David Ball’s book Ball on Damages should be on every plaintiff lawyer’s shelf. He has not only accurately captured the correct way to present your case, but has explained the reason why it should be done that way. What follows are some random points David makes that I think are of particular importance in generaland as toopening statement in particular. I’ve "interpreted" them so for the precise thing David has to say, see the book.
Let’s start with what I think is the primary principle plaintiff trial lawyers must learn and apply. That principle is that we must shed our law school training about advocacy and learn to present cases consistent with the way that people really make decisions. You were probably taught in law school to carefully examine all of the facts and law, following which you were expected to analyze intellectually in order to arrive at the right decision. You were probably taught to speak and write as an intellectual or like a scholar might. Law students try to sound like intellectuals to impress everyone. The problem with approaching a trial in that manner is that it doesn’t work when we are talking about groups of people we call jurors.
It doesn’t work, because the jurors are receiving an enormous amount of information in an unfamiliar, as well as intimidating environment, where the ultimate decision is a group one rather then an individual one. They rely upon impression and motivations they are not even aware of on an unconscious level. To accommodate their situation we need to do at least three primary things. The first is we need to revise our attitude about what the group will do to arrive at their decision. It will not involve intellectual analysis of the evidence and law. It will involve impressions that flow from their value beliefs, their significant life experiences and their subconscious primal motivations. Another thing we need to do is to simplify. The communication must be clear, simple and brief. Lastly we need to communicate at a rate and in a manner that allows adsorption of the information we are giving them.
Lawyers biggest problem is they talk too much, make everything too complicated and are boring. Recently Julie Blackman, Ellen Brickman & Corinne Brenner wrote an article East Texas Jurors and Patent Litigation where they discussed their research involving complex patent cases and juror understanding. It documents the need for simplicity. Among their conclusions were these.
"The lesson learned here is, never overestimate the importance of simplicity in your teaching. Do not assume any knowledge or familiarity with the concepts that you are teaching. For example, some mock jurors in our research did not know what "hardware" and "software" meant or how they differed from each other. Start with the basics and work your way up slowly to more complex concepts. In all of your teaching, use as many concrete examples as you can."
Their study also noted that the jurors were best able to hold on to short key phrases that were easy to remember. They recommend lawyers do not try to teach every detail and only communicate the essential. Use a key phrase and repeat it. Give the big picture and leave out the details. The first one to look and sound like a lawyer loses.
With those principhere are some random points David makes that support the correct way to try a lawsuit:
- What is people do when they are given an unfamiliar task to do? They want to know what the rules are they are supposed to follow. So give them the rules. What is the test for evaluating credibility of evidence? What are the standards that apply to this case? How do they go about making their evaluation? And so on. In opening statement it means starting immediately with the rule of conduct. As David suggests a rule would be: A doctor may not needlessly endanger a patient.
- When you are communicating, use simple, short sentences. Your illustrations should be simple and uncomplicated. Follow the rule of one fact per sentence. Be sure to use pauses to let the information sink in. Give each sentence it’s own importance. Add sensory descriptions of color, smell, sound, touch taste etc. The first one to show they are a lawyer loses credibility so don’t use legal language. If you are talking about a legal principle, law or policy tell it in your own words with clear simple explanations.
- Most lawyers make the mistake of thinking that all facts are equal in importance. They add to communications details that are not only unnecessary, but make it complex. When you are first introducing the story, you want to paint the big picture without the details. Too much information confuses the listener. Capture their hearts and minds first with the broad story and fill in necessary details afterwords.
- Remember that it is a story that we feel compelled to listen to just as we did when we were children. So tell a story, but tell it in the present tense as if it were happening now. Think of yourself as a camera relating what you are seeing.
- When you are introducing the facts of the case tell the story about the defendant, not your client. You want the case to be about the defendant’s conduct and what the defendant did or should have done.
- David suggests that if you use dates in your story avoid doing it like a chronology. Instead, give them the relevant time sequence. For example, if you say the patient went to the doctor July 9th and you are describing the next visit, instead of saying "On July 18th the patient returned," say instead: "Nine days later the patient went back to the doctor."
- Thnk in terms of explaining the big picture about what is going on in the trial. They need to know the rules. They should know why the rule is important and the harm to all when it is broken. They want to know why you are suing & what the defendant did wrong. They want to know what the defenses are and why you say they aren’t valid. They want to know what the plaintiff wants and why they want it or should get it. They want to know what the jury can do about it and how they do it.