All the World’s an Opening Statement
A trial is nothing more than a scripted, rehearsed play. A good trial lawyer is the actor, the playwright, and the director of an effortless performance to a small, powerful audience of twelve. Opening statements are the trial’s prologue; they’re not much ado about nothing. Opening statements are the critical first scene where attorneys begin to compete for the jury’s headspace. In this presentation, we’ll draw upon theatre and William Shakespeare as we guide you through the process of understanding, drafting, and delivering an opening statement.
Jason Potter: Welcome to All the World's an Opening Statement by Quimbee. My name is Jason Potter and I'm a staff presenter at Quimbee. Be sure to check out the course materials today, including slide handouts and supplemental materials. You can follow along with them or just sit back and enjoy this performance of an introduction to opening statements.
All right. On with the show. Prologue, opening statements are not much ado about nothing. Opening statements frame the characters and the plot and they preview an essential message that should travel with the jury and embolden them to reach the inevitable outcome, one's that as you like it.
William Shakespeare had his own form of the opening statement, the prologue. Shakespeare's most famous prologue is in Romeo & Juliet, "Two households both alike in dignity, in fair Verona where we lay our scene, from ancient grudge break to new mutiny where civil blood makes civil hands unclean. From forth the fatal loins of these two foes, a pair of star-crossed lovers take their life, who's misadventure-d piteous overthrows doth with their death bury their parents' strife.
The fearful passage of their death-marked love and the continuance of their parents' rage, which but their childrens' end, not could remove is now the two hours traffic of our stage. The which if you with patient ears attend, what here shall miss, our toil shall strive to mend."
Shakespeare's prologue ushers the audience across the threshold from the actual to the potential. It sets the scene, two households. It describes the issue, ancient grudge, and new mutiny. It introduces the characters, a pair of star-crossed lovers. It previews the action; civil blood makes civil hands unclean. It forecasts the result, take their life.
Shakespeare hooks the audience with themes of fate and freewill and love and hate. Now the similarities between Shakespeare's prologues and opening statements are uncanny. Why should anyone be surprised, though? A trial is nothing more than a scripted, rehearsed play.
A good trial lawyer is the actor, the playwright, and the director of an effortless performance to a small, powerful audience of 12. All performances are in service of an audience, live acting involves convincing your audience to do something. In Shakespeare's time, actors had to keep the attention of a bawdy audience of prostitutes, pickpockets, noble men, and drunkards as well as convince them not to catapult rotten fruit and vegetables towards the stage.
At trial, lawyering involves competing for the jury's attention and convincing them to do justice by seeing the story as you do. The opening statement opens the show. In this presentation, we'll draw upon theater to guide you through the process of understanding, drafting, and delivering an opening statement. Just in case you get bard easily, Mr. Shakespeare will be accompanying us along the way.
Okay. Places, please. Act one, to be or not to be, that is the question. Opening statements are pretty existential events. Researchers studying opening statements and judges, generally, agree that opening statements are a super important tool in courtroom advocacy, though, there is some disagreement about how they impact jurors.
According to some researchers, after opening statements, 65% to 80% of jurors have not only made up their minds about the case, they have already cemented those decisions. Other experts cast doubt on the conclusions that can be drawn from empirical studies of jurors, but judges tend to agree that opening statements are impactful.
Now brain science on first impressions provides some great context here. In a 2009 article in the science journal Nature, a group of neuroscientists conducted neuro imaging on 19 participants while the cohort conducted impression forming tasks. The results suggested that there's a framework in our brains behind the formation of first impressions.
The research was summarized this way, meeting people activates the same region of the brain responsible for assigning prices to objects. After we've assigned a value to a person, we make the decision about how to orient ourselves to that person. Do we want to get closer? In the theater, first impressions don't just occur during the prologue or first scene of a play. First impressions also make a powerful mark on actors the first time they read the script.
In discussing an actor's first encounter with a script of a play, the famous theater practitioner Constantin Stanislavski said, "First impressions have a freshness to them." Stanislavski called them seeds, declaring that first impressions are the best possible stimuli to artistic expression, a state which is of great significance in the creative process.
First impressions can make the actors' imagination run wild but they also leave a permanent mark on the work of an actor. All of this suggests that there is a big strategic value to the opening statement. Like theater audiences, jurors are most present and actively evaluating information at the beginning of a trial, where the experience of being jurors is still novel and stimulating.
