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Persuasion in Opening Statements

During the opening statement, the jurors take sides.  Just as with a crowd of football game watchers in a smoky bar, the jurors in your jury box will decide which side they are going to root for.  Jurors typically do not decide a case after hearing opening statements.  But, they do often start to pull for one side or another.  Even a slight leaning toward one side gives the jurors a point of view. From that time forward, they tend to look at everything from the perspective of the side they favor.

            Your goal in your opening statement is to win the “point of view” battle. If the jurors see the case from your point of view, you will have one of the most powerful persuasive forces working for you.  When a juror looks at the evidence from one side, the evidence tends to support that side.  That feeling – that the evidence supports the juror’s opinion – tends to strengthen that juror’s commitment, which in turn makes the evidence seem even stronger.

 

What Will Persuade Jurors to Take My Side? 

            The first step in planning your opening statement is to think about what it is about your case which will motivate the jury to take your side.  What will motivate the jury to see the case from your point of view?  What will make the jury want you to win?

The most likely way to motivate the jury is to ask it to undo a wrong.  Injustice – and the jury’s power to right a wrong – is powerful.  The jury will be motivated to take sides if it feels a sense of injustice.  Your opening statement should be a simple statement painting the picture of the wrong that has brought your client to court. 

 

How Do I Find the Injustice?

            The wrong that needs to be righted has been apparent to you since you accepted the case.  You know why your side should win.  Formulate a theme based on the golden nugget that is the basis of your case.  To ensure that the theme resonates, conduct focus groups. 

 

What Will Help Me Sway the Jurors?

            There are five important concepts to incorporate into your opening statement.  All weigh equally in helping you convince the jurors to adopt your point of view:

1.       Credibility:  Your credibility and the credibility of your client are very important.  If you are shown to be wrong or appear to be stretching or lying, your case is probably over.  There will be no sense of injustice if the jurors cannot trust what they are hearing.   Do not give the other side the opportunity to stand up after your opening statement and say, “What he didn’t tell you is ______.”  Any goodwill you have established will be gone.  Under-promise in opening and over-provide at trial.  Never exaggerate in opening statement.

Similarly, your client must be credible.  You develop the credibility of your client through his background, family, work life and friends.  He must not commit any of the three sins:  Lying, looking like he is lying, or acting like he might be lying.  He must not only tell the truth, but must look like he is telling the truth.  Don’t set your client up for failure in your opening statement.  Instead, begin to establish his credibility.

Your case must be credible too.  Let the facts speak for themselves. Beware of hyperbolic language.  The credibility of the case is developed in the way you present the story.  Do not oversell it.  Do not exaggerate it.  Do not make it what it is not.

2.      Storytelling:  Your opening statement must be a simple statement of the case that paints the picture of the wrong that has brought you to court.  Tell the story of the case in a way that puts the actions of the other side on trial.  Give thought to where the story begins in order to make it consistent with your theory of cause and effect.  It really must be a story, flowing from one point to the other, all making up the theme of the case.  Write and re-write. 

The first words out of your mouth must grab the jury’s attention.  They must be a “hook.”  What is a hook?  A hook is a word or phrase or idea that captures the essence of your theme, piques curiosity and compels the jury to listen.  It is an attention-grabber that points the jurors to interpret the testimony in accordance with your theme.  They will then be leaning your way. 

3.      Comprehension:  It takes two to speak the truth – one to speak and another to hear.  Remember that as you speak, the jurors are simultaneously either accepting or rejecting your concepts.  The most important persuasion that takes place is when jurors persuade each other in the jury room.  No juror will be equipped to persuade others unless he understands your message.  The jury will see no injustice if they don’t understand the facts.  Don’t use legal concepts, multi-syllable words or run-on sentences – any of these will cause your jury to “tune out.”

People tend to learn by hearing, seeing, or touching.  Auditory learners are a small percentage of the population.  Try to capture the attention of the visual learners by showing charts, models, pictures and anything of interest in your case. 

4.      Active Voice:  Use an active voice, which is more vigorous, more gripping, than a passive voice.  It brings the listener along with you, as if the story is being lived today.  The story is happening now and the listener is there.  It makes the jury live the story as it is happening and involves them emotionally.  Americans have very, very short attention spans.  The jurors will understand better if they are listening more carefully … and they will be listening more carefully if they are wondering, “what happened next?”

5.      Language:  Use simple, ordinary words.  You want to connect with your jurors, and to do that, you must use language everyone can understand.  Choose your words carefully.  Simple words are best.  The fewer words, the better.  Words with powerful images make the strongest impression.  You want the jurors to form a vivid picture of the people, places and events in your client’s case. 

Use focus groups to identify words that jurors will relate to and which will paint a memorable picture.  In a medical malpractice case involving a failure to diagnose coronary artery disease, you might talk about the “red flags” which signaled CAD, but which the doctor missed. 

The opening statement is your chance to make a first impression with the jury, and as the saying goes, you’ll never get a second chance to make a first impression.  By taking these suggestions into consideration, you will increase your likelihood of persuading the jury to lean in your client’s favor and see the evidence from your client’s point of view.

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