HIT THE GROUND RUNNING: THE COMPLETE OPENING STATEMENT SUPPORTED BY EMPIRICAL RESEARCH AND ILLUSTRATIONS.

• Author: Caldwell, Harry Mitchell

1. INTRODUCTION B. GRAB THE JURY'S ATTENTION 1. Create a Theme 2. Develop a Thesis or Legal Theory 3. Illustrations of a Grab a. Plaintiff Grab in a Wrongful Death Case b. Defense Grab in a Wrongful Death Case c. Prosecution Grab in a Domestic Violence Case d. Defense Grab in a Domestic Violence Case C. PERSONALIZE THE PARTIES 1. Make a Positive First Impression 2. Illustrations of Personalization a. Personalization of Plaintiff in a Personal Injury Case b. Personalization of a Corporate Defendant in a Wrongful Termination Case D. TELL A STORY 1. Make It Interesting a. Illustration: A Poor Example of a Defense Open in a Civil Trial b. Illustration: A Poor Example of a Defense Open in a Criminal Trial 2. Strike the Proper Balance 3. Use a List a. Illustration: Defense List in a Wrongful Death Case E. PRICK BOILS 1. Inoculate the Jury 2. Enhance Advocate and Party Credibility 3. Illustrations of Boil Pricking a. Defense Inoculation of a Prior Conviction in a Criminal Case b. Plaintiff Inoculation in a Civil Case F. END STRONG 1. Illustration: Plaintiff Conclusion in a Personal Injury Case G. FOLLOW ADVOCACY PRINCIPLES 1. Anticipate Opponent's Claims and Respond Appropriately a. Plaintiff/Prosecution Must Foresee and Preempt Defense Claims b. Defense Counsel Must Respond to and Deflect Plaintiff's Assertions c. Illustration: Defense Response to Plaintiffs Assertions 2. Use Horizontal Dialogue 3. Develop Sound Bites a. Illustration: Spence's Memorable Soundbite from The Estate of Karen Silkwood v. Kerr-McGee 4. Don't Make Promises You Can't Keep a. Illustration: Defense Attack on Prosecution's False Promise During Closing Argument 5. Use Appropriate Technology 6. Don't Argue H. CONCLUSION "The beginning is the most important part of any work, especially in the case of a young and tender thing; for that is the time at which the character is being formed and the desired impression is more readily taken." (3)

   Plato, The Republic

1. INTRODUCTION

   The opening statement is the window into an advocate's case. (4) A properly executed opening statements stages the advocate's entire case by grabbing the jury's attention, (5) setting forth a succinct thesis and theme, (6) articulating a compelling sense of right and wrong, (7) personalizing the client, (8) mitigating problematic evidence, (9) offering a coherent and compelling story of why the client should win, (10) and ending strong. (11) During opening statements, jurors form impressions of the advocates, the parties, and which side they favor. (12) These first impressions harden like cement and heavily influence everything that follows. (13) Indeed, many jurors reach at least a tentative verdict following opening statements. (14) The importance of the opening statement is remarkable given that the jurors have yet to hear from a single witness or consider a single piece of evidence. (15) Without an effective opening statement, the jurors are left adrift without sufficient context to fully appreciate and understand the testimony and other evidence as it is developed during examinations. (16) And yet, for many trial lawyers opening statements are a bit of an afterthought, thrown over in favor of witness preparation and developing trial strategy. (17) Such myopia is a missed--and perhaps fatal--opportunity to favorably shape the trial from the outset. (18)

   This article will suggest a structure for opening statements, which consists of: (1) grabbing the jury's attention; (2) personalizing the client; (3) telling the story of events leading to trial from the client's perspective; (4) pricking any "boils" in the case to neutralize negative information; and (5) ending on a strong note. The effectiveness of each component is supported by research and is well-illustrated. Following examination of the structural components, this article will delve into the advocacy principles essential to a complete and successful opening statement.