The theories of primacy and recency support this. Primacy recency theory is that jurors are most persuaded by the information they hear first, that's primacy, followed by what they hear last, recency. The implications of this for the opening statement are pretty major.
In terms of the order of openings, the plaintiff's attorney or prosecution has the benefit of primacy by giving their opening statement first. The defense then has the benefit of recency for their opening statement. In terms of the information within each opening statement, what's first is most important from the persuasion standpoint and what's last follows in importance.
At the sentence level, this also applies. Information first in the sentence is most important followed by what appears last and what's in the middle? All of the bad facts could be buried there.
Basically, to make use of these phenomena, the attorney should begin and end the trial, each part of the trial, the opening statement, and each part of the opening statement, on a high note. As Shakespeare said, boldness be my friend in Cymbeline.
If you're skeptical about any of this, it's suggested that you nonetheless prepare like you're at stand for opening statements. Just so you don't find yourself in a pickle. Wait, did you know that Shakespeare invented the term, "In a pickle"? Yup. Look it up, The Tempest, act five, scene one.
This presentation will unfold in four acts, with a prologue and an epilogue. No intermission, sorry not sorry. We'll have our prologue, act one, which is importance of opening statements, act two: features of opening statements, act three: the law of opening statements, act four: the preparation process, act five: rehearsal and delivery and our epilogue.
Before we move along, one programming note, Shakespeare is going to be hopping in and doing some attorney roleplay throughout. His character's name is going to be Attorney Willie.
Okay. Act two. "Let's kill all the lawyers." Ultimately, the opening statement is your opportunity to connect to jurors on a human level through storytelling. But the story has to be crafted in a way that meets the purpose, is tailored for the audience, and has an appropriate tone and scope. We're going to examine the basic features of an opening statement, audience, purpose, tone, and demeanor and scope.
First, audience. An effective advocate's argument is shaped by the function of their audience. In the opening statement, the primary audience is the jury. Everyone else is secondary. Let's look closely at our primary audiences and their functions and expectations.
The jury. Well, unless a jury trial has been waived, the function of a jury is to do justice by making the ultimate decision about whether your version of the play is to be believed or the other side's version.
To do justice, juries expect an attorney to give clear explanations of law and facts, to provide a theme of the case, to keep them engaged, to respect their capabilities, and to give a reason to reach the conclusion.
All of these expectations require effective communication by attorneys, communication that is understandable, appropriate, and respectful. Even though, most lawyers understand that they should assume that juries are uninformed, intelligent lay people, their communications with juries are often a comedy of errors. Wall Street Journal legal editor Stephen Adler observed that for jurors, a trial is very often much like watching a foreign movie without subtitles, if there's a lot of action, you have a general idea of what's going on. If there isn't a lot of action, you're in trouble.
How does this apply to the opening statement? The opening statement is your first opportunity to address your audience of jurors, outside voir dire. This is your first opportunity to demonstrate to the jurors that you're attuned to their expectations. It's also your first opportunity to communicate with the jury in a way that builds trust through directness, candor, appropriate language, accessibility, and clarity.
The purpose of opening statements ... Opening statements, it's your first opportunity to address the jurors besides voir dire, and to communicate your theme. If the function of your audience is to do justice by making the ultimate decision about whether your version of the play is to be believed, then the purpose of opening statements should be to get the jury's buy-in from the very outset.
Remember, Shakespeare's prologue, in the prologue, we were given a titillating encapsulation of Romeo and & Juliet. In playwriting, the playwright uses the opening scene to set all of the necessary conditions that later develop into dramatic events.
Getting a jury's buy-in involves giving them the same sort of prologue, providing an overview of the case, flagging the pivotal evidence, and showing that the facts will or won't establish the crime or the claim or the case. Now this sounds boring, but it shouldn't be. You do this by telling the jury what you intend in good faith to prove during the trial.
Now the tone of opening statements, well, it's dictated by the audience and the purpose of the opening statement. Now this shouldn't be surprising. One storyteller said you can tell the same story to 500 adults in a theater, 35 seven-year-olds in a classroom, or to a friend on the telephone. In each case, the story is the same but by necessity, the language, tempo, and energies involved will be different.
When delivering the opening statement to an audience of jurors and your purpose is to hook them with a story, your tone should be upbeat, authentic, confident, and effortless. In performance, in fact, audiences generally don't like watching performers try hard. They enjoy watching effortlessness. The ballerina performing the role of Aurora in Sleeping Beauty, now, she can't huff and puff her way through it. It must be effortless.
