The opening statement, however, should be much more than a statement, it should be a story. A story that takes the jurors removes the jurors from the courtroom and brings them into the world of your client, a story that places the jurors in the shoes of your client, a story that creates a “living reality” in the courtroom. It is only by creating that living reality that the jury will be able to fully understand and appreciate what has happened to your client.

In many jurisdictions the opening statement is the first impression that the jury will have of the case, of the client, and perhaps most important–of you. We are all familiar with popular adages such as “first impressions are lasting impressions” and “you never get a second chance to make a first impression.” No where is this more true than in the courtroom setting. Jurors will form impressions of you, the client, and the case, and these first impressions will more likely than not be determinative of the outcome. In fact, an oft-cited study indicates that by the time the parties have completed opening statements, 80% of the jurors have made up their minds about the outcome and do not change them throughout the balance of the trial. Other frequently discussed studies suggest that most jurors form a predisposition during opening statements and look for evidence during the trial to support their original mind-set. In doing so, jurors often selectively hear and/or give more credence to evidence that supports their first impressions, impressions which were formed during the opening statement. And as one author stated, “no amount of instruction from the court that minds should not be made up until the conclusion of the case can prevent people from forming impressions.”¹ If you haven’t figured it out by now, the point being made is, don’t underestimate the opening statement and be prepared to make a strong and lasting first impression.

II. Preparation

If I told you that in two weeks I’d give you $10,000.00 if you could kick a football through the goal posts from 30 yards there’s no doubt that you’d be practicing on that field every day. It shouldn’t be any different when you go to trial. You must prepare and you must practice.

A. Prepare Early

You can never begin preparing too early. This axiom applies to inexperienced as well as experienced lawyers. It’s quite ironic that many young lawyers with little idea of how to prepare and deliver an effective opening statement will spend a great amount of time working on the opening statement, while more experienced attorneys with insight on giving powerful opening statements all but neglect preparations. The end result is typically the same, a mind numbing recitation of facts.

Preparation for the opening statement should begin the moment the client first walks through the door. During that initial interview be conscious of how you are affected by what you hear. This is the first time you’ve heard about the case. Are you moved by the catastrophic nature of the injuries? Are you appalled by the conduct of the defendant? The effect that the facts of the case have on you the first time you hear them is likely to be similar to the effect they will have on a jury the first time they hear it. So remember what you’re feelings when you first heard that your deceased client 5 year-old daughter was standing at the doorstep when the highway patrol trooper arrived to inform the family that her father had died after being struck by an overloaded dump truck. Make a note, draft an initial paragraph, and use this as a starting point in developing your opening statement.

You should listen to other lawyers deliver opening statements. You’ll learn a lot about style, approach, mannerisms, and effective storytelling and theme development. You’ll also learn what doesn’t work. You should read articles written by fellow lawyers on opening statements as well as reading the local newspaper. Article writers and editors are very good sources of ideas. Take for example this paragraph from a USA today article:

The headstone won’t go in for some weeks yet. The ground at the cemetery is still frozen hard. But Tim Lane’s family has a sketch of how it will look. It has his date of birth: June 7, 1988, and the day he died: February 17, 1999. His mother clutches a picture of him taken in his football uniform just one week prior to the day he was killed by the drunk driver that ran the red light.

You can see how this newspaper article could effectively be used as a first paragraph in an opening statement. It provides powerful and moving imagery, outlines the theory of the case, and touches upon the impact of this child’s death on his family.

B. Shape your Opening as the Case Progresses

As the case progresses, allegations will find support, new facts will emerge, and the extent of the harm done to your client will be revealed. With each new development, each new witness, each new fact, amend and add to your opening.

As the trial date draws near, you should begin practicing your opening statement. At first practice by yourself. After a few dry runs enlist the aid of family, friends, and co-workers. Nothing can take the place of rehearsing in front of a live audience. If your audience has a lot of questions about your case and if they don’t understand your position, then you need to do more work.

