The Litigator’s Playbook: No Loose Ends
and No Unanswered Questions

The Design of Convincing and Compelling Opening Statements

by Jeri Kagel, M.Ed., J.D.

As the trial begins, jurors feel as though they have just entered a foreign country. These strangers in a strange land are unsure how to navigate through their surroundings when suddenly someone stands up and talks to them, suggesting, “Follow me, I can help you find your way through this.” They begin to follow when suddenly someone else starts talking and motioning to them, “No, no. Follow me. My way through this is better.” In real life, your jurors have just listened to your, and your opposing counsel’s, opening statements.

Everyone, attorneys and witnesses, convey different parts of a story at trial – that story is your version of what happened and why. Opening statements are the first time you tell your story from beginning to end. Attorneys are much less dependent on “picking the right jury” when they spend time designing a convincing theme and presenting it in a compelling manner that initially engages, and makes the most sense to, a wide variety of jurors.

All good litigators want to be convincing and compelling. It has been my experience, and research shows us, that when jurors hear an effective opening statement, they are swayed by what they have heard and begin leaning toward the conclusion laid out by that attorney. Basically, jurors use an effective opening statement as the lens through which they see and hear the rest of the trial.

When jurors identify with the story you present in your opening, they are more likely to do two things that benefit your case: 1) They will find ways to “fit” whatever they hear from witnesses into the construct you gave them in your opening, and 2) They are more likely to trust you – your innuendos as well as your interpretations of events and your perspectives about the people involved.

The best opening statements use the tools and techniques of good storytellers who know how to put together what gets said (the content) and how it gets said (the delivery) so that dry factual renderings turn into cogent, credible, and compelling presentations.

The most effective techniques used in engaging stories include:

• Setting the stage by using sensory elements (words that connect facts and feelings) that engage your listeners’ hearts and minds;
• Pointing the story to a solution;
• Using a key word or phrase (“theme”) early on that captures the essence of your story and repeating those like headlines throughout your story;
• Sequencing the story to highlight what you think important and what jurors need to hear (“primacy and recency”);
• Letting the jury know how and why to (or not to) attribute blame or responsibility;
• Taking the power out of problematic aspects of your case by diffusing your adversary’s strengths or reconciling the differences;
• Anticipating and incorporating answers to the most likely questions jurors would have, but cannot ask, about your case.

Good stories are not told in a sequential manner that reports the content; instead they are developed around themes that the audience can understand and to which they relate.

Capturing the jury’s attention, and stirring their curiosity, means that there is something in the telling of the story that piques their interest. Remember, as a culture, we are no longer used to doing what jurors must do every day – sit and listen. Your opening statement, like a well-constructed and well-told story, should not lay out the story line in a sequential manner that “reports” the facts. No one will remain interested in, “On such and such day, Mr. Smith did this. Then, on such and such a date, he went here; then they found the body; then they arrested my client; then . . .”

Build your opening statement around a theme. Your theme is a kind of shorthand theory of your case that provides a frame within which you are suggesting that jurors interpret any information presented over the course of the trial. It is a phrase or sentence that is short and simple and easy to remember, such as: “They never gave him a chance to tell what he knew,” or “He had to defend himself,” or “Companies that manufacture this product are responsible . . .” or “They were mandated to build it according to these specs and they did not do it.” Your theme should be something that you repeat throughout your opening, that your witnesses can say during their testimony, and that you will come back to in your closing.

When your theme, or theory of your case, helps your jury understand and organize case information, they will feel a sense of gratitude to you because, like visitors to a foreign country needing a guide, you and your theme have created a map that helps them navigate through the mass, and maze, of conflicting and often difficult or tedious information they will be listening to. Start your trial by giving jurors the sense that you are there to assist them, rather than being an attorney who “just wants to win.” When jurors trust you, you’ve already begun to win!