Opening Statements for Attorneys (Part II)

Posted on by Faith Pincus

Last week on the blog we shared a snippet on Opening Statements from Faith Pincus’ Being Heard: Presentation Skills for Attorneys, written by Karen Kimmey of Farella Braun & Martel LLP in San Francisco. Karen is a veteran speaker who continuously receives high ratings from our attendees.

The following is Part II of a the three part discussion on Opening Statements. Part I was published last week and you can find it here. Keep an eye for Part III next week!

Part II:
Delivery

Jurors often are quick to form opinions regarding the competence and credibility of counsel.  Aside from voir dire (which is severely limited in many courts), opening statement is counsel’s first chance to make an impression on the jury.  Jurors appreciate counsel who are efficient and respectful of their time, well prepared, credible and easy to understand.

How does a lawyer create such an impression with a jury?  Aside from being well prepared and knowing the evidence, a lawyer’s delivery style and non-verbal behaviors will have a substantial impact.  Every lawyer must determine the delivery style that is most true to himself or herself.  A lawyer who is naturally reserved will look false if he or she puts on a flashy demeanor before the jury.  A lawyer must work to maintain the jury’s interest, but too much drama or too many gimmicks in an opening are likely to fall flat, and potentially draw an objection.  Speak clearly and with conviction – aim for the style of a trusted educator.

While notes are helpful to ensure that all important points are covered, counsel should never merely read from notes.  Practice the opening statement until it can be presented with minimal or no reliance on notes.   In particular, the first few minutes of the opening statement should be completely smooth and delivered without any reference to notes, if at all possible.   Reduced reliance on notes will also allow counsel to make eye contact with jurors and to evaluate how they are reacting.

Research in advance what the judge’s expectations are regarding where counsel can stand during opening, and whether it is acceptable to step away from the podium and move around the courtroom.  If counsel does choose to walk during the opening, the movement should be purposeful and not distracting.  Counsel should be aware of any non-verbal tics or habits that might be distracting to jurors or might communicate shiftiness or nervousness.  Counsel should be very familiar with the rules of the courtroom and facile with all use of visual aids, technology and documents to avoid any fumbling or distractions.

Almost all opening statements of any complexity will generally benefit from some type of visual aids.  Counsel should think carefully about the types of graphics that will be most helpful.  As mentioned above, timelines and bullet point outlines of the topics to be covered can be very useful in helping a jury orient itself to the facts in the opening statement.  Other good options for opening statements include: (1) documents that identify the key players and witnesses by name, and perhaps with a photo; (2) graphics that explain processes or concepts necessary to understand the case; or (3) photographs or actual examples of important evidence (such as a photograph of an accident scene or a sample of a product alleged to infringe a party’s patent).  Beware, however, of using too many visual aids or relying heavily on a power point presentation.  Graphics can lose their power when overdone, and counsel can lose his or her chance to connect with jurors if the jurors are busy looking at a screen exclusively, rather than looking at counsel. Most courts require that the parties confer in advance about graphics to be used during opening statement in order to avoid any objections during the presentation.

Four Classic Ways to Organize Your Speech

Posted on by Faith Pincus

Simply put, there are many ways to organize thoughts, ideas and themes.  Pick an organizational pattern that is right for your presentation.  Here are a few choices:

