February 27, 2024

Podcast - Opening Statements: Telling the Story

The Trial Lawyer's Handbook: A Courtroom Preparation Podcast Series

In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small outlines the importance of connecting with jurors from the beginning of the trial. He explains that an important aspect of drawing the jurors in is by making them care about what you have to say, comparing presenting opening statements to telling a story.

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Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.

Dan Small: As lawyers, we play many different roles: advocates, counselors, drafters, reviewers, and much more. One of the most important roles though is storyteller, and nowhere is that more important than in opening statements.

A good opening statement weaves the facts into a story that grabs the listeners, draws them in, and makes them listen to the evidence at trial through the perspective of your story. To quote movie director Andrew Stanton, who directed Finding Nemo and Toy Story, among others, "The greatest story commandment is, make me care. Make me care."

Jurors today live in a world of short attention spans and practically infinite choices. When they are confined to the jury box at the outset of a trial you have their attention, but it won't last unless you tell a compelling story that makes them care. How do you accomplish that? Stanton gives several clues that help provide a good start.

First, know your punchline. One of the many great lines attributed to the late baseball great Yogi Berra is, "If you don't know where you're going, you might wind up someplace else." So it is with opening statements. Everything, language, themes, substance, structure should lead to the punchline, the ultimate message. If it doesn't, consider taking it out.

Number two, make a promise. Promise your audience, the jurors, that this story will lead somewhere that's worth their time. It's not just a contest between big businesses or bickering lawyers. They see enough of that on TV. It's something real, something important, something lasting.

Third, make them work for it. From our earliest years, we love to figure things out ourselves, whether it's a child's jigsaw puzzle or a complex puzzle of a case in court. We most enjoy the puzzles, the challenges, that we solve ourselves. Therefore, you can try to convince the jury of your conclusion by mercilessly pounding on it, or by organizing and presenting the case in a way that inexorably leads the jurors to it. If an opening is done right, we can then watch in amazement as one juror after another reaches our conclusion with us, not from us. Don't deprive them of that joy, and deprive yourself of that power.

Number four, keep them engaged.

Don't falter in your mission by getting lost, either in detail or in harangue. Keep your audience engaged by keeping your story real, human and moving forward. Real in the sense of real-world events, not abstract concepts or hypotheticals. Human in the sense of human interest. Who are the players and what are their strengths, weaknesses, and motives?

Keep in mind that good stories are about people. When was the last time that you read a good children's book about a document? It's about people. Their actions, relationships, and motivations, no matter how much your case may involve documents or numbers or science or whatever, always keep the human element in mind.

We all love a good story and a good storyteller. Sadly, too many lawyers get to trial and make the mistake of thinking that this is a lecture, or worse yet, a diatribe, not a story. Bring the jury with you, and they will appreciate the journey, and you, far more. But don't take the notion of storytelling too far.

Years ago, I did some consulting for a TV series about a law firm. They wanted to make sure that their stories meshed with the real world. But the producers were focused entirely on the story. And there were several times when I told them that the story made no sense in the real world, and they said, “Too bad, we like the story.”

You can't make that mistake. It's certainly true that the central focus of your opening almost always ought to be the story. And it's certainly true that you should tell the story, if at all possible, in a compelling way. However, the movie or TV director can do all kinds of things to make his story engaging. He can cut corners. Disregard anything that doesn't fit, or just plain make stuff up. You can't.

While it's important to tell an engaging story, make sure that you aren't sacrificing accuracy or ignoring the facts. The idea of making a promise does give me a little pause. It's a whole lot easier to promise something than to deliver it. If you do make a promise, or a prediction, for example, there will be no evidence of whatever. You should be absolutely sure that it can't go wrong.

And I wonder about making the jury work for it. It's certainly true that people don't like being hit over the head with arguments or having other people tell them what to think, but jurors are often called on to make difficult decisions arising out of complex facts.

It's the attorney's job to guide them to the correct decision. Don't assume that they'll get it right with a few subtle hints here and there.

Finally, if you're representing a criminal defendant, you may not really have a story to tell. Or if you do, it may have to be quite circumscribed. You may be limited to trying to accomplish other things, such as humanizing the defendant and reminding the jurors of their obligations or attacking the credibility of the government's witnesses. You need to be as engaging and compelling as possible, but don't try to tell a story that doesn't fit the facts. You are likely to lose your credibility without accomplishing anything.

Regardless, just keep in mind the wonderful Native American proverb, “Tell me the facts and I'll learn. Tell me the truth and I'll believe. But tell me a story and it will live in my heart forever.”

Tell your story in opening statement.

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