Opening Statement - A Story Worth Telling

[Pages:9]OPENING STATEMENT A Story Worth Telling

By DeAnn Gibson, J.D. SheldonSinrich

Everybody loves a good story. As children, we were enthralled by

parables from Aesop's fables and Grimm's fairy tales. Today, our own children

are enchanted by the adventures of Harry Potter and The Lion King. As adults,

we are still captured by a good story. Whether it's Garrison Keillor or Paul

THE MAN AND THE LION

Harvey, both draw you into their world and hold your attention. These men are such master storytellers that a week later, you may not remember the details of the story, but you will remember their underlying message. You too must be a master storyteller if you want the jury to understand the themes and focus of your case from the outset.

A lion and a man chanced to travel in company through the forest. They soon began to quarrel, for each of them boasted that he and his kind were far superior to the other both in strength and mind.

Now they reached a clearing in the forest and there stood a statue. It was a representation of Heracles in the act of

WHY SHOULD YOU TELL A GOOD STORY?

tearing the jaws of the Nemean Lion. "See," said the man, "that's how strong

we are! The King of Beasts is like wax in

Social science research2 has shown that the storytelling mode of delivery is more persuasive than a simple recitation of the facts. Whether you tell a story or not,

our hands!" "Ho!" laughed the Lion, "a Man made

that statue. It would have been quite a different scene had a Lion made it!"

jurors will make up their own story about what happened using the evidence presented at trial. The jurors will then use

It all depends on the point of view, and who tells the story.1

"their story," their version of what really

happened, to assimilate new pieces of evidence as they are presented at trial. If

the evidence does not fit with their story, they are more likely to dismiss that

evidence. Therefore, telling the jury your story, your perspective on the facts, will

serve as a guide or blueprint for the jury's understanding and perception of the

facts. Remember, perception is reality. As trial consultant, Eric Oliver says, "Facts don't prove cases, perceptions of facts do."3

Secondly, complex information in a story format is much easier to comprehend. A story helps focus the jurors' attention, helps them store and retrieve facts and helps them fill in missing information.

Pre-trial research is invaluable in helping you decide how to tell your story to match jurors' attitudes, beliefs and opinions of your case. During pre-trial research, you will learn how jurors construct stories about your case facts. They may define the good guys and the bad guys, establish a cause and effect

relationship, or determine the motive of the parties. Jurors are frequently obsessed with discovering answers to the age-old question, "What really happened here?" Use the information you learn in focus groups or mock trials to make sure that your trial story is congruent with the juror's story. In developing your story of the case, emphasize the consistent facts and eliminate or deemphasize the inconsistent facts.

HOW DO YOU TELL A GOOD STORY?

First and foremost, telling a good story requires that you believe in your client and your case. Jurors will sense a lack of authenticity a mile away. A juror in a recent post-trial interview said, "I thought those defense attorneys and their client didn't want to be there. They just wanted to get back to Louisiana. We didn't want to be there either, but we didn't have a choice." Get to know your client, his life and how this lawsuit has affected his life. Empathize with his feelings so that you reflect this level of care, concern and passion to the jury. Emotion does not have to be displayed in grandiose gestures, but can be conveyed by the slightest of movement.

As an attorney, you do not have the luxury of a fiction writer. You are constrained by your client's facts. However, you can pick and choose which facts to tell, reveal them in a persuasive manner and explain the context of those facts for your listener. Be selective in your choice of material to include as well as the organizational structure. As you plan your opening, keep your overall themes and trial strategy in mind and use them as the focal point.

THE BEGINNING ? WHY SHOULD THE JURORS LISTEN?

Pick up any newspaper or magazine and you will notice that the first sentence of the article is an attention-grabber. Give your jury the same courtesy. The beginning of your story [opening statement] should pique the jurors' curiosity and should focus the jury on what they will have to decide. Let the jurors know that your client has a story worth hearing.

Primacy. Remember that we are more likely to remember what we hear first and what we hear last. For this reason, don't start your opening with, "Thanks for being here. This is my assistant. I know your must be tired after sitting through voir dire. The purpose of an opening statement is..." You have just wasted two crucial minutes of the juror's attention span. Instead, engage them in your case story in the first four minutes.

