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July 31, 2018 Articles

Tips for Avoiding the Mini-Opening Trap

Why putting on a "good" mini-opening is the last thing you should do.

By Stephen M. Duffy

Mini-openings—non-argumentative presentations about five minutes long that precede voir dire—have become increasingly common across the country. In fact, California judges now must allow mini-openings if requested by the parties; many go one step further and actively encourage counsel to do them. On its face, having mini-openings makes sense. They provide prospective jurors context about the trial beyond what is typically provided in a statement of the case. This often helps them understand why they are being asked about certain topics and realize the importance of volunteering certain information to the parties. In practice, however, the mini-opening presents a dangerous trap to attorneys. Putting on a “good” mini-opening is the last thing you should do—a compelling presentation makes it harder for you and easier for opposing counsel to succeed in voir dire.

Before delving into why, it is important to back up and address the goal of jury selection more broadly. The proper purpose of jury selection is to obtain the best possible audience to hear your story. (While this seems self-evident, in actuality many attorneys have difficulty focusing on this, often lapsing, intentionally or not, into preconditioning.) It doesn’t matter how effective your advocacy or how strong your evidence—if the audience already disagrees with the premise and key themes of your case, you are very likely to lose. And, of course, the converse is also true: A favorable jury can win the day for a pedestrian attorney with a difficult case. As a consequence, counsel’s priorities in jury selection should be twofold. The first priority is to identify and eliminate jurors predisposed to favor the opposition—by cause or, if necessary, by peremptory challenge. The second is not to do anything that helps the other side find or secure cause challenges against jurors who are likely favorable for your client. More specifically, this means avoiding questions that spotlight “good” jurors and, as necessary, attempting to rehabilitate individuals against whom the other side tries to establish a cause challenge.

A powerful mini-opening inhibits your ability to achieve both of these priorities. First, it makes it more difficult to establish the bias of jurors who are likely to favor your opposition. You may temporarily convince such individuals that there is merit to your side of the case. This dissuades them from admitting bias, increasing the likelihood they will claim they can be fair, will follow the law, need to see and hear all of the evidence before they make up their mind, etc. However, when such jurors are exposed to opposing counsel’s evidence and arguments, they are likely to quickly revert to their initial feelings and become a problem for you in the jury room. For example, a juror in a premises liability case with strong anti-corporate feelings might be briefly persuaded to entertain the notion that a company’s safety efforts were far better than normal; thus, they momentarily believe they could be fair and impartial to both sides. But when such a juror hears the full version of plaintiff counsel’s case—the company’s policies merely met the “bare minimum” standard because it was more interested in profit than safety, there were internal emails before the accident discussing the allegedly dangerous condition, etc.—such a juror would probably swing quickly toward the plaintiff’s position.

Second, an assertive mini-opening makes it easier for the other side to secure cause challenges against your “keeps” (jurors likely to favor your client). Such jurors may initially be willing to tell the court that they can be fair—we are all conditioned to believe that we are fair people, after all. However, upon hearing the brief synopsis of your most powerful evidence, these individuals may recognize that the opposition has little chance of success with them. This is particularly a problem for defendants, who often benefit from jurors who eschew emotional decision making—such individuals are more likely to recognize and affirm their own bias, particularly as they learn more specifics about the case. Accordingly, savvy attorneys will pounce immediately when their opposition delivers a powerful mini-opening, decimating panels by simply beginning voir dire with something like the following: “You all just heard from defense counsel about his client’s case. Based on what you heard, how many of you find yourselves leaning toward the defendant’s side of the case, even a little bit?” While you can always attempt to rehabilitate jurors who respond affirmatively, this is an uphill struggle—you cannot get them to unhear what you told them in mini-opening.

In addition, a powerful mini-opening can help opposing counsel in another way: by opening the door for them to inquire about their “dirty laundry,” meaning specific evidence that is problematic for their client. In a typical voir dire, judges are often quite sensitive about allowing counsel to introduce case-specific facts and probe how jurors react to them. Most recognize that this is an improper attempt to pre-try the case and, perhaps more importantly, realize that the introduction of specific inflammatory evidence can lead to many cause challenges (rare is the judge who likes releasing large numbers of jurors for any reason, including cause). Mini-openings alter the usual dynamic—if something is raised by the other side, it is typically deemed fair game for inquiry. Instead of abstract inquiries about hypotheticals, counsel can now ask direct questions about the impact specific evidence has on a juror’s perception of the case.

For example, in a recent automotive case, one attorney told jurors in mini-opening that the other driver was on prescription medication and asserted that this had played a role in the accident. Opposing counsel was permitted to question the panel at length about this topic, securing a number of cause challenges against jurors with strong feelings on the subject. Even if a judge prohibited specific inquiry like this, general questions about bias are likely to get far more traction with a similarly damaging fact in the back of jurors’ minds. Sticking with an automotive example, jurors would obviously be more likely to state they generally leaned against a driver who was drinking prior to an accident.

An argument can be made that the harm done by a strong mini-opening could be offset, at least in part, by the ability to get critical arguments and evidence across to jurors at the earliest possible moment. This contention does not hold up. Research shows that there is little to no value in preconditioning during voir dire; there is no reason to expect a strong mini-opening would affect jurors’ differently. Jurors will hear your full story soon enough, and the truth is that most of their ultimate determinations about a case are likely to be driven by their own deep-seated experiences and attitudes—a five-minute presentation is not going to alter this, no matter how powerful.

If a persuasive mini-opening is wrong, what’s the right way to approach one? While there are no absolutes, we generally recommend that our clients try to avoid them where possible. Exceptions can potentially exist in cases in which your side has far more “dirty laundry” to worry about than opposing counsel.

If you do need to do a mini-opening, keep it short and bland. Briefly lay out the nature of the case and your client’s position; e.g., “My client disputes it has any responsibility for the incident.” Do not get into specific reasons why. The only specifics you want to mention are those that are bad for you so that you may be able to voir dire on them later; e.g., in an employment case, consider letting jurors know if your client has had similar claims made against it previously (assuming this is coming in, of course). And be prepared to take full advantage in your own voir dire in case opposing counsel errs and exposes his or her best evidence and points to the jury before voir dire begins. Plan for this possibility so that you can fully exploit the opportunity, should it arise.

Stephen M. Duffy is a senior consultant at Trial Behavior Consulting in Los Angeles, California.

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