Tell your story through opening statement.
Openings are filled with tortured phrases like "The evidence will show," "And then the defense will call to the stand," and "It is our contention that." More often than not, the lawyer uses three or four of these favorites and repeats them throughout the opening.
The result is the jury thinks the lawyer is trying to sound how he or she thinks a lawyer ought to sound. The jurors recognize that the way the lawyer talks to them is not the way they or anyone they know talks. It seems boring, condescending, repetitive, and insincere. The jurors' reaction is to tune you out. And if they aren't listening, you're not winning.
But what if there was another choice? What if you did not have to stand before a group of strangers and make a fool of yourself by imitating a bad lawyer doing a bad job? What if you could tell jurors a fascinating story--one that had a beginning and an end, heroes and villains, good guys and bad guys? What if when the opening was over they were ready to vote for you? It can happen--and it can happen the next time you set foot in front of a jury.
Just relax a little and forget you are a lawyer. Let's reconstruct the art of storytelling and the art of winning.
The general law of opening statement is uniform among the states and the federal court system. Opening is confined to relating the facts you expect to prove during the trial. You may not argue your case in opening statement. It is critical to know this, and not just because it is the law. Good advocacy tells us opening is the proper time to tell a good story about your case, and it is too early in the process to logically make arguments to the jury. So whether or not it is the law of opening, factual storytelling is the best way to proceed.
The specific requirements of opening statements depend on your jurisdiction. For instance, some jurisdictions in civil cases still require the plaintiff to open on all the necessary elements of the case. A failure to do so can lead to a directed verdict for the defense.
In criminal cases, you need to know when you can open--immediately after the prosecution's opening, or when the defense portion of the case begins. Unless you have a good reason, open immediately after the prosecution. You need to break the steamroller effect of the opening plus case-in-chief tandem of the government's case.
There is a contrary view of opening statement. This theory holds that you either give a cursory statement or none at all.
The premise is that anything you say can and will be used against you by your opponent. The premise is true, but the potential consequences are outweighed by a good, factual opening that persuades the jury. However, take the lesson to heart--listen closely to your opponent's opening and use it against him or her in closing.
Should you open at all? Two instances come to mind. First, when you know the defense theory is going to be insufficiency of the state's evidence. There will be no defense evidence, just argument to the judge and an appeal if that is not successful. The other circumstance is in a multi-defendant case where your client is the least, or one of the least, culpable. This is the "disappearing" theory of defense. Here, you do no opening, very little cross, and probably no defense.
Finally, know your judge. What will the judge allow on opening? How much time will you have? What are the judge's likes and dislikes, and how can you prepare to deal with them?
Where do you start? When you begin preparing for trial, create a file for opening statement. It can be a paper file, a computer file, or a section in your trial notebook. You need to be able to get to this file quickly and easily so you can put things in it. What things? The thoughts you have at various times of the day or night that you catch as they come tumbling out of your head. That means you must devise a system of catching these thoughts.
Maybe you always carry a calendar. Or perhaps you have some other method of taking notes. Simply sticking a notepad and pen in your pocket is sufficient if you train yourself to write down your thoughts. You need to be able to jot down your thoughts while you are cooking, changing the baby's diaper, or taking a bath. Your notepad must be handy while you are waiting for a plane, riding in a taxi, staying at a hotel, or eating dinner.
After you catch the thoughts, put them in your opening statement file. Don't think about order at this point. Just collect your thoughts. Do not be embarrassed by their banality or absurdity. Nothing is out of bounds now. You will have time later to filter and arrange.
This type of preparation is not linear. It is more akin to a "mind mapping" exercise or a stream of consciousness. It's useful because it mirrors the way we usually think. By improvising a simple system of catching thoughts, your files for the stages of the trial will be fuller and richer than they would be if you had just set aside a block of time in which you try to get all the relevant information about opening down and in its proper order.
Now you are at the point where you actually set aside time to work on your opening. If you like a structured approach, make this the next to last part of the trial you prepare, voir dire being the very last)
How do you actually do it? By committing a trial heresy--you write it out?
You can use a computer or write it in longhand. But if you are going to win in opening, you need to write out your opening. This is different from saying you will read it to the jury. You will not.
The exercise of writing out the story of the case lets you see the story develop. It lets you put your hands on it and mold it into the best story. It tells you immediately when your sentences are too long and when you have used big words when little ones work better. It lets you recognize legalese and get rid of it.
Writing out the story lets you do all of this while you learn its ebb and flow. It lets you add and subtract facts to make the more compelling parts of the story last longer and shorten or delete parts that are boring or not in your favor. Most important, writing forces you to take the time to tell the story right.
The first and last sentences, particularly the first, are critical. According to the rules of primacy and recency, the first and last points you make are the most important. Good trial lawyers know the opening should start with a good line, one that hooks the jury. Those lawyers spend much time thinking about that first sentence.
One essential part of this first sentence is your taking a deep breath, pausing before speaking, and centering yourself in front of the jury. The end of opening is also critical, but not as critical as the beginning. Spend whatever time it takes to find the good ending.(3) If your opening has held jurors' attention, they will be listening at the end.