  • Sequential/chronological: Does your presentation move through a series of points that can be organized in a sequential or chronological pattern?  If so, do not attempt to jump around and explain your points non-sequentially or your audience can easily get lost.  If the points you wish to make or the story you have to relate occurred one at a time, stick to the chronology.  Your audience will follow right along with you.  It’s a lot like that two-page instruction manual that comes with your new electronic device and always goes through each step in sequential order.  Some topics just require this form of organization to be understood: What happened first? What happened second? Then what happened?  And sometimes you can start with the end and work your way back, but you definitely can’t skip around if a topic really needs a sequential presentation.
  • Categorical/topical:  Your main points may be most easily presented by category or topic.  Clearly state what you’re going to be covering during the course of the seminar or speech, give the audience a means to remember it and then proceed exactly as you described.  (For heaven’s sake don’t tell them you’re going to talk about Earth, Wind and Fire and then present it as Fire, Wind and Earth.  Stick to the categories you establish from the get-go.)
  • Compare and contrast: When making comparisons, be sure the comparisons are valid.  Apples are not oranges.  Don’t make the mistake of mixing up the two.  If you want to compare raising a child to raising a domestic animal, you run the risk of alienating the parents in the room.  (Or the pet owners, for that matter.)  But if you hit upon a comparison that works, by all means use it.  The same rule applies to contrasts.  Baseball is similar to football in that both are sports, both use a ball and both employ a points system.  In that way, you can compare the two.  But there are also many ways you can contrast them and examine the differences.  (George Carlin did this famously and to great effect.)  Using comparisons and contrasting examples is a wonderful way to hammer home an important point.
  • Problem — solution:  This is a simple way to both organize and present a speech cleanly and with little digression:  Set up a problem and then offer a solution (or several solutions) to that problem.  Be sure that the problem is one common to most members of the audience (the less obscure you can be the better) and try to offer novel or clever solutions rather than merely obvious ones.  You don’t want to talk down to them.  Within the problem — solution framework, you might, for example, discuss the causes and impacts of problems (such as gambling compulsions or addictions), review past or outmoded solutions that have failed in the past and, finally, provide a new or time-tested solution that is most likely to work.

Opening Statements for Attorneys

Posted on by Faith Pincus

Recently Faith invited one of our speakers, Karen Kimmey of Farella Braun & Martel LLP in San Francisco, to write a chapter on Opening Statements for Faith Pincus’ book,Being Heard: Presentation Skills for Attorneys . Karen has spoken at our programs for many years, including at our Superior Court Boot Camp almost every year since 2011.

Karen’s expertise and ability to teach is what led Faith to invite her to write this topic for her book. We’re reprinting it in portions on the blog, to give you a taste of what is in the book!

The following is Part I of a three part discussion about Opening Statements, written by Karen:

Part I:

Opening Statements

The opening statement is the attorney’s first opportunity to tell the jury what the case is about and what the attorney expects the testimony and evidence will show.  It is also counsel’s first real opportunity to establish his or her themes and build rapport with the jury.  In order for an opening statement to be effective, it is critical that the attorney has carefully prepared, planned, developed, and practiced the opening statement.  The attorney should discuss his or her theory of the case.  The statement should include all of the uncontested facts as well as the client’s version of the disputed facts.  It should be non-argumentative, logical, simple to comprehend, and believable.  In short, the opening statement is storytelling.

Opening Statement Theme

Every opening statement should have a theme.  The theme shared in the opening statement should be revisited throughout the case, and should be reinforced by the evidence.  As a result, it is critical that the attorney is well prepared and has an intimate understanding of the facts, deposition testimony, witnesses, evidence, strengths, weaknesses, and jury instructions.  This intimate understanding of the complete case will help the attorney develop the theme that will assist the jury in remembering and understanding the case from the client’s perspective.

Ideally, the theme will be one that resonates with jurors and is consistent with their existing views on how people act and what motivates behavior.  The theme should be relatable and not legalistic.  For example, a theme like  “this is a case about a defendant who made a promise, but then regretted it and is now trying to get out of the deal he made” is more effective than “this is a case about whether two parties formed a valid contract.”  Even the most complex or technical case should tell a human story.

