The opening statement is probably the second most important part of a jury trial. The most important part being jury selection. Due to its importance you should make sure that your opening statement is excellent. Yet, there is a lot of “old wisdom” out there that if followed will cripple your opening statement’s effectiveness. In this article I will discuss with you the five most damaging mistakes you can make in an opening statement.
“What I say is not evidence…”
If you’ve been around jury trials for any period of time you’ve seen lawyers do this. The first thing they tell the jury is that what the lawyer says is not evidence. As they put it “what I say is just what I believe the evidence will show.” Let me break it down for you–the jury does not care what you think the evidence will show. The jury does not care what you think at all, in fact. The jury wants to know what the truth is. they want to know what happened. They want to know who is in the right, and who is in the wrong. And you telling them that you’re about to tell them what you believe the evidence will be doesn’t help them one bit.
Tell the the jury what happened. Tell them what the case is about. Show them what they need to know to make things right for your client. And make sure that when you do you do so as if you were there when it happened. Speak to them like if you were there. What you say is not only evidence, what you say is the absolute truth about what happened in this case. What you say is the gospel. Drop this antiquated line from your trial arsenal, I promise your client will thank you for it.
Do Not Waste Your Opening Statement Primacy
The primacy effect says that a person is more likely to remember the first thing they hear. This mean that the first couple of minutes with the jury are your most effective minutes. Do not waste them by giving them some boilerplate crap that does not advance your case. If you’ve been around trials at all you have seen what I’m talking about. It goes something like this:
Good afternoon members of the jury. My name is James Brown, I am a lawyer. Today I have the privilege of representing the Plaintiff Mr. Smith. On behalf of Mr. Smith and my co-counsel I would like to thank you for joining us. This is what we call an opening statement. This is the time when the attorneys have the opportunity to tell you what they believe the evidence will show. You can think of it like a road map or a guide to the case. There are rules to opening statement. We cannot argue to you at this time….
If you’re like me every time you see something like this you cringe. Every time you do this you waste your most effective time with the jury with nonsense. If you stop doing this you will elevate your trial game substantially. Think about it this way–would you rather do that or would you rather the first thing the jury hears be this:
It is July 23rd, 2014, at approximately 9:45 in the evening. It is a dark, hot, and humid night. Mr. Smith is staring down the barrel of a gun. His hands are shaking. His heart is pounding…his mind is racing. Sweat pours down his forehead. He tries to reach for his medication but the man behind the gun orders him to stop. He tries to reach for his cigarettes, but once again, the man behind the gun barks out a warning: “If you move, I will shoot you.”
After what seems like an eternity Mr. Smith sees the blue and red lights off in the distance. The lights are getting bigger, brighter, closer. The lights are heading his way. He notices the silhouette of a police car, and then another. A wave of relief like no other takes over his entire body. For he knows that he will not die today. But almost as important, he also knows that whatever misunderstanding is taking place will be cleared up.
Do not waste your opening statement primacy. Use those valuable minutes to persuade with an exciting, captivating story.
Do Not Start On A Boring Part Of The Story
Many lawyers understand the importance of primacy. They have moved passed the “road maps” and “what I say is not evidence” introduction crowds. But they still find themselves unable to capture the jury’s attention in opening statement. This is usually because they start the opening statement on a boring part of the story. Perhaps they start the story with background information about the parties. Or they start chronologically with the events that eventually led to the lawsuit.
The trick to captivating the jury from the start in opening statement is to start the opening with the action. Find the most moving, action packed scene of your lawsuit’s story and start there. Are you trying a car accident case? Start the opening statement at the point that the distracted driver collides with your client and crushes every bone in his body as his wife of 30 years watches helplessly from the passenger seat. Are you trying a medical malpractice case? Start the opening statement at the point that the Dr. fails to conduct the necessary test that would have diagnosed the deadly condition that is gaining a foothold inside of your client.
Whatever you do, do not start on a boring part of the story.
Do Not Set Out To Disprove The Other Side’s Story
Many lawyers make this mistake. They get up during opening statement and start telling the jury about how what the other side says is not true. Or how the other side will not be able to prove what it claims. Opening statement is not the time for this. Opening statement is the time to give the jury your story. Opening statement is the time to convince the jury that what you are saying is true. Do not waste this valuable time trying to convince the jury that the other side is not telling the truth. If you do so not only will you waste valuable time that you will never get back, but you may even give legitimacy to your opponent’s story.
Do Not Ignore The Bad Facts
Lawyers often ignore the bad facts in their case in opening statement. This is perhaps the most deadly sin of bad opening statement practice. If you ignore the bad facts the jurors will feel that you are trying to deceive them when the bad facts come out. And trust me–they will come out. When that happens the effect on your case will be devastating. Not only will the bad facts affect your case but the credibility hit that you will take in front of the jury will further amplify the damage that the bad facts will do to your case.
Instead of ignoring the bad facts you can do one of two things to deal with them. The first is bringing out the bad fact(s) and minimizing their impact with spin. The second, and most difficult thing to do, is turning the bad fact into a good fact for your case.
Imagine a scenario where your client was injured in an accident and is claiming severe impediments as a result of the accident. The insurance company, however, has a video of your client doing some manual labor. You can deal with this fact in the following ways:
Spinning A Bad Fact
The spin on a bad fact like that goes like this.
Members of the jury, even though my client is severely incapacitated as a result of his injuries you will see a video of him doing manual labor. When you see that video I want you to consider that the manual labor that he is doing is not very strenuous and he can be seen having a very hard time doing so.
This spin allows you to get ahead of the video which will be seen by the jury. It also helps you direct the jury to the better parts of the video for your case–that the activity is not strenuous and that your client is having a very difficult time performing it. While better than not addressing this bad fact at all, this is not ideal.
Turning The Bad Fact Into A Good Fact
You could, however, turn this bad fact into a good fact. One way to do that is like this:
Members of the jury, after my client was severely injured he did not spend the time sitting on his couch waiting for a paycheck. No matter how severe his injuries were his work ethic would not allow him to do that. He had been working for 30 years and he was not about to let his injuries prevent him from providing for his family. You will see a video of my client trying his very best to work. Doing everything he could to provide for his family. You are going to see how even after he was severely injured by the Plaintiff my client was out there doing manual labor to the best of his abilities. You will see how because of his injuries, try as he might, he is barely able to perform even the least strenuous of activities.
By portraying it this way not only do you take the sting out of the video but you also use the bad fact to make your client look like a hard working person who is not looking for handouts.
Opening Statement Success
If you are going to spend time improving your trial practice it is important that you spend the time where it counts the most. Since opening statement is one of the most important parts of the trial it is a perfect place to put your effort into. If you implement these suggestions into your opening statements I have no doubt that you will find success. If interested in further reading regarding effective opening statement practice I recommend this book.