February 20, 2024

Podcast - Openings of Openings

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

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small describes different approaches to opening statements in a trial, outlining three common styles: dramatic, theme-oriented and sequential. He emphasizes the importance of capturing jurors' attention from the start and recommends avoiding unnecessary details, focusing on the theme and facts to keep jurors engaged. Mr. Small also cautions against making the facts fit the theme and encourages prioritizing truth and credibility to ensure the jury's attention and respect.

Listen and subscribe on Amazon.
Listen and subscribe on Apple Podcasts.
Listen and subscribe on SoundCloud.
Listen and subscribe on Spotify.
Watch and subscribe on YouTube.

Mr. Small is also the author of the new ABA book, "Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers."

The opening of your opening is obviously important. You want to get off on the right foot, and you certainly don't want to turn off any of the jurors.

Lawyers use a variety of approaches to begin their openings, but three basic ones are commonly used. Consider the following examples.

Number one: Ladies and gentlemen, at nine in the morning, the sound of a gunshot echoed through a tranquil neighborhood on the north side of the city. When the police arrived at 922 West Elm Street, they found the bloodied corpse of Walter Smith in the study. What happened? This case is about a tragic accident that led to the untimely death of Mr. Smith.

Or consider the second example: This is a case about corporate greed. The defendant in this case, the gigantic insurance company, sold an insurance policy to the plaintiff and now refuses to pay the insurance policy to Hilda Smith, a widow who tragically lost her husband in a gun accident. This case was brought to force the insurance company to keep its promises.

Or consider number three: My name is Jane Jones. My partner is Sam Brown. Together we represent Hilda Smith. Mrs. Smith is the plaintiff in this case, the person who brought the lawsuit. The defendant is a gigantic insurance company. This case is about a life insurance policy. Mrs. Smith's husband, Walter, bought the policy to provide for his wife if he died. He died in a tragic gun accident in November 2008. The insurance company, however, refuses to pay the amount of the policy to his widow, Mrs. Smith. They claim that it was not an accident and that Walter Smith killed himself.

The first example, "At nine in the morning a shot rang out," is the dramatic opening. The idea is to grab the jurors' attention so they'll want to know what happened next.

The second opening, "This is a case about corporate greed," is the theme opening. The idea is that you need to establish your theme upfront before you do anything else, so that the jury remembers it and connects to it.

The third example, "My name is Jane Jones," is the orientation or sequential opening. The idea is that the jury needs to be oriented to the case and understand who you are and what it's all about before anything else happens.

Because all three styles are in regular use, there are devoted adherence to each.

My own preference is for the third approach. If you're trying to get someone to understand something, you should begin at the beginning, not in the middle. But not everyone agrees. You're there to win, not to prove some kind of point. Can't you just prove the widow is entitled to the money? Do you really need to go after the entire insurance industry?

Imagine a TV news report that started out like this: Hello, I'm Bob Jones. I work for WWWWTV. The station is owned by the CBA company and has a license with the FCC. This is a newscast. A newscast is an attempt to tell you about things that happened today. To do that, we have reporters, camera people, writers, editors and lots of other people working behind the scenes. We work out of a studio. Our main studio is located at etc., etc.

Viewers would be reaching for their remotes to change to another station. Jurors don't have remotes, but they can tune you out almost as well.

By the time you stand up to give your opening statement, jurors have already sat through hours, in some cases days, of lawyers and judges droning on about things that don't interest them, and very little relationship to why they thought they were there. Yet the traditional teaching about openings often involves introductions, thanks, explanations, explanations of explanations. In a world of increasingly short attention spans, skip it or fill it in later in your opening.

Think of it this way: You're sitting in your living room, flipping through the channels to find something good to watch on TV. How long do you stay on one channel before moving on? That's how long you have to grab and hold the jurors' attention.

So plan the opening of your opening accordingly. Stand up with energy. Dive right in. This is why the theme approach is common. Call it a "Field of Dreams" approach. If you build it, they will come. If you set forth a powerful theme, you can draw the jury's attention to it and then move forward with the story.

However, the theme approach has its drawbacks. Jurors may be mystified as much as drawn in. Why are we talking about a gunshot in a contract case? A trial isn't a movie, and you don't have the cinematics and narrative devices that filmmakers have to help tell the story. It isn't a high school creative writing class either. You won't get points for creativity. You also don't know the politics of your jurors or what might appeal to them or irritate others. You're there to win, not to prove some kind of point.

Finally, lawyers tend to make the facts fit the theme rather than the reverse, which, among other things, leads to overstatement and exaggeration. If the case really is about corporate greed, it'll be pretty obvious soon enough. Of course, themes come in many different flavors, and ones that are more grounded in the facts are less likely to be problematic. We'll discuss that in a future episode.

Still, in my opinion, themes follow facts, not the reverse. And that principle holds true for openings. Whatever you do, the first rule is to make sure you aren't doing any harm to your case. Don't make the jurors tune out in the first minute of the trial, and don't lose their respect if they don't respect you. If you're not telling the truth, if you're not credible, they probably won't be listening.

Related Insights