C. Identify and Practice

In the critical two or three weeks prior to trial you not only need to be preparing what you’ll say, you need to prepare to convey your message in a powerful and meaningful manner. I have found it useful to spend time looking at photographs of my client before and after the accident, at photographs of the accident scene, photographs of the injuries, watching day-in-the life videos, listening to video statements of witnesses, and speaking to my clients. Many attorneys will actually spend a day or two living with their clients to fully understand and appreciate what it is like to live with the injuries that your client has sustained. If you cannot feel, understand, and appreciate what your client experiences, then you will not be able to effectively communicate those experiences to the jury.

D. Perfect Practice makes Perfect

Preparation in-and-of itself, however, is not the only element of an effective opening statement. It won’t make any difference how much time you spend preparing if you’re not preparing properly. As my basketball coach was found of saying, practice doesn’t make perfect, perfect practice makes perfect. And perfect practice necessitates understanding the proper structure of the opening statement.

III. Purpose of the Opening Statement

In broad terms the opening statement serves two basic purposes. The first is to provide the jury or judge with a concise and organized outline of the case. The second purpose of the opening is to persuade. If it is done right the jurors will be looking for ceratin evidence and recognize it when it appears during the trial. The evidence will reinforce what the jurors were told during the opening and strengthen your case.

A. Checklist for the Opening

(1) Involve the jury through effective storytelling,

(2) Alert the jury to the events that will occur during the trial,

(3) Acquaint the jury with the facts of the case,

(4) Establish your theme and theory of the case,

(5) Project sincerity and a belief in the rightness of the cause,

(6) Educate with credibility,

(7) Explain complex principles in clear, concise, and ordinary terms,

(8) Create a receptive mentality for the damages claim,

(9) Personalize your clients and present the human story. III.

IV. Organization of the Opening Statement

A. Introduction–The Hook

The first two minutes are the most critical part of the opening statement and often the trial. The jury is most attentive during the first minutes of the opening statements. After all, they finally get to hear why they were dragged out of their normal routine to participate in this judicial proceeding.

During the first minutes, you should take advantage of the concept of primacy. Psychologists have defined the concept of primacy as the effect on our beliefs that a new subject has when we first learn about that subject. Psychologists tell us that we form deeply imbedded beliefs when we first learn about a new subject. Similar to first impressions we have a tendency to harbor these beliefs, and only reluctantly will we change our beliefs. Keep in mind that primacy differs from “recency,” the principle that we most easily remember the last thing we learned about a subject. Recency simply relates to the ability to recall something we learned, whereas primacy relates to the intensity and foundation of our beliefs. It is more important to focus on primacy in your opening statement, recency can be taken care of in your closing.

In order to take advantage of the concept of primacy and the attentiveness of the jury, you must draw the jury in to the case, you must “hook” them on your case. The “hook” is typically accomplished with a powerful first paragraph which draws the jury into the case by providing them with a concise statement of the facts while setting forth your theory (theme) of what caused this terrible injustice to your client. For example,

On October 18, 1998, Tom Lane left for work as he had done every day for the last 15 years. He told his wife Jen that he loved her. He then scooped up his little girl Sarah in his arms and kissed her on the forehead. Jen and Sarah watched from the door as Tom climbed into his car, backed out of the drive way, and began his 15 minute commute down the highway to work. Tom was unaware that only minutes later his left rear tire would explode causing him to lose control of his car. Although Tom was unaware of the problem with the tire, Roadway, the manufacturer of the tire was not. Roadway knew there was a problem with the tire because this make and model tire had repeatedly failed stress tests and exhibited similar blow-outs throughout the country and the world. Yet Roadway, didn’t tell anyone about its secret, they didn’t tell anyone because to admit that one of their tires was defective would result in a recall and an enormous loss of profits. Tom Lane survived the crash. He lived for 4 days. He lay in a coma just long enough for his wife to tell him how much she loved him and his daughter to hold him in her arms and give him a kiss on the forehead. Tom died because Roadway put profts before people.

