lawyer as storyteller
James R. Elkins
Opening Statements
Ten
Points in Making an Effective Opening Statement
[Douglass F. Noland, Noland Law Firm, Liberty, Missouri]
"In order to deliver an effective opening statement, it should be presented as you would present and tell a story. Telling a story is one of the most persuasive means of communication. How this is done is through a story to tell the information, the evidence you have, so that the jury will understand it, and its relationship to the theme. How we persuade is how we deliver and tell our story to the jury. Storytelling is the most basic means of communication."
"You want to capture the jury’s attention in the first few minutes in a way that will convey your case in a theme with simple language, and then proceed to tell the story so they can follow and understand. Avoid clichés and boilerplate statements like 'What I say is not evidence.' 'This is a road map.' 'It is like a jigsaw puzzle.' 'At the close of the case, the court will instruct you.' 'It is your decision to determine the facts.' 'It is now my opportunity to give an opening statement to tell you what I think the evidence will be.'”
"Reveal your weaknesses. To defuse or mitigate the known problems or weaknesses in your case, identify those matters early on . . . ."
"Avoid legalese and use everyday language. Car rather than vehicle, before rather than precedent, after rather subsequent, heart attack rather than myocardial infarction, brain damage rather than hypoxia ischemia encephalopathy. The words should be simple and direct in everyday English."
Draw
Them a Picture
[Dr. Noelle Nelson, clinical psychologist]
"A strong opening statement is critical to success at trial. It should be the jury's road map through the maze of legal issues and facts in any lawsuit. But lawyers who are too steeped in the minutiae of a caseinstead turn their opening statements into a recitation of facts loosely strung together by chronology."
"Jurors cannot interpret the facts of a case as the lawyer wants them to without a solid interpretive guideline. The case theme should be explicit, not implicit, and established clearly during the opening statement . . . ."
"The easiest way to find the story in a lawsuit is to investigate what was occuring with the people involved and why. The lawyer then builds the story using the case theme as the basic premise."
Exposing Weaknessness: "There is a tendency in opening statements to put one's best foot forward. . . . [W]hat jurors hold against lawyers isn't so much the weaknesses of their case, it is that lawyers often try to hide those weaknesses. A stronger position is to expose case weaknesses before . . . counsel has a chance to use them to its own advantage."
Tell
Your Story Through Opening Statement
[William Allison is a partner with Allison, Yeager & Bassett in Austin, Texas and teaches at the University of Texas School
of Law]
"Opening statement is the story of your case, and the technique for delivering the story is, not surprisingly, storytelling. Openings are filled with tortured phrases like 'The evidence will show,' 'And then the defense will call to the stand,' and 'It is our contention that.' More often than not, the lawyer uses three or four of these favorites and repeats them throughout the opening."
"Storytelling is the heart of what you need to create a winning beginning. It's not that difficult. We are all natural storytellers because we are all natural story listeners. Everyone likes a good story, including jurors. You go where the power is, and the power is in the story of your case."
"The magic of the detailed opening exists in telling an interesting story. An interesting one will have action verbs and colorful phrases."
"Although the jury will remember better a story told in a chronological sequence you do not have to start at the beginning. You might start with the most significant event in the case, tell it in a sentence or two, and then go back and pick up the story line from the beginning. This allows you to end with the beginning. Remember, this last statement is still part of the story, and you should say it from your point of view, so it is not out of context."
"Understanding the story comes from your knowledge and sincere belief in the facts of your case. You should master the facts so the story is part of your gut, not just your mind."
On good and evil: "This may be expressed as good guys versus bad guys, heroes versus villains, or the big and powerful versus the weak and powerless. Still, this concept seems to always be present in good stories. Explore these concepts with every witness in your case." ("In many criminal cases you will be involved in, you want to paint the opposition as mistaken and, therefore, simply human, while you represent your client as a victim of an understandable human catastrophe.")
"Think about the words and phrases you will use to describe the major witnesses in the case based on how you will depict them in the story. By the end of your opening statement, jurors must know who is good and who is bad, who is right and who is wrong, who is the victim and who is the perpetrator."
Opening
Statement as Storytelling
[Stephen C. Rench]
"Psychologists suggest two reasons for the importance of opening statement: 1. Opening statement comes at the beginning of the case taking advantage of the psychological principle of primacy. 2. A tentative conclusion is reached by the juror after the opening statement and evidence presented thereafter is judged in light of its proving or disproving the tentative conclusion. The opening statement predisposes the juror to one side or the other."
"Opening statements must be carefully constructed to set the stage for the rest of the trial and must be carefully coordinated with the closing argument."
