There is a debate among trial lawyers as to when jurors make up their mind in a particular case. At one extreme reside those that feel that jurors do not make up their mind until closing argument or the end of the presentation of evidence. Then there are those that believe that once a jury has been selected the outcome is predictable.
Based upon my experience, by the end of voir dire and opening, some jurors have in fact made their decision in the case (where liability is at issue) and all jurors by that time have decided what the case is about. In other words, by the time opening is completed the jurors have constructed a belief about the case and what they see and experience throughout the rest of the trial will be used to support this initial belief.
Therefore, just as with voir dire the opening statement is of vital importance to your case. What follows is a brief overview and outline for a successful opening. Many if not all of the techniques, structure, and recommendations I have learned and adopted from the writings of David Ball, Ph.D. Dr. Ball’s book “David Ball on Damages” should be on your bookshelf at the office and in your briefcase when you go to trial.
Local rules will vary from court to court as to what is permissible and what is not permissible during opening – whether the judge allows visual aids or the use of evidence that will be introduced. These issues as well as all issues appropriate for motions in limine should be resolved well in advance of your opening statement.
Part I of this article deals with the primacy and recency effect and how it impacts your opening, part II outlines the basic structure to a good opening, part III presents some basic points on story telling, and part IV provides some guidelines that should be followed in delivering your opening statement. As with all aspects of a trial, there are as many ways to present an opening statement as there are trial lawyers. I have found these techniques helpful, I hope that you will as well.
I. Primacy and Recency: “…what was the middle thing again?”
There has been much research and debate on how the order in which information is delivered influences the listener. Researchers suggest that we are more likely to believe the presentation or message we hear first (primacy) and remember the presentation or message we hear last (recency). In short, you should begin and end your opening and each section of your opening with your strongest points.
I once tried a case where a fire chief had run a red light colliding with my client. An eyewitness to the collision had testified in deposition, in interesting and colorful language, that the chief was moving at a high rate of speed when he attempted to blow through the intersection without slowing. In my opening statement I stood up and led with my right, “…that guy was moving, he was flying, I mean he was truckin’…Ladies and gentlemen of the jury, those are not my words, that is a quote from an eyewitness who saw this collision and from whom you will hear.” Those words were the first words the jury heard in the case.
II. Structure
Opening statement should be structured as follows.
A. Rules of what happened
Jurors want and need to know the rules of what happened. The rules are indicated by what the defendant did or didn’t do that caused the harm. For instance, “A driver has to watch the road, and has to see what a reasonable driver would see.” The rule is clear and it is also clear that I will eventually present that the defendant broke that rule. Some rules will be more complicated according to each case. Nevertheless, every rule should be as clear and concise as possible. This section should take only a minute or two.
B. What actually did happened: the story
The story is simply the facts or events leading up to the harm. However, these events should be told using “story telling” techniques and devices (these are outlined in section III). The story should focus on what the defendant did or didn’t do that led to the harm.
C. Harm – the injuries not the consequences
This refers to the immediate harm or injuries and not their consequences. In other words, explain that Jane hit her head during the collision and suffered a mild traumatic brain injury but not that as a result she can no longer concentrate and has had to quit her job. The injuries or harm should be explained in detail. The jury should know very quickly that this case is about the harm and how extensive it is.
D. Blame or who and why are we suing
Once the jurors know the rules, what happened, and the harm you can explain how the rules were broken. It is important in this section to illustrate the motivations for why the defendant did what they did or the ease with which the defendant could have prevented the wrongdoing.
E. Undermine the other side (the evidence that you will present that supports your case on all the contentions)
Do not give your opponent credit for thinking. In other words, don’t say, “you will hear the defense claim…” Simply address every point in contention with the information that supports your side. For example, “Before coming here to trial, we investigated what happened, because if the Chief was following the rules as he should, there wouldn’t be a reason to come to court. And we talked to people who were there and saw what happened. Three of them will be here to tell you . . .”
F. Consequences of harm – how the harm has affected your client (this section should be at least 1/3 of your opening)
Explain in detail how the harm or injuries have affected your client. What was the pain like, what has she had to give up as a result, and what are the consequences of each harm and the results of those consequences on her life – the pain, what she cannot do, the job lost as a result, the financial impact of the lost job, the financial impact of the medical bills, the emotional consequences, the hardship placed on the family all of this must be conveyed to the jury in detail.
G. Charge the Jury – tell them how they can fix things and ask for damages
Tell the jury what they have to decide. The jury has to decide liability and how much money your client should receive – so tell them. “You will decide whether Mr. Defendant caused this collision. You will decide if Mr. Plaintiff was a cause of this collision. And you will decide how much money Mr. Plaintiff should receive.”
Explain to jurors how they can fix things. Give them a job. Go into detail about what the money is for; why are you asking for damages – the medical bills, the therapy or training needed, additional medical care, the wages that have been lost or lost earning capacity, the life care plan. Suggest a specific dollar amount that you want the jury to award for each issue and total. And when you have completed this section, say thank you and sit down.
III. Story Telling
State the dilemma briefly and pointedly with simplicity and conviction. Use active voice and present tense. Move the events slowly one fact at a time. Be selective in where you begin and what you emphasize. The first events that you tell a jury about must go to the heart of what you are trying to prove and must not help your opponent. Start and end strong. Do not hide your weaknesses but place them in the middle. And be yourself.
IV. Guidelines
In a personal injury action, one of the major themes of your case must be how the jury can fix, help, and/or make your client whole. You should use concrete and descriptive language presented enthusiastically and with confidence. Forgo the use of bullet points or outlines. Use pictures and visual aids but only when each directly supports your case. Do not introduce your client or thank the jury (you already did this in voir dire and it distracts from your message). Do not waste words, topics, or issues. Be concise. Every word must be useful, every topic must regard what the case is about, and each issue should be one that the jury must decide. Go slowly, speak naturally, avoid legalese or jargon, and do not argue or do anything that would call for an objection.
As I stated previously, there are six ways to Sunday on how to present a good opening statement in a jury trial. And countless pages could be written on each section. This outline and practice guide should give you a good place to start, however.
