I sat through some opening statements the other day, and can only just now talk about it. Even now, at some points in the story, I feel like pointing to a doll to communicate exactly where and how the two men in the black suits hurt me.
They did some good things – they actually had crafted some themes and frames that might still turn out to be pretty effective. But as an interested professional, I was looking for those things and was willing to sniff through a hill of crap to find the truffles. Fifteen jurors and alternates, I noticed, did not write down a single one of the themes that I thought were good. Does that mean they won’t show up in deliberations in a couple weeks when this jury gets the case? No; jurors might yet absorb those themes during the evidence or in closing arguments, if counsel keeps offering them. But as trial counsel, you have to want those jurors to apply your themes as the filter through which they take in all the evidence from the beginning. That’s why it pains me so much to see the wasted opportunity.
(Don’t have good themes for your opening statement and closing argument? That’s a different problem. Get in touch with me right away and we’ll fix that.)
What made these opening statements so bad? Well, the common lawyer tropes that make most opening statements so lousy. Look, just because you have heard something from older lawyers about How To Do Things, it doesn’t mean they are right about it. As I point out to people who proudly declare themselves “old school,” there are usually good reasons they tear down old schools and put up new ones. So let’s go through those vampiric clichés that suck the life blood out of a speech and never quite die.
The Beginning: Just Because They’re Captive Doesn’t Mean They Have to Listen to You
I have never understood how so many lawyers commit the same mistakes over and over: fumbling away those precious first few minutes when juror attention on you is at its highest.
“I’m Yerm Yermensen, a partner in Yermensen Hoolah and Boolah. I am here representing John Johnington, who is sitting right here, in this trial.”
So my first bit of advice in Preserving And Maximizing Those Precious First Few Minutes When Juror Attention on You is at Its Highest: understand where you are on the trial timeline, and what that context means. Dig it: You were introduced when the first group of 100 prospective jurors came into the courtroom, and you introduced yourself again at the beginning of voir dire. They know who you are. They want you to get on with it. Introducing yourself a third time makes you seem out of touch generally, and out of touch with their needs specifically.
In my opinion, starting with this hackneyed intro has one more practical opportunity cost: it deprives you of using a much more dynamic opening, a real grabber, something that might even prolong Those Precious First Few Minutes. For instance, it is usually good to lead with standards—legal standards, industry standards, moral standards, practical standards, whatever standards.
Plaintiff attorney: “Rule is… a doctor owes her patients a certain level of care and attention, and if she violates that rule, then she is responsible for any harm that causes.”
Or the defense attorney in the same case: “Rule is… not every bad outcome means that someone made a mistake. [Pause] Another rule… even if a mistake happens, that doesn’t mean it was negligence, carelessness.”
Back to the courtroom. After the American James Mason went through the thrice-uttered introductions, he then delivered the all-time worst cliché start to an opening statement:
“As the judge instructed you, what the lawyers say here is not evidence—“
Two things here, lawyers who use this hack sentence. (1) Who the hell cares? You can’t honestly believe that laypeople understand or care about this abstract (and, oh by the way, fictional) distinction between evidence and non-evidence. The Evidence Code does not in any way reflect how human beings actually think, learn, process, or make decisions. If jurors hear it or see it in the courthouse, it’s in their mix. (2) Even by saying that, you have diminished the value of what you have to say, and cued the jurors to tune you out. Which they will.
“—but I am going to attempt to give you a roadmap to the facts.”
Again, the cliché patrol is pulling this guy over. A roadmap? I have heard this ridiculous cliché many times – hell, I am pretty sure I was taught it in trial practice class in law school. But Counsel, and I lament this as a huge cartography buff, nobody perks up at the mention of a roadmap. Nor dental x-rays. Nor a schematic diagram of a circuit. Nor any other metaphor for something that depicts the essence of something else. For heaven’s sake, just get to your story. The jurors know that you’re going to give some sort of speech to them. The dead giveaway is that you are standing there giving them some sort of speech; pretty obvious. There is no need to address or describe what you’re doing.
“You ever hear the expression “Just the facts”? There used to be a tv show called ‘Dragnet,’ and one of the characters would say, “just the facts.” Well, I’m going to just give you the facts.”
Fifty-year-old television show references should probably be retired from any lawyer’s repertoire, wouldn’t you agree?
Also, he’s lying. If an opening statement is not somewhat argumentative, does not go beyond the facts and start creating the themes and the frames you want jurors to adopt, then the trial lawyer is simply not doing his or her job. It has to be well done, of course; it has to be subtle enough that it is still within arm’s reach of laying out the facts.
Oh—and sure enough, he was lying. This speaker went on about two more minutes before having an objection for argumentation sustained against him. And another one ten minutes later. I generally don’t support objecting to the other side’s opening statement except for the most egregious violations, but after a set-up like “I’m just going to give you the facts,” I was pretty amused. Don’t invite karma to read the Evidence Code.
The Lexical Morphology
I just want to share two irresistibly delicious quotes from this lawyer’s opening. See if you can’t spot my criticisms of them.
“Then they filed for divorce— or dissolution; I’ll use the word dissolution.”
Sure, why not. When given the choice of using a word that everyone uses and understands, or the weird and unnecessary word that will make everyone stop listening to you for a few moments before they translate it, why not go with vehicle instead of car. I mean hematoma instead of bruise. I mean dissolution instead of divorce.
Later, reading from a previous judge’s ruling:
“ ‘The law does not require a specific locution’—that means verbiage in legalese.”
I swear he really said that. That sounds like a too-perfect-to-be-true example for a trial consultant to use as illustration. Nope. I might have t-shirts made. “Verbiage… the poor man’s locution.” My subtle moral: a normal human being would just use the word words.
The Real Purpose of Opening Statement
Opening statements are not there to give a roadmap of the facts, and no good lawyer could possibly believe that. (Another excellent reason lawyers should quit saying that horrid phrase.)
The opening statement is your first opportunity to tell your Story. It is your opportunity to deploy the frames of your case – preferably ones you already used during voir dire. And it is your opportunity to slather your themes around like rich butter on pancakes.
The purpose of opening statement is to set the filters through which jurors will now have to drag the other side’s case; to create the context that highlights all the failures of the other side and explains all the choices your client made. In a negligent road design case against a state government, if jurors adopt the frame that there are lots of industry and engineering standards about how different materials should and should not be used together in building a highway, then the plaintiff is off to an advantageous start. If, however, they adopt the frame that the plaintiff’s choices before and while driving are the real issue, then the defendant is leading out of the gate.
Much more on themes and on frames – two different things – in future posts. But suffice it to say: You know what absolutely does NOT give one side the lead coming off the blocks?
The nicest roadmap.