Monday, May 9, 2011

Opening the week with opening statements

I've posted before on the anatomy of a trial, especially on the process of picking a jury in voir dire, but haven't said too much on the phase that comes next: opening statement.

I put my limited Google skills to work, wondering if the commonly-held belief that openings are crucial could be supported. I found a lot of info, including this:

The importance of an opening statement has been established by studies that showed that 80 percent of jurors' ultimate conclusions with respect to the verdict corresponded with their tentative opinion after opening statements. (From here.)

If true that does seem a little worrying because, after all, jurors are supposed to decide cases (civil AND criminal) on the evidence. But that's a topic for another day, and I raise it just to explain why I myself accord so much importance to openings.

But wait, I hear you say, doesn't everyone? Well, no. I have seen opening statements in major cases where the lawyer doesn't seem to know the facts, and stumbles through them in a general way. My colleague in the DC defense bar, Jamison Koehler, wrote about a lawyer reading a closing argument: I've seen this in openings too, and it's painful.

So here are some DOs and DON'Ts for opening statements.

1. Know the facts of your case. Inside out.
2. Tell a story. Studies show that if you can present something as a story that makes sense to an audience, they will be more likely to absorb and go with it.
3. Focus the jurors on YOU. How? Well...
4. Minimize distractions. Put your pen down, use minimal notes (see point 1), and forget about complex presentations.
5. Move about the courtroom.
6. Modulate your tone. Grab their attention with the outrage in your voice, have them feel pain with a gentle whisper.
And finally, the over-arching rule:
7. Remember that you are limited to describing the evidence and thus the power of your opening comes from its delivery.

1. Promise too much. Jurors are listening, and if you promise something and don't deliver it your credibility can be affected, maybe even destroyed.
2. Stand still and drone. If you're not moved by your case, then how can you expect others to care?
3. Argue. For one thing, you're not allowed to-- this is the time for you to show what the facts will be, not to argue them. It looks bad to have an objection sustained during your opening because some jurors might think, "Wow, he's cheating already?" Even so, don't. . .
4. Be afraid to use descriptive words. If the evidence will show that the victim was "slashed" or "hacked" then say so. Those words make a far better (and by "better" I mean accurate and powerful) visual than "cut" or "injured."
5. Ignore the weak points of your case. Thing is, no case is perfect for either side. If it was, you wouldn't be in trial. Don't try to bury or ignore those because you can bet the opposing counsel will throw them in your face, as he should. In my recent murder trial I acknowledged up front that some witnesses had fuzzy memories, and that I had no physical evidence, no DNA or fingerprints. Why? Because those things were true and I wanted the jury to know that I wasn't afraid of those weak points.
6. Go on too long. You want to sit down leaving the jury eager to hear your case. You do not want them to groan with relief or, before that, start nodding off.

Any of my lawyer friends want to add to the list?

1 comment:

  1. Great post. Very informative. If I ever decide to write an attorney as an MC, you'll be the first one I come to for advice.


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