Distilling Effective Rhetoric for Persuasive Opening Statements
Written by NITA guest blogger Sara Jacobson1
Opening statement is the first time a lawyer gets to lay their case out to the jury. It is the first impression you make, and the first impression the jury takes about your case. You want the jury to believe you, to understand you, to be moved by you such that when the introduction of evidence begins as the witnesses are called, they understand what the case is about and are, at least, amenable to your client’s perspective on the facts. In short, you want to persuade.
A good opening statement sets the context of the story of the case, such that when jurors receive pieces of evidence during the trial, they fit those bits of information as into the framework you built in your opening. But how best to persuade? Aristotle spoke of three types of persuasive appeal, and these three remain instructive to anyone preparing to open. We examine each in turn. They are:
First consider logos, the attempt to persuade through logic. Many traditional notions of opening statement, like speech structure, fit here. By giving the jury a logical structure to follow, you will better hold and keep their attention. The constructs of storytelling, always critical to effective opening statements, fit here as well. A story has distinct elements: exposition, an inciting incident, rising action, the turning point or climax of the story, falling action, and ultimately, resolution.2 Imagined then through the lens of opening statement, that structure might look like this:
Note that your brief introduction or exposition section should encapsulate the notion of primacy- that starting strong matters- and means that your introduction should include both a clear case theory and a theme that resonates.
Choice of case theory and theme also resonate with ethos, or persuasion through the ethical integrity of the speaker. You want the jurors to believe you and therefor to believe your side of the case. Ethos includes both speaker and speech, though, as for the jury to best believe you, your case theory must also have integrity. That means it needs an internally consistent narrative that also conforms to community notions of common sense. Put simply, the jurors need to be able to relate to it, which means you must consider the community to whom you are opening when shaping your message. Your theme is the value you associate your case theory with, and it, too, must work well within the integrity
of your approach in an opening. Of course, the notion of integrity means more than your message. It means you must comport yourself, both in opening and across the trial, as a person of good faith, hiding nothing, and embracing your case’s weaknesses as best you can, rather than ignoring them. Which leaves with perhaps the most important piece of the persuasive opening, the pathos or emotion in it. Jurors are motivated by the desire to do justice, to do good. In that quest, jurors can be moved to act by their emotions. To make an effective emotional appeal first, look for the humanity in your case, for the people driving the action. An opening with lasting impact centers around the people affected by the transaction, not on the pieces of paper themselves.4 Second, remember that effective delivery matters when it comes to emotional persuasion. Effective storytelling in an opening allows the lawyer to speak from the heart. For the jury to feel that impact, the lawyer should: deliver with passion, without relying on notes; ensure that the tone of their delivery matches the emotion in language of the speech; vary the emotion in the speech so it doesn’t stay in one place too long, and finally remember to use their whole selves including movement, gestures, eye contact, and pauses, to build drama into the
Use principles of logos to guide your structure. Use ethos to ensure that both your case theory and you speak with credible integrity. Use pathos to build emotional impact and effective delivery into your opening. Each will help you build the context of the narrative for the jurors, such that by the end of your opening they will be moved to fit the facts into the strong framework you built for them.
1 Director of Trial Advocacy Programs and Associate Professor, Temple University, Beasley School of Law
2 Ann Aubrey Hanson, 7-Step “Freytag’s Pyramid,” The Writing Itch, August 21, 2014. Available at: https://writingitch.com/2014/08/21/7-step-freytags-pyramid/
3 A similar version of this organization is found in Gerry Powell’s excellent piece on openings. Gerald R. Powell, Opening Statements: The Art of Storytelling, 31 Stetson L.Rev. 89, at 96-97 (2001). 4 Id.
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