Once upon an opening

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Trial Tactics

July 2014, Volume 50, No. 7

Once upon an opening 

Michael A. Kelly

Successful opening statements rely on storytelling supported by details and facts rather than hyperbole and conjecture. Learn what you can do—and should avoid—to win over jurors at this early stage.

When I began practicing law more than 30 years ago, winning a case in opening statement—or giving a forceful and animated opening—was unheard of. The opening statement was the time to lay out a colorless recitation of the central facts that you would use to prove your case. Lawyers were not very concerned about connecting with the jury. Years later, I realized the opening statement is a critical step in persuading jurors that your client’s cause is just and worthy of their attention.

Starting your opening statement by telling jurors it is a “road map” does little to get them invested in the case. This initial warning says that the material will be hard to follow, you are not organized, and after years of preparation, you cannot deliver a coherent and  interesting story that makes jurors want to hear more. Fortunately, trial practice scholars in the 1970s and 1980s recognized these problems and began writing extensively on the opening statement as a key component of successful case strategy. They emphasized that storytelling, rather than fact recitation, is crucial to a persuasive opening statement.1

The question I often hear from lawyers is: How do I do it? How do I put an interesting story together? The very nature of our work is about storytelling: creating empathy, explaining why right must prevail over wrong, and convincing jurors why they should be compelled to prevent similar things from happening in the future. Even so, many lawyers find it hard to tell a story in the opening.2

Good storytelling in an opening statement requires a theme or moral imperative. Some people call it a “grabber,” which resonates with jurors on a gut level. The story must be believable, and the jurors must be involved. Use visual aids in your story so that the jurors see, process, and understand. Relying on an oral presentation exclusively doesn’t work anymore—images win. The best stories are interesting because the audience learns something. We want to help them understand in a way that lets them be involved and anticipate what happens next.

From a legal standpoint, remember that the opening statement’s purpose is to preview the case, signal the critical evidence to come, and demonstrate the facts that will establish a prima facie case. This does not mean that framing the jurors’ decision-making must be boring. You can meet the legal obligations through telling a compelling story that has a theme, a plot, character development, and a satisfying conclusion.

Keys to a Successful Opening

A persuasive opening statement must explain all known facts, explain why people behaved as they did, be told by credible witnesses, be supported by critical details, appeal to moral rightness, and be consistent with common sense. Each of these factors must be part of your opening story, case theme, and final argument. Eliminating any of them leaves the story incomplete, flawed, or not believable.

Failing to explain all known facts or suggesting “we don’t know why the defendants behaved as they did” shows weakness. It immediately undermines your position. Also, failing to explain why the defendant behaved in a negligent manner allows jurors to substitute their own reason, which may be bad for your client. Include small details, and don’t substitute broad generalizations or conclusions. They make the opening statement hollow and permit jurors to accept defense counsel’s view. You must build credibility and give them a reason to invest in the plaintiff’s case theory at an early stage.

A good opening statement must weave in what the defendant did wrong at an early stage. Once upon a time it may have been permissible to focus on the plaintiff, the plaintiff’s injuries and losses, and the nature and extent of those losses. But modern-day jurors want to know why they are there and what was done wrong, which usually translates into an early decision as to who is liable. If jurors do not believe early on that the defendant has done something wrong, they are not likely to empathize with the plaintiff.

Remember to identify the safety principle, safety rule, accepted societal norm, or moral imperative that the defendant violated and that harmed the plaintiff. Your opening statement must demonstrate how the defendant easily could have followed the safety rules and avoided hurting anyone.

Use plain language and common analogies to make it clear why your client’s injuries and damages are typical and why the defendant should have expected them. The legal principle that a defendant “takes the plaintiff as he finds him” may have historical validity in common law, but jurors no longer accept this principle. While lawyers appreciate that the principles underlying the susceptible plaintiff (also known as the “eggshell plaintiff”) doctrine are sound, today’s jurors are ready at any turn to blame the plaintiff, due in part to tort “reform” rhetoric.

