Crushing Your Opening Statement

In “Dead Poets Society,” the great Robin Williams who played John Keaton said, “Boys, you must strive to find your own voice. Because the longer you wait to begin, the less likely you are to find it at all.” The techniques presented here are designed to help you find your voice for opening statements. These are the techniques used by great wordsmiths – the poets, songwriters, storytellers, and orators whose voices and words resonate with truth.

Studies show that the verdict in a trial is the same as the tentative conclusion arrived at after the opening statement 75% of the time.

Psychologists suggest two reasons: First, opening statement comes at the beginning of the case taking advantage of the psychological principal of primacy. And second, a tentative conclusion is reached by the jury after the opening statement and evidence presented afterwards is judged in terms of whether it proves or disproves the tentative conclusion. In other words, the opening statement predisposes the juror to one side or the other.

Notwithstanding the sheer force of opening statements,  it tends to be the most neglected phase of the trial devolving into legalistic phrases like “the evidence will show” followed by facts. But this is precisely where the principles of storytelling must dominate. Opening statement must set the stage for the rest of the trial and be crafted in such a way as to bring your client’s story to life.

Opening statements serve two purposes:

(1)To “strike oil” – to hit the emotional core of your case and transform it into a powerful story that will motivate your jurors to action.

(2) To give the jury a preview so that they will understand the significance of the evidence as it is admitted.

The Law of Opening

Below is a quick checklist of the “do’s” and “don’t’s” when it comes to making opening statements:

  • Any evidence, the admissibility of which is questionable, should not be included in the opening unless it has been cleared with the court prior to opening.
  • Opening statement must not be argumentative. This is the most often sustained objection to opening statements.

There is no one right way of making an opening statement. All principles and formulas are flexible and breakable. This is why there are as many different styles of making opening statements as there are lawyers who make them. It’s about finding what works for you. Regardless of your style, great openings have certain things in common.

Storytelling

For starters, opening statements tell a story. Story is the device for organizing, understanding, and retaining the facts and position set forth in the opening statement. Your story must be clear, well-organized, and engage as many of the five senses as possible. You want the jury humming your tune from the very beginning.

Reducing a trial to its bare bones, it is a contest over which of two (or more) different versions of a litigated event is true.

According to studies, juries determine the facts by taking the story advanced by each side and comparing it to their beliefs as to how the world works. Specifically, they measure the story against their belief systems, attitudes, life experiences, backgrounds, values, education, and training. The litmus test for the trustworthiness of a story is whether it is consistent with the jurors’ belief system. The jury then compares the plausibility of the two stories.

If we examine stories from all cultures, the most memorable ones have one thing in common – they embody one or more of the six emotions: love, hate, joy, sadness, power, and fear. And for good reason. These universal truths are the very essence of what it means to be human.

What makes a story great? This question can be misleading. To me, it’s not about the story so much as how it is told. Even the best stories have suffered a fateful demise when the person telling them is apathetic and indifferent. Assuming the person telling the story is thoroughly invested in the cause and is a staunch advocate of his client’s rights, we can turn to what qualities make a story great.

First, a great story has real-life problems to which the jury can relate. For this to happen, the jury needs to understand the “problem” from your client’s perspective. Second, a great story requires a morally correct resolution. For example, “Why is it right to send Johnny home to his family?” Your story must answer that question.

Theory & Theme

You’ve all heard the terms “theory” and “theme.” They are vital components of storytelling and lay a solid foundation for powerful stories. I address them separately.

I. Theory

Your theory of the case is your version of what happened and why you should win. It must be logical, fit the legal requirements of the claims or defenses, and be expressed in plain English. I cannot emphasize enough how important it is to “Ease the legalese!”

Consider the following example. When your client is hit from behind in a bar fight and ends up stabbing a person, self-defense is the legal defense. The theory must express the dilemma from your client’s perspective and be told in language that is both rich and compelling.

Here’s what that might sound like:

“After John was hit from behind, thrown to the floor, and lying in a pool of blood, the kicks from the five guys that he did not know seemed like they would never end. Gasping for air and with blood gushing out of his mouth, John remembered that he still had the pocket knife that he used at work lying in his pocket. This was his only hope.”

