INTRODUCTION
“The Koran says, ‘A mountain may change its place, but a man
will not change his disposition’; yet the end of eloquence is–is it
not?–to alter in a pair of hours, perhaps in a half hour’s discourse,
the convictions and habits of years.”
How did you begin your day today?
You got up this morning, dressed, grabbed some coffee and attended the first seminar.
OR
The jackhammer busting up cement outside your hotel window jarred you from a sweet
dream you can no longer remember. You stumbled into the icy and erratic shower and hastily
dressed to avoid missing the program on story telling you have been looking forward to. As you
were fiddling with the resistant buttons on your slightly tight-fitting blue jacket, the elevator
opened and a woman welcomed you with the warm smile of a new friend. You thought to
yourself, this isn’t going to be such a bad day after all.
Stories are the way we live our lives. Stories are how we tell our lives to others. Stories
enable us to describe not just our lives, but our clients’ lives and their cases to juries.
Every day, within an hour, sometimes within half an hour, we can be introduced to
people we have never heard of before, drawn into the story of a segment of their lives, hooked
into the building plot, surprised by the motive and conclusion and left with a complete episode in
our heads. Television writers convey all of that information in one hour or less week-in and
week-out. Much like Opening Statements, script writers have 30-60 minutes (including
commercials) to set a scene, establish the perspective, describe the characters, reveal the plot,
build to a climactic point and then wrap it all up in the denouement and conclusion. The stories
they tell are compelling. They grab and keep our attention. We want to know who did what and
why. That is drama! But, drama ain’t just for television, at least not anymore.
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As attorneys, we repeatedly hear that, in order to be effective advocates, we need to be
good storytellers in the courtroom, especially in Opening. But, there are few programs designed
to help us learn how to craft a captivating and persuasive story for Opening. This program
presents suggestions for creating Opening stories that convince jurors early on that your client is
in the right and should win. Just like in television scripts and short stories, we urge you to
thoughtfully decide on the order and the point of view from which to tell the story, descriptively
set the scene, artfully introduce your key witnesses as the characters, develop the plot, create the
conflict and then lead the jury to the conclusion you want them to reach. Employing colorful
language and dramatic techniques will keep your story interesting and thought provoking.
Deviating from the traditional chronological approach will draw the jurors in. Your theme and
conclusion will reinforce how you want the jury to view the facts. The story you create will tie
all the evidence up with a memorable bow, so your client is well in the lead after Opening
Statements. We will work with you, based on the fact pattern on the next few pages, to create an
Opening story, encompassing those elements. Now let’s begin, because courtroom drama ain’t
just for television—not anymore.
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FACT PATTERN
Henderson et al. v. NoPilot Inc. and Harriet Moore
On the night of March 23, 2023, Harriet Moore was celebrating a job promotion with her
coworkers at “Living Right” magazine. As the new editor of the “Party On” section, she had
earned a fancy dinner, including cocktails, in downtown Chicago. Too intoxicated to drive home
at the end of the evening, Harriet engaged the autonomous vehicle mode in her new NoPilot
sedan. NoPilot designs, manufactures, sells and operates autonomous vehicles with cutting edge
technology.
Autonomous cars, also known as driverless cars, are cars with the capability but not the
requirement of operating without an active driver. Harriet Moore purchased her car new from
NoPilot in December of 2022. When in the autonomous mode, NoPilot’s driverless cars operate
using a combination of technologies including lasers, sensors, radar, GPS and cameras to assess
information about the vehicle’s location and surroundings and guide navigation without any
action required from a driver. NoPilot rigorously tested every technology used in its driverless
cars in virtually every kind of weather and driving conditions. NoPilot included prominent
warnings in its manual and on the dash that the driver should disengage the driverless mode and
drive the vehicle in adverse weather conditions, on extreme terrain or when the driver thought it
wise to do so.
The development of the NoPilot driverless car was led by a woman, Joy Johnson, who, as
a child, survived a crash that killed the rest of her family. She vowed to do something
meaningful with her life to honor the family members she lost. She put herself through school
and obtained a graduate degree in mechanical engineering. At NoPilot, she envisioned and
spearheaded the development of an automobile that would obviate the majority of accidents
caused by human error.
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When Harriet Moore entered her car on March 23, 2023, she put the car in autonomous
mode, and instructed the car to take her home while she stayed seated in the driver’s seat. She
could have taken control of the vehicle at any time by simply engaging in normal driving
activity. Moments later, Ms. Moore’s car was traveling west on a road wet from light rain. Dave
and June Henderson and their daughters, Angelina and Jolie, were on a family vacation taking in
Chicago’s tourist attractions. The Hendersons were stopped at a red light when Ms. Moore’s
vehicle, which had attempted to stop, skidded sideways across the intersection and smashed into
the Hendersons’ car, seriously injuring 17 year-old Angelina Henderson, who was in the back
seat without a seat belt.
