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.

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