This is a real life problem to which the jury can relate. They’ll be asking themselves, “What else could John do but defend himself?” This theory explains the critical element to your case – why John was afraid, and why a knife in his pocket does not make him a thug.

II. Theme

The theme provides the emotional appeal. It answers the age-old question, “Why is it morally right that I should win?” It consists of a concise statement that serves as an anchor to help distill and summarize what the case is about.

Good themes are based on universal truths about the human condition. The theme should be repeated not just in opening, but throughout the trial. Every time the theme is used, it should remind the jurors of the theory.

In fictional stories, themes contain a clash between two values or ideas. For example, in “The Wizard of Oz,” Dorothy feels, “there’s something better outside of what I’ve got,” and Glynda the Good Witch feels, “look within – you’ve got what you need.”

Because she has the courage, brains, and heart to face any danger in her search for a better home, Dorothy eventually learns that she already has the best home. This is the controlling idea in “The Wizard of Oz.” Glynda’s idea triumphed over Dorothy’s idea because Dorothy took action and as a result, experienced a changed perspective of her life.

Because she had the hope and the nerve to seek people who loved her, Cinderella was able to leave people who didn’t love her behind. This is the controlling idea in “Cinderella.” Cinderella had two competing voices in her head. One told her that she had to accept her lot in life because she was simple and plain. The other said that her situation was unfair and that she was worthy of love. Because she had the courage to take risks (sneaking out, putting faith in a magical spirit, bucking the status quo of who can and cannot attend society functions) her circumstances changed drastically.

Adapting this for the courtroom, I find it helpful to begin my opening statement with a strong theme statement. A strong opening line grabs the jury’s attention, stimulates their imagination, and draws them to the edge of their seats craving to hear more. An opening line can plunge the jury into dramatic action (“He flung open the door and she ran.”) or an impressive statement they’ll want you to elaborate on or a mysterious statement that will make them curious as to why you’ve come to this conclusion or a striking introduction to a key player in the plot and their “deal.”

I like to begin with, “This is a case about …” and add a short description of the overall theme. An example of a theme statement in a breach of contract case might be, “This is a case about a broken promise and all the trouble that breaking that promise caused.”

  • How do you find the theme?

Good sources of themes are the great works of literature, songs, folklore, and popular sayings.

  • Once identifying the theme, how should you frame it?

Try to come up with a newspaper headline in ten words or less. Trilogies are the best since we tend to remember things in three’s. The following is an example of a trilogy from a battered woman’s case: “Battered, beaten, and abused.”

Use the Five Senses

The easiest way to get vivid, cinematic, and sensual details into your story is to think in terms of the five senses:

  • Sight
  • Sound
  • Smell
  • Taste
  • Touch

When you involve the senses in your descriptions of your client’s experience, the jury has something to latch onto to experience what you’re describing right along with you.

Show Emotion Instead of Talking About It

It’s best to show emotion rather than to talk about it. For example, you could say, “Sam was really hopeful about this orchestra audition.” But better yet, you could show that hope in action. “Sam walked five miles in the rain to the music store and bought more Beethoven sheet music than he’d ever have time to rehearse. He tickled the ivories the whole weekend until his fingers were throbbing.”

There are two primary ways to show emotion. They are:

1) To show the physicality associated with emotions.

  • Examples: “My palms were sweating; He couldn’t stop biting his nails; I could tell she was fighting back tears; My chest swelled.”

2) To show what in the world of the story is reminiscent of emotionally-laden times.

  • Examples: “The room looked like it hadn’t been cleaned in months; She was dressed like a movie star arriving at the Oscars; Even the cats seemed like they were walking on eggshells.”

Organization

Great openings are well organized. This is easier said than done. We know our cases inside out and backwards. And therein lies the problem. We assume that the jurors know it just as well. They don’t!

Good organization involves dividing the opening into chapters, much like a book. Here are some tips:

(1) Avoid witness-based chapters, which describe what a witness will say.

  • Example: “Mr. Smith will testify that the light was green.”
  • This is the least effective way of telling a story.
  • Event-based chapters are better because they describe an event that is critical to the case.
  • During event-based chapters, you can introduce characters critical to the case and describe their role.