Angelina, an aspiring ballet dancer, sustained multiple fractures of her legs and hips
resulting in deep scars from hip to ankle on each leg. Angelina’s father, mother and sister
experienced severe emotional trauma from the collision and from seeing Angelina’s injuries.
Mr. Henderson, who was driving, had also had several drinks at dinner but testified he was not
affected or impaired by them. He was not given a sobriety test at the scene.
The Hendersons claim that Ms. Moore and NoPilot were negligent in operating the
vehicle and that one or both of them should have been able to bring the vehicle to a safe and
complete stop before colliding with the Hendersons’ vehicle. The Hendersons also claim the
NoPilot vehicle was in a defective condition due to unsafe design and manufacturing and was
unreasonably dangerous when used as expected. The Hendersons claim NoPilot failed to
adequately test the design in wet road conditions before making the product available for sale
and that the internal alarm system failed to warn Ms. Moore of danger, so she could safely stop
the vehicle or override the autonomous mode.
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Both defendants deny liability. Ms. Moore claims the NoPilot product is defective and is
responsible for the collision, citing the failure of the braking system to work adequately on wet
road conditions and the failure of the vehicle to sufficiently warn her of the driving danger in
time to avoid the collision. NoPilot claims that: (1) the vehicle was properly designed,
manufactured and tested and provided sufficient advanced warning; (2) providing earlier
warning, while technologically possible but expensive, would increase the warning time so little
it would make no practical difference in a driver’s reaction time; (3) that Ms. Moore could have
and should have disengaged the autonomous mode and driven the car herself in light of the
adverse weather conditions but was too intoxicated to do so; and (4) that Ms. Moore’s reaction
time was impaired and caused or contributed to the accident.
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CHARACTERS, SETTING AND PLOT
Legal disputes are stories in tall grass. Liability. Causation. Damages. You know
immediately what these terms mean, how they apply in civil litigation and how they fit into the
story you would like to tell. The average non-lawyer is left to wonder, or more likely not spend a
single moment wondering. What is an advocate to do?
Every legal dispute inherently involves the key pieces a story requires: people who take
action and experience conflict, a series of choices and events that navigate conflict to achieve
resolution, a place for all of this action to unfold and, perhaps most importantly, an audience’s
mental processes that fill the gaps and perceive motivations, needs, desires and more, where they
may or may not exist. Sometimes, these pieces are hidden or at least obscured. Legal disputes are
stories in tall grass. They must be found or uncovered and, while sometimes we simply stumble
onto them, we are best when we look with a purpose. The legal elements that comprise your case
do not simply become story. They do not inherently make sense to your ultimate audience
whether judge or jury. Instead, powerful advocacy requires translation from legal elements to
persuasive story through effective deployment of character, setting and plot to build a story’s
framework and ready it for additional techniques and refinements.
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Characters: More than People…
Nothing embodies ‘detective’ more completely and iconically than Sherlock Holmes. The
hat, the pipe, and the incisive perceptions begin the list of what makes Sherlock Holmes unique,
memorable, and archetypal. A man at the supermarket mentions his friend, ‘Buffy,’ and we
reflexively imagine a vampire-slaying superheroine. Superheroes like Buffy are classic
American protagonists. Darth Vader, the super villain.
Jurors and judges do not often conjure the images of the most well-known fictional
characters when they consider the actors you present in your courtroom drama. They do,
however, identify with the characteristics and features of well-known or archetypal characters
and assign those characteristics and features to your story’s characters. Whether it is an
intoxicated driver defending allegations his negligence caused injury or death to innocent victims
(Darth Vader?), an engineering expert testifying about a product’s design (Louis or Gilbert from
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Revenge of the Nerds) or some other real-world character who finds a role in your trial
presentation, expect your judge and jury to ascribe a familiar character’s traits and behaviors to
the new and unfamiliar character they have just met in your case. Why? It is human nature to
reduce uncertainty and fill in the blanks, and we do so with what is readily available, what we
know best.
Litigators tend to make a few common missteps in the process of turning people involved
in a legal dispute into credible, interesting, and memorable characters in a persuasive story. Your
audience, whether jury or judge, often have common reactions to these three missteps. Below are
three examples including ways you can avoid the missteps and use your characters wisely.
Three Common Character Missteps
1.
