Opening and closing statements are the bookends of your trial, and offer a chance to tell your client’s story, framing it the way you want the jury to hear it. A solid opening statement gets the trial off on the right track. “This is the only time you’re really going to have the chance to make a first impression in front of the jury,” said litigation expert Miranda Lundeen Soto, a partner at Shook Hardy & Bacon in Miami. She was a panelist in the ABA webinar “Openings and Closings 101.”
Here are their tips:
1) Start communicating the trial theme during voir dire. Studies have shown that often jurors decide who they think should win after voir dire and opening statements, Soto said.
2) Establish credibility. You want to hook jurors with your opening statement. A good opening statement demonstrates your sincerity, knowledge of the facts, confidence and likeability all at the same time. “You don’t want to over-promise or under-deliver in your opening statement,” Soto said, adding that there’s no such thing as being over-prepared.
3) Tackle any unfavorable facts head-on. Most cases involve some measure of “bad” facts about your client. As you lay out your case, tackle those directly. “The last thing you want is for the jurors to actually hear that bad fact come out of the opposing counsel’s mouth,” Soto said. Practice delivering your opening statement in front of colleagues, family or friends, because something that sounds good in your head might not come across the way you think it will.
4) Offer the jurors a road map. Some lawyers use PowerPoints or white boards to prepare for openings. When structuring an opening statement, first tell the jury who you are, why you are there and what the jury will decide. “Frame your issues,” Soto said. “Keep it simple and tell a compelling story. Make it easy for the jurors to understand. You want to link important facts to issues the jury will decide.”
5) Stick to the script. Tell the jurors what the evidence shows or proves. And don’t go off script. “You’ll hear the opposing side’s opening statement and want to respond, but don’t do it,” Soto said. “This is your case, don’t forget it. Finish your opening statement strong with your theme.”
6) Play devil’s advocate. Part of preparation should include playing your own devil’s advocate by asking what the other side is going to argue. “Think of every conceivable defense they’ll put on,” she said. Embrace any weak points, and explain why they do not matter.
7) Create the right energy. “It’s always important to make good eye contact,” Soto said. “You’d be surprised how many lawyers are uncomfortable making eye contact with jurors.” Use an appropriate tone – opening statements should be a friendly conversation that’s measured. “This is not time to argue. Stay calm and matter-of-fact,” Soto said. Don’t be afraid to use intentional movements – like moving forward or gesturing – to create the right energy in the courtroom.
8) Know your closing argument before trial begins. Drafting a closing argument begins before trial, said panelist and litigation expert Sonia O’Donnell, a partner at Carlton Fields Jorden Burt in Miami. A good closing argument reviews the evidence presented at trial. If you can, practice your closing with other attorneys on your team or with consultants. “It’s no different than an oral argument, the preparation is the same,” O’Donnell said. “Think about what you want to tell the jury. The most important thing is to know your case. I recommend writing it all out, including notes to yourself.”
9) Engage the jurors. However, O’Donnell cautions against “reading” your closing statement. Instead, engage the jurors. Know what speaking style suits you best. Use passion and emotion in a way that’s most effective for you. “This is your opportunity to explain to the jury how the law applies to your case in terms that the jury can understand,” she said.
10) Help the jury understand the evidence. Remind the jury about specific evidence – help them understand what the evidence shows. Practice your closing, because the more you practice, the more you’ll be comfortable with your closing argument and the jury will know you’re telling the truth. This is also the time to confront contrary evidence and explain the other side’s weaknesses to the jury.
The On-Demand CLE program was sponsored by the ABA Center for Professional Development, Section of Litigation and Young Lawyers Division. Attorney Steven A. Weiss, a partner in the Chicago office of Honigman Miller, also participated on the panel.