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Posts in category Opening statement

Foundations, anchors, and opening statements

Skimming through notes on my iphone from the past year or so, I came across one that I wrote about foundations, anchors, and opening statements.  I’m pretty sure that I wrote the note during a murder trial last year in York County.  Not in the courtroom though.  Judge Cole would have a fit if he saw me typing notes on my iphone in the courtroom.

It occurred to me that opening statement is like laying a foundation for a building – if the foundation is strong enough, it can weather the storm that comes during the state’s case.  They can make allegations, poke holes in the walls, and blow shingles off the roof, but if the foundation is still solid by the end of the state’s case you have won the trial.

Then again, it occurred to me that opening statement is more like casting an anchor – if your ship is anchored well, when the storm comes it may get dragged a ways but it will hopefully weather the storm.  If the anchor doesn’t catch on anything, when the storm comes during the state’s case your ship will get blown away and beached or sunk.  I’m no sailor, much as I would like to be, but the analogy fits in my mind.

Opening statement has to tell my client’s story, and it needs to be compelling.  One thing that all people have in common is that we like stories, we want to be entertained, and we relate to others through story.  Most trials that I’ve lost had one thing in common – looking back, I did not tell my client’s story.  The jurors never got to know who my client was and there was nothing there for them to connect with.  Most of the trials that I’ve won were exactly the opposite – I was able to tell a compelling story, beginning in the opening statement and continuing through cross-examination, direct examination, and closing argument.

Unfortunately, most attorneys don’t tell their client’s story in the opening statement – most prosecutors do not give much to the jurors in opening, and in appeals and PCR’s that I have handled from other attorneys’ trials, rarely have I read an effective opening statement.  I believe that trials are won or lost in opening statement.  Jurors are going to view the testimony during the trial through a framework – if you don’t provide that framework they will view the evidence through the prosecutor’s framework, and if neither you nor the prosecutor provide a framework, the jurors will view the evidence through their own framework that may not be accurate at all.

Anyone who knows me knows that I am not a religious man.  But . . . some words of wisdom about opening statements from the New Testament:

“Everyone then who hears these words of mine and does them will be like a wise man who built his house on the rock. And the rain fell, and the floods came, and the winds blew and beat on that house, but it did not fall, because it had been founded on the rock. And everyone who hears these words of mine and does not do them will be like a foolish man who built his house on the sand. And the rain fell, and the floods came, and the winds blew and beat against that house, and it fell, and great was the fall of it.”

Matthew 7:24-27; and

Everyone who comes to me and hears my words and does them, I will show you what he is like: he is like a man building a house, who dug deep and laid the foundation on the rock. And when a flood arose, the stream broke against that house and could not shake it, because it had been well built. But the one who hears and does not do them is like a man who built a house on the ground without a foundation. When the stream broke against it, immediately it fell, and the ruin of that house was great.”

Luke 6:47-49.

Every successful case starts with an act of imagination

A few days ago I found this article, written by professor Steven Lubet at the Northwestern
University School of Law, titled “Trial Theory and Blind Poetics.”  I’ve read it and re-read it, and I recommend it.  It’s relatively short, eight pages, but it packs a wealth of insight into a small package.

The article encapsulates some of what I see as the most important tools in effective advocacy, and I see Lubet’s ideas as a jumping off point, the beginning of a conversation and an invitation to experiment, rather than an author stating conclusions.

Lubet begins by talking about the importance of developing a compelling story, a story that is holistic and not incremental, a story that will be developed over time as new facts are learned – “every successful case starts with an act of imagination.”

He points out that the components of a successful story are that it must be factual and logical, and it must be visual – it must allow the jury to see the facts and the events as they happened.  It must have a powerful moral claim – the decision makers must know that they are doing the right thing at the end of the day.  I would add that it must have an emotional component as well – ultimately people (jurors) do not make decisions based on logic; rather they make decisions based on emotion, and then they use logic to justify the decisions that they have made.  Few mediums are more effective for evoking emotion than effective storytelling.

People are captivated by story – it has been this way since the dawn of time in every culture around the world.  Explanations can be persuasive, but effective storytelling allows a jury to experience a thing, to visualize it, see it and relate to it.  It is easy for an opening statement or a closing argument to devolve into an explanation or even a rant, but when the storyteller gets lost in the details, the audience is lost.  Explanations do not hold an audience’s attention, and you want the jury to be thinking, “tell me more.”

