OPENING STATEMENTS THAT GRAB THE JURY
“He who wants to persuade should put his trust not in the right argument, but in the right word. The power of sound has always been greater than the power of sense.” Joseph Conrad
SOME PRELIMINARY THOUGHTS
The legal function of an opening statement is to tell the jury the nature of the case, what the issues are and what the party proposes to prove in support of their claims. It is usually added that argument has no place in an opening statement. While this may be the rule, we must not ignore the important human behavior implications of the opening statement. The opening statement must incorporate all of the established principles of persuasion and behavioral science while staying within the limitations of what is legally permitted in an opening statement. It does not have to be a stiff, stilted and boring narrative.
KEEP IN MIND PRIMACY AND RECENCY
The rule of primacy deals with first impression. Perceptions are organized and structured within a brief period of time. First and early impressions have a stronger and more permanent impact on the listener. The rule of recency provides that what the listener hears last, they tend to remember the longest. These two rules are an important part of the winning opening statement since the plaintiff makes the first opening statement and sets the tone for the first impressions of the jurors.
HOW TO START
A trial is a battle of impression and not logic. First impressions are made in the first four to six minutes so make your point in the first three minutes. It is best to start by focusing on the defendant – not the plaintiff. Start the story talking about the defendant. That is because of the concept of “availability bias.” As you tell the story of your case, jurors will begin filling in the blanks, asking themselves questions about what you are representing and otherwise making the story complete in their minds even before you can finish. Human nature is such that they need to make sense out of the facts. To do so, they will construct their understanding of the case as the story unfolds. If you begin with the defendant’s conduct they will begin by examining the context of the defendant’s behavior and not focus on what the plaintiff did or should have done. As you sequence the facts by starting with the defendant’s conduct you allow the jurors to concentrate on that story, making up their own reasons and forming their own ideas about this person before talking about the plaintiff. Jurors develop stories about what happened and look for evidence to support their version of the story. Consequently, the plaintiff’s should always start by attacking the defendant.
HOW TO PRESENT THE OPENING STATEMENT
Tell a story and not a chronological outline of facts. In effect, you need to make the jurors “eyewitnesses” to what happened. Present in the present tense and first person. An opening statement should not be a narrative of facts. It should be presented in story form. A well told story does not have numerous details but instead paints a very broad picture without specifics. Always be general and not specific. It has a beginning which leads to an interest of what is going to happen, a step by step story unfolding to a strong conclusion. Think of a ten word telegram as the story: “mom in labor, baby is in trouble, nurse ignores, doctor not to be found, baby born brain injured.” Learn to eliminate irrelevant details, big words and boring information. Paint word pictures for the jurors.
Make sure your client is seen and understood as a human being. Ignore words like “client” and talk about your client as a real person. Use names and make it personal.
KEEP IT SHORT AND SIMPLE
Remember John Wayne’s advice about acting: “talk, low, talk slow and don’t say too much” Keep it brief and interesting. don’t use technical terms in the overall story without first giving the definition and then the term e.g. doctors and nurses are trained to carefully watch the condition of the baby. This is known as “monitoring.” Not “monitoring is defined as checking on the condition of a baby by medical personnel.” Write the words down for them to see as well as hear.
FROM WHAT VIEWPOINT WILL YOU TELL THIS STORY?
There are many ways to approach the story you are going to tell in opening statement. You can assume the viewpoint of the defendant or the plaintiff or a treating doctor or even the object that caused the injury. As the evidence in the story unfolds it can be viewed through the eyes of many possible selections. Decide from whose view point you will tell the story because it makes a big difference whose view point is used.
DEAL WITH THE ISSUES
The concept of “Defensive attribution” provides that if the facts are inconsistent with the juror’s own ideas of what they would do or expect others to do, they apply the “this couldn’t happen to me” or “I would never have done that” reaction. We need “good guy vs. bad guy” because sympathy is a poor motivator. We need to tell a story where the conduct of the plaintiff is what the jurors themselves would have done and the story of the defendant causes them to form conclusions about what they would expect under the same circumstances. There always are significant issues in every case or you wouldn’t be in trial. Deal directly and clearly with these issues. Don’t hope no one will notice or perhaps they will go away during the trial. Be honest and truthful about your concerns regarding the issues and put them in the best possible light consistent with the truth.
Be sure you cover the evidence that deals with the defenses. You must anticipate the known defenses in your opening statement and cover the reasons why they are invalid in such a way as to inoculate the jurors before they hear the defense opening statement.
ANSWER THE QUESTIONS IN THE JUROR’S MINDS
While staying within the rules for opening statement answer the questions the jurors are thinking but can’t ask out loud. They want to know:
USE TECHNIQUES OF GOOD COMMUNICATION
Use rhetorical questions: What are the issues here? Why are we here? What did the medical team do wrong? What should have been done? Would twice have been enough? Who was the captain of the ship? Why has the hospital been named? What happens when medical people ignore warning signs? Why didn’t they react to the danger signals? What’s the best choice to take the least possible risk? You don’t have to be a doctor to figure that out. All you need is common sense.
Use metaphors: “That’s like playing Russian roulette with this baby’s brain. The doctor is passing the buck. The doctor turned her back. It’s like someone having a heart attack in the emergency room and everyone ignores him.”
Consider phrases such as “And that’s not all…” or “time after time” and “again and again” … there were danger signals and nothing was done.
USE VISUAL AIDES
It is always better to use visual aides during the opening statement which will help shorten, simplify and help understanding by the jury. This would include photographs of the scene, diagrams, the key documents in dispute and the like. You need permission to use exhibits, models, diagrams and the like in opening statement. While most courts will permit the lawyer to write during opening, it is necessary to request permission to use other devices. This should be done before the trial begins and not on the morning of trial. You should confer with your opponent to see if agreement can be reached before approaching the judge.
WHAT ABOUT THE MONEY?
In virtually every case the plaintiff knows the elements of damage that apply to their case. Damages should be discussed in connection with each element. The jurors should become aware of the law’s accepted element of damages at this stage and how they apply to the evidence in this case, whether or not a specific dollar amount is suggested.
Economic damages are the easiest to discuss at this stage since there will be evidence about specific out of pocket losses past and future. If they are substantial, it is probably better to list these items of damages in your opening statement to set the frame work for the requested non economic appraisal the jury will have to make. In other cases, where this amount is inconsequential, you might not want to list them.
The advantage of discussing non economic damages at this stage is to prepare the jury for what they will hear during final argument and to look for evidence to support such a result. The disadvantage is the risk you may lose jury motivation by asking for an amount they are not prepared to consider before they have heard all the evidence or asking for an amount which the evidence