In terms of scope, the scope of the opening statement is also dictated by the audience and the purpose of the opening statement. The recipe for the opening statement is basic, first, tell the audience where you want them to go. Second, give the audience a reason to want to go there. Third, preview the tools they'll need to get there. Fourth, do so within the rules and conventions.
All of this is best done through a memorable story. Storytelling is a powerful vehicle to show you aim to meet jurors' expectations. Well, and to hook them right from the start. Storytelling is sharing. It's sharing theme, plot, characters, conclusion but also emotions and experiences.
In storytelling, the story is told directly by you to the audience without any intermediary. In the words of one attorney, the opening statement is about giving jurors the tools you hope they use to come to the same place where you, a true believer, will be when the record is closed.
The story and the theme you use are the signposts the jury will notice during the trial. Those are the signposts that will guide them to that common place where you'll be at the end.
None of this is possible without effective communication by the attorney. Attorneys have to use appropriate language and explain concepts clearly and concretely. Shakespeare was onto something when he said, "Let's kill all the lawyers." In terms of communicating with jurors, attorneys should think person first, lawyer second.
Act three, "Mend your speech a little, lest you may mar your fortunes." This act is about the law of opening statements. There are no federal constitutions, federal statutes or federal rules suggesting that opening statements are a right. Some federal case law suggests that giving an opening statement arises close to the level of a right, but even these cases don't discuss opening statements in constitutional terms. Other courts disagree, explicitly finding that no such right exists and that the matter was within the purview of the trial judge.
However, opening statements may be considered a right according to state statutory or case law, though, typically, only in criminal trials. Regardless of the right to make opening statements, when a party makes them, they're subject to the trial courts' control.
Some procedure, courts have long concluded that opening statements are not evidence. Jury instructions typically state that. An attorney also can't be held to their opening statement. In the case People vs. Carmichael, the prosecutor referenced telephone calls she intended to introduce into evidence. However, during the trial, the prosecutor couldn't lay the foundation for that admission. The court found that absent bad faith or undue prejudice, unfulfilled promises in a prosecutor's opening statement will not entitle a defendant to a new trial.
Another procedural rule, an attorney typically shouldn't waive or reserve their opening statement. This is more of a norm. It can be a huge missed opportunity to waive or reserve an opening statement. It's an opportunity to connect with a jury, convey your theme, and establish trust. Why would you not want that opportunity?
There are a number of other procedural rules that we don't have time to cover today, including the rule that statements in openings can't be attacked in closings, and that a defendant's counsel doesn't need to announce any defenses in their opening statement.
As to the content of opening statements, if the purpose of the opening statements is to tell the jury what you intend in good faith to prove during the trial and get their buy-in from the outset, then facts and persuasion must factor into the opening statement somehow.
They do but they're strictly limited, depending on the trial judge. Here are some limitations on the opening statement. Attorneys should limit themselves to discussion of the main issues and reasonably anticipated evidence. Also, attorneys should not argue about how to resolve evidentiary conflicts. Attorneys should not make argument by applying law to facts. Attorneys should not attempt to play at the jurors' heartstrings.
The most basic rule is the prohibition on argument. It's common for attorneys to object during opening statements, if it appears that you're making an argument. This is thought of as the most common objection. According to one legal commentator, there are two basic guidelines or rules of thumb with respect to argument.
First, it's not argument if you intend to prove it. It is argument if you say something that's undisposed to proof. Second, it's not argument if a witness could say the same thing on the stand and the statement would be admissible. It is argument if no witness exists to say it.
You'll want to stay away from language also that is conclusory or charged with argument. In playwriting, the goal isn't to write the conclusion. The goal is to write in such a way that you cause the audience to reach the conclusion themselves. In other words, don't connect the dots but give the audience the tools to connect the dots themselves.
At the same time, you'll want to avoid using overly colorful words or charged terms. If you do these things frequently during an argument, you may receive an objection. Many attorneys don't object, though, during an attorney’s opening unless the issue is pervasive.
This doesn't exactly capture the nuances of the argument issue but it's a basic sketch of the boundaries. Of course, what is or is not argument also depends on the rules of the particular jurisdiction.
Another axiomatic rule is the prohibition on expounding on the law. Opening statements are not a forum for arguing or expounding on the specifics of the law. Most jurisdictions prohibit discussion of law in any detail in the opening statement.
On the other hand, most courts will allow you to discuss the primary legal issues in the case. But you should not discuss how the evidence satisfies the legal standard. If the action is based on a statute, you can usually read the statute or an approved jury instruction, but you can't tell the jury how to interpret the law.
