Last night, at the Democratic national convention, former president Bill Clinton gave a talk about his wife Hillary. He did not begin by saying: “My wife would make a great president” or “Hillary Clinton has the experience to solve America’s problems.” No, he started out like a master storyteller by saying: “In the spring of 1971, I met a girl.” That approach is the equivalent to saying “let me tell you a story” or “once upon a time.” It immediately captures interest, resonates with our subconscious by connecting to storytelling and promotes curiosity with the desire to continue listening.
Now, think about this in regard to opening statements to juries. There are lawyers who still begin their opening statement with “This is my opportunity to tell you the facts about what this case is all about, but what I’m about to say is not evidence” After wasting a golden opportunity of full attention and telling them what they are about to say isn’t important they began a chronology and start with the subject of their own client: “On March 19 2015, my client was driving a four-door, brown 2013 Nissan sedan southbound on Highway 315 at 10:15 AM when he was rear-ended by a semi truck owned by Smith moving and storage of Seattle Washington.” Not only are most of the details totally irrelevant and boring, starting the story with your client alerts defensive attribution in the jury. They immediately began to reflect on how they would have avoided your client’s conduct instead of focusing on the fault of the defendant.
Suppose instead, the lawyer began by saying: “Richard Williams had been driving a Smith moving and storage truck for over 15 hours when he crashed into the rear end of a car in front of him.” Or, “this case is the story about long-haul truck drivers who continue to drive in a state of exhaustion and while medicated to try to stay awake.” Or, “William Perkins life was forever changed on March 19 of last year when his automobile was run down from the rear by a semi truck. Now let me tell you why this happened.” Capturing interest and connecting with the fact that human beings are hardwired to listen to stories is essential as the first step of the opening statement. Starting the conduct of the defendant focuses the jury on the wrong doing of defendant.
If you watch Bill Clinton’s talk will also see a demonstration of the importance of eye contact, congruent gesturing, good timing and nonverbal facial communication.
Too many lawyers either have their face buried in their notes or otherwise fail to maintain eye contact with the jury, particularly during opening statement. If our PowerPoint or Keynote slides are the message, we are not able to connect with the jury. Our connection with other people is almost exclusively through eye contact. Slides which enhance the verbal message while we maintain eye contact with the jury are helpful. Slides which become the message eliminate us as a message bearer. Our job is to make eye contact with small groups on the jury and deliver some facts to them, moving on to the next small group with other facts throughout the total jury. Continuous eye contact is required.
Lawyers also tend to not know what to do with their hands. Male lawyers stick them in their pockets. All lawyers tend to hide them behind their back, or cross their arms and some seem to be covering their crotch with their hands. Instead of assuming an open posture with hands in An open position they nonverbally communicate they have something they are hiding. Sometimes there is an insipid small hand gesture as if one were having a small seizure of the hands. Some lawyers have gestures that they have decided to use which simply fail to fit what is being said. Gestures must be congruent with the words or they are distracting. Bill Clinton’s hand gestures were totally congruent with the words and emotion, he was projecting. Meaningful hand gestures are part of a good opening statement.
It’s been said that the key to life is good timing. Certainly the key to a great opening statement is good timing. When we are nervous, our voice changes and we tend to talk rapidly. It is the pregnant pause that makes the point dramatic. It is the pace that makes the talk understandable. It is the change of level of voice with good timing that makes the talk great. Bill Clinton paused for dramatic input, spoke more slowly when he wanted emphasis and otherwise showed good timing. Practicing our opening statement for good timing is an excellent way to learn the technique.
We know that a great amount of communication is done nonverbally. Our subconscious mind registers nonverbal communication without our being aware of it. Great actors have the skill of facial expressions, tilting the head and general emphasis skill through their nonverbal facial communications. When we are nervous we often have a semi-deadpan expression. We aren’t thinking about what we are saying so much as we are trying to be sure to say what we want to say. When we are really focused on what we are talking about there is a natural tendency for us to look like we are sincere about what were saying. Congruent nonverbal facial and upper body communication is an important part about delivering our message. Bill Clinton demonstrated this during his talk at the convention in a masterful way.
If I were to have a criticism about the delivery of his talk it would be that it was too long from my standpoint. My take was that this talk was delivered after 9 PM, after numerous previous speakers, and at a time when people were tired. I think that while the content was really excellent it should have been geared to the likely attention span of the audience. I say that even though the audience was extremely responsive throughout the entire talk. However, this was the audience that was on his side for the most part and for you and I giving an opening statement to the jury I think it wise to be considerate of their interest span as well as their state of tiredness. Short and simple is better than long and boring.
There are volumes available about story telling and opening statement is a story, but I suggest a book: TED Talks – the official TED guide to public speaking by Chris Anderson. This is not a book of rules but a helpful discussion of observations about the way speakers have presented their talks over the years with unique insight as to what works and doesn’t work. The information is applicable to how trial lawyers present their cases in court.