Relationships ? not Facts. Make your opening about people and relationships. If you observe people on their coffee break, they are talking about themselves, their friends or their children. Those conversations are about people, not government standards or scientific epidemiology. "Did you hear about Georgia and Greg?" "Can you believe what happened to Bert and Ernie?" If you want a juror to be concerned about your government standards, show them how your client suffered.

Additionally, jurors assign motives and reasons for why people do the things they do.

Fact: A friend is in a wreck. Conclusion: She must have been driving too fast again.

Fact: A cousin has a heart attack. Conclusion: He wasn't watching his cholesterol.

Jurors do not automatically assume that the traffic light malfunctioned or contemplate what studies have indicated that certain medications can increase the risk for heart problems. Instead, jurors focus on the people involved. Make sure your perspective of the story, your context, addresses the people involved, their relationships, their reasoning and their motives. People, not scientific studies, will be a central theme in the jury room.

Forwards: Create Conflict and Tension. David Ball, a trial consultant with a background in theater, suggests that attorneys use "forwards" to create tension and stimulate the jurors' interest. He defines "forward" as anything that arouses an audience's strong desire to see what is to come. Ball compares it to dangling a carrot and comments,

"A story without tension is like a tight-rope sagging to the ground -- the performance dies. Tension is the taut binding between story and audience. It is the force, like magnetism, that holds the audience. It is the tug that attracts the listener from the story's present moment into the story's future. Tension derives from the audience's hunger to hear or see what is going to happen next."4

Use Present Tense. Use present tense when you give your opening statement.

"Let me take you back to July 18. It is a cold, rainy night. Mr. Smith is tired because he has been driving since 6 o'clock this morning. His boss is furious because he made a late delivery yesterday. His wife is angry because he didn't bring home the baby's milk. As he approaches the intersection...."

The present tense creates immediacy and credibility and puts the jurors at the scene with your client. The present tense is also powerful because the unconscious mind does not distinguish between reality and fiction. So if the listener feels like they were really present at the event, then for all intents and purposes they were at that intersection.

THE MIDDLE - WHAT HAPPENED?

The middle of your opening statement gives the jurors the facts and more importantly sets a context for these facts. As stated earlier, the facts alone mean nothing; it is the perception of the facts that count.

Less is More. All trials are information-dense and all jurors have information overload. They cannot and will not remember everything. Do you really think they are going to absorb 6-8 hours of information a day? The greater the detail, the more likely the message will get lost in the minutia. Do yourself and the jurors a favor; condense the information and help them remember what you want them to remember.

Colorful, Visual Language. Use language that evokes the juror's senses: crash, not accident; burst into flames, not caught on fire; enraged, not mad. Our sense of smell can be particularly evocative. Reminding jurors of certain childhood smells, freshly baked bread or hot apple pie, can make them nostalgic or hungry. While the use of particularly bad smells, rotten eggs or burning flesh, may provoke a wrinkled nose, but will stick in the juror's mind.

Active, not Passive Voice. Use the active, not passive, voice. Choose The hotshot attorney screams at her secretary. Avoid the less powerful passive voice, The secretary was yelled at by the hotshot attorney.

Reframing. Reframe weak or inconsistent facts in a larger context. For example, I worked on a criminal defense case involving a woman who shot her ex-husband and later confessed. At first glance, this might be viewed as an open and shut case. However, it was later learned that she had lived in an abusive situation for years. This information shifts the paradigm. The fact does not change - she shot him. But now we have an understanding of why she shot him.

Almost any fact can be perceived in a different way if you look at it from a different perspective or angle. Don't gloss over your bad facts. Consider every weakness in your case and reframe it for yourself and for the jurors. Sometimes lawyers don't want to deal with the bad facts, so they either deny them or just procrastinate and never deal with them. Don't ignore them; the jury will not. Just put them in a larger context.

Repetition. Repeat key phrases that establish your point of the story. For example, "The doctor cut off the wrong leg." By the end of the trial, the jurors should be able to state your theme and point of the story in the jury room. In one study, one group of mock jurors was exposed to an attorney's recommendation one time; another group heard the recommendation three times. Jurors retained the message better and agreed more often when they heard the message three times as opposed to just one time.5

Caveat: Don't bore the jury to death. Excessive repetition or belaboring a point may be viewed as irritating or condescending.

Rhetorical Questions. Rhetorical questions are an excellent device to enhance juror learning. This invites the jury to think about your issue and arrive at its own answer. Pose questions such as, "What would a good doctor do?" Once again, you must set up and word the question so that the jurors will answer in a way that benefits your client.