Opening Statement Strategy

In order to deliver a case winning opening statement, the attorney should be efficient, non-argumentative, trustworthy, persuasive and strategic. As far as efficiency, jurors are often anxious to hear from the witnesses and receive evidence.  In complex cases, the jurors may have been sitting around for days listening to the lawyers dig into their personal history and potential biases.  Candidly, by the time the jury in sworn, they are tired of hearing from the attorneys and prefer to see and hear something else.  As such, it is critical for the attorney to make good use of his or her time by providing the jury with a concise story of what occurred and what the evidence will show.   Counsel should aim to present the opening statement in as little time as he or she realistically can.  Rarely is it advisable to use all of the time permitted by the court for opening.

The opening statement is not argument.  An argumentative opening statement will likely draw a sustained objection from opposing counsel, frustrate the presiding judge, and cause the attorney to become distracted or flustered.  It is also important that the attorney does not oversell the evidence or testimony.  If the attorney is unable to deliver on the oversold evidence or testimony, opposing counsel will remind the jury at closing.  It is best to under-sell and over-deliver.  Of course, the opening statement is also not merely a neutral recitation of facts – it should persuade through a clear and strategic recitation of the facts, not through argumentative rhetoric.

Counsel should anticipate the weaknesses in the client’s case and, if the weakness is admissible, volunteer the information to the jury.  It is important that they jury believes the attorney is credible and honest.  Attempting to hide the weaknesses or the damaging facts may cause the jury to think that the attorney and the client are attempting to pull a fast one.

Before presenting an opening statement to the jury, counsel should review the opening with colleagues and others with little or no familiarity with the case.  If the case is not sufficiently large to justify a formal mock trial or retention of a jury consultant, family members, friends and law firm staff can be excellent sounding boards!  Obtain feedback on the proposed theme.  Push for honest reactions; explore the listeners’ questions and evaluate the effectiveness of the approach.

The What, Why and How of the Final Status Conference

Posted on by Faith Pincus
Jill Kopeiken, Speaker at Pincus Professional Education on the Final Status Conference
28 Nov

Our speakers are always providing our attendees with helpful tips for their practice, and Jill Kopeikin of Kopeikin Law, is no exception. Jill is one of those speakers who provides fantastic handouts for every topic on which she speaks and she is an attendee favorite!  Jill has spoken at many of our annual Superior Court Boot Camps and Federal Court Boot Camps.

Our blog readers can take 50% off our boot camp recordings with the coupon code 50FSC.

For one of our Superior Court Boot Camps, Jill provided a great tip-sheet thoroughly explaining the Final Status Conference (FSC).  If you’d like to take a look at the full list of topics for our recent 15th Annual Superior Court Boot Camp (Oct. 2020), please click on the link provided.

So, there are a few things you need to know and think about when it comes to the Final Status Conference.
Written by Jill Kopeikin of Kopeikin Law

  • First, they’re discretionary:
    • There is no California statutory requirement to have a final status conference, merely statutory authorization. See Rule 4.112 Cal. Criminal Rules (“The Court may hold a readiness conference…”, (emphasis added)); see also Rule 3.723 Cal. Rules of Court (“The court on its own motion may order, or a party or parties may request, that an additional case management conference be held at any time…”
  • Given that, what is the purpose? And what are the typical uses? 
    • Judges use the final status conferences (sometimes called an “issues” or “trial readiness” conference) to:
      • Assess the likelihood of settlement
      • Ensure trial readiness
      • Give the parties a chance to raise any issues that may impact the efficient flow of trial
      • Confirm whether a previously reserved jury will be required.  (Judges always try to eliminate a jury trial where possible.)
      • Identify disputed/undisputed facts
      • Discuss exhibits that may be admitted by agreement without laying a foundation, and those that require a foundation
      • Explain the Court’s expectations about readiness and trial schedule
      • Hear and adjudicate pretrial motions. For example, in a “Readiness” conferences held in criminal cases common motions resolved before or at the readiness trial include:  Motions to suppress; Pitchess motions.
    •  Counsel may use the status conference to:
      • Learn more about the Court’s trial practices and preferences.
      • Raise issues that may affect the timing or flow of trial (e.g., explaining that expert witness needing to be called out of order, or identifying preliminary issues to be raised, or notify the Court of a waiver of jury).
      • Seek the adjudication of any pretrial motions that may not have been resolved
      • Discuss equipment needs and handling
      • Discuss exhibit marking, submission and handling at trial, if not already done
      • Try to engage settlement discussions without showing weakness
  • And lastly, what about the timing & procedures?
    • The timing and procedures associated with final pretrial or readiness conferences vary greatly by county, expedited/short or long cause, whether limited or unlimited jurisdiction and criminal versus civil.  So do not assume that what you did in San Francisco Superior will be consistent with what you will do in a new case in Orange County.  It will not.
    • May or may not be standard within a jurisdiction as between judges.
    • Typically held in the last two weeks prior to trial.
    • May or may not be coupled with a court-supervised settlement conference, or these may be held separately.
    • Typically, the exhibits, motions in limine, issues varying trial order or scope, disputes about significant issues that may impact trial scope, order or timing, will be resolved at or before the final pretrial conference.

