Opening Statement is a Speech

Let me take you back to April 3, 1968, the day before Martin Luther King, Jr. was shot. That evening, he delivered one of my favorite speeches of all-time. In it, he talks about surviving an assassination attempt where a mentally ill woman stabbed him with a letter opener.

It almost pierced his heart. Doctors told MLK that if he had sneezed, he would have died. The media caught wind of it and MLK received a letter from a nine year-old Caucasian girl that said, “I’m glad you didn’t sneeze.”

Martin Luther King then delivered his speech about all of the progress made by the civil rights movement since that time. He prefaces everything by saying, “I too am glad I didn’t sneeze because If I had sneezed I wouldn’t have been able to tell you all about a dream that I had.”

MLK is connecting a mundane and nettlesome part of our existence – a sneeze – to something that we care deeply about, a pivotal moment in U.S. history: the Civil Rights Movement.

Speech writers refer to this concept as, “ladders of meaning” focusing on the two extremes of a conventional ladder (i.e., the highest step and the lowest step). At the very bottom of the ladder are basic details. At the very top of the ladder are big values that touch us in that soft, unprotected place where our decisions are made: the heart.

When you look at good speeches, a definite pattern emerges. Everything exists on either the lowest or the highest rungs. In other words, they’re either very specific personal details or big meaningful values.

Using MLK’s speech as the paradigm, the sneeze, that mundane and nettlesome part of our existence would sit on the lowest rung of the ladder while the civil rights movement, the largest social movement of the twentieth century would sit atop the highest rung of the ladder.

There is also another technique that MLK employs that cannot be overlooked. It’s called, “visual imagery.” Very simply, audiences prefer pictures instead of words. As a general rule of thumb, if you can’t show your audience a picture, the next best thing is to create pictures in their minds through the use of action verbs.

Circling back to MLK’s speech, the image of a man sneezing is something tangible and concrete that can be easily visualized. But what about those things that are harder to picture but that are still important, such as the civil rights movement? It’s neither a tangible object nor an action verb. Yet its historical significance is unparalleled. Indeed, it is one of the most important events in U.S. history.

By tying it to such a high-stakes story as his assassination attempt, MLK was able to attach a visceral feeling to it that triggered a huge emotional response.

Weaving these two tools into the fabric of your speech packs a one-two punch that is remarkably powerful.

It is for this reason that I view the opening statement of a trial as a speech with two cardinal rules.

First, it should follow the fundamental principles of speech and drama. Second, the presentation should be tailored for your audience. The first rule of persuasion is to know and adjust to your audience. In terms of trial, this means that the preparation and delivery of your opening is focused on the jury. This process is jury-centered.

When preparing for my opening statement, I turn to the world of acting for inspiration. Often times, actors are given material which is foreign to them, and they have to learn how to make it their own by making it personal to them. This is how they prepare for a role. The Playwright provides the script. And the actor’s job is to fill the role with life. To do this, actors must always have a point of view: they must know what someone else’s words (i.e., the playwright’s) means to them. This is easier said than done.

By way of an example, if my scene partner says to me, “I’m going to buy you a red tie from Brooks Brothers” and my response is, “Not red!” I have to know how I feel about the color, red. If I go from looking delighted when hearing the first part of the line to grimacing on hearing the word, “red” and my line bursts forth, “Not red!” it becomes blatantly obvious how much I despise red.

Even though the material already exists, the life the actor brings to it is always his own. It’s unique for each person who does it because it’s made out of the human being who does the work. When it comes right down to it, it’s my emotion. In other words, it’s “Mike beside himself.”

The difference in litigation is that the lawyer gets to write his opening and closing – they are the lawyer’s words and nobody else’s! This allows the attorney to be free and unencumbered because the life that he brings to the opening and closing is his own.

Just as important as it is to know which speech methods are likely to cause a stirring in the jury, it is important to know which speech methods are destined for failure. Here, I take a short digression to discuss a few:

  1. Written speeches which are read or memorized and recited or otherwise “scripted” will fail miserably.
  • Remember: A trial is a clash of ideas, requiring flexibility in order to adapt and change on the fly. Operating from a notepad is dull and unpersuasive. Instantly, the energy in the room dissipates.
  • Memorized speeches are rigid and inflexible – like a stuffed animal adorning the bumper of a hunter’s car. As such, they cannot be adjusted to keep up with the changing circumstances of a trial.
  • Half-memorized speeches aren’t any better. They result in an interrupted delivery and are not “in the moment.” Worse yet, the energy put into struggling to recall lines makes it disjointed and prevents the attorney from being present and connecting with the jury.

2. Why are detailed notes are an albatross?

  • The notes become the focus of the speech instead of the jury.
  • The lawyer considers his or her preparation proportionate with the amount and detail of the notes. Therefore, it is not unusual for the lawyer to half enough notes to fill up a ream of paper.
  • The lawyer is merely a conduit for what is written on the pad.
  • The lawyer does not rely on himself as the source of the subject matter, but instead on the notes. The lawyer relies on the notes to such an extent that he becomes tethered to them, clasping onto them like a mountain climber clasping onto the edge of a cliff as his feet are dangling in mid-air. Instead, it is imperative to immerse yourself in the subject matter so that you are the source.

3. Why do we memorize and/or rely so heavily on our notes?

  • We are afraid that we are going to leave something out and that by the time we realize it, we will already be sitting down and it will be too late.
  • As a result, meeting legal requirements and ensuring nothing is left out are top of mind, to the detriment of connecting with the jury.

Does this mean that we should never use notes? Absolutely not. Not using notes is too much to ask. There is no harm in using them so long as they are used properly (i.e., as an aid to jog your memory and that you remain the source of the information).

I’ll leave you with one last tip. In order to avoid forgetting anything, simply create a checklist of those items that need to be mentioned during the opening statement and check them off one by one after you discuss them.

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