Visual Aids. People learn more easily through visual devices rather than verbal channels. We retain only 14% to 33% of information presented through audio; we retain 85% of the information we learn visually.6

One study found that demonstrative evidence might affect damage awards. In one condition, the plaintiff's artificial limb was described to the jury. In the second setting, the jurors passed around the limb during the attorney's speech. After the two presentations, the subjects awarded money damages. The group who had not seen or touched the artificial limb awarded $62,500; the average amount of the group who saw the limb was $73,257. Following the deliberations, the damage awards rose to $68,333 and $75,833, respectively.7

Use visual aids to:

? Illustrate what happened; ? Reinforce key points; ? Emphasize major themes; ? Focus a witness's testimony; ? Clarify time frames and relationships; and ? Maintain juror interest level with a multi-media presentation.

Short Words and Sentences. Resist using legal jargon and technical language. Even words with more than three syllables can overwork the juror's brain. When you use a word that is unfamiliar or uncommon, you lose the juror for a few seconds. He must then search the recesses of his mind, think about it, try to figure out what it means, how it is spelled and how it fits in the sentence you spoke. You may have lost the juror on your most critical point in the case. Don't risk it; use short words and sentences to convey your message.

Concrete Examples. Words that describe size, weight or processes will conjure up different images in the juror's minds. It is difficult to comprehend and visualize the exact meaning of "100 yards," but people can understand and visualize the length of a football field.

We had a case involving large piles of scrap metal that were the height of skyscrapers and the width of city blocks. Given the general lack of knowledge about scrap metal, we used photographs people and objects situated next to the piles so the jury could understand the relative size of these heaps of scrap.8

Facts, not Conclusions. Be wary of drawing conclusions for the jury, such as, "When you hear the defendant testify, you will think he is lying." First, during opening, you have not established credibility with the jury. Why should they believe you or accept your thought? Second, it is far more powerful for you to give the jurors the facts and let them make up their own conclusion. Of course, you must be very careful in your selection of which facts about the defendant you explain. You cannot force your interpretation of "right and wrong" upon them; you must trigger their sense of "right and wrong" in a way that is consistent with the desired outcome.

Topic Headings/Signposts. Don't get ahead of your jury in the story. Let them know when you are changing subjects or moving to a new issue in the case. Use a transition sentence when you move to a different subject or topic. "Let's look at . . ." This is so obvious and simple that lawyers often forget to review their opening with this concept in mind. As lawyers are intimately familiar with the case, they assume that other people, including jurors, know where they are heading next. Your opening is too crucial to lose them for even a moment.

Transcend the Facts. Your case is not simply about facts; it must have a larger significance in the juror's world. Your case will have more impact on the jurors personally if it impacts the community or society. It is not only about your client who suffered from a stroke after taking prescription medicine; it is also about a pharmaceutical that fails to warn consumers about side effects. Plant this seed during opening, so that the jurors will view your case through these personal concerns as they listen to the evidence.

Theme Development. Your story must have a clear theme. The theme provides the jury with the direction of focus. Eric Oliver9 compares the trial story to the map of the case and the theme as the compass. A recent case involved a contract dispute between several wealthy men. In post verdict interviews, the jurors characterized the defendants in the case as a bunch of good ole boys from Alabama. Each of the jurors used different words, with slightly different meanings, but the underlying theme was the same ? the good ole boy network was at play. This characterization colored the jurors interpretation of every single piece of evidence. Not one lawyer ever mentioned the words: rich kids, good ole boys, or the boys from Alabama. But the jurors clearly received that message and assigned that theme, to the detriment of the defendant.

Think carefully about your main themes and build your entire trial presentation around 3-4 central themes of the case.

THE END - MOTIVATE JURORS

The jury will ultimately write the ending of your story; however, show the jurors how important it is that they decide the central issue in your favor. The jurors must have some personal motivation to write an ending in your favor. They must want to right a wrong, heal a wound, punish evil or provide care and treatment for a child. Each of these motivations is bigger than simply, "awarding money" or "paying damages." For example, "XYZ insurance, refusing to perform the simplest of cancer screenings, has caused needless tragedy and death." [Tell XYZ enough is enough.]

It's been said that every ending is just another beginning. The end of your opening should be the beginning of a concise, planned and well-orchestrated trial presentation, adapting these same concepts throughout the trial.

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