(-or-)

How long does it take a bullet to travel through a piece of glass, through a shirt, and into the chest of a man. In that amount of time Tim Jeffery’s life changed forever.

The goal of the introduction is to capture the jury’s interest, draw them into your case, and create a “living reality,” a picture in their minds of what your clients experienced and continue to experience every minute of every day.

B. Setting the Scene

Similar to a storyline, the principal elements of an opening are who, what, where, when, and why. Keep in mind that this legal proceeding is typically a new experience for jurors. They have no idea how a trial works or what to expect. It is your job to explain to them what to expect.

1. Identify the Parties

Explain to the jury who the participants are in the case. Point out your client and identify him or her by their first name. Personalize your client. Let the jury know that this is a human being, a person with feelings and emotions just like them. At the same time depersonify the defendant. Do not identify the defendant by name, but refer to them as “the defendant,” or in the case of a corporation, “Defendant XYZ Corp.”

2. Explain the Law

At some point you will need to explain to the jury some of the legal terms that they will hear during the trial. You must be careful not to invade the province of the judge. Some judges take it personally. However, you can maneuver around the issue by telling the jury that the judge will instruct them on the law, and when he or she does, the judge will tell them that this legal principal means this....

For instance, with regard to the burden of proof. Tell the jury that you’ll hear the judge tell you that the burden of proof in a civil trial is very different from a criminal trial. In a criminal trial the prosecution must prove beyond a reasonable doubt that the accused committed the crime. However, in a civil trial the plaintiff need only prove by the preponderance of the evidence that the defendant was negligent. Explain to the jury the definition of preponderance of the evidence. Use your jurisdictions standard jury instructions to ensure that you are providing an accurate definition and guidelines.

3. Acquaint the Jury with the Facts of the Case

Your introduction should have set the scene. Now you should fill in the gaps that you left out. Explain to the jury the how and why, repeating your theory and theme throughout.

4. Identify Key Witnesses

Identify your key witnesses. By doing so the jury will be on the look out for these witnesses and when they are called to testify the jurors will most likely associate them with what they heard from you during opening.

When discussing your expert witnesses, identify them by their credentials. For instance, tell the jury that board certified neurosurgeon Thomas Heap will tell you about the surgery he performed on your client.

5. Asserting your Theory and Conveying your Theme

Asserting your theory and conveying your theme are vital to the jurors’ understanding of how you want them to view the evidence presented during the trial. Formulating your theme may be the most important preparation you do prior to the trial. It is the foundation of your case. Your theme should be cultivated and impressed upon the jury. It should reappear throughout the trial and must be concise and simple enough for the jury to understand. Themes centered around safety, prevention, carelessness, responsibility and accountability are simple, yet powerful themes that have proven effective in all types of cases.² For instance, in our earlier example of the tire failure, the theme is profits before people. Simple, yet effective.

C. Preview the Defense Theory – Steal their Thunder

Tell the jury what the defense will argue and why the evidence does not support their case. By the time your opponent has a chance to address the jury, you want them to have heard all of the pertinent facts of the case, good and bad.

If your client has a previous criminal record, a psychological history, or didn’t report his income to the IRS, tell the jury. Tell the jury that these facts are not relevant to the case at hand. Your client has made mistakes, we all make mistakes, but does that give the defendant the right to harm your client. If you don’t get the bad stuff out on your opening, the jury will pay more attention to it, give it more weight when they hear about it for the first time from the defendant. If its something that reflects negatively on your client, the jury will think you were trying to hide something and your credibility will suffer. However, confronting and discussing the problems will establish credibility and trust.

Similarly, tell the jury not to allow the defense to misdirect their attention to collateral matters that have nothing to do with the case and do not excuse their conduct. If your credible and believable there is nothing your opponent will be able to do to get around your preemptive strike. If your opponent tries to tell the jury that this isn’t a red-herring, but something they should really pay attention to, the jurors are not going to believe your opponent as long as you have made a more credible first impression.