Opening statements, though, are not a forum for reading and expressing your opinion about the case, the evidence, the law, or any of the parties or attorneys. For example, you'll want to avoid calling the opposing party a big cow, which is exactly the term used during an opening statement in one Kentucky courtroom. Or translated into Shakespearian insult, "I am sick when I do look at thee", A Midsummer's Night Dream, act two, scene one. All to be avoided.
Now rules about discussion of facts, several rules here, the first major rule is you can announce summaries of fact that you will or you accept to prove through evidence. You can also summarize evidence that you in good faith believe will be offered and admissible at trial.
Now there are two or three other smaller rules, corollary rules of this. The first, you can't misstate or mischaracterize or exaggerate the evidence. If you can't deliver it, don't promise it. Characterizing the evidence can be okay but you need to be careful because characterizing can easily turn into exaggeration and mischaracterizing.
The Arizona Supreme Court found the following statement in a prosecutor's opening was permissible, "The victims went out to the kitchen area, started a pot of coffee, turned the radio on, sat down at the kitchen table. What happened next in the next 10, 15, 20 minutes can only be described as an unspeakable horror. It was evil. What happened in the next 10, 15, 20 minutes ended everything for Jackie and Herbert Williams and the cause and the reason that it ended is right here in this courtroom. The evil is among us."
The court in that case found it permissible because the statements were mere characterizations of the evidence and that the evidence would show it was horror. It wasn't mischaracterizing when the crime committed was so heinous.
Now exaggerating or mischaracterizing can be reversible error but it's a difficult rule for judges to enforce because judges, like the jury, haven't seen or heard the evidence that would allow the judge to conclude that it's exaggeration or mischaracterization. Objections to these often have to be overruled.
Another corollary rule, you can't refer to evidence that's inadmissible. For example, the prosecution can't argue in an opening statement that the defendant and his friends were selling drugs if it never produces evidence about it. That's in one Illinois case.
If it's borderline or depends on properly laying the foundation, it may be okay under the good faith basis test. Under that test, an attorney can reference any evidence that the attorney reasonably believes is admissible and plans to offer into evidence.
The third corollary rule is you can't refer to evidence that you believe your opponent will introduce unless you plan to offer it into evidence yourself. This also means refrain from anticipating the opposition's actual or expected evidence. There is an exception. If the opposing side has promised evidence in the pleadings, in voir dire, or during their opening, you can refer to it in a non-argumentative way.
Our second major rule is you can put forward reasonable inferences that can be deduced from the evidence and matters of common knowledge. Now other improper matters include appeal to racial, ethnic or cultural biases, making emotional appeals that are outside the merits of the matter but you can discuss factual matters with an emotional content as long as it doesn't veer outside the relevant evidence.
Another improper matter is anything related to a party's inability to pay damages, any claims or promises that cannot be fulfilled are also improper. All of these rules on what you can't do in opening statement begs the question, how do you conduct any advocacy at all during the opening statement? All in good time, grasshopper.
Some evidentiary issues, in general the opening statement is not evidence. One court stated that it is fundamental that representations by counsel absent a stipulation, when not made under oath and subject to cross-examination are not evidence.
This means that an attorney can't be held to their opening statement. Like the defense can let go of a defense mentioned in opening. Now objections can occur during opening. Should your opponent make an improper statement during their opening statement, you should object, move to strike the statements from the record and possibly move for a mistrial.
Objections and grounds are necessary to preserve the issue for appeal. The error can be ameliorated if the judge sustains the motion, strikes the information, and instructs the jury to disregard the statement unless the statement was extremely prejudicial.
This is just an overview of potential evidentiary issues in opening statements. We don't have time to cover admissions or opening the door today. But we need to cover ethics.
We're going to look at the ABA model rules of professional responsibility or professional conduct. Though, you should check out the ethical requirements in your jurisdiction, which may differ to varying degrees.
The ABA model rules of professional conduct lack any rules devoted to opening statements, but a number of rules apply. Like rule 3.3, a lawyer shall not make a false statement of material fact. Also, rule 3.4, E one through three, a lawyer can't just hope the evidence is admitted. The belief must be reasonable. Also, a lawyer can't say they can vouch for the facts themselves and can't state personal opinions. Also, a lawyer can't knowingly disregard court rules.
This makes it a violation to intentionally include anything you know violates legal guidelines in your opening statement. The implication of this is that you can't include, for example, argument, appeals to sympathy or bias, explanation of the law, and exaggerations of evidence.