Gerry Spence says that the first thing he did when he took on a new case was to write his opening statement – what he meant by that is the first thing he did was to write his client’s story, which then evolves over the course of the case as new information is gained and as different ways of presenting the information is tested.

Lubet in his article says that the story must be imagined as a whole concept, rather than as the combination of distinct parts.  That may be true, but there are often other stories that must be developed before the trial begins – for example, each potential witness in a case has their own story that must be explored, in an attempt to understand that witness and their motivations.  That witness’ story has to be developed and can be told as well – the witness’ story as it impacts our client’s story, and as a part of our client’s story.

One important aspect of trial preparation in our office that is not mentioned by Lubet is the use of psychodrama to discover the story.  Re-enacting key events in the client’s life and key scenes from the case allows us to learn new facts that would not have come out through simple interviews, and new ways to present those facts.  It helps us to find those facts or events that resonate, it helps to find the truth and clarity when the facts otherwise seem confused, and it helps in discovering ways to help the jury visualize what happened in a case – showing them rather than telling them.

Once upon a time . . .

And every day . . .

Until one day . . .

And because of that . . .

And because of that . . .

Until one day . . .

And ever since . . .

 

Tell me more

Once upon a time . . .

And every day . . .

Until one day . . .

And because of that . . .

And because of that . . .

Until one day . . .

And ever since . . .

Since the dawn of time, people have been captivated by story.  If there is a point that we need to illustrate, give an example that illustrates the point, don’t explain it – it will stay in the audience’s mind and they will relate to it.  The same applies with explaining to the jury why our client is entitled to recover damages in a lawsuit – if you explain why, they might intellectually understand what you are saying, but they will not internalize it.

In working on the opening statement in a case with another attorney over the weekend, I recalled the importance of keeping the action of the story moving – if the listener is not thinking “tell me more,” the storyteller is missing something.  If the listener is thinking “go back and tell me more about that,” but the storyteller is talking about something else, he’s lost the audience.  It’s easy to get lost in the details, and for a storytelling to devolve into an explanation – but explanations do not hold an audience’s attention and explanations are not easily internalized.

I think of books by John Grisham, and the Harry Potter books, books that I could not put down once I began reading them, and I realize that what kept me reading was the mini-cliffhangers at the end of each chapter.  As I near the end of a chapter, I want to know more, and the suspense keeps me turning the page – what happens next?  The jury should have the same feeling when we are telling our client’s story – tell me more.

Opening statements – learning from the plaintiff’s bar

There are obvious differences between civil and criminal trials, but I am finding that criminal defense lawyers can learn a lot from the plaintiff’s bar and vice versa.

It is often said that jurors have made up their minds by the end of the opening statements – for this reason, we should never hold back important information during opening and we should never waive an opening statement.  I don’t believe that jurors have made up their minds in the opening statements, but I do believe that they will have some firm opinions one way or the other that will be difficult to change.

Opening statements tell jurors what the trial will be about, and give them a framework that they will view the rest of the trial through.  Whatever the lawyers spend the most time on in opening (and voir dire, in jurisdictions where you are lucky enough to get voir dire), is what the jury will believe the trial is about.  In an injury case, the defense lawyer wants the trial to be about liability but the plaintiff’s lawyer should want the trial to be about damages – of course the defendant is liable, let’s talk about what he needs to pay the plaintiff to make up for what he did.

So, in an injury case we should be sure to spend a large part of our time talking about damages and harm, because that is what we want the jury to believe the trial is about.

This puts criminal defense lawyers at a disadvantage it seems – most opening statements that I have heard in criminal trials are about whether or not the defendant did it.  Guilt or innocence is the equivalent of liability, but it is almost always the focus by prosecutor and defense lawyer.  So – we need to make the criminal trial about something other than guilt or innocence, and we need to begin in the opening statement.

I’m not saying ignore guilt or innocence, that would be a fatal mistake.  But we need to shift the focus to something, anything other than guilt.  What the jury hears in opening statements are the things that they will be listening for when the witnesses take the stand.  If guilt is the equivalent of liability, then what can you make the focus of a criminal trial that would be a substitute for damages and harm?

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