D. Discussing Damages

Discussing damages is difficult at best. The attitude of most jurors is adverse to substantial personal injury claims. Some lawyers don’t believe in getting into specific numbers during opening statement for fear that the jury hasn’t had an opportunity to appreciate the clients loss and is still in the mind-set that personal injury claims are frivolous. At this point, the jury is not yet psychologically prepared for the demand. Oftentimes a jury will be unnecessarily turned off when the attorney tells them on opening statement what he is going to ask them for at the conclusion of the case. Naturally, this will vary depending on the type of case and injury. If you dealing with catastrophic injuries involving enormous future medical expenses you should discuss this during the opening.

Many lawyers choose to follow the real estate salesman approach, that is, sell the product to the buyer before telling them the cost.

You can be all but guaranteed that a juror will discuss the case with his or her spouse even though instructed not too. You can also imagine the reactoin of the spouse when you ask for several hundred thousand for broken bones with surgery and hardware. Naturally, at the early point of the case you wouldn’t have had time to present evidence as to back up your figure and your defenseless juror may be convinced by the spouse that there is no way to warrant such a figure. If you give them a dollar figure prior to presenting evidence. y will lose the jury by doing so. Others .

F. Conclusion

Similar to the first two minutes of your opening, the last two minutes should end on a high note. The conclusion should be equally powerful. An often used and effective closing is one that instills the jury with a sense of importance, power, and responsibility. For instance,

Jen and Sarah are relying on you to hold Roadway accountable and responsible for the secret they kept from Tom Lane, for putting profits before human life, and for leaving them without a husband and a father. It is up to you to compensate Jen and Sarah for their loss and to ensure that Roadway never again thinks of profits before people.

V. Delivery & Presentation

There is no sure-fire or tried-and-true method for delivering the perfect opening statement. Each lawyer must develop their own style and approach. The following are some suggestions to help you develop your unique style.

A. Narrative Form

You’re opening statement should not be a statement or a recitation of facts, it should be a story. You’ll lose the interest of the jury quickly if you merely give them a recitation of the facts. And similar to a good novel your story should begin with a powerful introduction that piques the jurors interest. As one attorney stated, “[a]n opening statement is like the beginning of a novel. Those books that are difficult to get into are usually put aside...”

Oral story-telling, however, differs from written story-telling. Oral story-telling is three dimensional. The personality, presence, and mannerisms of the teller are added to the literary content. Facial expressions, physical gestures, voice modulations, and many characteristics go into the process.³

B. Be Yourself

Do not try to be someone that you are not. Jurors are quick to spot a phony. If you normally are not someone who is flamboyant in your presentation, do not try to be so at trial. It won’t work. Watch other trial lawyers give openings. Read the literature and develop a style that you are comfortable with and that is your own.

C. Be Clear and Concise

The opening statement should be clear and concise. It’s the points you make and how you make them that count, not the length of the opening or the fact that you covered every conceivable point. The popular saying is “if it doesn’t help your case, it hurts.” Think about the pertinent issues and factors that you need to discuss. Eliminate everything else from your opening. Younger attorneys often make the mistake of trying to dream-up every possible defense and provide an explanation or reason why it doesn’t comport with the evidence. Don’t waste your time setting up these “straw men” and knocking them down. Emphasize your strong points and move on.

Your opening statement must be organized and must flow. If you jump from point-to-point without any sense of flow, the jurors will not be able to relate to you or your theory. Attempt to deliver the opening in a chronological order. This is how normal things happen in the world and this is what jurors best understand and can follow.

You must know the pertinent facts, relevant dates, and important names without reference to notes. Reading or referencing documents for basic information undermines your credibility and effectiveness. It leads the jury to believe that you are merely doing a job and saying whatever you need to say in order to win.

D. Use Common Language

The use of clear, plain language is essential to an effective opening and to developing a relationship with the jury. Understand first and foremost that you are a lawyer and the people sitting in the jury box generally are not. They are accountants, waiters, waitresses, truck drivers, cashiers, salesman, construction workers, administrators, etc... They are people from every walk of life and for most of them this is their first experience with the judicial system. They didn’t spend three years in law school listening to a professor theorize on proximate cause. Their minds haven’t been modeled to analyze, hypothesis, and argue law. So, don’t talk to them like they are lawyers.