Introducing People Too Soon – “Why does he matter?”
People have a backstory and history that are often relevant to why they do
what they do. Characters become relevant in part because of the way their history
and context influence choices they make and actions they take that impact your
story. Whether in a brief settlement statement, or oral argument, litigators are
well-served to reserve the introduction of a person until that character’s choices,
actions, or history become relevant to the conflict at hand.
For instance, in a product liability case against a driverless car
manufacturer, the engineer who helped develop a significant technological
breakthrough may be a central character whose identity and brief backstory are
introduced early in the defendant company’s Opening Statement to enhance the
perception of the inventive product and begin to introduce the novel technology
that is relevant to the product’s performance. To introduce the company
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engineer’s supervisor, her boss, and ultimately the company executive at the same
moment (because it may make sense to introduce the ‘hierarchy’ all at once and
personalize the defendant company) would waste the great opportunity to make
the relevant character – the engineer – a central character with whom the audience
can identify and not dilute that character’s role and impact in the critical moment
she becomes relevant. It also helps jurors and judge keep track of the characters
and make a mental bookmark at the point each character plays a central role.
2.
Refusing to Limit Numbers – “Now which one is she?”
Our short-term memories are limited and judges and jurors often struggle
to remember the cast of characters that counsel thinks is important. Whenever
possible, consider the minimum number of characters you really need to advance
your story and achieve the influence you are seeking. By introducing too many
characters who may not all be relevant, you risk jurors making their own
decisions about who to remember and who to forget. You want them to know
exactly who matters and why. If you do it right, they’ll never forget it. And if
your opponent fails to show the same judiciousness with jurors’ attention, they
will likely suffer from it.
3.
Ignoring Character Valence – “Why did he do that?”
Many of a litigation character’s thoughts, feelings, desires, and actions are
not worth sharing. A few of them are, primarily because some will directly
influence the conflict in or resolution to your story. One piece of character
development that is often absent from persuasive litigation stories is attention to a
character’s shifting valence – the direction of a character’s arc within a given
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event in the story. Notorious screenwriter Robert McKee describes this as noting
the opening and closing value of a character’s situation and describes an effective
scene as eliciting change between a character’s valence at the beginning of a
scene compared with the end.
For instance, an effective scene moves a character from hopeless to
hopeful through the actions in a scene. Imagine the main character in the 2014
film Whiplash. At the moment ‘Andrew’ loses the critical folder of sheet music he
is hopeless, but just a short time later he is sitting first chair on the drums in the
studio band. This change in valence of the character’s state keeps interest, creates
suspense, and illuminates why a character takes action or responds to events. A
hopeless Andrew behaves differently than a hopeful Andrew. A character who
digs through the garbage is perceived differently than a character seated at a white
tablecloth being presented a bottle of red wine.
In a litigation story, we can use a character’s valence to help a fact-finder
fill the gaps in ways that benefit our version of the telling. For instance, in a
refinery explosion case we may first meet a refinery worker just after an argument
with a supervisor when a pipe blows and a significant explosion occurs. For many
storytellers, this argument will be a relevant factor to include in the story. It may
communicate important context about the worker or the supervisor that is relevant
to liability – after all, a refinery pipe explodes. The worker begins the ‘scene’
upset, down on his employer/supervisor, a negative valence. He’s just had an
argument. His blood is pumping and he is not focused. That is where he begins a
critical moment in the case.
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It is just as important to demonstrate the closing valence of that same
character when the critical scene is finished. A refinery worker who apologizes to
his supervisor for the argument then works until 2 a.m. to resolve the blowout is
perceived differently than a refinery worker who continues to shout at co-workers,
avoids collaborating in the aftermath, and gets sent home before the end of his
shift. Both types of subsequent behaviors may be relevant to the story, and each
gives a much different sense of the character and the perception of the overall
events. Work these facts into your story.
Help jurors and judges perceive central characters the way you want them
to by showing them how a character’s change from the beginning to the end of a
scene demonstrates the core value of that character: tough worker who did not
dwell on a bad moment but instead rose to the challenge to ultimately do the right
thing (OR bad seed who was misbehaving before the explosion and responded
poorly afterward).
Setting: Another Character
In the first season of HBO’s True Detective, it is difficult to ignore the sweeping images
of head-high grass swaying in the wind and Spanish moss dangling over Louisiana backroads.
The scenes leave an impact on viewers for many reasons, not least among them is the haunting
cinematography of a place overwhelmed by its natural characteristics. The images create mood
and communicate context. They create a creepy feeling so well-placed in the true crime series.
