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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!
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.