Dr. Noelle Nelson

Draw Them a Picture:
Five ways to avoid the most common pitfalls in giving opening statements
(originally published in The Daily Journal, Verdicts & Settlements)

A strong opening statement is critical to success at trial. It should be the jury's road map through the maze of legal issues and facts in any lawsuit. But lawyers who are too steeped in the minutiae of a caseinstead turn their opening statements into a recitation of facts loosely strung together by chronology. Use the following guidelines to avoid the five most common pirfalls in opening statements.

1) Develop and hammer home a jury-worthy case theme.

Most lawyers understand the important of creating a case theme. Too few, however, reduce that theme to a compelling, simple phrase that accurately sums up the case. For all the snide comments made about Johnny Cochran's famous "If it doesn't fit, you must acquit" statement repeated liberally during his defense of O.J. Simpson, it was a classic and successful example of a jury-worthy case theme. Cochran saw to it that the "doesn't fit" referred not only to the famous glove, but also to much of the evidence and testimony presented by the prosecution. He tied as many aspects of his case as he could to his theme, and repeated it at every opportunity. The jurors left for the deliberations room with that phrase resounding in their ears, and little else of equal force to counter it.

Jurors cannot interpret the facts of a case as the lawyer wants them to without a solid interpretive guideline. The case theme should be explicit, not implicit, and established clearly during the opening statement, preferably near the beginning and repeated AS OFTEN AS the length of the statement warrants. A case theme must be tested for jury-worthiness through individual polling or through the more stringent conditions of a focus group.

2) Tell a story.

Facts are boring. Stories are riveting. Facts put jurors to sleep. Stories keep them awake. Facts are essential to the case; stories are what make those facts persuasive. Too many opening statements lack the dynamics of good story telling. All legal cases have a story embedded within them no matter how apparently dry or complex the case may be. Too often, defense lawyers complain that their side doesn't have a story to tell, or lawyers generally complain that business and contract cases lack the excitement of a story. This is false. A lawsuit is first and foremost about people, and it is the people side of a lawsuit that engages jurors.

The easiest way to find the story in a lawsuit is to investigate what was occuring with the people involved and why. The lawyer then builds the story using the case theme as the basic premise. For example, when Gerry Spence argued successfully for a small ice cream company claiming that McDonald's, the fast food company, had breached an oral contract, Spence choose the very down-to-earth theme "Let's put honor back in the handshake." A less savvy lawyer may have just seen a breach-of-contract case and failed to tell the story behind that breach in human terms--and would have lost the jurors in the process.

Few lawyers are born storytellers. Trial lawyers can hone their storytelling skills by watching how popular movies reveal their plot, listening to master story-tellers such as Paul Harvey, or taking classes and reading books on the art of story-telling.

3) Expose weaknesses convincingly.

There is a tendency in opening statements to put one's best foot forward. This is natural. After all, the jurors must hear what is strongest about the lawyer's case. However, every case has its weaknesses, otherwise it wouldn't be going to trial--there would be no contest. Too often, plaintiffs lawyers will shy away from exposing the weaker aspects of their case, figuring that the jurors will hold those weaknesses against them.

In fact, what jurors hold against lawyers isn't so much the weaknesses of their case, it is that lawyers often try to hide those weaknesses. A stronger position is to expose case weaknesses before defense counsel has a chance to use them to its own advantage. By exposing case weaknesses in the opening and interpreting them in a more favorable light, plaintiffs counsel can lessen defense damage.

Defense, rather than ignore its own case weaknesses and just focus vigorously on the attack against the plaintiff, would benefit greatly in the opening statement by giving alternate explanations to the weaknesses offered by plaintiff. It is rare that there is but one interpretation of the facts. Opening statement provides the defense with the best possible opportunity for laying the groundwork for a positive interpretation.

4) Thoroughly identify parties, positions and functions

While lawyers on both sides know the case thoroughly, they often forget that jurors do not. As repetitious and annoying as it may seem to lawyers, it is vital during the opening statement to use full names of persons, entities or objects repeatedly.

Use of pronouns or abbreviated references to important entities or objects are confusing to the jurors this early in trial. The jurors are having trouble just keeping track of who did what to whom. They will be totally lost if they must also concentrate on which "he," "she," or "it" the lawyer is now referring to. Certainly, well-known abbreviations are acceptable, but generally speaking, abbreviations used too often during an opening statement only serve to confuse jurors.

Lawyers frequently forget to sufficiently reference during opening statement the relative position or relationship of parties and witnesses to one another. An organizational chart or chart of who is involved and how each person is connected to the other is helpful. Lawyers should remind jurors of those relationships from time to time as they tell the case story (i.e., "Mr. Smith went on to say…" instead of "He went on to say…” and also, "Mr. Smith, Ann Jones's boss, went on to say”).

5) Practice, practice, practice!

Opening statements are too often written at the last minute, not because lawyers are procrastinators, but because critical information is frequently only discovered right before trial. Being rushed by all the other demands of trial preparation, lawyer usually only manage to find just enough time to write the opening statement, not the time to practice it. Yet an opening statement is more than a written document. An opening statement is a persuasive presentation of what is written, and that only happens with practice.

A seasoned trial lawyer, after 20 years of trial, may be able to successfully "wing it," but that is for the few and truly gifted. Most lawyers would benefit greatly by practicing pieces of their opening statement during the weeks and months preceding trial, well aware that critical pieces of information may only become available on the eve of trial. Those pieces should be practiced out loud, preferably with the benefit of feedback from colleagues, a focus group, friends, or at the very least with self-feedback from audio or video taped practice sessions.

Persuasive delivery of an opening statement includes attention to good eye contact, properly placed pitch, effective vocal pacing, rise and fall of inflection, suitable gestures and movement and appropriate use of emotion. There are few shortcuts to the ability to deliver a persuasive opening statement--it can only come with practice.

A well-planned, well-delivered convincing opening statement is not only the jury's roadmap but the court's as well. Lawyers who take the time to address the five most common pitfalls in opening statements will begin their cases in a much stronger position and with the confidence and knowledge that what they say will truly impact the jurors.

© 2006 The Daily Journal Corporation. All rights reserved.

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