Setting (which includes more than just location, but also time, breadth, period, length, etc.) has
impact not just on the audience’s perception of the setting, but ultimately on the way the rest of
the story is received.
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It should go without saying that people are not the only significant actors in your story
and any time you consider your story’s central characters, you should consider setting. Consider
a few examples from typical civil litigation scenarios.
1.
Let Them Hear the Bees Buzz
In a typical breach of a non-solicitation agreement, the plaintiff is a
business consulting company operating in a growing and highly competitive
niche. Every employee who walks out the door has an opportunity to work for a
competitor, so protecting personnel assets is critical. As you develop the story of
the plaintiff company’s case against a former executive, you might consider
candidates for the central characters: the departing employee (the bad guy), the
manager who signed the agreement on behalf of the company (the witness), the
solicited employees (the proof), and more.
Do not forget the place. A key factor in persuading any fact-finder in this
case, especially a jury, is establishing that the setting did not only justify
protecting the personnel the company recruited, hired, paid, trained and more, but
required it for the lifeblood of the company. Plaintiff’s counsel would want to
establish a clear story of the business setting, a vibrant and growing place
dedicated to finding and retaining top talent; a business based on its ability to
continue to train and maintain the most talented people in the niche.
The place urges the audience to perceive the plaintiff company’s motive
and the business differently. Just as much as the other elements of a story, setting
can provide context and motive for characters’ actions and can contribute to an
overall sense of not only what happened, but why. Imagine the various ways you
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could present such a setting, describing its physical and electronic design to
accommodate speed and fast-paced activity, the smells of late night coffee, the
sounds of a busy day in such an office, the ways in which employees thrive in the
competitive atmosphere, the movements that accompany celebrated victories and
defeats suffered. The approaches are myriad, and can be far more interesting than
simply having a witness ‘describe the workplace,’ with the added benefit that
neuroscience research shows using novel sensory descriptions (smells, sounds,
and movements for instance) stimulate more and different brain regions than if
such descriptions are omitted, a response that increases attention and engagement
in the story and helps jurors perceive the story’s events from your characters’
perspective.
2.
Let Them See What Condition Your Conditions Are In
Deposing the weatherman may be going a little far but consider a personal
injury claim against a trucking, boat rental, or driverless car company in which a
plaintiff has been severely injured in an accident during less than typical
conditions on the road/water. While it may be obvious that the setting plays some
role in the story, consider how much and in what ways you can elevate it to a
central character. We have seen the central role of setting and its conditions play
out over and over in jurors’ and mock jurors’ own case narratives: “It was still
dark so visibility was low,” or “I’ve driven at that time of day and it is not easy to
see,” or “It was so dark that the lights would have illuminated the road,” and on
and on. Whether plaintiff or defendant in a case like this, consider the various
ways of placing the climate, conditions, visibility, and other setting-related factors
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at the center of your case. And do not assume that your entire case theme should
not rest on such critical factors because they can help jurors decentralize ‘blame’
(i.e. for a defendant asking jurors to see the harmful events as an accident) or
potentially increase the burden to protect the innocent (i.e. for a plaintiff asking
jurors to believe a defendant’s knowledge of weather- or conditions-based risk
enhances its liability).
Get creative with demonstrative exhibits, incorporating changing weather
conditions into a visual story (timeline or infographic) to illustrate how quickly
(or slowly) the conditions changed, how much notice a party had of the risks, and
more. Alternatively, a demonstrative graphic visually illustrating how and when
visibility changed (i.e. darkness, before sunset, sunset, full sun) can be a powerful
way to tell the story of events with great emphasis on the setting and conditions.
Plot: Be Sure It Thickens
“Savvy trial lawyers know that just matching the facts to the elements isn’t story. They
know that talking about the parties, running through the witness list, and previewing
what they expect the evidence to show isn’t story. Beyond that, though, even walking the
jury through the facts as they occurred also isn’t story – at least not if that sequence does
not feature the dramatic elements that tell us what we’re hearing isn’t just chronology,
but is instead story. Effective advocates avoid the “nominal narrative,” and instead ask
what is going to provide the feelings of drama and depth. The central question is this:
Would it hold the attention of those who aren’t required to listen to it?”
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Dr. Ken Broda-Bahm makes the good point that a series of facts and events told in
chronological order do not a story make. Neither is it enough to have interesting and motivated
characters or highly-involved settings. Instead, story requires purposeful choices made to present
key facts and events in a sequence that conveys meaning. Look no further than Christopher
Nolan’s well-known film Memento – whose story is revealed in reverse – to understand both the
options available and the importance of purposeful choices to reveal a story’s events. This is the
essence of plot, a term defined and often maligned in a variety of ways depending on the source.