Let's look at a few examples of this. In Hawke vs. Superior Court, the California court of appeal found an attorney in contempt for his opening statement in habeas proceeding, among other things. In the opening statement, the attorney stated, "I would expect the county doctor to testify that Juan Corona", the client, "Suffered two heart attacks as a result of his arrest and incarceration."
The court found that reference to the heart attacks was an effort to create sympathy in the minds of the jury for the defendant and to create a prejudice against the prosecution, and that the statement was an improper and prejudicial attempt to influence jurors.
The court reasoned that under ethics rules, it's unprofessional conduct to allude to any evidence unless there's a good faith and reasonable basis for believing such evidence will be tendered and admitted into evidence.
Also, in that case, the following dialog occurred. First, the defendant's counsel, Mr. Hawke, "Okay, let me tell you about the man I smuggled cupcakes up to his cell in Yuba City on his birthday in contrary to the sheriff's office regulations about bringing in food stuffs, which I did anyway."
The court said, "Mark the record for me, please, Mr. Reporter." Mr. Hawke continued, "Let me tell you about Juan, the Christian." The other side's attorney, "Objection." The court found that the reference to a friendship with the client was an improper and prejudicial attempt to influence the jurors. Also, the court admonished the attorney for using a first name, which actually violated a court order on the issue.
The attorney in that case also stated, "Under oath, it was alleged by one of the officers of the Sutter County Sheriff's Office and information which was passed out to the press where Mr. Corona was stripped of his presumption of innocence by the press with the help of the sheriff's office."
The court found this too was an improper and prejudicial attempt to influence jurors. The court reasoned that it's unreasonable for an attorney to knowingly bring inadmissible evidence to the jury's attention or to make comments about it in the jury's presence.
The takeaway here is that in addition to the prohibitions on rule three, it's critical to adhere to any specific rules of the tribunal, like prohibitions on appeals to sympathy or bias, argument, explanation of the law, and exaggeration of evidence. Failing to do so is an ethical violation.
In the end, when you're crafting an opening statement, never argue, never instruct on the law, never embellish, or overstate your case, never insert your personal opinion, and never refer to inadmissible evidence.
Act four. "To climb steep hills requires a slow pace, at first." Some preliminary thoughts on length. The judge has discretion over the length, the order, and the content of opening statements. The appropriate length of an opening statement, it varies, depending on the significance and the complexity of the case. The statement should be long enough to accomplish your goals ... Again, it's to influence the jury from the outset, deliver your theme, and preview what they're going to hear.
The statement should be crafted with the understanding that people typically aren't as enamored with your words as you are. The statement should be crafted to hold all jurors' interest for the entire time. Remember that like a theater crowd, jurors expect you to entertain them. Statements should be brief while not eliminating any important part of your case.
The process of writing an opening statement is our next task. You'll first want to review your case file thoroughly and carefully. This includes the record as well as all of the legal rulings in the cases. Also, you'll want to review and process the facts, and this is an important one. Consider preparing a chart of the elements of the crime or claim that have to be proved and if there's a defense, the elements of that defense. Prepare these elements as columns in the chart. Then for each column, list all favorable evidence that proves or disproves the particular element. Be sure you're informed by any case law interpretations of the claim or crime or defense.
Here's an example. This is a prosecution's side example involving the crime of common night walking, a quirky Massachusetts criminal offense. A common night walker is someone who habitually walks the streets in the nighttime for the purpose of prostitution. That's it.
Case law has made clear that a specific act of solicitation isn't required, and case law further makes clear that if the time, place, and frequency of the conduct warrant an inference, that the person was soliciting, that's sufficient. In this chart, the prosecutor has created four columns, one for each element, habitually walking the streets at nighttime for the purpose of prostitution. The prosecutor has put all of the facts pertaining to each of those elements in the chart, along with how the prosecutor intends to prove those facts For example, the police reports, through a witness, Officer Jones, witness Jones.
And then add any unfavorable facts into the chart to keep yourself attuned to your obstacles and your need to overcome them. Here, the prosecutor included one bad fact, which was the area was known for nightlife. Hence, people maybe loitering about, which was a bad fact.
The next task will be to arrange your facts in a persuasive order. Consider how you'll order the facts, are you going to do strongest first? Strongest last? Or something else?