One of the greatest problems for lawyers is that they forget how to speak as ordinary people do. You want to relate to the jury and make them feel at ease. Use of “legalese” creates a barrier between the attorney and the jury. Telling a clear story in layman’s language during you opening is the single most effective way of accomplishing the goal of establishing a connection. For instance, when discussing causation don’t say “the defendant will have you believe that the attack by the perpetrator was a supervening and intervening act which broke the chain of causation.” Say, the defendant is going to claim that despite failing to install security cameras its not their fault, but the fault of the criminal who knew that there was no security at the bank. Similarly, with respect to damages don’t say, “Robert suffered a depressed comminuted fracture of the left parietal bone with bone fragments impinging on the dura.” Use ordinary language and tell the jury that “Robert fell out the unsecured window and landed on his head, his skull was smashed to pieces, some of which lodged in his brain.”

E. Create Familiarity

A lawsuit will involve legal concepts and medical concepts that jurors will most likely have difficulty comprehending. It is your job to help them understand. Familiarity equals comprehension. If you need to explain a concept or a medical term, use an analogy. Analogies create familiarity. If you don’t provide a juror with an analogy they will create their own analogies to help them understand the concepts. The problem is that the juror may not create the right analogy. Therefore you must provide them with an analogy. For instance, when describing the neurological complications of the impingement of the radial nerve in your clients humerous. Tell the jury that it feels like you hit your funny bone really hard, but it feels like that every second or every minute of every day.

F. Demonstrative Evidence

Perhaps the most powerful method for grasping the attention of the jury and hammering home your flavor of case is through the use of demonstrative evidence. Studies indicate that people learn and perceive more information through a combination of verbal communication and visual stimuli. In fact, studies show that humans, on average, retain only 15% of the information that they receive from audible sources, whereas retention climbs to rates greater than 65% when the same information is delivered visually and aurally.⁴ With this in mind the adept trial lawyer will choreograph their case to reach the jury through both sound and vision. In addition, demonstrative evidence can be used to effectively explain concept principles as well as injuries.

G. Use Powerful and Descriptive Words

Use words that naturally bring to mind vivid images. Words such as impaled, crushed, smashed, and mangled. What’s more vivid, “John’s leg was broken when the two cars hit” or “John’s leg was crushed within the mangled wreck of the collision.”

Don’t use general terms to describe something, i.e. “John didn’t have any physical limitations prior to the accident.” Create a vivid picture in the minds of the jurors. Tell them what’s wrong with your client. Tell them that John walks with a limp because his left leg is shorter from where the doctors had to remove some bone in order to make the pieces of his broken leg fit back together.

VI. Checklist of Do’s and Don’t’s

A. The Dos

1. Prepare early and practice extensively,

2. Be yourself,

3. Hook the jury with a powerful introduction,

4. Be sincere and confident,

5. Tell the story in a step-by-step chronological manner,

6. Be concise and clear using lay-mans terms,

7. Personalize your client,

8. Develop your theme,

9. Emphasize the juries power and responsibility

B. The Don’ts

1. Do not waive the opening,

2. Do not make a speech, tell a story

3. Do not overstate your case,

4. Do not talk down to the jury,

5. Do not overuse legal or technical terms,

6. Do not promise more than you can deliver.

The next time you sit down to draft an outline of your opening statement, read Sir Edward Marshall Hall description of advocacy and write at the top of every page of your outline, “I must create an atmosphere of living reality.”

*Reprinted from the Association of Trial Lawyers of America, Essentials of Litigation Trial College, October 2001, Houston, TX with permission of the Association of Trial Lawyers of America. Copyright © Association of Trial Lawyers of America. Further reproduction of any kind is prohibited. For more information, please contact the National College of Advocacy, 1050 31^st Street, N.W., Washington, D.C. 20007, 800-622-1791.