Lawyers in general talk too much without focusing their ideas and as a result bore jurors. In trial this can be fatal to your case. Too often we underestimate the power of the words we use to start our communication to the jury whether it is in jury selection or opening statement. When you first stand up to speak to the jury, it is a magic moment in which you have everyone’s full attention for a short time; probably no more than thirty seconds. Too many of us waste that magic moment by what we first say. This is the moment when the jury makes an immediate first impression about you and what you say. So, don’t waste this opportunity with empty phrases like:
- “This is what we lawyers call an opening statement…”
- “I appreciate the time and the attention that I know you will devote to this case today…”
- “Opening statement is our chance to tell you what the evidence will show…”
- “My name is James Minster, and it’s my privilege to represent Kyle Lauten…”
- “An opening statement is like…
—- a road map…”
—- a recipe…”
—- the table of contents to a book…”
—- the cover of a jigsaw puzzle box…”
Never underestimate the power of an intriguing start. Our objective should be to begin strong. Think about newspaper headlines that capture our interest first and when poorly thought out can have unintended meaning. For example here are some actual newspaper headlines that did not communicate what was intended:
- “Police begin campaign to run down jaywalkers”
- “Typhoon rips through cemetery; hundreds dead.”
- “Something went wrong in plane crash, expert says”
The literary greats like Charles Dickens began their novels with a strong and tantalizing opening sentence because they knew the power of first words. Dickens began his novel A Tale of Two Cities with “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness…” And, the wonderful, captivating, way in which he started A Christmas Carol “Morley was dead: to begin with.” J. M. Berrie began Peter Pan With “all children, except one, grow up.” Then there is the great opening line from Gabriel Garcia Marquez’s 100 Years of Solitude: “Many years later, as he faced his firing squad, Colonel Aureliano Buendia was to remember that distant afternoon when his father took him to discover ice.” From the book Swimming Lessons “Gil Coleman looked down from the first floor window of the bookshop and saw his dead wife standing on the pavement below.” These brief opening sentences capture our immediate interest and make us keep listening for an explanation. Our opening statements should have the same compelling opening words that attract attention and keep interest to learn more. In a criminal case against Sean Combs, the defense attorney for Combs began his opening statement like this:
“Ladies and gentlemen, this is Sean “Puff Daddy.” You can call him Sean, you can call him Mr. Combs, you can call him Puff Daddy, or even just plain call him Puffy, but what you cannot do in this case, you cannot call him guilty, because from the facts, from the evidence, from the law, you will conclude that he is not guilty. It’s that simple.”
The idea of an opening theme is consistent with this same principle. Think of opening phrases like following which are from Trial Preparation Tools by Beth D. Osowski
- This is a case about..
- The surgery was supposed to be routine.
- The plaintiff had a very unlucky day
- The corporation said “trust me” when it invited Mary into its doors.
- The fewer the years remaining, the more precious each one is.
- Napoleon Bonaparte was reported to have said, “If you wish to be a success in the world, promise everything, deliver nothing.”
James McElhaney is a gifted teacher of trial lawyer skills. Here’s one example he has given for what he calls “inviting the jury to come to the scene” and note the captivating way he begins:
“I want you to come with me to Erie, Pa. You are going to visit the Federal Motors Axle Factory on the shore o lake Erie – the oldest axle factory in the United States. You are going to see them make the key part of an automobile – the defective rear axle that was installed in the car that killed Sandra Wilson.”
Or he points out you can also put the jury at the scene like this:
“Ladies and gentlemen, you are standing on the corner of Ninth and Euclid in Cleveland, Ohio. You are about to see a city bus run down a little girl while she is crossing the street with her mother.”
David Ball’s recommendation for the opening statement format looks substantially like this:
“A driver is required to watch the road and see what is to be seen. If the driver does not, even for an instant, and someone is hurt, the driver is responsible for the harm. Now let me tell you the story of what happened here. Let me take you back to November of 2016 on I-5 freeway at the Federal Way exit where the cars are going South.”
The basics for a good opening statement are (1) start strong with an attention getting opening (2) present it as a story in the present tense and (3) tell the story about the antagonist – defendant’s actions. Trials are morality plays of right and wrong so tell your client’s story with that in mind.