We hope you’ve found this list helpful and we encourage you to email us, or comment below, if you’d like more tips like these or have any questions.

Want to know more about litigation? You can find upcoming programs and recorded packages for past litigation boot camps at these links:
To receive 50% off of our boot camp recordings, please use the coupon code 50FSC.

Keeping up suspense … in a good way

Posted on by

We’re taught not to keep an audience hanging, but … well, let me tell you a story.

I once attended a presentation where the speaker used a very unusual technique in a presentation, but being the speak-geek that I am, I stashed it away and have put it to good use myself a number of times. Now I pass it along so more can give it a go — the secret is suspense.

It looked like the speaker had his work cut out for him when it was time for him to begin. This particular audience was full of members of a local chapter of the National Association of Speakers – a professional public speaker association – and we were all busy chatting with each other and catching up when his presentation began. But instead of calling for attention or announcing that he was going to begin his presentation, he began telling a very moving story. He told it well, using pauses, repetition and vocal variety to grab and hold our attention and create suspense.

We were hooked. The story was compelling, and he told it well. We weren’t thinking about listening — we were just listening. When he got to the climax of the story, he had us all on the edge of our chairs waiting to hear what happened next. Just as it seemed he was going to get to the big finish … he surprised us all by moving directly into his main presentation instead of finishing the story.

 

The verbal cliffhanger

You could hear a collective groan from the audience – we wanted to know how the story ended! But he had us hook, line and sinker. For the next 45 minutes or so we were captivated by his performance and when his speech was finally drawing to a close, he returned to his story and finished it for us. It was an emotional, powerful story and you could look around the room and see the impact it had on the audience. Even more importantly, the story he told had a direct correlation to his message, which made the emotional punch of the presentation that much more effective.

So write the word ‘suspense’ and toss it into your mental toolbox. It could come in very handy. But there are a few things you’ll want to keep in mind about getting the most out of this technique:

  1. Have a good, engaging story to tell that builds to a climax and leaves the audience desperately wanting to hear the end.
  2. Be a good story teller! Work on your vocals, your non-verbal cues, your presence and your body movement to help you tell the story well and with impact. (As I have said before, a speaker needs to look for opportunities to hone the skill of storytelling.)
  3. Make sure the story has some moral — some real-world application that relates to the purpose of your speech and helps you reinforce your message.

Once you’ve got the story, the skill and the point, you’ve won the war before the battle has even begun.

Zach B. Shelomith is the latest Featured Speaker!

Posted on by

Zach B. Shelomith is the latest Featured Speaker!

Zach is a founding shareholder at Leiderman Sheolomith, P.A. and focuses his practice on personal bankruptcy matters, corporate bankruptcy matters, assignments for the benefit of creditors and bankruptcy litigation.

Zach has spoken for us on the topic of bankruptcy and brings a wealth of experience and insight to his presentations. He will be speaking at our upcoming program focusing on chapter 11 on December 1st in Ft. Lauderdale.