One central aspect of plot, however, is the need to thoughtfully design the revelation of key story
elements to the audience. Many of those key elements are inherent to lawsuits.
Conflict
Every litigation has conflict and in every compelling story exists the tension that makes
the story worth telling. In litigation, the conflict varies widely and is usually quite specific in a
given case. The conflict is between greed and morality when the driverless car maker chooses to
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manufacture an unsafe car design because it saves money. The conflict is between safety and
danger when a physician chooses a more risky response to a surgical complication because her
patient chose to ignore recommendations to stop smoking. (More on this in the next section.)
Arc
Separate and apart from the micro-level valence within and across specific characters and
scenes in the course of a story’s action, well-designed stories also have direction or arc. The
story as a whole moves toward something and away from any number of things. This global
direction, often described as ‘rising action’, is the momentum created by the story’s overall gist
that moves toward the climax. A driverless car company begins its novel design process with
high hopes that it can design and manufacture the safest and most revolutionary car in American
history until budget constraints limit options and create some difficult choices. At that turning
point, the company chooses the wrong path. A medical malpractice plaintiff begins treatment
with optimism that doctors’ orders will halt his disease process until, overwhelmed with stress,
he fails to comply with key orders that put his own health in jeopardy. At that turning point, he
makes the wrong choice and heads down the wrong path.
Distress
Something must prevent or impede the rising action and create tension. The best stories
show the audience’s distress to help make clear exactly what needs to be resolved. The driverless
car company faces a key decision – the type of decision that does not happen only once in a
company’s history: does it prioritize profits or does it prioritize safety? A safer choice may be
better for consumers, but it may not. The margins are miniscule. The saved costs allow the
company to enjoy greater profits. But is it the right thing to do? The distress is obvious and
compounded by the fact that it effectively communicates to the fact-finder that the appropriate
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resolution (i.e. the verdict) should send a message to the company that there is no decision to
make. Always choose safety. A medical malpractice plaintiff could have done the right thing –
complied with doctors’ orders to stop smoking and reduce the risk of a known surgical
complication. The same plaintiff could have chosen to do the right thing in the aftermath of a bad
outcome. Instead, we are here, defending a good doctor’s name in a malpractice lawsuit.
Resolution
In story, resolution is a relatively simple concept. It is the way in which the story’s
conflict is finally resolved. In litigation stories, the resolution is often left in the fact-finder’s
hands. They are tasked with the job of determining how the story will ultimately end, in part
because the verdict itself changes the story’s final arc. Used well, litigation stories often create
levels of resolution that help jurors and judges see first how the conflict’s current resolution is
incomplete, unfinished, or unjust. That existing failure to effectively resolve the conflict
motivates the action you are asking for in trial.
The victim of a driverless car accident sits in rehabilitative therapy three summer nights a
week, struggling to improve after suffering significant injuries and still unable to dance after two
years since the crash. Better care, increased rehabilitation efforts, and more resources will help
get over the hump.
A physician-defendant in a medical malpractice case worked diligently to care for the
plaintiff in the best way possible given the significant health concerns and challenging health
issues. That physician has been rewarded with a lawsuit, becoming a defendant, and being forced
to explain himself and his care. That is not resolution. Resolution is letting the good doctor get
back to his good work unhindered and unburdened.
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Plot is a plurality and by reading or hearing any resource on effective storytelling, you are
bound to encounter conflicting advice on what plot is, how it is best developed, and what it
ultimately means for your story. What is more clear, however, is that if plot is anything, it is a
purposeful presentation of choices about how, when, and why to reveal a story’s moments in its
telling. When it comes to characters, setting and most of all plot, perhaps the most important
advice is to always have a purpose for the choices you make. Choose to introduce a character at a
particular time for a reason. Know why you are or are not emphasizing an element of your story
in its telling. Determine with purpose where your story begins, ends, and whether and how it
includes the telling of any or all the events in between. Find your litigation story in the tall grass
because you are looking.
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CONFLICT
Almost all great stories involve conflict. Whether it is the epic struggle of Odysseus
against the gods while trying to return home after the Trojan War, or Beowulf slaying the
monster Grendel in the mead hall, or the Jedi using the Force against evil in a galaxy “far, far
away,” audiences love stories with conflict. How will the hero prevail? What will happen?
Why is the antagonist being vengeful? The conflict is the literary convention that grabs the
audience’s attention and keeps it.
