Opening Statements for Attorneys (Part II)

Last week on the blog we shared a snippet on Opening Statements from the upcoming book Public Speaking for Attorneys, written by Karen Kimmey of Farella Braun & Martel LLP in San Francisco and Beranton Whisenant of Foley & Mansfield in Miami. Karen and Beranton are both veteran speakers who continuously receive 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:

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.

Opening Statements for Attorneys

Recently Faith invited two of our speakers, Karen Kimmey of Farella Braun & Martel LLP in San Francisco and Beranton Whisenant of Foley & Mansfield in Miami to write a chapter on Opening Statements for Faith Pincus’ upcoming Public Speaking for Attorneys book.  Both Karen and Beranton have spoken at our programs for many years.  Karen has spoken at our Superior Court Boot Camp every year since 2011.  Beranton has spoken at every litigation program we’ve held in South Florida for the past six years.  What champs!

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

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

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.