After stating the case’s central principle (“no responsible drug company should ever sell a drug without testing it”), your next sentence should be: “I want to tell you the story of what XYZ pharmaceutical company did in this case.” Just the mention of a story will trigger the jurors’ interest. After all, stories create anticipation, help organize information, and make the case easier to understand.

Just because we are telling a story doesn’t mean we are not using facts. Rich, factual detail gives your story its most convincing force. So throw away the adjectives, adverbs, and hyperbole. Don’t tell jurors this was the “worst” negligence or that defendant’s conduct was “horrible,” “awful,” or “shocking.” Paint the picture with the actual facts ordered in a way that lets the jurors decide this for themselves. You don’t need adjectives if you deliver your story with plenty of facts accompanied by variation in tone, pace, gestures, and position in the courtroom. Craft a story that is bereft of argument, does not improperly ask jurors to draw inferences too early, and includes all the facts you intend to introduce at trial. Ignore the temptation to use rhetorical questions and to vouch for the witnesses’ credibility.

In this digital age, non-argumentative exhibits and visual aids are critical. Almost all courts will permit their use if opposing counsel consents. Because most trials are the culmination of two to five years of work and both sides know the case well, you should not hesitate to share exhibits and visual aids with the defense before opening.

Because jurors try to do what is right, give them a compelling moral justification to find in your client’s favor. Begin your opening by focusing on the rule, principle, or basis of liability, not the plaintiff. You don’t want to leave the jurors in moral limbo, without any imperative that motivates them to do the right thing and reject conduct that is unsafe and potentially threatening to them and their community.

Any opening statement should finish with a request for action. Tell the jurors that you will later ask them to return a verdict based on the evidence. Whether you request a specific award amount is a matter of personal style, the jurisdiction’s rules, and the facts of the case. But what you intend to prove by the conclusion of the case, and what the jurors will be asked to do, should not be ambiguous in their minds.

Tactics to Avoid

What should you avoid in opening statement? Toxic boredom is your enemy. Do not regale the jurors with worn-out analogies to road maps, indexes, or other descriptions of what your opening statement will be. Do not mindlessly repeat the phrase “the evidence will show” before introducing a fact, event, witness testimony, or expert opinion. Lawyers know that this crutch is used to buttress a looming motion for nonsuit, but jurors assume the lawyer is overly formal or intent on beating a meaningless preface to death, forcing them to tune out early. Don’t waste time in opening statement by telling jurors “what I say is not evidence.” Why reinforce that you are telling them something they do not need to listen to?

Avoid the temptation to overpromise. Many lawyers choose to call a defendant callously indifferent or reckless when the liability standard is negligence; they argue the defendant was insensitive and evil even though negligence principles require only carelessness, without regard to scienter. Don’t characterize a defendant’s conduct as the worst ever when the threshold for recovery is much lower. Forget the hyperbole, stick with the facts, and look to connect with fundamental notions of right and wrong.

Ditch the notes and the notepad. If you don’t know your case well enough to speak from your heart, you have a serious problem. Arrange your visual aids, evidence, or other props for opening statement so that they will act as cues to help you remember your talking points, and order the sequence of your visual aids as a movie director arranges a storyboard.

Get away from the podium. Standing behind it while looking at notes reminds most jurors of school. And when asked about school, people usually remember only negative things: teachers who treated them unfairly, homework, the pressure of exams, and fear of failure. Freeing yourself from the podium also exposes you to the jurors and lets them know that you are one of them.

Finally, think about your language. Don’t speak down to jurors, and don’t confuse them with legalese: Speak plain English. Using technical terms is fine if it is necessary, but otherwise, keep the jargon out of your story.

Stick to the Facts

Although a persuasive opening statement is all about facts, many lawyers default to conclusions or arguments. Speaking in vague generalities is easier and gives you a sense of protection because you are not being overly specific. But persuasion is always in the small details—they give a story substance.

Consider, as an example, an opening statement premised on the facts of the fairy tale “Little Red Riding Hood.” In a murder trial against the Big Bad Wolf, the prosecution wants to convince the jurors that the wolf ate Little Red while impersonating her grandmother. A lawyer prone to conclusions—and unwilling to tell a compelling fact-based story—might say in opening statement: “The evidence will show that any thinking person can draw only one conclusion: The Big Bad Wolf must have eaten Little Red Riding Hood at her grandmother’s house, because all the circumstantial evidence points that way.” This claim is devoid of facts. It asks the jurors to draw inferences.

