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Monthly Theme: Opening Statements Part Six

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Opening Statements – The Opportunity to Tell Your Client’s Side of the Story: A 12-Step Guide (Part Two of Two)

Written by NITA guest blogger William Webb

Last week, we talked about the first six building blocks of opening statement.  This week, we will close out with the final six.  I want to start off this post with one of the most important.

  1. Use head notes effectively.

If you tell your story to the fact finder in one long, uninterrupted paragraph without any signposts as to where we are in the story, you will lose them.  Head notes are a great way of keeping everybody on the same path.  Shameless plug: I presented a webinar on NITA’s Studio 71 [link] that goes into more detail than you ever thought possible about the use of head notes in openings, closings, directs and crosses, and I commend it to you – if you learn to use head notes throughout your trial presentations you will improve your advocacy immeasurably.

A headnote is a short persuasive statement as to what is about to happen in the courtroom.  It alerts the listener that we’re shifting gears, but, more importantly, into which gear we’re shifting.  Even, “Meanwhile, back at the ranch” is a kind of head note, isn’t it?  It tells the reader that we’re now going to be shifting our perspective to a different location.

  1. Don’t argue.

At NITA, we’re fond of telling people not to argue in their opening statements.  But we don’t always say why this is to be avoided.  The reason is that in order to argue persuasively, the listener has to actively engage their consciousness to consider the merits of the argument.  And it’s too early for this.  We have not provided the jury with any reason to care about our arguments; they don’t even know what happened, or whose side they are on.

But if we’re telling a story instead, they will be engaged in taking in the events, and wondering what happens next.  So indulge them.  Tell them what happened next.  And then tell them what happened after that.  Lather.  Rinse.  Repeat.

By the time they have heard your entire, well-crafted story, they will be motivated to help you.  They will see the injustice that has befallen your client.  And they will say to themselves, consciously or otherwise, “how can I help?”  Having had their passions aroused, then is the time to argue.  But that comes much later, in closing argument.  For now, don’t argue.  It will literally fall on deaf ears.

  1. Don’t refer to the facts as your “story.”

As much as I love stories, and the concept of story, bear in mind that it has a negative connotation.  While stories themselves have great power to persuade, most people feel that a story is something that is made up, fictitious, and therefore, not “true,” in that things didn’t really happen that way.  So don’t refer to the facts you relay, and will elicit at trial, as a “story.”  You can refer to your opponent’s story as such, though.

  1. Include all elements you need to prove in your opening.

In some jurisdictions, your opponent may be entitled to a directed verdict after the opening statement, so be sure to touch on all elements to at least some degree so as to stave off this approach.  And you might even want to use head notes in order to alert the judge as to each element you’ve ticked off:

Now I want to talk about causation.  You are going to hear from Dr. James Yergler.  He is an orthopedic surgeon who operated on Ms. Johnson’s knee . . ..

  1. Use exhibits and other visual aids.

If you want the jury to remember something from your opening statement, show them something that reinforces the point.  The importance of doing so cannot be overemphasized.  Most of us are visual learners, and are unlikely to understand or remember something that is taught to us only orally.  Confucious said, “Tell me and I will forget, show me and I may remember; involve me and I will understand.”  So by showing the jury something, you involve them to a greater extent, and they will be more likely to remember it, and be persuaded by it.

  1. Involve the jury by showing them how they can help.

So if you want the fact finder to understand your case, you have to involve them.  How do we involve the jury?  Well, we can’t argue with them.  But we can involve the jury in the story-making process.  By telling them a compelling story, we can involve the jury in the story-making process itself.  If the jury’s emotions are engaged and aroused, the jurors will be motivated to provide the happiest ending they can.

So when you finish with your story, you can end your opening statement with a preview of the request you will make after the evidence has closed.  “Members of the jury, if the evidence is just as I’ve laid it our for you, I will ask you to return a significant verdict for the plaintiff.”

Now, time to call your first witness.


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