Chapter 3

• Jurisdiction: United States

Chapter 3 Opening Statement Visuals

"Visual storytelling of one kind or another has been around since cavemen were carving on walls."

Frank Darabont, film director, Shawshank Redemption

A. Storytelling

Opening statement is a trial lawyer's first and best opportunity to communicate the theme and narrative of the case to the jury. The best way to bring the story alive and persuasively convey it is through visuals. In this chapter, we examine: the proper software for developing a computer slideshow for opening statement; what to include in the slideshow; types of visuals that can persuasively convey the story of your case; and how to deliver a persuasive opening using those trial visuals. Practical and ethical issues, such as whether disclosure of your slideshow to the opposing party is required, are examined. Additionally, this chapter explores the use of effective traditional visuals in opening statement, such as a timeline on a board.

Before we get into what software and visuals work best for opening statement, it is essential we examine what makes a winning opening statement. Like a screenwriter, you want to craft a compelling story. Opening statement motivates jurors to adopt strong views of what most likely happen in the case, which then serves as a filter for the evidence and testimony they hear over the course of the trial. First impressions are very important because jurors form initial beliefs about the case, and research shows that these kind of beliefs fuel confirmation bias, which occurs when jurors focus on evidence and testimony that supports what they believe about the case while discounting, rejecting, or simply ignoring evidence and testimony that runs contrary to what they believe. Therefore, let's begin by describing what makes a compelling story and how to effectively deliver that story.

1. Compelling Story

A compelling story is made up of at least three elements. The first element of a compelling story is that it is about a human being. Jurors, like all of us, care about people. The Enron trial involving the prosecution of Kenneth Lay, former Enron chairman and CEO, and Jeffrey Skilling, the company's former CEO and COO, for securities and wire fraud serves as a good example of how to construct a compelling story about people. The prosecutors could have presented a case about only corporate corruption and accounting fraud. But the prosecutors focused on the harm done to the shareholders. In her four-hour closing argument, Enron Task Force prosecutor Kathryn Ruemmler stated her theme: "There's nothing wrong with getting rich. But what you can't do is you can't get rich by deceiving. You can't get rich by cheating."¹ She argued that the victims of the deceits of defendants Lay and Skilling were the Enron shareholders—real people "deprived of the truth." Even if the party is a corporation, a human story can be told.

In this respect, a compelling story is really about an antagonist. The headline verdicts are more often the result of anger and frustration with the defendant than sympathy for the plaintiff. Consequently, a compelling plaintiff story is about a defendant that needs to be sent a message.

Conversely, a compelling defense narrative often casts the plaintiff as an antagonist. For example, the plaintiff is someone who refuses to accept accountability for his or her own decisions and instead has filed a lawsuit in an effort shift the blame to someone else.

The second element of a persuasive story is that it reflects the values that the jurors share with the values revealed in the story. Fundamentally, we all make decisions that we can feel good about because they endorse something in which we believe. Therefore, it is important for any case theory to represent a value that jurors can endorse. In other words, litigators should ask themselves what value jurors are endorsing if they find in favor of their client.

Human values are those that American psychologist Abraham Maslow identified in what is now referred to as "Maslow's pyramid of values," including these needs: psychological, safety, belonging, esteem, and self-actualization. Every good trial story is about deprivation or the threat of deprivation of one or more of these needs, and the story told in opening should highlight the deprivation of those needs.

For example, in a criminal assault case, the prosecution's story is about either a deprivation of or a threat to personal safety, and if the defense were self-defense, the defense story could likewise be about deprivation of or threat to personal safety. In essence, most trial stories are about good versus evil. The evil either deprived or threatened to deprive the good of something of value. However, you want to avoid referring to your opposing party as evil because that is likely to entitle you to retry the case when a mistrial is granted, or your favorable verdict is overturned on appeal.

Third, a persuasive story needs a theme that encapsulates what the case is about and runs like a thread through the story, holding it all together. An ideal theme expresses a core idea, preferably a moral imperative. It should be a word or short phrase or a line of poetry that is memorable and familiar to the jurors. Samples of themes are: "Trust and betrayal of trust," "Having a scapegoat," "Power and control," "Broken promises," or "Ignoring the consequences."

With an awareness of the elements of a compelling story in mind, during pre-trial preparation you can gather and create visuals that will breathe life into your case narrative. For example, visuals showing how your client was deprived of one or more of the crucial human needs are what you want.

As an illustration of how visuals can be used to tell a human story involving human values, consider the visuals shown during opening statements in the trial of Michael Peterson, in Durham, North Carolina. The trial was made famous when it became the subject of a documentary movie series (eight episodes of 45 minutes each) entitled The Staircase.² Michael Peterson was charged with having murdered his wife, Kathleen Peterson, and the prosecution's case theory was that he bludgeoned her to death in a staircase. The defense case theory was that Kathleen fell down the stairs and that Michael Peterson was wrongfully accused.

The protagonist in prosecutor James Hardin's opening statement story was Kathleen Peterson, and the prosecutor introduced her to the jury by parading a photograph of her in front of the jury as he said, "This is how she would have looked prior to December 9th of 2001 if you had seen her at home or possibly at work. You can see from this photograph—you can feel from this photograph—that she is a genteel, warm person."³

The prosecutor then showed the jury two more photographs of Kathleen that were in sharp contrast to the first. As he displayed a photograph of her laying in a puddle of blood, he said, "Now on December 9th of 2001 at 2:48 when the EMS personnel first arrived they see her in a completely different way, lying at the bottom of her steps just as you see her in this photograph." And he showed another photograph of her, saying, "Later that day, after her body is removed from the home to the medical examiner's office this is one of the first photographs of her lying on a steel gurney in the medical examiner office after they've shaved her head so they can determine where the wounds are."

The District Attorney, in a no-tech way, with only photographs, told a story that humanized Kathleen Peterson and showed how she was deprived of a human need that the jurors' share—her personal safety—her life.

In his opening statement, defense counsel David Rudolf described the death of Kathleen Peterson as a "tragic accident." Rudolf said that it was an accident that "left Michael Peterson a wealthy man but a poor man in a manner very important to him. It left him without a soul mate. Kathleen and Michael connected in a way that few people who are really, really lucky in life have a chance to connect. And they built a family—the two of them built a family out of the strands of their prior families." At this juncture, defense counsel pointed to a screen that showed Michael and Kathleen Peterson with their children, whom Rudolf named one after another. At the conclusion of his opening statement, he had a picture projected on the screen of Kathleen sitting on Michael Peterson's lap, which he asserted was not posed. Rudolf said, "What you see there is the happiness that she felt with him and that he felt with her. Everyone who really knew that relationship—everyone who knew them, knew that they loved each other. Everyone who knew them knows that Michael Peterson had nothing to do with the death of Kathleen Peterson."

Defense counsel, with the family photograph and the photograph of Michael and Kathleen Peterson, told a human story about the couple and one about Michael Peterson's loss—being deprived of the psychological need for love and a relationship, a loss to which the jurors could relate.

Regarding the third element of a compelling story—a theme for the story— both lawyers articulated one in their opening statements. The prosecutor began his opening statement by telling the jury that the case was about "pretense and appearances," referring to the appearance that Kathleen fell down the stairs, when the prosecution's theory was that she was beaten to death, and, as the evidence showed, while it appeared that the couple had a...