Are your jurors’ eyes glazing over as the noise of the courtroom washes over them? The sounds of lawyers droning on and on with technical arguments, recalcitrant witnesses growing impatient by the minute with redundant questioning designed to call into question their credibility, the subtle points which, when made, wash right over them like a wave breaking on the shore.
Look at the parties whose lives will forever be affected by the result of the proceedings. Even their stake in the outcome cannot hold their attention. They’ve drifted off into a different world.
If your opening statement could use a jolt, a lullaby might help. I know this may sound counter-intuitive. After all, lullabies are designed to rock your “little one” to sleep, and not to stir them up (God Forbid!).
When I speak of a lullaby, I’m not using it in the everyday sense of singing your little one to sleep. Instead, I’m referring to the subtle things that go on behind the words — such as the soothing tone of your voice, the simplicity of the words, the cadence, the rhythm, the tone, and the silence — that makes it so captivating that it keeps your little one hanging on every word you say until they are out like a light.
Choose any classic lullaby from “Itsy-Bitsy Spider” to “Hush, Little Baby” to “Rock-a-Bye Baby” and you’ll see that they have several traits in common:
(1) They use powerful imagery.
(2) They use the active voice as opposed to the passive voice. Very simply, they stick with the action and avoid any abstractions.
(3) They use emphasis and impact devices.
(4) They use silence.
(5) They use all five senses, not just one.
This is the stuff that great stories are made of. It is for this reason that I rely heavily on these creative devices when preparing my opening statement.
In this blog, I’m going to focus on the first two. Before you can add these devices to your word palette, it is necessary to view the language used in opening statement from a different perspective — one that at first might be foreign to you and one that might even call into question the way you have traditionally been doing it. So long as you keep an open mind, you’ll begin to see how incredibly powerful this form of communication is for enacting change in an audience.
Let’s begin with a simple idea: The language used in opening statement is different from the abstract and general language we use in everyday life.
When I speak about the language of opening statement, I’m referring to the following:
(1) Use standard English: vivid, plain, simple language. Ease the legalese.
- Use concrete, not abstract language.
- Use specific, not general language.
(2) Use power language.
- Remove qualifiers like “I think,” “I believe,” and “I will attempt to show …”
- Use the active voice.
- Rely on nouns and verbs.
- Use language that has appropriate emotional content and appeal.
(3) Vary up the length of your sentences, but tend strongly towards short sentences. Written sentences are normally longer, clunky, and more complex than sentences delivered orally.
Now for the fun stuff:
The setting: We may have to take the jury to the streets of an inner city such as Newark or Camden without ever leaving the courtroom in order to draw them into the re-constructed reality of a new and unfamiliar place.
The words we use can help the jury picture the streets of Newark. Action verbs paint vivid pictures in our minds and avoid dull and empty abstractions. The idea is to paint vivid word pictures by visualizing the scene in your mind and then describing it in exquisite detail so that the jury can see it in theirs.
There is great power that comes from being able to see an event in detail. Images feed the artist’s work. The imagination is immediate and powerful. Allow it to influence your work. The imagination must be nurtured and fed. The famous writer Ray Bradbury recommends reading poetry, essays, novels, and comic books. Anything that will touch us viscerally. The more you read, the more you can draw from. This is our connection to the subconscious, which Bradbury calls, “the source of the artist’s creativity.”
Use of word pictures must be learned as lawyers intuitively speak in abstract and general terms.
Active or passive words tell very different stories. “John fired the gun” tells a different story than “the gun went off in John’s hands.” Decide which story you want to tell, and then use the appropriate active or passive tense.
Stick with the action and avoid any abstractions
Here is a quick and dirty example of an abstraction: “My client suffered a broken leg.”
The problem is that this tells the jury nothing. Tell them what it felt like to have a broken leg with the bone sticking out through the flesh. Tell them how excruciating the pain was. How John could not make it through the night without being heavily sedated. How he clenched his teeth so much that he ground two teeth down down to the gums.
Tell them how John was confined to a bed for two weeks with a solid cast extending up from his ankle to his genitals. How he couldn’t walk for two weeks and how he had to use a bed pan to urinate and to defecate. Make the jury see it. Make the jury feel it. Make them understand. Make them care!