Don’t be a lawyer! Be a teacher, a helper, a friend—those are the figures we are conditioned to trust.
Such was the advice of experienced trial lawyers David Deehl of Coral Gables, Florida, and David Goodwin and Kim Selmore of Miami, who shared tips on effective opening statements and direct examinations during the ABA Young Lawyers Division’s Anatomy of a Trial Series.
Deehl and Goodwin pointed out that opening statements start well before the trial, with a “complete command of the case.” Deehl suggested that the initial sentence of an opening statement be rooted in ten key words or phrases. For example, the following key words could be used in the initial sentence of an opening statement in a wrongful death action: negligent, speeding, driver, cell phone, killed, wonderful man, justice, demands, full compensation.
However, even before the initial statement, Goodwin and Deehl emphasized, “Start by saying nothing.” Both recommended making eye contact and connecting with each juror and that only after this has been completed should the attorney unfold the story of the case.
Cautioning that litigation is “not formulaic,” Goodwin said, “The best strategy is to have themes that resonate with the jury, give them psychological anchors. Those are the phrases that turn into themes that the jurors remember above all others, that bring together all the details under one umbrella to reach the verdict that you want.”
Both Deehl and Goodwin cited “Carpe Diem: The Rule for Powerful Opening Argument,” an article by John Buckley of Chicago, a past chair of the ABA YLD’s Trial Techniques Committee, as sound guidance for opening statements.
In discussing direct examinations, Selmore explained that preparation for the examination should begin with writing the closing argument. According to Selmore, this helps define what needs to be established in the direct examination. She also stressed the importance of spending time with witnesses before trial and showing respect for them from the first meeting. This involves explaining the case and the importance of their role and the lawyer’s role in the direct examination and the case as a whole.
Selmore encouraged young attorneys to take time with a witness to identify quirks that could harm the witness’s credibility and facts or issues in the case that make him or her uncomfortable, as these may be minefields at trial.
Further trial tips from the experts included:
  • Prepare a case like a gourmet meal; don’t “run it through a blender.” Presentation makes it appetizing, even if the nutrition is the same.
  • Practice with pillows: Seat a witness before a sofa, stand up each pillow, and label each as a juror. Train the witness to make “eye contact” with each pillow.
  • Get out of the office—meet your witnesses where they live or work. It shows respect, and you learn more about them.
  • Don’t oversell—jurors are skeptics.
  • Tell the other side’s story but in an unfavorable light.
  • Justice is hard to explain—but everybody understands injustice.
  • To persuade, appeal to interests, rather than intellect.
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