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Use Improv Techniques in Your Opening Statement to Win Your Case

Jennifer Strouf and Maria Eileen Castagliuolo

Use Improv Techniques in Your Opening Statement to Win Your Case
Hispanolistic via iStock

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Improv is more than comedy punched up with quick-witted one-liners. Improvisors think at the top of their intelligence because improv challenges them to use everything they already know and everything they can learn in the moment to spontaneously deliver a thoughtful response.

Opening statements are often abused, misused, or overlooked in favor of their flashier counterpart, the closing argument. In our combined 25 years as trial attorneys, we have observed countless seasoned litigators pass off their opening statements to inexperienced associates or give a boring recitation of the law.  Both scenarios are tragic missed opportunities to win over the jury and concede precious ground to the opposition. Many jurors prejudge your case during jury selection and opening statements before the presentation of any evidence. Therefore, before the first witness has been sworn, the attorneys—aware or unaware—are battling to confirm or challenge the jurors’ initial impressions and preconceived ideas. An evocative, captivating opening will persuade jurors without legal argument and start your case from a winning field position.

Scene Painting

Improvisors use words to paint scenes and evoke emotions. Through spoken words, an improviser can inspire the five senses and build an imaginary set on stage in mere moments. Improvisors transport their audience to a different time, place, and set of circumstances, which connects the audience to the story by investing them in the shared experience. The most powerful scene painting occurs when you have fully developed the theory of your case. While an attorney cannot ask the jury to put themselves in the shoes of the trial’s key players, the attorney may vividly scene-paint the situation, supported by the evidence, in the courtroom. Effective scene painting in your opening statement describes key locations (size, space, lighting) while highlighting the key objects and people therein to help a jury better understand the theory of your case.

A classic opening statement may begin: on February 1, 2018, at 5:30 a.m., Mr. Smith entered the Shop N’ Go convenience store. While the jury has received information, it is neither captivating nor persuasive. What if, instead, you began as follows: On a frigid winter morning, Mr. Smith hurried from his car toward the warmth of the Shop N’ Go. Light poured out of the double glass doors at the front of the building, breaking through the early morning darkness. Mr. Smith saw the cashier, a young man in his twenties, behind the register. The store was small, with two narrow aisles of snack foods and a small counter with coffee pots and fountain drinks.

The second opening establishes several things that are applicable in civil or criminal cases. As counsel in a slip-and-fall civil action, you have established that Mr. Smith was in a hurry, cold, and not paying attention. As the attorney in a criminal case, you have established that Mr. Smith had a clear view of the store and the cashier prior to a criminal act occurring.

Sensory Words

Sensory words are the building blocks for scene painting and allow a jury to perceive actions and non-actions from your client’s point of view. However, they also confront the problem areas of your case by diverting a jury’s attention. For example, a victim may not have a perfect visual memory of the attacker’s clothing because, instead, the victim has a clear auditory memory of the sound of footsteps or gunfire. In an accident case, a driver may not remember which of his body parts hit the dashboard because he smelled smoke upon impact and began struggling with his seatbelt. A jury will forgive imperfect memories if the other details are trustworthy.

By trial, the attorney should have a grasp on the client’s sense memories. Many times, we focus on sight and overlook a significant amount of information. For example, scene painting a house varies greatly when we focus on sound and smell. Consider House A: The door to 23 Main Street is pushed open with a screech, a wall of stale cigarettes, spilled beer, and body odor wafts outward. Now compare it with House B: The door to 23 Main Street swings open smoothly, and a combination of new carpet smell and fresh paint greets visitors along with the chirp of a security alarm. The setting drastically changes based on the environmental factors picked up by our senses. In either scene, the jury has a more complete picture of what type of empty house this was as a platform for how the events occurred.

Sensory words convey emotions without labeling them for the jury. The adage “show, don’t tell” applies here. If you label the emotions of the witnesses (e.g., Matthew’s anger scared Melissa.), then you are asking the jury to accept your truth. There are exponential factors that may cause the jurors to resist accepting what you tell them. However, you can scene-paint Matthew’s anger and Melissa’s fear during your opening statement, then you allow the jurors to process the information with their senses to reach the desired conclusion. Consider: Matthew’s face was red. His fists were clenched by his sides. He yelled profanities with such force that Melissa watched his spit spray and land on their dining room table. Her ears were ringing, her palms sweating, and she held her breath. When the jurors decide that Matthew was angry and Melissa was scared based on sensory words, they become invested because it was their idea, which means that they have already begun to accept your theory of the case without realizing it.

Improvisational techniques such as scene painting and sensory words can aid a jury’s understanding of a situation. By using improvisational techniques during the opening statement, counsel seizes the opportunity to influence how evidence will be viewed from the start of the case.