(2) You are not restricted to telling the story in chronological order.

  • Instead, you might want to begin your story at a pivotal moment.
  • Identify the strongest fact of your case and start the story in a place that highlights that fact.
  • Why is this a good practice?
  • There is a concept in storytelling called “primacy and recency.”
  • Primacy: The first item in a list is initially distinguished from previous activities as important and may be transferred to long-term memory by the time of recall.
  • Recency: Items at the end of the list are still in short-term memory at the time of recall.
  • Takeaway: The first and last parts of a story are most memorable and is what sticks with the jury.
  • Here are two examples. If your client made a spontaneous statement of innocence that is genuine and not self-serving, your story might begin at the time of his arrest. If your client’s fingerprints were no where to be found on the gun, your story might begin in the crime lab.

Introduce the “Cast of Characters”

Great openings introduce the jury to the cast of characters. Consider building a character – either good or bad – the way it is done in drama. Who are the heroes and who are the villains? Who are the good guys and who are the bad guys?

You might describe an entire event and a person’s actions during that event in exquisite detail without so much as uttering their name. For example, “And who was the agent that ran the investigation we just spoke of – the agent who never bothered to look at the records and simply relied on a disgruntled employee instead? That was Agent Jones – the ‘shoddy one.’”

Essentially, you’re bestowing a label on a person according to what role they played and what their motivations were: “the detective who took no fingerprints,” “the eyewitness who only saw the attacker from behind,” or “the detective who takes no responsibility.” This will help you identify the good guys and the bad guys.

Perspective

One of the wonderful things about telling a story is that it can be told from any one of a number of perspectives or points of view. For our purposes, we want to tell it from the most advantageous perspective. For each chapter or event, determine whose perspective is most consistent with your defense. Is it your client’s? The victim? The witness? The detective?

If your client has an alibi, the perspective of your client at the time of the crime may be compelling. In that case, you might describe the topics covered on the evening news while John was at home in his living room reclining on his easy chair and watching television at the time of the crime.

Here is an example:

“At 10 PM on Thursday night, Robert was in his apartment. He had just turned on the 10:00 news. He learned that there was another delay in starting construction on the casino, that the interest rate had gone up, and that New Orleans had more people below the poverty line. While Robert was eating Doritos and watching the news, a thug robbed Janet across town. He came up from behind her as she was walking to a bus stop. He put a gun to the back of her head. He demanded her purse. And he ran. Janet turned and caught a glimpse of the robber as he ran away. A few days later, she would mistakenly pick Robert as the robber, and she will repeat that mistake in court today.”

The perspective of the victim who understandably could make a mistake – but who would not want the jury to convict an innocent man just because she thought she was right – is equally compelling.

Here is the same example, except now it is told through the point of view of the victim:

“Janet is an honorable person. She would not intentionally pick out an innocent man and accuse him of being the assailant. But like most of us, she is not incapable of making a mistake. And five days after she was robbed at gunpoint, she mistakenly picked out a photograph of Robert as the robber.”

Once you decide whose perspective to tell the story from, you need to ask yourself how best to portray that perspective. Should you use the third person narrator or the first person participant to tell the story? Here it is important to understand the textual modes in which a story is composed. This will help you craft vivid, emotional and cinematic scenes into your opening.

Stories are told in two basic modes: (1) narrative summary and (2) scenes. Narrative summary is an overview. It’s an expository way of moving the audience along in the story. It’s very much “telling.” Most Nineteenth Century novels begin with narrative summary. For example, “It was the best of times, it was the worst of times.” It’s more conceptual than cinematic.

In narrative summary, the audience doesn’t feel like they’re firmly rooted in one setting. They don’t see and hear specific actions and utterances unfolding in real time. Instead, they’re being asked to consider life in a more general way from a distance.

For example, “I’ve always been a runner. I saw myself as being a runner even before I knew what it meant.” This is a summary statement. Compare it to this: “I’m running as fast as I can. It’s so foggy out, I can’t see my fists pumping in front of me. But I keep saying to myself out loud, ‘It’s okay Bill. You’re a runner. You always have been.'”

