We communicate with the jury each and every moment in the courtroom. That being said, some moments are more conducive to effective communication - opening statements are such a moment. You will never have the same degree of focus from the jury as in those first few precious moments. Words have not yet been spoken, the canvas is mostly blank, but the time is at hand to take up the brush of words and begin to paint the story of the case.
The colors you choose to paint are yours alone. The palette includes eye contact, body movement, word choice, and delivery. Cheerleading and pounding tables is not required, but caring and believing strongly are. Care and belief are reflected through the opening statement and carries over into the testimony of witnesses. Word choice, tone, focus, delivery, all of them matter and must be connected properly to the theme and theory of the case.
You must carefully prepare for the opening. This can include creating note cards, outlines, or even writing the entire presentation before giving it. Each of these methods are designed to marshal the case and make you comfortable with the moment of delivery, but they are not delivery methods! Opening statements should never be read. Reading a document will pull your eyes away from the jury, sacrificing personal connection for a false sense of security.
Word choice is important, and you should paint an active picture for the jury. Passive voice is avoided unless necessary to shift responsibility, and the present tense is preferable, particularly during the story portion of the case. The presentation itself must have a clear beginning, middle, and end, with a structure which pulls the jury into the story, allowing them to follow along and potentially predict what should come next. The narrative style of present tense ensures believability, simplicity, and credibility - it moves the jury towards persuasion.
You must carefully choose the structure of their opening statement, acceptable formats include chronologies, flashbacks, and parallelism. The key components of successful storytelling definitely apply. Preparation, preparation, and more preparation will bring comfort. Command of the trial arena comes from developing the ability to communicate through the spoken word as viewed through knowledge of, and comfort with, the factual and legal issues present in the case, and that comfort can only be earned through hard work.
1. Beginning
Carefully choose the first words of the opening. You will never have the undivided attention of the jury in quite the same way. Proper word choice, physicality and presence can all be used to effectively set the tone for the rest of the case. The proper theme and theory will resonate through out the opening statement, be supported by the testimony of witnesses during direct and cross, then be expounded upon during closing arguments. People make up their minds quickly, and generally focus on the first words out of your mouth - make them count.
Acknowledge the court and opposing counsel before beginning. The acknowledgment of the court and opposing counsel reinforces the importance of what is about to take place with the jury - ritual makes the process important. By the same token, centering the body on the jury so that everyone is included also matters, sending the message that everyone is important. It also forces you to choose a physical position that allows you to reach each member of the jury while not intruding into their personal space. Location is important and will drive the tone, volume and delivery of the words which are to follow.
Before beginning make eye contact, speaking only after every member of the jury is focused on you and what you are about to say. Once the physical connection has been made through the eyes, it is time for words to follow. Remember, words follow the movement.
All eyes in the courtroom should be on you. Getting them there, and then keeping the jurors engaged and keeping them that way, is a critical skill. You must connect with the jury. That connection is created with words, movements, and eye contact.
Some attorneys find it difficult to make direct eye contact with jurors and adopt the public speaking approach of “staring at their forehead” in order to avoid eye contact. That approach is a stop gap measure designed to get the lawyer through the discomfort of public speaking - it is not a preferred communication technique. While it may work fine for public speaking situations with a large audience, in front of jury it is a poorer choice because it reflects fear—fear of connecting with others. It is a crutch designed to allow counsel to “get through” the opening statement, it sends the wrong message to the jury and is an admission to the jury that counsel is not completely comfortable with the process, which may lead the jury to infer that counsel is not truly behind their case.
More importantly, why should you be afraid to look the people who will decide the case in the eye? By the time openings begin, these people are not strangers. You already know a great deal about the jury, having read questionnaires, asked questions, and literally assisted in choosing them. Now is not the time to be afraid to extend to them the gift of trust. You should give yourself permission to truly connect to the people on the jury, and that requires eye contact.
Silence at the beginning of the opening can be quite effective. It pulls attention to the advocate, focuses the jury, settling them down into the moment, and reinforces the importance of what is to come. The longer you stand silent at the beginning of an opening statement, the greater the tension within the room. It can seem like forever to the attorney, but not to others.
Center yourself on the jury, but not so close as to invade their personal space. Most “trial” experts advise counsel not to touch the railing, and many jurisdictions specifically prohibit counsel from getting too close the jury box, others are more forgiving. You should know the local customs and follow them, unless there is a good tactical or strategic reason not to do so. In those instances where counsel are allowed to get up close and personal with the jury be careful to experiment in practice before attempting this technique.
You must find a comfortable position from which they can survey and connect with the entire jury. If you are too close it makes the jury uncomfortable, and a important persuasion goal is to make this group as comfortable with the advocate as possible, so they trust you and believe in what you have to say.