Jill F. Kopeikin is the latest Featured Speaker!

Posted on by
Jill Kopeiken, Speaker at Pincus Professional Education on the Final Status Conference
14 Oct

Jill F. Kopeikin of GCA Law Partners is the latest Featured Speaker!

Jill focuses her practice on counseling and litigation in the areas of intellectual property, commercial and business disputes, and employment.  Jill has extensive experience in the area of intellectual property, commercial and business disputes and employment.

Jill will be sharing her expertise at our 11th Annual Superior Court Boot Camp in San Francisco on October 14th.

Karen P. Kimmey is our latest Featured Speaker

Posted on by
13 Oct

Karen P. Kimmey of Farella Braun + Martel LLP is our latest Featured Speaker!

Karen is a trial lawyer and partner with Farella Braun + Martel’s Business Litigation, Insurance Converage and Intellectual Property Litigation Groups.  She hass successfully handled nine bench and jury trials and arbitrations and has spent over 400 hours in the courtroom trying cases.  Karen also has experience in all aspects of intellectual property litigation representing clients in the biotechnology, software, hardware and entertainment industries.

Karen will be speaking at our upcoming Superior Court Boot Camp on October 14th in San Francisco.  As you can see she is the perfect person to teach this subject!  You won’t want to miss hearing from her.  In addition to her impressive credentials Karen is always a fantastic teacher and presenter – we couldn’t do this program without her!  Past attendees describe Karen as “Very clear and consise” and “Very engaged and enthusiatic.”

Bethany Woodard Kristovich is our newest Featured Speaker

Posted on by
12 Oct

Bethany Woodard Kristovich of Munger Tolles & Olson LLP is our newest Featured Speaker!

Bethany is a litigation partner at her firm’s Los Angeles office.  Bethany focuses her practice on complex litigation with a particular emphasis in trial work.

Bethany will be sharing her insight and experience at our 11th Annual Superior Court Boot Camp this October 21st in Los Angeles.  If you or someone you know if new to superior court you won’t want to miss hearing from Bethany or the rest of our top-notch panel.  This will be Bethany’s third time speaking at our Superior Court Boot Camp, and for good reason.  Bethany always gets top reviews from our attendees and provides valuable insights.

3 last PowerPoint mistakes to avoid

Posted on by
11 Oct

Final words on PowerPoint — the visual aid I wish we could live without. Check previous blogposts in this series for some help in how to have a less-awful PowerPoint experience. But even after you’ve gotten the right attitude about not using your slides in place of an outline, and after you’ve paid attention to getting the best slides in terms of text, graphics and your delivery, there are still a couple issues that can trip you up badly about integrating PowerPoint seamlessly into your presentation.

  1. Always be sure to test your slides – all of them -– as soon as you get your A/V materials ready. Project them in a large room onto a screen or the wall so you can see them as they will appear to your audience. Besides any last typos, check to see if the colors work, if the type is legible or too small, if your slides are too cluttered, etc. There’s a big difference sometimes between how things looked on your computer screen and how they appear projected up on a screen.
  2. Practice using your slides prior to giving your presentation. Integrate them into your practice sessions until that you can transition without glitches. And work out any other kinks you’re experiencing, or, if need be, re-do your slides to eliminate the difficulties. This is especially critical if you will be presenting in a courtroom. This will help make your presentation smooth and polished.
  3. Make sure you work with your slides, and finalize them, at least a week in advance. You want to give yourself time to make any adjustments necessary. Last minute changes can be difficult and, at times, expensive. Always make sure you give your slide deck to the organizers (if you aren’t using your own laptop) by the deadline they have given. It is incredibly risky — not to mention rude — to email a slide deck to the organizers on the night before a presentation or, worse, to show up at the event and hand a flash drive to the on-site person and expect them to make it all work perfectly for you.