That second statement is told in scene mode, not summary. When narration goes into scene mode, sights, sounds, smells, tastes, textures, spoken utterances, physical action, physical sensations within the body, thoughts running through the head, and other details are unfolding step-by-step, in real time. It’s more visceral.

Both scene and summary are necessary. There are stretches of a story where important things happened, but they’re not so important that they need to be shown in exquisite detail, so a broad overview of these events can be covered in summary.

But the major, essential events in a story always provoke more interest and sound far more interesting when the storyteller delves into meticulous, moment-by-moment detail because it allows the audience to hear actual dialogue spoken or see complete actions taken or hear whole thoughts running through the person’s mind.

It is possible to tell an entire story in scene mode or an entire story in summary mode. But most stories we love have a mix that adds up to a little more scene than summary.

Specificity – The Secret Sauce

As a preliminary matter, it’s better to be specific than general. As Konstantin Stanislavski once said, “Generality is the enemy of all art.” For example, “the bright pink tulip in the window” is better than “a flower.”

At the same time, there is a difference between specific details and specific details that matter. “The bright pink tulip in the window” is an elegant piece of set-dressing to bring the visual of the room to life, but if it has been established in the beginning of the story that, “the more stressed mom would get, the more likely she was to put colorful flowers around the house,” then “the bright pink tulip in the window” has an extra layer of meaning. It’s a sign that mom is stressed. It shows emotion.

So when you’re adding detail to a story, ask if it’s not only vividly specific, but significant.

Raising the Stakes

The single most common problem with stories that bomb are low stakes. The storyteller fails to show the audience how deeply they cared about what was going on and why they cared so much. When you find yourself going “Whoa…!” during a story, or when you find yourself leaning forward in your seat anxious to hear what happens next, or when you feel tears streaming down your cheek from something that’s happened in a story, it is most likely because there were high stakes.

Raising the stakes means making what is to be gained or lost an even bigger deal. If the “hero” is proactive, it’s where the hero takes one leap toward his goal and then is surprised by how awful or confusing or fortunate things turned out. Something, whether it be the environment or an antagonistic voice in the protagonist’s head keeps complicating things. Typically, the protagonist comes up with a fresh, new idea for overcoming an obstacle standing between him and his goal and again is surprised by how even more awful or confusing or fortunate things turned out. Then… one more leap, and so on.

If the “hero” is passive, or mellow, she may become the victim of circumstances. You’ve probably been in situations where all you wanted to do was to lay back and “chill out,” but things kept happening that made kicking back impossible.

This all works best if the “stakes” really do raise. For example, suppose your goal was to save your prized stamp collection from a burning building. You took a leap of faith and burst into a room full of flames to find the stamps but then heard a baby crying upstairs where the fire was heading – well, now there’s much more to be gained or lost in your rescue effort. The stakes have been raised.

Sometimes, from an outsider’s point of view, the stakes aren’t high, but from the protagonist’s point of view, they are. For example, for someone with an abject fear of clowns, just attending a children’s birthday party might be enough to put them over the edge. In the exterior world of the story, the hero is watching a clown perform. But in the interior world of the story, the hero is secretly having a meltdown.

Jurors sense high stakes when the attorney is deeply and emotionally invested in what is unfolding. You can show how much emotional investment you have in a story by describing what was running through your client’s mind.

You can also show emotional investment in physical reactions. “His fists clenched. Her eyes narrowed. Her throat swelled up. Her palms were sweating.”

Emotional investment can also be shown in the small choices you make. For example,

“That morning, John poured a cup of coffee… then threw it down the drain. He didn’t want anything making him even the slightest bit shaky before meeting with Detective Smith. As he drove out of his driveway, John made a point of checking the time on the dashboard. Just in case if Detective Smith tried anything shady, he’d be able to say where he was and when.”

Conclusion

If you feel your story has flatlined and needs a jolt, it’s probably because there is nothing to be gained or lost by the protagonist. In other words, there is nothing for the jury to hope for or to worry about. And they leave feeling empty. As lawyers, we must show the jury that emotional investment as frequent and often as possible.

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