Persuasive Opening Statements
By Terry W. West
For many years I have watched as great trial lawyers sat around the bar late in the evening and discussed, yes forcefully argued, if a powerful opening statement was the most important single aspect of a trial. After the night ended and heads cleared, we were left with the inescapable fact that there can be no generalized statement that will apply in all cases. In any given case a very different part of the trial may be most important. However, it must be stated the opening statement is always extremely important.
Judges will always set a time limit for closing arguments but rarely is a limit mentioned for opening. Does that mean we should spend a lot of time on it? Not necessarily. An opening statement should only be as long as it needs to be. There are limitless ways to do it, but it is important to remember our attention span is notoriously short and soon after you begin minds will start to wander if you don’t keep their attention.
THE PRINCIPLE OF PRIMACY
Remember the principle of primacy. Simply stated; that which people learn and believe first they resent changing the most. For example, if in your opening you convince the jury of the rightness of your cause and of a particular important issue, they will subconsciously resist changing their opinion. Numerous studies have shown that 80 percent of jurors form opinions on liability in opening statement. Those studies also reveal that jurors remembered statements made in opening as evidence that some witness gave.
Good openings and closings are set up by a theme that is developed throughout your case. During preparation of your case, you should notice a theme developing — the core issue that you need to prove. If you haven’t noticed a theme, you may need to think again. Maybe you’re approaching the trial the wrong way—maybe you shouldn’t try it at all.
The theme obviously must be about an important issue, but not necessarily the core issue. The core issue may be difficult to clearly prevail on, and you absolutely must prevail on your theme issue. If you select an important issue and develop it into your theme and prevail on that point, you may succeed in deflecting attention from more difficult parts of the case.
The purpose of a theme in your case planning and trial is, however, not so much for defensive purposes as it is for providing a clear trail to victory.
Once you have determined the key issue or issues in your case and have determined what evidence you will use to prove them, then you micro organize your trial presentation so that you can return to a portion of your theme or allude to it with virtually every witness.
You begin setting the stage for the presentation of your theme during voir dire and certainly opening statement. Often during a case with several witnesses, there will be some whose testimony does not directly connect with your theme issue, but most of the witnesses will have testimony relative to your theme. They should be sprinkled throughout your presentation so as to come back to that issue frequently with different witnesses.
It is also possible in cross- examination to ask questions relative to your theme and continue to develop it even during the opponent’s case. Obviously one must be careful to be certain you will get positive responses with those witnesses, but generally with carefully constructed questions it is not difficult to do so. All of this then sets you up for a complete discussion during closing argument.
Of course there are as many themes as there are cases, and in selecting yours, again you must find an issue that is central to the case and upon which you can almost certainly prevail. Maybe the speed of the opponent’s vehicle, the devastating injury of your client or even the winsome, wholesomeness of your petite client.
In some cases your theme issues may be limited, particularly if you are representing the defendant. In any case that actually gets to trial, there will be some topic upon which your position is stronger, and that is the one you must illuminate. In the defense of some cases, you may find yourself in the position of not having much to choose from. As the plaintiff, if you find yourself in that position, you have filed the wrong case.
I believe that defendants benefit from developing a theme on technical issues that are difficult to understand because human nature is such that if they don’t understand it, they tend to vote negatively. In those kinds of cases, I think one should select issues that the jury will understand and develop your theme around those things, so that you can continually point the case in the direction of something that is understandable and try to offset the technical issues even if they are positive. I am reluctant to rely on technically difficult issues even if I expect to prevail on them.
In a medical negligence case we tried, medical records indicated that the plaintiff was blue-colored with clammy skin and shortness of breath prior to the Code Blue being initiated. It also reflected she had complained of chest pain radiating into her left arm. Since these symptoms are so universally accepted by lay people to be indicative of heart problems, we developed a theme around that one record entry although it was not the central issue of the case, but it was something that the jury could feel knowledgeable about. We even suggested that if a person had gone into a 7 Eleven and told the cashier that she had those complaints, that person would have suggested immediately that she sit down while he called an ambulance because she was having a heart attack — a decision that was not made by the medical employees.
Since this article is about persuasive opening statements, it may seem questionable why we spent the first portion talking about themes for cases, but I believe you cannot have persuasive and effective openings without a theme to follow, or at least you can certainly have more effective openings when you have organized them to follow throughout the case.
As mentioned, there is no part of a case that is always the most important. Cross-examination of defense experts is the most important issue in some cases and totally unimportant in others. An excellent direct examination of the injured plaintiff or abused defendant may be central to one case and of little significance in another.
GETTING TO THE WIN
So now that we have agreed opening is important, what do you want to accomplish in your opening statement? You want to win your case, particularly on problem issues such as liability or causation. You want to develop the framework of your theme that will be embellished with later witnesses.