2. GRAB THE JURY'S ATTENTION

   There is only one chance to get something right the first time--including oral presentations. (19) That first opportunity for a speaker to grab the attention of her audience must not be squandered. (20) The law of primacy dictates that an audience begins making the decision (consciously or otherwise) to either remain engaged because their initial interest is piqued or to fade out with less than full attention. (21) That decision could be made within the first few seconds of an advocate's case. (22) The impressions formed from this first interaction with the jurors will subconsciously stay with them throughout the opening statement and into the trial. (23)

   Despite the unflinching reality of the import of primacy, many trial lawyers fail to take full advantage of this one-time opportunity to grab the attention of their jurors. (24) Indeed, the opening statement is not the time to thank the jurors for their service (that can and should come later) or to suggest an opening statement is like a roadmap or outline of the evidence to be produced at trial. (25) Such hackneyed approaches should have gone out with eight-track cassettes. Rather, opening is a time for creativity and bold statements to intrigue and entice the jurors to stay focused. (26)

   The grab is only limited by an advocate's imagination. It may be a staccato recitation of key facts ("that man [pointing to the defendant] grabbed his gun, drove to the victim's home, and shot him dead"). (27) It may be using a well-known quote, (28) emphasizing a key statement on which the trial turns, (29) or even reciting the theme of the case (i.e., "with great profits come great responsibilities"). (30) Creating a grab is both a product of distillation and inspiration. (31) Distillation in that advocates must thoroughly know their case in order to craft these first words that set the stage for all that follows. Inspiration is needed to find a theme that will establish the "rightness" of the client's case.

   1. Create a Theme

      The theme of every case should be more than simply why the party should win, it should also connect the jury to some reason why they should care about the party winning. (32) The theme should play on accepted notions of right and wrong, and should speak to universal truths all people understand. (33) For instance, "putting profits over people" to describe a callous corporate defendant, or "a person's word is their bond" in a contentious contract case. Finding the right theme for each case can be challenging, but it need not be solely the product of the advocate's inspiration, it can be gleaned from outside sources. However, bear in mind the theme must speak to all the jurors. Pushback from even one or two jurors could (will) be costly. Once the right theme is realized, it will resonate throughout the trial, into closing argument, and into the jury deliberation room.

   2. Develop a Thesis or Legal Theory

      Perhaps the most crucial element of any opening statement is the ability to reduce the case to its absolute essence. (34) Indeed, the primary point or takeaway of any speech should be made very early and very clearly. If counsel is not able to state in a sentence or two why he should prevail, he is not prepared to go to trial. Without a focused thesis or case theory, the advocate lacks crucial understanding of what he must accomplish: ferreting out the essential from the non-essential. (35) As a result, the advocate runs the risk of the case becoming a scattered affair that will only succeed in confusing the jurors. (36) Furthermore, jurors sensing a lack of focus will cast doubt on the competence of the advocate and the legitimacy of his case. (37)

      The thesis should immediately follow the grab and focus precisely on what the advocate must prove to prevail. (38) A prosecution's or plaintiff's thesis statement should begin with "We will prove...." A defense's thesis statement should likewise be bold and begin "The evidence will show...." (39) The difference, of course, recognizes which side bears the burden of proof. The thesis statement should be delivered slowly and forcefully to maximize its importance. (40)

      Prominent lawyer Theodore Olson, most noted for his masterful advocacy before the United States Supreme Court, explained how he arrives at a thesis statement: I try to develop a succinct summary of my argument in one or two sentences.... I employ several exercises to aid in developing the best distillation of my argument. My son ... asked me about an upcoming argument: "Dad, what does it mean if you win?" That is what it is all about. Can you answer that question in a sentence or two? If not, you have probably not given your case the intense analysis required to make a cogent, persuasive argument. (41) Even though Olson's advice was directed to oral argument before an appellate court, the necessity of developing a succinct thesis applies equally to the opening statement in a jury trial.

      Occasionally the thesis of the case is confused with theme. As discussed above, the thesis is the focused, fact-specific statement of why the advocate's client will win, whereas the theme plays on accepted notions of right and wrong and is not necessarily case specific. (42)

   3. Illustrations of a Grab

      1. Plaintiff Grab in a Wrongful Death Case

         In a mock medical malpractice case a surgeon performed cardiac surgery in which the patient died. (43) The plaintiff's grab may sound as follows:

         Brenda Farrell is a widow, and her two children are fatherless. Why? Because that man (pointing to defendant), that doctor, was too arrogant to admit that he was too tired and too distracted to competently and safely perform heart surgery on Brenda's husband, on Jon and Sara's dad. Ladies and gentlemen, we will prove that the defendant was in the midst of a particularly nasty divorce at the time of the surgery, and he was distracted and tired. In fact, he didn't sleep the night before the delicate and demanding heart surgery on Don Farrell. He didn't notice he had nicked Don's aorta. He...