One way to order is climax order. You put the strongest and most important facts and statements towards the end. Now there's also anti-climax order, strongest and most important facts and statements towards the beginning. John Quinn, a name partner at Quinn Emmanuel had this to say about order, "When on defense, I am a great believer that you should try to start with a bomb. The jury is often so biased by the time you rise, that you have to concisely raise distrust of your opponent's overall reliability and candor or nothing wonderful can follow. The bomb usually takes the form of specific evidence that the plaintiff chose not to show and never mentioned."
Now you could also choose a mixed order, strong and most important facts and statements at the beginning with next strongest facts and statements at the end. This would seem to dovetail well with the primacy recency theory we discussed earlier.
Also, you'll want to include your biggest weaknesses and subtly overcome them. As Shakespeare said, an overflow of good converts to bad. Make sure that you include your biggest weaknesses.
After you organize the facts, you'll want to outline the story you want to tell. Your goal is to create a one-page outline of the heart of your opening statement and to write out and memorize the beginning and the end of the opening statement.
The outline of the framework, this is the framework of your argument, you'll want to commit the framework to memory. Though, you will carry the outline with you up to the podium or to your spot before the jury box.
You'll want to avoid writing out the heart of your argument. This can setup unreasonable expectations for your delivery. Jurors lose interest in what you're saying if you're reading to them rather than talking to them. You should write out, however, and memorize a one-to-two-minute beginning and a very brief closing. In show biz, it's called getting off book, memorizing. Never recite this in a monotone or read from the page. Practice saying the beginning and ending aloud. Practice delivering them slowly. Know the beginning and the end cold.
The reason for memorizing these parts, the very beginning, and the very end, is that you may be nervous at the beginning and perhaps tired at the end and if you know your opening and closing like the back of your hand, it can be stabilizing. Also, if you can get through your opening smoothly, it's a confidence builder for the rest of the trial.
We're going to dissect it more. First, the beginning, the beginning of the opening statement. Start with a good first impression. Here's what not to do. The first words should not burden and bore the jurors with more introductions or procedure or needless praise. There's generally no need to introduce yourself or your client. By the time you're giving your opening statement, the judge has already told the jurors about you and your client, and you also likely introduced yourself to jurors doing voir dire. This is not about you.
There's also generally no need to describe what an opening statement is or other procedural stuff. There's certainly no need to brown nose jurors. People are smarter than that and it's not a great way to build trust and get juror buy-in. There also is no need to explain things that the judge has already explained. All of this is wasting valuable time and feeling the most impressionable moments with unimportant information.
What to do? Well, the first words should pique the jurors' interest to make them want to hear more. Start with your theme. How to develop your theme, the why of your case. You'll want to sell one theme that grabs the jury's attention and sets the stage for the play that follows.
The theme should justify the morality of your side's case, which should appeal to the jury's sense of fairness and justice. You should be able to express your theme in one sentence, two or three at the most, containing a summary of what the case is about. Now in the words of one practitioner, the theme visually and emotionally describes why you should win. It could even be a memorable phrase or even a single word. Choose something that you can repeat as often as possible, all the way from voir dire to closing arguments.
Here's an example, our attorney Willie, who represents the woman accused of common night walking, "May it please the court, this is a case about a young woman, a Worchester county graduate whose sources of support, family, friends and community, happen to be located in and around Nightclub Row." Attorney Willie's theme here is this is an area where the defendant conducts her life, her support system is there, her friends, her family are all located there. Your theme might evolve as you continue to conduct your trial preparation process and revise and practice your opening statement.
After developing your theme, an introduction of who, what, when, and where is important. You'll likely need to make the choice of whether to lead with people or with events. This will depend on your facts. You could create a character-driven structure, and this helps the jury feel a personal connection with the story and it's useful when the narrative is character-driven, and crimes or claims are intimate or personal and the harm done is violent or tragic.
Here's one example, though, it's not the whole narrative. This is attorney Willie again, "Laura Hernandez grew up in and around Nightclub Row. Her mother, grandmother, and brother all reside there. Her friends congregate there. Potential employers run nightclubs there. Laura lives most of her life in the area between Hot House Bar and Flaming Lips."
Or you could create an event-based structure. This focuses more on what the characters do in the story and relies less on personality. It can be more appropriate if the facts are technical or there are several characters each involved in the events that unfold.
Here's an example, though, it's not the whole narrative. Attorney Willie again, "On Sunday, October 6th at midnight, Laura Hernandez left her family's apartment and walked a block to McDonald's, the usual meeting place for her friends. On arrival, she sat with several girlfriends outside to watch the exit of clubgoers from surrounding establishments. Beyond Laura's view, a rookie police officer was observing."