A lawyer who wants to involve the jurors in the story, knows the case inside and out, and wants the jurors to reach their own conclusion might give the following opening statement:

Facebook records show that the Big Bad Wolf friended Little Red’s grandmother on Facebook. Grandma’s Facebook posts told her friends that she was going to the dentist on May 12th. Red Riding Hood had not looked at Grandma’s Facebook page, but the Big Bad Wolf had. Records subpoenaed from Fairyland Taxi Service show that Big Bad Wolf was dropped off at Grandma’s address on the morning of the 12th at 8:30 a.m. At about the same time, Little Red’s cellphone shows that she texted her friends, Jack and Mary Spratt, to tell them she was going to her grandmother’s house.

At about 10 a.m., Grandma’s neighbors, the Three Pigs, heard screams from Grandma’s house. Fifteen minutes later, Mary Muffet saw a large, hairy creature running south on Grandma’s block. There was blood dripping from his face and paws. When paramedics reached Grandma’s house, there was blood on the floor of her bedroom, and a red cape and hood were balled up in the corner.

The difference between the two examples is striking. One is wholly conclusory and leaves jurors wondering about the details, and the other does not contain a single adverb or conclusion. It takes jurors down a fact-intensive path where they reach their own conclusion, without having it forced on them.

The same technique can be used to describe a client’s injuries. If the plaintiff was struck by a car in an intersection, a lawyer prone to using conclusions, generalities, and hyperbole might say: “The evidence will show that after being hit by the defendant, Mary Jones was in unrelenting pain, her leg was badly broken, and any attempt to place weight on her limb caused excruciating and unbearable pain.”

Compare that with a description of the plaintiff’s injuries using a third-party observer’s testimony:

Within five minutes of the accident, an ambulance arrived on the scene from Central Memorial Hospital. The ambulance attendant, John Smith, had been an EMT for 15 years. When he got out of the ambulance, he heard moans from under the defendant’s Audi.

He walked toward those sounds and saw blood on the ground. Pulling out his flashlight, he shined it under the car. The first thing he saw was the right leg of Mary Jones. Two bones were protruding out through the skin. He heard Mary breathing quickly between the moans. As he placed his hands on her, she screamed.

Roger Hansen, Mary’s treating orthopedic surgeon, will be here. He will tell you how this type of fracture slices through the muscles and nerves of the leg so that the bones rupture the skin and poke through.

Describing the plaintiff’s pain and suffering, disabilities, and other obstacles through third parties adds credibility. It enhances your client’s positive characteristics. Many jurors expect the injured plaintiff to exaggerate or complain, be resentful or bitter about his or her injuries, and assume a pessimistic attitude. These are all negative or dishonorable characteristics that you want jurors to avoid attaching to your client. Instead, highlight your client’s admirable characteristics, such as inner strength, humility, and integrity.

Delivering a successful opening statement requires you to present a compelling story that will persuade the jurors to right the wrongs the defendant committed. If you follow these tips and remember what to avoid, your client’s story can end happily.

Michael A. Kelly is a partner with Walkup, Melodia, Kelly & Schoenberger in San Francisco. He can be reached at MKelly@WalkupLawOffice.com.

Notes:

  1. See e.g. Steven Lubet, Modern Trial Advocacy: Analysis and Practice chs. 1 & 12 (4th ed., Natl. Inst. for Tr. Advoc. 2009); Thomas A. Mauet, Trial Techniques and Trials ch. 4 (9th ed., Aspen Publishers 2013).
  2. If you prefer a step-by-step guideline, I recommend Emma Coats, Story Shots, 22 #Storybasics I’ve Picked Up in My Time at Pixar, http://storyshots.tumblr.com/post/25032057278. Coats, a Pixar Animations storyboard artist, compiled a list of suggestions that she developed while working there. Some are discussed in this article, and all of them are discussed in greater detail in David A. Price, The Pixar Touch: The Making of a Company (Knopf 2008).


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