A common way of visualizing an opening is as a circle, rather than a line. Open and close your story with the same statement. That statement might be your overall theory of your case.
Although the jury will remember better a story told in a chronological sequence, you do not have to start at the beginning. You might start with the most significant event in the case, tell it in a sentence or two, and then go back and pick up the story line from the beginning. This allows you to end with the beginning. Remember, this last statement is still part of the story, and you should say it from your point of view, so it is not out of context.
Finally, reduce your written story to a workable outline or a set of topical words that you can refer to at the podium. Don't be afraid to refer to your notes to make sure you have covered the field.
You should have learned--not memorized--your opening by this time. Memorization is not the goal. The goal is to understand the story beyond memorization. Understanding the story comes from your knowledge and sincere belief in the facts of your case. You should master the facts so the story is part of your gut, not just your mind.
What really goes into your opening is that which makes you passionate about the case. Caring is contagious. If nothing makes you passionate, if you just don't seem to care, give the case to someone else to try.
Passion is what you are searching for when you put your thoughts down on those slips of paper and throw them into the opening file.
You can do a momentary--and relatively accurate--analysis of an opening statement other than your own immediately after it is over by simply asking yourself, "Do I care?" If you don't, the opening was not a winning beginning.
Storytelling is the heart of what you need to create a winning beginning. It's not that difficult. We are all natural storytellers because we are all natural story listeners. Everyone likes a good story, including jurors. You go where the power is, and the power is in the story of your case.
A couple of elements are common in telling all good stories.
First, stay in the same tense. This will almost always be the past tense. If you want to tell a good story, you cannot continually break into the present and future tenses by using worn-out standards like "We will then call to the stand --, who will tell you --."
When you do this, you immediately jerk the jurors out of the rhythm of the past and into the glaring light of the present, unfamiliar position. Then, you jump back into your storytelling mode and expect jurors to relax comfortably back into their role as good listeners.
Avoid this by staying in the past tense in both the opening and closing hooks of your story. Those hooks may be out of chronological order, but they should still be told in the past tense and from the storyteller's point of view.
Second is the concept of good versus evil. This may be expressed as good guys versus bad guys, heroes versus villains, or the big and powerful versus the weak and powerless. Still, this concept seems to always be present in good stories. Explore these concepts with every witness in your case. But remember that some witnesses are supporting witnesses and cannot and should not be painted with a good or a bad brush.
You might want to introduce a few witnesses as factually neutral. Say, for example, "She was just a witness, a person who happened to be there at the time. She did not know anyone involved in the incident that day."
In many criminal cases you will be involved in, you want to paint the opposition as mistaken and, therefore, simply human, while you represent your client as a victim of an understandable human catastrophe.
Think about the words and phrases you will use to describe the major witnesses in the case based on how you will depict them in the story. By the end of your opening statement, jurors must know who is good and who is bad, who is right and who is wrong, who is the victim and who is the perpetrator.
Talk about your client. It is a rare case when a lawyer does not come to like his or her client. You can always discover the good that is in your client. The good may be funny, sad, or compelling facts. Sometimes the good is a fact that truly makes us humble.
Look for the good in your client. Explore how these facts can be used as evidence without opening negative doors. Incorporate them into the opening statement. Be careful of opening the door to character.
Details--a thorough opening
State the details of your case in your opening? This may seem contrary to the idea of being concise, but it is necessary in order to win at the beginning.
Make sure you ask for enough time for a thorough opening. If necessary, barter away some of your closing argument time. It's easier to win at the beginning of the case than at the end.
The magic of the detailed opening exists in telling an interesting story. An interesting one will have action verbs and colorful phrases.
For instance a "look" might be a "glance," a "glare," or an "icy stare." People don't just "say," they "spew" or "spit" or "whisper" or "scream." All of this can be gotten into evidence if you just ask the proper witness the right question--"Will you describe how you said that?"
If you are really storytelling in your opening, time will pass quickly and jurors will stay involved in the facts. Because what you are saying is interesting, jurors will stay tuned to you--and other good things will happen.
The jury will know the position you will take with each witness called. They will anticipate your position, and you will fulfill their expectations. They will be psychologically set up to accept your version of the facts and to reject the prosecutor's version of the facts because those facts will not fit into the jurors' idea of the case. This psychological setup cannot be achieved if your opening statement is boring, full of legalese, or formulaic.
Another way to tell the story of your case is to paint a word picture for jurors. Many things that we treasure visually are treasured because of the detail, the fineness, of their existence. Strive for that fineness in the telling of your story. Consider yourself an "imagineer," one who transports jurors' imaginations out of the jury box and into a world you create with the word pictures you paint.
The single most important way to become a master of the facts in order to paint a good word picture is to go to the scene or scenes of the incident. If you see where the incident occurred, you can cull a thousand descriptions solely from the visual database in your mind.
You cannot underestimate the power of the scene for other pre-trial and trial functions as well. How can you adequately cross a police officer merely from the offense report or written statement?
You are at the witness's mercy in such a case. Go to the scene.
