Today we are continuing our series on the art of communicating with a jury during your trial. It starts when you walk into the courthourse and continues during voir dire and everything you do throughout the trial but the next step in our discussion is your opening statement and both the direct and indirect communication that takes place in that phase of a trial.
There have been volumes written about what to say and how to say it in an opening statement so we will keep it short here.
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| From the movie My Cousin Vinny |
First Rule: Never go to trial in a case that you think you will lose. The jury can "smell" a trial attorney’s lack of confidence in their case. If you
think you will lose, you
will lose.
Your confidence in your case must be on display from the very start. It shows in your stance, your demeanor, the words you say in your opening - and
how you say them. By the time you are finished with your opening statement, the jury must have one single "take away" thought - that you believe in your client's case to your very bones.
That level of conviction, displayed solidly and with confidence, will make the jury think to themselves, "if their attorney is that convinced, he must really be right."
Second Rule: Never give a weak opening. No one wants a wimp for a trial attorney. And, just as the jury can smell your lack of confidence, your opposing counsel can smell blood in the water. If you don't think you can win the case, then you shouldn't be in the courtroom with it.
Third Rule: Never promise more in your opening statement than your evidence will deliver in the trial. There's an old business rule that goes something like this, under-promise and over-deliver. That same rule should apply to your opening statement. You have to say enought to make the jury realize that you are probably going to win the case, yes. But you should also hold back a little, so that you can impress the jury with your evidence even better in the trial.
Promise the jury about your evidence, yes. But then over-deliver on the evidence necessary to win your case with an even stronger conviction expressed in your closing argument.
Fourth Rule: Keep strong eye contact with your jury. If possible, try to avoid using any crutches during your opening statement. Nothing spells conviction quite like standing in front of the jury box and delivering your opening statement bare naked - meaning no notes at all, merely telling them what the facts are that you are going to prove and why you ought to win and why your opponent ought to lose.
Fifth Rule: Innoculate the negative evidence before your opponent emphasizes it. Every case has both good evidence for you and bad evidence against you. If it didn't, there probably wouldn't be a trial occuring. So, in your opening you must deal with it.
Don't dwell on it, but explain it away with the same conviction and certainty that you use in talking about your "good" evidence too. You can't ignore it for one simple reason: your opponent will be beating that drum loud and clear because it is all they have got to fight you with.
If you use your opening statement to set the foundation of your personal credibility, then you can begin to build the framework for the jury's acceptance of your truth throughout the trial, as they use your reality of the case to reach their verdict later.
Introduce your trial theme and tell your client’s story in the process. Your trial theme must be appealing, simple and fit the evidence. Most of all, your opening should simply tell your client’s story and explain how the law means that they will find in your favor. "Your favor" is how we put it for one simple reason: When the jury finds in favor of you, they will find in favor of your client.
Ron Burdge
Helping consumer lawyers win cases
for over 30 years.
