Opening Statements – The Opportunity to Tell Your Client’s Side of the Story: A 12-Step Guide (Part One of Two)
Written by NITA guest blogger William Webb
When we stand up to provide an opening statement, we want to tell the jury our version of our client’s story. But, how do we tell a story?
Think back to a time when you knew nothing about your case. You are leaning back in your chair, reading the newspaper, your feet on your desk, perhaps. The silence is split by the sound of the telephone. It’s a new client, claiming they have been wronged! But how? They explain, haltingly. You probe with questions. You hang up the phone, confused as to what the case is really about, or if there is one worth taking.
Over the course of the next months, you meet with the client, gather documents and talk to witnesses. Finally, you have a sense of what the case is about. If someone were to list each discrete fact that comprises your case, there would be 937 of them. You are convinced of the rightness of your cause. And so you prepare for your opening statement. Is it OK to just spout the 937 facts, in no apparent order? No, of course not. But how does one marshal the facts into a cogent story that will persuade? This blog post discusses the 12 steps to doing just that.
Your audience will be comprised of human beings. (We’re starting with the basics here.) If you are presenting a case to a judge or arbitrator, congratulations. They are legally trained, and know that their livelihood depends on knowing what is going on in their cases. They will pay attention, and will follow to the extent that they are able. You can lead them to the water. Jurors, on the other hand, do not suffer from the infirmity of a legally-trained mind, and have little incentive to pay attention to every word and follow every argument. They have to be enticed to the water. I am convinced that a jury trial boils down to a continuous struggle to capture and maintain the jury’s attention.
Once at the water, whether anybody slakes their thirst is up to you. But the same technique works no matter your audience. In my experience, the best way to engage someone’s attention is by telling them a story, not by appealing to their reason or intellect, without providing the proper context.
We also have a great tool available to us that you must use in every opening statement: the ability to reinforce our words with visual images. These might come in the form of our body language and movement, a visual timeline, photographs, e-mails with call-outs of critical language, “the” gun, and whatever else we can do to hold the attention of the fact finder.
So, armed with these tools, let’s talk about using them to weave a story that will persuade the jury to act for your client.
This is often easier said than done. You may need to dig a bit with your client in order to craft your opening statement, so that you can see what your story is. Ask them what the case means to them. How has their life or their business been affected by the events leading up to this lawsuit, or by the lawsuit itself? Ask your client open ended questions, and get a conversation going. Let the client lead the conversation as much as you can.
Wherever the story took, or is taking, place, go there. And it may have more than one location. A plaintiff permanently injured in a serious accident may require several site visits. Go to the intersection at the approximate time and anniversary date of the accident. Go to her home to see how she deals with activities of daily living. Go with him to work to see how his job has been affected. Go with her to places she used to enjoy, but can no longer, and talk to her about her memories of teaching her daughter to play golf, of skiing with her son. Only then can you begin to understand the story well enough to tell it.
It is important to tell the story from your client’s point of view. Don’t just tell an alternative story from the other side’s point of view. That is simply re-telling your opponent’s story, which is not persuasive. And this is especially important when your client is a corporate entity. Even companies have stories, and we need to tell them. But we also need to tell the story from their point of view.
If you have attended a NITA program, you know that there are a number of different fact patterns developed in order to practice trial skills. One such case is Jamie Taylor v. Pinnacle Packaging Products, an employment case involving allegations of quid pro quo treatment. The case boils down to “he said/she said” recollections by various witnesses as to whether John Hamilton asked his subordinate, Jamie Taylor, out on dates, only to be refused. Ultimately, of course, Jamie Taylor was fired, and the rest is hypothetical history.
So, if we are representing Pinnacle Packaging, we need to tell its story. Its story involves its founding, several decades ago, and how it gainfully employs people, and has done so for quite some time. 21 years ago, it hired John Hamilton on a probationary basis. Mr. Hamilton worked his way up the ladder and ultimately became the operations manager, etc. One day, Mr. Hamilton received an application by a Jamie Taylor . . . and we’re off to the races.
Notice how that point of view invites the jury to see the case from your client’s point of view, something that is expressly forbidden by the Golden Rule, which says that you can’t ask the jury to put themselves in your client’s position. But there is no rule against telling a story so effectively that it paints an unmistakable picture in the jurors’ minds. Well done; the jury will “see” the case in their mind’s eye, meaning that they will have subconsciously put themselves in your client’s position, just the vantage from which you want them to view the trial.
Remember that the fact finder has no idea what the story is before the case is called. If we want to persuade, we have to explain the story as we go along. We cannot assume or hope that the jury is going to be able to understand the case and the factual nuances to the story – we have to express them. Remember, you have been to the scene; they have not. You have been to your client’s bakery; they have not. You have spoken with the experts; they have not. So you need to build your story like a house. We can’t start building the second floor until we have finished the first floor, and we can begin work on the first floor until the foundation has been poured, etc.
So, when you are crafting your story, think about the tools the jury is going to need in order to understand how the story unfolds. List these tools out, and make sure to give them to jury – before they need them.
For example, one of the factors the jury in the Taylor case is going to weigh is whether she was capable of doing the job. Well, in order to understand that, it will be necessary for the jury to understand that Jamie Taylor is but a wee lass and that the job involves some heavy lifting. It’s one thing to say this – “the job requires some heavy lifting.” But, this statement is not terribly memorable, and therefore not persuasive. What if a juror sneezes or is distracted at the exact point when you utter those words? They have not been persuaded. But, what if we carried on our story begun above:
Members of the jury: You might not know this, but there are companies whose sole role in our economy is packaging. Pinnacle is one of those companies. Other businesses send unpackaged products in huge crates, and Pinnacle opens the crates, and takes the things out. Working on assembly lines, Pinnacle’s employees take these products and put them in boxes, and then they seal them up. Sometimes these smaller boxes are put together into larger boxes, too. This is what a packaging company does, and this is what Pinnacle does. It makes money by quickly, and carefully, packing products. Sometimes these products are light. But often, they are quite heavy, requiring strength to pack the boxes.
Now, the jury knows that the company stays in business by ensuring that its employees are strong and work efficiently. The jury is now ready to hear about how Jamie Taylor did not measure up.
This should go without saying, but don’t skip around when telling your story. Lawyers do this when they remember that they forgot to tell the jury something critical to their understanding and so they have to backtrack a bit and provide some more critical information. It’s better to pepper this information throughout the story in a logical buildup.
Sometimes, in order to do this, there may be several tracks to convey. “Meanwhile, back at the ranch . . ..” You may consider helping the jury by talking about events taking place in one location while standing to the right of the podium, and moving to the left when you’re talking about something going on at another location. But, to the extent possible, keep it chronological. It’s how we have been trained to understand story, The Curious Case of Benjamin Button notwithstanding.
Next week, we will finish up the building blocks to a persuasive opening statement.
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