How long should the opening be? Longer than you probably think. Good storytelling is compelling. The boring opening statement, short though it may be, has breaks in time sequence and lawyer talk that seems interminable. Jurors know immediately they are not involved in the story.
Use visuals. A picture is worth a thousand words. And a picture can be worth a thousand words if you carefully craft your opening around it and use it to transport the jury to the time and the place of the incident.
Visuals are both comforting and clarifying. Use visuals especially in cases where distance and direction are critical.
Distance and direction are two dimensions jurors have difficulty remembering. Think about testimony of law enforcement officers who are forced to give distance and direction evidence without the use of a diagram. None of us can follow this type of testimony--and we, the pros, are used to hearing it.
Jurors need to see it. They may need a combination of diagrams and photographs that are big enough for all the jurors to see and for you to refer to during crucial parts of the trial.
Other demonstrative evidence can also be helpful. If you are trying a vehicle case, consider buying toy cars, trucks, and bulldozers, whatever may be relevant to the facts. Then use them.
Handling objections and other problems
A problem often encountered in opening is the judge or prosecutor who is not comfortable unless the phrase "The evidence will show" is said several times. You can diffuse this situation. First, talk to the judge before the trial and explain that you will not use the phrase, but what you will say will be supported by the evidence.
Second, place a poster with the phrase "The evidence will show" printed in large bold print on a stand behind you. Invite the judge to tell the jury before you start that what you are saying is what the evidence will show and that is why the board is there. As a last resort, you may have to throw this drama-killing phrase into your opening once in a while. But you should use it sparingly as it breaks the reality of the story.
If you feel you are forced to use this phrase (or another one you don't like but the judge does), do not let it be the first words you say. Stick with the strong first sentence or sentences, then immediately use the magic phrase and go right back to the story. Almost without exception, you will be able to get away with your first bit of drama.
What about making objections to the prosecutor's opening? Avoid doing this. The prosecutor's opening is not going to be as good or as thorough as yours, and you can win the opening by just being better. The danger of making objections during opening is that jurors become sympathetic to the prosecutor.
An area where you might object is if the prosecutor attempts to tell the jury what the law is and does so by paraphrasing. This rarely works and is almost always wrong or misleading. If the prosecutor tells the jury the law during his or her opening--a tactic you should avoid since it is inconsistent with storytelling--you may object if the explanation is wrong. However, consider that objecting may cause the prosecutor to cease this "law talk" that is boring to the jury.
Would you rather win this objection or just let the other side bore the jury to death? If the prosecutor misstates the law, come back in closing and tell the jury the prosecutor was trying to mislead them. Both tactically and strategically, that is the best use of such a mistake.
Do not overstate your case. Be conservative and understate your case. Just do it with factual details.
Understating your case and telling a compelling story are not at all inconsistent. It is more fulfilling for the jury to see that the evidentiary facts are worse than you painted them.
If you have a controversial piece of evidence, try to get pre-trial rulings on admissibility. Otherwise, know your trial judge, do the research, and be ready with trial briefs to overwhelm the opposition if it objects to the introduction of the evidence. In the final analysis, if you do not know whether or not a piece of evidence will be admissible, leave it out.
Involve yourself in the case. Make a fear list as you prepare for trial. This list tells you the aspects of the case that scare you most.
If you are inexperienced, you may fear that you will not appear as smooth as more experienced lawyers. Don't worry. Being a little rocky can be quite charming if it is the real you. Don't even apologize for it. Jurors want to save someone, and maybe that someone will be you. You will only have this advantage while you are truly inexperienced, so make the most of it.
What scares you might be a fact, a prior record, the judge, or the prosecutor. Facts and legal questions can be addressed with thorough preparation and legal research. This is an area where you should have the advantage.(5) If your fear is inexperience in dealing with the judge or prosecutor, find a seasoned lawyer who can sit down and talk you through your fear.
Add to the list whatever scares you and then deal with the items on the list. You cannot be effective if you are frightened by that which you refuse to confront.
There is much that you can do to make your next opening a winner. Use some of these suggestions in your next trial and see if you don't get results. It takes time, but it is not difficult to do. Your time learning the facts of the case will be well spent.
(1.) Remember, prepare the case from back to front, starting with the charge and ending with voir dire.
(2.) This technique comes from a gifted trial advocacy teacher, Jo Ann Harris, former head of the Criminal Division for the Department of Justice. Gerry Spence suggests the same technique in his videotapes on opening statement.
(3.) The ending most often heard is, "At the end of this trial, I will come back and ask you for a verdict of not guilty." This is not evidence. Be more creative. Avoid hackneyed phrases. A variation on the usual theme might be, "By the end of the evidence, you will know that -- is not guilty."
(4.) I learned this technique from Gerry Spence. He's dead right on this. Opening is more than just an "overview" of the case.
(5.) See ROBERT H. KLONOFF & PAUL C. COLBY, SPONSORSHIP STRATEGY: EVIDENTIARY TACTICS FOR WINNING JURY TRIALS (1990).
William Allison is a partner with Allison, Yeager & Bassett in Austin, Texas. He is on the faculty of the University of Texas School of Law.
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|Date:||Sep 1, 1998|
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