Trials are by definition adversarial, so conflict is in many ways a natural and perhaps
inevitable device to incorporate into every Opening Statement. But how you use or capitalize on
the inherent conflict between your client and your opponent is often what distinguishes a good
Opening from a mediocre one. Conflict is almost never as simple as good versus evil. Like all
good stories, the conflict that led your client to be in the courtroom is inevitably complex. There
may be external conflicts, as well as internal conflicts. Your job as the storyteller/advocate is to
try to persuade the jury to your side, and to do that, you need to be mindful of three principles in
dealing with the conflict.
First, you have to make the conflict understandable. A jury is not going to be interested
in resolving your case favorably, if they can’t even understand what it is all about. You have
been living with your case for a very long time---probably for years---and talking about the
complex commercial dispute or the engineering behind the product may be second nature to you,
but to the jury, it will seem daunting. You have to give them a simple explanation of what the
case is about. To do this, you have to eliminate the jargon and lawyer language, and talk to your
audience as if you were talking with your friends over coffee or a drink, and they asked what
your case was about. You have to make it simple, and keep it interesting. Talk in plain
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language. Consider using visuals, if the Court will permit, to explain complicated relationships
or key language from a contract. You want to make sure that when you are done with your
Opening Statement, the jury has a clear understanding of what the case is about from your
client’s perspective.
Second, as a storyteller/advocate, you have to get the jury to identify with your side. To
do this, you have to consider what facts you will emphasize, how you will describe your client,
and how you will appeal to their sense of justice and fairness. You have to characterize the
conflict in a way that the jury will see it from your client’s perspective. For example, if you are
representing the driverless car manufacturer, you would want to emphasize that Harriet Moore
had the responsibility to disengage the driverless mode when the weather was bad, but she failed
to do so because she was drunk. Your client, the car manufacturer, acted responsibly. It tested
the new technology rigorously, but it cannot insure the driverless mode will work perfectly in
adverse weather. It therefore prominently displayed warnings in the manual and on the dash that
the driver should disengage the driverless mode in bad weather. The accident was the result of
Ms. Moore being too drunk to heed the clear warning.
Third, the storyteller/advocate must address the question of how this conflict can be
resolved? This, of course, is the jury’s job. A powerful Opening Statement will not directly try
to tell the jury how to do its job, but it will provide enough facts about the conflict to make the
resolution appear compelling. You have to present your side’s case in such a way that it will
appear to the jury that the only fair way to resolve the conflict is to return a verdict for your
client. We all know that in the Opening Statement, a lawyer cannot technically argue. So, you
have to achieve this result by the powerful way you tell the story. The use of impactful
language, your voice, your story. You want the jury to feel there is only one way to resolve the
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conflict/tension, and that is by siding with your client. The jury has to feel a sense of justice and
understand the principled way to resolve the conflict is to resolve it in your client’s favor.
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THEME
In the trial context, theme is generally thought of as a pithy statement of why your client
should win. Your theme can be grounded in the facts, the law, or the facts and the law but, in
Opening, it needs to be conveyed in non-legal, layman’s terms that will resonate with the jury.
The memorable phrase or succinct paragraph that encapsulates your theme and resonates with
the jury is often referred to as the “silver bullet” or the “grabber.” If crafted properly, your
succinct thematic statement will stick in jurors’ minds like a catchy advertising slogan. The trick
when you are creating an Opening that tells a story is to wrap your catchy thematic “silver
bullet” naturally into the story line and, if possible, to do so at the outset. Saying that is much
easier than doing it.
The best place to start in developing your case theme is to list, in a simple and straight
forward fashion, the reason(s) you think your client should win the case. In a case where a car
and train collide, for example, the plaintiff might list the facts that the train whistle did not blow,
there was no crossbar or other warning and by the time the plaintiff could see the train coming,
there was not enough time to stop. The defendant, on the other hand, might list the facts that the
train and warnings always run like clockwork, the whistle blows at exactly 2:55 p.m. every
afternoon at that intersection, the crossbar descends automatically as the train strikes the track
500 yards away and the train is so large no one could miss it.
Next, work to turn the best reason you should win the case into a memorable phrase,
analogy, metaphor or other form of expression that will resonate with the jury and wrap that into
the story you want to tell. For the above example, you might consider a “silver bullet” for the
plaintiff like: “No whistle, no warning and no way out. On October 15, 2013, when John Jones
approached the railroad tracks, there was no whistle, there was no warning and there was no way
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out.” Or, for the defense, “Mary Kelly lived right next to that railroad crossing for 30 years.