Also, you'll want to identify the disputes, including damages. When identifying the dispute, discuss the legal concepts in a general way. Then raise the fact that establish or fail to establish liability. This should be done in plain English and conversationally. Avoid overusing the phrase, "The evidence will show." You can use it, just don't overuse it. Only use it if you have to keep the other side from objecting to what you're arguing. Also watch the overuse of, "We expect to prove".
You'll want to emphasize vital evidence and diffuse negative conflicts. Also, admit weaknesses. As Shakespeare said in one of his greatest sonnets, admit impediments. At the end is your conclusion and your request for a verdict. This isn't a time to equivocate. You want to tell the jury after hearing all the evidence you're sure they will agree with you.
An example, attorney Willie, "After hearing all of the evidence, I am sure you will agree that Laura Hernandez is not guilty of being a common night walker. We ask that you return a verdict in her favor. Thank you."
As you're writing, make sure that you're using invisible persuasion. Subtle or invisible persuasion can occur on the large scale or the small scale. Here's some large-scale techniques, choose an organizational structure, one of those we mentioned, that includes favorable facts at the beginning when the jury's attention is high and at the end.
Another, place unfavorable facts somewhere in the middle to de-emphasize them. Now you can use small scale techniques to de-emphasize unfavorable facts at the beginning or the end, that you have to include there.
The small-scale techniques, emphasize favorable facts in a short sentence, de-emphasize unfavorable facts in a long sentence. You can add detail to favorable facts and take away detail, de-emphasize unfavorable facts by limiting the detail.
Also, you'll want to humanize your client, but use more generic labels for the opposing party. Another small-scale technique, for invisible persuasion, is to use vivid word choice for verbs and nouns rather than adverbs. Also, juxtapose favorable and unfavorable facts. If you need to de-emphasize some unfavorable facts, put them in the dependent clause of a sentence and then you put the favorable facts in independent clauses so the standalone clause that can be its own sentence should have the favorable fact. That's the landing. The dependent clause is the one that depends on the independent and that is the antecedent and the landing is on the favorable. That de-emphasizes. You want to interrupt negative inferences that can be drawn from bad facts as well.
Also, use active verbs for emphasis on the person acting. Use passive verbs to deflect attention from the person acting. Willie could say, "Officer Jones exited his vehicle, crossed the street, told Laura's friends to leave and handcuffed Laura" or he could say, "Laura was handcuffed."
Here's a summary of the major points in devising your opening statement. Start and end strong. Start with your theme. Be clear and organized. The language that you use really matters. Overstating your case is very, very bad. Conduct invisible advocacy without argument.
Act five, "This above all to thine own self be true." When practicing your opening statements, work on persnickety demeanor issue. Here are some dos. Do maintain a proper distance. If you're too close to the jury, you'll make them nervous. If you're too far away, you will seem remote. A distance of about six to eight feet from a jury of 12 is best.
Also, project your voice but maintain a conversational intimacy. Remember there are secondary audiences to your opening statement besides the jury but be sure to maintain a conversational intimacy with the jury. Do focus on all jurors equally. Each juror's vote matters so treat jurors like active players in a scene. Split your focus evenly among them to help each feel included and engaged.
Also, look at jurors directly in the eyes. If you're only six to eight feet away from jurors, they can tell if you're not looking at them, if you're looking above them, at the floor, or in the sky. That's very common. Failing to look directly and unapologetically at jurors can make you seem evasive and lacking in confidence. You're going for candid here, being candid requires direct eye contact. Don't read. You should be maintaining eye contact with a jury, at least 90% of the time.
Also, do use conversational language. Not conversational language for lawyers, just conversational for lay people. That doesn't mean talk down to jurors. It just means talk to jurors like a human being with clear and accessible language. This can be particularly challenging when giving an overview of the law. Also, avoid legal terms of art, avoid terms like immaterial, nuisance, judgment, tribunal, unambiguous, execute, furtherance, impermissible, nucleus, and any terms that you as a lawyer would feel comfortable using but will make you sound like a lawyer. Remember, person first, lawyer second.
Here's some don’ts. Don't pace in front of the jury. This makes you appear nervous, and you want to project calm and assured. Pick a spot and stick to it. On stage, it's called hitting your mark. If you veer from your mark onstage, you may lose the audience entirely because the lights are focused on that mark and you're not in the light anymore. The same is true if you veer from a central spot in the courtroom.