However, you don’t want to overstate issues or misstate facts. If there is evidence that you are unsure will be admitted, it is best to leave it out of the opening statement, because if you indicate something will occur and it does not get into evidence, a sharp defense lawyer will point out your misstatement, and it will thereby make all of your other statements questionable.
In addition to developing your theme in opening statement, you have the opportunity to talk about a lot of lesser items. You should take the opportunity to explain technical terms and applications that are going to be frequently used. You can personalize your client, refer to him as Joey instead of the plaintiff. You should use positive words such as wreck or crash and not accident. Your clients should never have accidents; they should be rammed. Nowadays it is common for judges to allow you to use demonstrative aides in opening statement, and they should be utilized whenever helpful.
Virtually all cases that go to trial have some bad parts of the case. If there weren’t, you probably wouldn’t be in trial. The question is, do you want to discuss the bad part of your case in opening statement? Certainly there are different theories and none that are always correct. I tend to believe that I can explain why my client was drinking better than the opponent will explain it, and therefore I typically will mention those negative aspects. Remember there are two opening statements and a sharp opposition attorney will make something of whichever approach you take. For example, if I explain why my client was drinking, a good defense lawyer will suggest in his opening statement that he would never have mentioned that issue at all, but since I have brought it up he would like to point out that my client was drunk as a dog and that was the sole reason for this accident. If I don’t mention it, then he will point out I have omitted discussing a significant issue in the case, and that is the fact that my client was knee-walking drunk. Again, I believe I will do a better job explaining it than he will, so I will take that risk.
I like to weave a story into the opening. If you simply state to the jury that the first witness will tell you the plaintiff suffered a very serious injury and the second will tell you that the defendant ran a red light, you will have wasted a lot of drama that should be helpful to your case. The rules only require you state once that the evidence in the case will be that ... and then tell the story.
For example, the evidence in this case will be that the little white house at the corner of Fourth and Sherry Lane looks like most of the houses on the block, but inside it is very different. Billy Smith’s bedroom has now been converted into a hospital room. Where once bats and ball gloves and homemade bows and arrows once leaned against the wall, an IV now stands slowly dripping into Billy’s pale, withered arm. Taylor Swift is playing on an iPod, but Billy doesn’t hear. The Red Sox are playing on the TV, but Billy doesn’t see. Billy’s mother pats his shoulder but Billy doesn’t feel her. Billy is in a coma and has been since that awful evening of March 2. How Billy got this way is why you are here today.
If you are going to make a 10-, 20- or 30-minute speech to someone, we have all learned that you must make it interesting or you will have no audience after the first five minutes. Our minds are disinclined to concentrate on anything for an extended period of time, therefore you must use the TV advertising tricks to steal a little more of their interest time if you are going to get your point across. By starting your opening statement with a story, what have you accomplished? You have told the jury that you have a typical boy with a severe injury. You have created sympathy. The people now like Billy. They would like to help Billy, and they are very interested in Billy. They want to know what happened to him and who did it to him. They will want to listen to more about Billy and what they can do to help.
There are an infinite number of ways to dramatically discuss your client’s plight in such a way the jury will listen a little longer and perhaps build some subconscious prejudices in your favor. Obviously not every case has a compelling story, but all of them have something interesting. There is some way you can get their attention a little better than simply saying the first witness will say this and that, and the second witness will testify to this, etc.
I was once on a seminar program with Jerry Spence (always speak before him) when he dramatically illustrated great story telling. He first told of a sheep that had gotten out of the pasture and had been run over by a truck, and the reaction was, “so what.” Then he told about Jenny’s little lamb she had raised and fed with a bottle, and who had slept with her when it was young and how Jenny’s eyes filled with tears each time she thought of the little lamb. In just about two minutes, everyone wanted to go find the truck driver and shoot him.
I am not suggesting that a good story or the ability to tell a good story will win your case, but it does get their interest. They will listen. Juries are stiff when they start, and they are hopefully neutral and will listen to both sides. After an appropriate opening, they will listen to your side with more enthusiasm, more belief and more interest than otherwise. You must always convey that you are confident, sincere, honest, you believe in your cause and that you depend on them to do the right thing. You still must sell what you want bought, whether it’s a liability, causation or whatever the primary issue is. There are no tricks to that — just tricks to get people in a better frame of mind.
ABOUT THE AUTHOR
Terry West is the founder of The West Law Firm, a plaintiff litigation firm in Shawnee. His practice, and the firm, focuses on significant injury cases, mass torts and class actions. He is admitted to practice in Oklahoma and numerous U.S. district courts and the U.S. Supreme Court. Mr. West received his law degree from the TU College of Law, where he was managing editor of the Law Review.
Originally published in the Oklahoma Bar Journal --
OBJ 87 p. 2303 (Nov. 19, 2016)