Every day she heard the train whistle blow at exactly 2:55 p.m. as the train approached the
crossing. One long, two short, one long. She heard the crossbar clang into place at exactly the
same time. She saw the train as big as life from her window. Every day for 30 years. One long,
two short, one long. She set her clock to it; she fed her dog by it; it never failed. And it did not
fail on October 15, 2013.”
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MOTIVE
The art of storytelling involves playing to people’s natural curiosity. A good storyteller
knows that to keep the audience’s attention, you have to appeal to
their curiosity. Charles Dickens understood this principle well.
His novels were published in weekly or monthly installments, and
he kept his readers salivating for the next installment by keeping
them curious as to what would happen next. The same principle is
used by any film-maker who plans a sequel. How often have we
gone to see a movie, and felt anguish when we realized that the
producer ended the film with a cliff-hanger, which would not be
resolved until the next sequel?
One aspect of our natural curiosity is our quest to know why people behaved the way
they did. In other words, what was their motive? Understanding the motive helps us put the
story into a framework that makes sense. That is all part of the advocate’s job: helping the jury
or Judge to make sense of the facts.
In criminal trials, the motive of the defendant is often a key element of the story. Even
when it is not an element of the crime, prosecutors often try to explain the motive of the
defendant, because it helps the jury understand why the defendant acted the way he did. For
example, it might be critical to the prosecution’s case to prove that the husband killed his wife
because he wanted to collect on her life insurance policy. The motive puts the facts into a
framework that allows the jury to understand that the husband acted out of greed. Similarly, it
might be important to provide a motive for a defendant accused of robbing a bank. If the jury
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understands that he had an expensive drug habit, it provides a framework for understanding—not
excusing—the defendant’s actions, and making it more likely that he is guilty.
In civil trials, there is no requirement to prove motive. But, it usually helps the factfinder fit the sequence of facts into a framework that makes sense. For example, if you are
defending a product manufacturer in a product liability action, and one of your themes is that the
plaintiff misused the product, it may be more persuasive if you can develop the theme that the
plaintiff was in a hurry on the day of the accident and cut corners on the safety guidelines when
he used the product. On the other hand, if you are representing the plaintiff in a product liability
lawsuit, you may want to emphasize the theme that the defendant was under pressure to get the
product to market, and it cut corners with respect to safety testing because it was anxious to reap
the profits. In either scenario, the fact-finder will recognize that when people are in a hurry, they
sometimes intentionally take short cuts. By explaining the motive, you have made the story
understandable and established a theme to which the jury relates.
Your presentation of motive can be quite subtle. You don’t have to connect all of the
dots for the jury. Instead, it is often more powerful for the advocate to allow the jury (or the
Judge) to reach the conclusion. A strong advocate presents enough facts, told in an impactful
manner, to give the jury all the tools it needs to side with your client. Like a reader of a good
detective novel, sometimes the audience prefers to reach its own conclusions on motive. But, the
storyteller has to provide the details for it to do so.
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ORDER/SEQUENCE
The most common order of Opening Statement is chronological. As lawyers, we want to
make sure everything is clear, easily understood and readily remembered by jurors. Proceeding
chronologically seems to us to be the best method to achieve that goal. It is logical, orderly and
we can fit all the information in. We can even reinforce it with a timeline. Alternatively, we
occasionally frame our Openings topically or categorically, carefully covering witnesses,
experts, exhibits and damages.
But, television dramas rarely unfold chronologically. They captivate the viewer by
starting out at the end of the story and working backwards or starting in the middle and jumping
around, only tying everything together at the conclusion. We can learn from television dramas
and make our Openings far more interesting by starting and moving through the story in a nonchronological format, as well as exploring different perspectives and points of view.
What are some of the options for the order of the Opening?

Start at the end and then move to the beginning.

Start with the climax and then unveil what led to it and how it has or should
resolve.

Start with the history of a key person or a product or contract as it was conceived
or developed.

Start with the perspective of your key witness.

Start with your expert’s research, testing and opinion and weave it into the story.

Start with a thematic analogy or metaphor and develop the story around it.
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
Start with your most difficult challenge, such as explaining why something bad
happened, the motive underlying someone’s action, the psychological state of a
critical player or the beliefs or feelings expressed by the other side.

Juxtapose or compare two critical scenes in a way that favorably portrays your
client’s thoughts and actions.

Describe the history or background of the other party that subtly reveals the
reasons they brought or are defending the claims as they are.
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POINT OF VIEW
In deciding how to tell your story in the most effective way, you have to consider what
point of view to use. Different points of view create different emotional responses. For
example, in a wrongful death case, consider how powerful it is to talk about the empty chair at
the dining room table, the empty place on the high school bleachers where the father used to
watch his son play football, and the daughter’s wedding where there was no one to walk her
down the aisle.
