1. Have the right approach. As the opening statement is one of only three opportunities to talk directly to the jury during trial (and arguably the most important), it is imperative that you approach this task with the right mindset. You need to be a storyteller like Aesop or M. Night Shyamalan. This means you need to be engaging, dynamic, thematic, and persuasive. You also need to form a positive connection with your audience and spotlight important issues for them.
2. Learn the fundamentals of effective storytelling at trial. There is an art to storytelling at trial. While “once upon a time . . .” worked when you were younger, it is infinitely less likely to be effective at trial. Instead, think about common experiences, such as watching a television show or a baseball game or witnessing an accident; tell your story to the jury as you would tell the story of the event you saw to a colleague or a friend. Do not get lost in a thicket of ancillary facts; explain what happened in common parlance.
Chronological organization is generally effective because people have an easier time following a linear story. Think about it: If you were telling your friend about a perfect baseball game and you started your story with the first pitch, jumped to the seventh inning, rewound to the fourth inning, inserted a tangent about the hot-dog vendor you met in the sixth inning, and concluded with the closing pitch, your friend would not only have difficulty following you, he or she might tune you out. Just as you would not want to lose the interest of your friend, telling a story linearly helps ensure juror attentiveness and receptivity.
When telling your story to the jury, do not tell them what you are going to tell them, e.g., “here are a bunch of things that I am going to tell you. . . .” You would not preface a story about a television show to your friend with such advisement, so do not do that to the jury. Just tell the story. This is not to say that an opening should not include the phrases “the facts will show . . .”, or “witness X will testify about. . . .” Indeed, such phrases are helpful to signaling to the jury key facts or witnesses that they should look for during trial.
Reach the point quickly. Talented screenwriters have shown through various legal-themed television shows that an effective opening statement can last 10 minutes or less. Consider along with this fact that in the last decade, the average adult attention span has decreased from 12 minutes to 5 minutes. Neil Vidyarthi, “Attention Spans Have Dropped from 12 Minutes to 5 Minutes—How Social Media is Ruining Our Minds,” SocialTimes, Dec. 14, 2011. Bearing this in mind, do as President Franklin Delano Roosevelt once advised: “Be sincere. Be brief. Be seated.” Franklin D. Roosevelt’s advice to his son James on how to make a public speech, quoted in Paul L. Soper, Basic Public Speaking12 (Oxford Univ. Press, 3d ed. 1963).
3. Know your audience. One of the most important things for lawyers to note before delivering opening statements is the composition of the jury. Are they educated? What are their professions? Genders? Backgrounds? Family status? Race? Age? Did the jurors say anything during voir dire that gave insight into their likes or dislikes? In all likelihood, the jury deciding your trial will not have people with expertise in legalese or with the backgrounds necessary to understand technical issues in your case. You need to craft an opening story that is easily accessible to your entire jury and allows them to reach your desired conclusion. While accessibility requires simplification, do not oversimplify or be pedantic. When you are trying a case that involves a highly technical subject, give the jurors some help. Reduce the high-level subject matter to basic concepts and introduce the jury to a user-friendly “glossary” of technical terms.
Another important characteristic to note about your jury is the region of the country they come from. This is essential because pop-culture references or attempts at humor may play better in one region than in another. The one general exception to this rule is self-deprecating humor; for some reason, no matter where you are, juries are invariably amused by lawyers poking fun at themselves.
4. Do not confuse the opening statement with the closing argument. Unlike your closing argument, an opening statement should not be argument. Rely on your facts and use them to create a story. Credibility and persuasiveness can still be achieved without positing things in an argumentative way. Jurors need a reason to believe you and believe in your case. Just tell a story that makes sense and refrain from arguing to the jury that the way your opponent will couch the facts is wrong.
5. Explain bad facts. You need to offer a reason for dealing with bad facts during your opening statement; you should not hide from them. Ignoring bad facts will damage your credibility with the jury. Address problematic issues in a way that makes sense in the general order of your story. For example, if you are defending a company sued for breach of contract, you might point out that the plaintiff breached the contract first, introduce a superseding agreement, or establish an excuse. Similarly, if your client has been charged with a crime, you might discuss that the arresting officer has a history of false arrests or has a motive to cause your client harm. No matter the type of case, you should strive to explain bad facts in one to two sentences and make sure that your explanation has proper context in your story. Give jurors a reason to understand that the bad facts are not bad for your case. Addressing a bad fact out of context may lead the jury to give it undue weight.