2. Body Language
Physical presence in the courtroom is part of your persuasive arsenal, and sometimes there is a need to fill the space without using words. This is best accomplished by body language and presence. Presence is another way of saying attitude, body language is physicality. While the concept of body language means different things to different people, we are concerned here with how body language can open communication between the lawyer and her audience. Body language must create a sense of credibility and believability.4 Do not forget that you are the first, last, and best witness for their case. The choice of body language is important, because it can either open, or close, avenues of communication.
Once the silence has focused jury attention, allow your hands to drop to the sides, exposing your body to the members of the jury. Letting their hands drop sends a message to the jury that counsel is open to communication, is not hiding anything, and trusts the jury. While it can make you feel exposed, this is actually a powerful communication position. By standing in front of a jury with your hands at your sides; counsel are both vulnerable and powerful at the same time. In that situation all they have is their case, their voice, and their body.
After acknowledging the jury through body language it is time to begin, using the types of “hooks,” “grabbers,” and structures previously discussed. It is a best practice to begin with a statement capturing the essence of the case identified through the factual theory, legal theory, and moral theme. It can be something as simple as a one-word statement like, “Accountability,” “Credibility,” “Gold-digger,” “Rage,” or “Greed.”
Short pithy statements capturing the essence of what must be said without falling into a cliché is preferable. The classic example in recent history is “If it doesn’t fit, you must acquit.” Your knowledge and preparation, when done properly, should be reflected in the beginning of the opening statement, and it should come organically out of the hard work already done.
You should allow your hands to move in concert with your words, just as they do in the real world. Planned and scripted hand movements are disingenuous, and should be avoided, much in the same way that haphazard movements are discouraged. The movement of the hands should follow and complement the voice, with some motions choreographed ahead of time to make specific points.
Like words, movement in the courtroom has persuasive power. You must understand this, develop the skills necessary, and then use them.
3. Verbal Keys
Ensure your tone matches the case. Outrage is good, but should be saved for the lying witness. The jury should be relatively neutral at this point so take care to not scare them over to the other side with histrionics. Persuasion occurs without arguing when movement, language and delivery come together.
Overly emotional presentations or theatrics should be avoided. They will not persuade anyone at this point and call into question your believability as well as exposing a perceived unfair bias. Counsel should strive for a conversational tone accurately reflecting the story of the case. When in doubt think in terms of talking with the jury instead of at them.
Jurors will summon mental images of people, places, facts, objects, and locations from the words spoken. Choose carefully, with a full and complete understanding of the possible connotations they may hold for the jury. While the terms “billiards parlor” and “pool hall” both describe a place where a game is played, they create very different images. The billiards parlor is filled with well-heeled individuals who drink expensive whiskey and talk about their stock investments. The guys in the pool hall are crouched under a cheap stained-glass florescent lamp, counting the beer stain circles on the pool table railing.
Gripping and persuasive language does not have to be flamboyant, but it should capture an image for the listener. Do not strain to be a poet. Capture the truth simply, using language the jurors will accept, understand, and interpret in a way you can both influence and predict. Care should be taken to avoid legal jargon and cop-speak, you do not need to remind the jury you are a professional doing their job. Instead the goal is allow them to see you as a fellow human being helping them to discover the truth.
4. Dangers of Improper Argument
A well-prepared and well-delivered opening is in and of itself persuasive. When the statements made during opening cannot be tied to a fact that a witness will disclose through testimony, then you are not making an opening statement—you are arguing. Comments on the credibility, believability, or reliability of the expected evidence are not a forecasting of what the evidence will be, but a comment on its validity.
Once you slide down the slippery slope towards argument their is a very real danger of losing the jury. During opening reinforce in the minds of the jury that you are present to assist the jury in sorting through some complex issues to find the truth. Arguing during openings reminds the jury that you are a lawyer and potentially not to be trusted. You should save argument for closings, when being argumentative is not only expected, but encouraged.
Opening statement is also not the appropriate time to tell the jury the function of an opening. It sounds defensive, juries don’t care, and it invites them to ignore the substance of the opening. By beginning with a civics lesson during the opening statement, counsel are simply throat-clearing and buying time because they are not prepared to deliver a cogent theme and theory. It is wasted time and space. That being said, legal concepts should be discussed as appropriate to advance the theme and theory of the case while not wasting the jury’s time.
Conclusion
One of the most important things you must learn to do as a trial lawyer is to find that space within yourself that is filled with truth, hope, and justice. When you can bring all the values that you see in the justice system into your voice in an honest fashion you will hold the jury in your hands. In other posts we will talk about how to keep from dropping them.
Til then,
CHR
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