Also, don't distract from your own performance by gesticulating wildly or fidgeting, appearing overly stiff, adjusting your clothing, or fussing with your hair. In musical theater, when practicing a solo number, one exercise is to perform the song entirely physically still, letting the audience focus solely on the story being told and the lyric. Stillness requires the audience to come to you. In the exercise, three or four moments of physical action are added, like a step forward, a hand gesture, some movement, and the purpose of this is to tone down things that distract the audience from the story. This is also an appropriate exercise for opening statements.
Also, don't say you're sorry. Never apologize in performance when you mess up. Half the time, the audience doesn't even realize you made a mistake. It also goes to making it look easy. Also, don't use the language of the law. Here's what not to do. Imagine attorney Willie is giving an opening statement. He says, "A common night walker is a person who habitually walks the street in the night time for the purpose of prostitution." That's just parroting the law.
Here's an alternative. "Massachusetts has a crime called common night walking. If someone walks on the streets at night and does it a lot, they can be a night walker but only if the evidence shows they were doing it to sell sex for money."
Also, don't rush your argument. Slowing down is typically one of the top suggestions for opening statement coaching. As Shakespeare said, wisely and slow, they stumble that run fast.
Speaking quickly contributes to nerves but speaking slowly dissipates them. Also, jurors are hearing your words for the first time. That adds an extra set of mental processes that you're free of, just remember that they have more going on in their brains because you've heard your words before.
Also, don't use passive word choice unless it's intentional. Active word choice engages the audience. It's harmonious for them when the subject is followed by the verb. Volumnia in Coriolanus says action is eloquence. It's passive when the subject follows the verb and also it obscures the actor when there's no subject at all.
Here's an example of active, passive, and obscuring. Attorney Willie says, "The officer arrested Laura." Subject, verb, object. An alternative, "Laura was arrested by the officer." Object, verb, subject. Finally, "Laura was arrested." Object, verb, no subject. You would want to avoid the latter two unless it's intentional that you want to bury that actor.
Okay. Finally, don't stop. You'll want to avoid starting over when you mess up in practice. Practice is about working through setbacks. Expect that you will face some adversity during your opening statement, the real deal. Like being interrupted by objections or someone entering the courtroom. It always happens. You have to practice recovering from adversity like that and persevering despite a mistake is an important exercise. As they say, the show must go on.
Finally, delivering the opening statement. Wear appropriate attire to the courthouse. If you'd be remembered for your outfit, just avoid wearing it. Dress to blend in, not to stand out. If you feel like you need a second opinion on your outfit, avoid wearing it. If the outfit is not fidget-proof, avoid wearing it. If your clothing doesn't fit properly, avoid wearing it. If your hat or hair do would distract you, avoid wearing it.
Now before starting your opening statement, breathe first and think slow. Once you get the go ahead from the judge, hit your mark and take a deep inaudible breath before starting to breathe out nerves and doubts. Shakespeare says, "Our doubts are traitors." If you have a tendency to speed up when you're nervous, try setting an intention about that immediately before your argument. Think to yourself before starting, "I will speak slowly" or, "I can do this."
Above all, be authentic. Remember, what you have in common with jurors, you're all human. What attracts you to other people, what makes you want to get to know them, what makes you want to trust them. The answer, at least, in part, is authenticity. You want jurors to identify with you, not compare themselves to you. Shakespeare had it right, "This above all to thine own self be true."
Epilogue, "All's well that ends well." A great opening statement brings theater into the courtroom. The equivalent of a prologue, the opening statement sets the stage for the play that follows by introducing a memorable recurring them for an audience of 12 with a lot of power.
Everything about an opening statement is in service of this powerful audience, which is what makes a theater analogy so appropriate. The crowd at the Old Globe Theater also wielded the power of decision. The audience of prostitutes, pickpockets, drunkards, and noblemen clapped and booed whenever they felt like it;. Sometimes they threw tomatoes. Keeping this audience's attention and winning them over didn't necessarily come naturally to Shakespeare's players. They undertook great training.
Likewise, winning the jury's attention isn't simply a matter of natural charisma, effortlessness doesn't come naturally. It's the product of exceptional amounts of work. Putting that kind of work into an opening statement will give you all the tools to have your audience in the palm of your hand for the remainder of the trial.
Thank you for joining us for this introduction to opening statements by Quimbee. To learn more about the contents of today's presentation, please check out those course materials, including today's slide handouts and presenter notes. Thank you for choosing Quimbee.
Parting is such sweet sorrow.