6. Do not rely too much on visual aids. George Lucas, the famed producer of the Star Warsand Indiana Jones movies, once said, “A special effect without a story is a pretty boring thing.” From Star Wars to Jedi: The Making of a Saga (Lucas Film 1983). He was talking about movies, but his comments are instructive for lawyers giving opening statements. If at the close of your opening statement the predominant thought among the jury is only that your graphics were cool, you have a problem. In terms of visual aids, less is generally more.
You need not go to the extreme and avoid visual aids. Used correctly, visual aids will help you gain credibility and maintain juror attention. For example, if your case involves an alleged breach of contract, the jury might find you more believable and easier to follow if you display an overhead graphic showing the contract’s key provision(s). Because opening statements allow you to present the jury with an outline of your case-in-chief, you also might consider a graphic that identifies the witnesses you intend to call and the roles they play in your story. If you opt for a chronological case presentation, jurors should respond positively to a timeline graphic.
7. Practice. While there is something to be said for spontaneity, practice increases the effectiveness of an opening statement. Practice is especially important when you plan to use visual aids. If you are going to use a PowerPoint presentation, practice will help you perfect the timing for clicking through your slides. As for how to practice, this is an individual preference. Some attorneys practice by themselves. Others practice in front of colleagues unfamiliar with their case. Some attorneys practice while walking up and down office hallways. No matter how you do it, just make sure you practice before facing the jury.
8. Promise only what you know you can deliver. Young lawyers often over-promise during opening statements. This is risky. Failure to deliver on promises made during opening statements leads to loss of credibility. To avoid the problem of under-delivery, promise to show only what you are certain you will. You need not restrict your promises to a single document or a single witness. Pull things together; for example, promise that while document “A” will show “motive” and witness “B” will demonstrate “opportunity,” the jury should interpret “A” and “B” collectively as establishing “liability.”
9. Consider whether to comment on the trial process. While the trial judge will instruct the jury about trial process prior to opening statements, it may be worthwhile to add further cues. Think of this as the table of contents for your story that outlines what comes where and when but does not necessarily need to happen right in the beginning. Identify witnesses, including who they are and when they will appear, and the evidence that you will present. If you anticipate having to call witnesses out of order, advise the jury that this is a normal occurrence during trial and does not carry any special significance. You also may want to comment on burdens of production and persuasion or an important jury instruction. If you are a defense attorney, consider reminding the jury that the defense case-in-chief comes after the plaintiff’s/prosecution’s case-in-chief and ask them to be patient and give you equal attention.
10. Remain flexible. This guideline primarily applies to defense attorneys who deliver their opening statement second. When preparing your opening statement, you must anticipate the bad facts that your opponent will emphasize and prepare to address them in your story. While your opponent is delivering his or her opening statement, (1) listen closely to see how anticipated bad facts are presented, or if others, not anticipated, are referenced; and (2) jot down notes about the promises that your opponent makes or the witnesses that are mentioned. When it is your turn to deliver your opening, work a response to these bad facts into your story. If your opponent emphasized certain witnesses, advise the jury that you will present rebuttal witnesses, or alternatively, attack the credibility of the referenced witnesses. Consider confronting any promises of proof offered by your opponent: “We do not think they will be able to prove X, no matter their representations, because. . . .” While you need to remain flexible and incorporate a response to your opponent’s opening statement, do not let your opponent dictate the format or tone of your opening statement; stick to your plan, but weave in contextually appropriate responses.
11. Conclude with your theme. When you reach the end of your opening statement, you want to make sure that the jury remembers your story and the theme that you developed throughout. To do this, try and devise a word, phrase, or tagline that summarizes your story and the theme of your case, which the jury will easily remember.
William F. Sullivan is a partner and Adam M. Reich is an associate with Paul Hastings LLP in Los Angeles, California.