July 01, 2014

Sua Sponte: A Judge Comments

A judge offers advice on successful opening statements.

Hon. Brendan Sheehan

Ms. Brune offers thorough and comprehensive guidance. As she aptly emphasizes, opening statements are critical and often underused. They are critical because they are your first opportunity to present your theory of the case in a cogent and persuasive manner. They are underused because many attorneys fail to frame their cases effectively and thus actually cause jurors to miss the importance of evidence later presented.

It is often, and incorrectly, said that jurors are blank slates. Rather, each of the jurors has some information or experience that is already written on the slate. Added to that are the ideas about your case the jurors have gleaned through voir dire. Opening statement is your first and best opportunity to develop your theme of the case and to establish your credibility with the jury.

Jurors know that depictions of trials in movies and television dramas are inaccurate, but few of them are prepared for hours of detailed and disjointed information followed by a “test”—that is, their deliberations and verdict. Your job in opening statements is to give them the framework to distinguish key points of evidence and then, later, to recognize those key evidentiary points as the “answers” to the questions on that test.

Jurors are more likely to be persuaded that you are leading them through the fog of seemingly random details if they believe they can trust you. In interviewing thousands of jurors, I’ve found that there is no single style or mannerism that instills trust with a jury other than a perception of genuineness. Jurors have responded positively to serious, earnest, professorial opening statements as well as down-to-earth, simply stated openings. Jurors uniformly distrust forced drama and condescension toward anyone in the courtroom. You need to find the style that works best for you that is engaging, professional, and, most important, genuine.

As Ms. Brune details, a critical step in your preparation must be familiarizing yourself with the courtroom. In some courts, you will be confined to a podium; in others, you are free to move about the counsel table and even the well of the courtroom. If you are not confined to a podium, I highly recommend using physical space to punctuate your opening statement. Jurors’ attention is automatically drawn to movement. It serves as a visual paragraph break in your presentation.

It is important to note that it is a paragraph break, not a word or sentence break. Pacing or casually strolling about distracts the jury from your message. Rather, you should divide your opening statement into its main sections: for example, recounting past facts, anticipating future testimony, and summarizing your theory of the case. When you complete a section of your opening, move, even just a little, to a different area in the courtroom and present the next section. This physical tactic signals to the jury that the focus has shifted, provides a brief mental break for them, and helps you present your opening in an organized and coherent manner.

In all instances, and especially if you are confined to a podium, use visual aids as emphatic punctuation to your opening. Visuals should be used as you would use exclamation points or bold type—sparingly, for real effect. As with movement, overuse of visual aids is a distraction to the jury; targeted use effectively focuses jurors’ attention and commits the point to their collective memory.

Finally, while cases cannot be clearly won during opening statements, there is one thing that can virtually guarantee a loss: overpromising. This is far and away the one flaw that affects jurors most strongly and negatively. It is a breach of the jurors’ trust that discredits everything you presented.

Following Ms. Brune’s preparatory steps and these additional suggestions about fine-tuning your presentation may require great effort, but a strong opening statement is essential to preparing the jury to sift through the details presented at trial and to understand your theory of the case.

Hon. Brendan Sheehan

The author is on the Cuyahoga County Court of Common Pleas in Cleveland.