"The principles of storytelling are most useful in making effective opening statements."
"The principles, methods and devices of rhetoric, composition, and drama are all useful in putting together the story."
"Effective speech must 'live,' have flexibility and spontaneity, have natural communication "
Opening
Statement
[Marilyn Bednarski, The Wisconsin Defender. Bednarski
is in private practice in Los Angeles]
"Your opening is a chance to make a first impression and give the jury a cohesive story to hang onto, and a cohesive story to plug evidence into as witnesses testify. You do not need to address every single fact or witness. Jurors’ attention spans are not that long, and they are anxious after the voir dire process to get to the evidence."
"Your goal is to tell a story, not read a story. Your goal is to connect in the first few minutes of a trial with those who will listen and judge. Your goal is to create trust."
Opening
Statements: You Never Get a Second Chance to Make a First Impression
[Robert B. Hirschhorn, Mercer Law Review, 1991]
"Every single case, regardless of its size, must have a theme that the attorney raises in voir dire, mentions in the opening statement, brings out through the testimony or exhibits, and hammers home during the closing argument. The theme of the case consists of a one sentence summary of what the case is about. It is best to employ one or more “feeling” words as part of your theme. The theme is not the legal or cerebral reason why you should win (insufficient evidence), but instead, it visually describes why you should win (e.g., “Keep your eyes on the weight of the evidence, not on the weight of the cocaine.”).
"One of the most powerful weapons in the communication arsenal is the use of trilogies. For some unexplainable reason, people learn in threes. I do not know why doubles or quadruples are not equally effective. Trilogies have been with us since biblical times (father, son, and holy ghost.) In school, we are taught the 'ABC’s' and not the 'AB’s' or the 'ABCD’s.' Traditional wedding vows employ trilogies (honor, love, and cherish) and we even express allegiance to our country in a trilogy of colors (red, white, and blue). Within the context of an opening statement, the attorney should employ trilogies to convey the defense or the client’s state of mind."
Winning
Techniques from the Beginning: Opening Statement
[John Elliott Leighton; a Miami, Florida lawyer]
"The opening statement, however, should be much more than a statement, it should be a story. A story that takes the jurors removes the jurors from the courtroom and brings them into the world of your client, a story that places the jurors in the shoes of your client, a story that creates a 'living reality' in the courtroom. It is only by creating that living reality that the jury will be able to fully understand and appreciate what has happened to your client."
Using
Themes at Trials
[Carol L. Gillam; The Gillam Law Firm, Los Angeles, California]
"Finding a good theme that really grabs your jury can help them analyze the bits and pieces of information that come in during the course of the trial in a way that’s favorable to your client--if you have a theme that really reflects that evidence. It provides a framework for shaping the evidence in a way that (hopefully) conforms to values about right and wrong that will work in favor of your client. It’s the headline grabber.
Themes lend themselves well to storytelling, if that’s your style. Your theme can begin the story you tell in your opening and closing."
"The best themes are short--a sentence, a phrase, even a single word that encompasses your strongest claim or defense. Something that is easy to remember after being heard just once."
What
Your Opening Statement Should and Should Do
[Professor Steven H. Goldberg, Pace Law School]
Attorneys'
Uses of Storytelling During Opening Statements
[Lauren Thorne, Clemson University, Communications Studies][honors
thesis with extensive summarizing of the work of other advocates of trial
storytelling]
Opening Statement
in Criminal Cases
[Ray Moses, Center for Criminal Justice Advocacy]
Opening
Statements
[Winning Trial Advocacy Techniques blog]
The
Fundamentals of Opening Statements
[Training Handout, North Carolina Conference of District
Attorneys]
Counter
Jury Bias in the Opening Statement
[Barry W. Walker, Trial]
Bibliography: Books
Joel J. Seidemann, In The Interest of Justice: Great Opening and Closing Arguments of the Last 100 Year (New York: Regan Books, 2004)
Bibliography: Articles
L. Timothy Perrin, From O.J. to McVeigh: The Use of Argument in the
Opening Statement, 48 Emory L. J. 107 (1999)
Tom Riley, The Opening Statement: Winning at the Outset, 3 Am. J. Trial
Advoc. 225 (1979)
R.H. Snedaker, Storytelling in Opening Statements, 10 Amer. J. Trial Advoc.
15 (1987)
Shelley C. Spiecker & Debra L. Worthington, The Influence of Opening Statement/Closing Argument Organizational Strategy on Juror Verdict and Damage Awards, 27 Law & Hum. Beh. 437 (2003)
Sunwolf. (2000, October). Talking story in trial: The power of narrative persuasion, 24 (28) The Champion 1 (2000)
