In spite of all of the writing and seminars on the subject of opening statements, too many trial lawyers maintain a wrong and overly simplistic view of this important step in the trial. Remember, the opening statement is the critical first impression with the jury about the case. Too many lawyers take the easy road of telling a chronological narrative is if it were a police report instead of a compelling emotional story.
Opening statements are important. That’s when most jurors take sides and start telling a story about the case. We know that jurors don’t make judgments by abstract reasoning but according to their life experiences and whether the story fits their inner scripts of experience and values. Practice reducing your case to a 30 second statement. That’s in order to clear out details that aren’t relevant. When you insert too many details the real story gets hidden in a swamp of useless information. When you practice reducing the case in that way, you are better able to identify the big picture issues the jury would find important and craft your opening statement around those.
Jim McElhaney was one of my favorite legal writers. For years he published a column in the American Bar Association Journal. I saved most of what Jim wrote because it made such good sense. In 2008 he published an article about telling a good story to the jury in your opening statement. Here are some of his thoughts. He recommends that we should not talk about this part of the trial as a “opening statement” because it is a story and not a statement. The first step, he says, is to “clear out the clutter” by removing unnecessary issues facts and needless words. He makes the obvious point that we should never start the opening statement with a lecture about how what is about to be said is not evidence or waste the golden opportunity of first impression. He correctly recommends that we tell the story of the case and not the story of the trial. We should be telling the jury what happened and not who we are going to call as witnesses or what they’re going to say. Not only is it boring, but it does nothing to help your case, especially if you later decide not to call one of the witnesses or there is a failure to say what was promised.
McElhaney argues that the job of the lawyer is not to tell the whole story but rather to create a curiosity to make the jury want to hear the details and fill in the blanks during the trial. There are several ways to do this. One of them is to start with the end of the story. His example of doing this in the article was:
“There is a tall, white building downtown on school Road. Every morning at 8:15 a city bus stops in front and a woman wearing a plain cloth coat gets off the bus. She goes inside the building and takes the elevator to the eighth floor. She walks to the end of the hall and stops in a closed door. She knocks on the door but no one hears it. She opens the door and turns on the light, but the man on the bed doesn’t see it. She walks over to the window and opens the curtain, but the man doesn’t notice. She kisses him on the four head, but he doesn’t feel it. She sits next to the bed and takes his hand but he doesn’t react. She tells him how the children are doing in school and what is going on in the neighborhood, but he doesn’t respond. She says a little prayer and kisses him goodbye, but he doesn’t move or even smile. Then she leaves the room, goes down the elevator out of the building and goes to work. Who is this man? How did he get that way? Who is responsible for? That’s what this case is all about.”
Another example of creating a “hook” or curiosity is this example he gives: “Ladies and gentlemen, this case is about a young woman’s eyes” and pause before proceeding. One has the juries full attention before proceeding with the story.
Another is to use an introduction which keeps their attention like this example McElhaney has written about: “This case is about an agreement Mark Willis made to buy lumber from the Tri-City lumber company. They gave him their word. They promised they would deliver all of the wood he needed at a price of $3.5 million. Mark believe them. He trusted them. He counted on them. He went out and hired the three extra building crews he needed to do the work. They dug basements for 12 houses; poured 12 foundations installed water mains and power lines. Then they waited for the lumber.” This kind of an opening involves curiosity and anticipation for the rest of the story. One can also use this approach: “Ladies and gentlemen, you are standing on the corner of Ninth and Broad Street in Cleveland Ohio. You are about to see a city bus run down a little girl who is gotten away from her mother while they are crossing the street.”
Another example McEheney recommends is to create questions, as in this example: “One of the questions you’re going to have to answer is whether the drug company adequately warned people about the new weight loss drug side effects. We need to look at three things: What the drug company knew,What they said and What they told the doctors and the FDA as well as the public as well as What they did when they marketed the drug.” As this is being discussed, write them down on the board. By the time you’re halfway through the list the jury has already answered the questions in your favor.
A general outline of content involves the following elements:
- Significant time facts
- analogies are metaphors.
The basic rules for opening statement are:
- Tell the story in the present tense
- when possible tell the story in the first person
- talk about sequence of events and not facts
- simplified language by aiming for an eighth grade level.
- Avoid the word “client” every time you use the client word it says that your lawyer getting paid for standing there talking about your case. Instead use names and touches of humanity that are relevant to make individuals real people.
These are some basics for opening. The primary rule for me is that it must be a compelling, emotional story and not an outline of facts, but told without unnecessary details.