Lawyers typically use the third person narrative style. It is often an effective perspective
because it allows the storyteller to assume the omniscient point of view. In the example above,
the third person narrative style allows you to talk about the dining room table where there is now
always an empty chair, and later talk about the events the father will never attend.
But, sometimes it is more effective to assume the point of view of one of the characters.
For example, in the driverless car scenario, think how powerful it is to assume the point of view
of Angelina: the ballet aspirations Angelina must now abandon, the years of physical therapy
that she faces, and the revulsion she feels when she looks at the scars on what were once her
shapely, strong legs. Telling the story from the point of view of Angelina helps the jury see the
conflict, and understand the significance of the injuries. It also allows the advocate to paint a
vivid word picture, because almost everyone relates in some way to broken dreams.
The point of view that you choose depends on your case and what your witnesses will
say. But a good storyteller/advocate considers several different points of view before deciding
on the one that creates the most impact and will keep the jury’s attention. The point of view is
one of the arrows in the storyteller’s quiver, and it should be chosen wisely.
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TONE
The tone that you use in your Opening Statement is a critical component. The tone sets
the mood, and also has a big influence on your rapport with the jury. As observed above, you
want the jury or the Judge to relate to your case, and view you as credible in helping them to
understand the case. The jury and the Judge will understand that you are an advocate, but if you
overstate the facts or promise more than you can deliver, they will not view you as credible.
Similarly, if you try to go to extremes with the tone, you may lose credibility. First,
never talk down to the jury. You must treat them with respect and show that you understand
their role. You don’t do this with a civics lesson, but simply by talking in a respectful tone that
recognizes they are smart and blessed with common sense. Jurors often complain that lawyers
treat them as if they are stupid, relying on cumulative evidence and talking to them as if they
were children. When you eliminate the jargon and the lawyer language, you have to be careful
that you don’t reduce your story to an elementary school perspective. A simple story is not the
same as a simple-minded one. The jurors are adults and expect to be treated respectfully while
they give up a significant amount of time to listen to your case.
Second, don’t try to make them cry. Most of the commercial cases we try wouldn’t lend
themselves to a tearful response anyway. But the point is, you don’t want to overplay the
emotion, at least not in Opening Statement. You want to create enough empathy to capture the
jury’s attention, but your main goal should be to appeal to their reason. That is how they will
decide the case. And most jurors in civil cases do not want to feel they were manipulated into an
excessive emotional response. You want the jurors to identify with your client, and feel some
emotions for your client, but to feel empowered to apply their common sense and reason to reach
a verdict for your client. If you are trying to make the jury cry in the Opening, you need to think
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about whether you should save that for the Closing, after you have put on solid evidence
justifying the sympathy or emotional response.
Another tone to avoid is one of self-righteousness or being overly moralistic. Again,
your goal is to persuade through your storytelling, drawing on your choice of words, the creation
of the plot, description of the setting and characters, the point of view and clear presentation.
Your job is not to lecture or pontificate. You must keep in mind, it is the jury’s role to decide the
facts and reach the conclusions. You can’t show respect to the jury if you are appearing to
instruct them how to act, or worse yet, harangue them into a verdict for your client.
Overall, the tone should be respectful to your client, respectful to the jury, and respectful
to the process. That is not to say that you should begin by thanking the jury for their service, or
pandering to them in any way. Instead, you convey that tone by being prepared, being serious,
showing your humanity and demonstrating an understanding of the powerful art of storytelling.
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POWERFUL LANGUAGE AND LITERARY TECHNIQUES
Although it may not be immediately apparent when you are watching a television drama,
the script is replete with active verbs, colorful descriptors and other examples of the powerful use
of language. Because the jury is focused on what you are saying in the Opening Statement,
rather than on characters or scenes that appear before them, your use of powerful language and
strategic employment of literary techniques is all the more important. Set designers, make-up
artists and camera professionals can do much to add to the story that unfolds before the eyes of a
viewing audience. You must serve all of those roles and more to help the jury envision the
scene, characters and story as you want them to.
The practice of law has stunted lawyers’ vocabulary and replaced active verbs,
illustrative adjectives and compelling adverbs with legal jargon, which is meaningless to most
jurors. How do lawyers claw their way back? By putting themselves into their client’s story,
visualizing, hearing, smelling and feeling what it would be like to be there and then describing
that in the Opening. Instead of a driver who failed to exercise reasonable care in inclement
conditions resulting in a fatal collision, paint the scene of a driver flying down the highway past
one creeping car after another only to slam on his brakes, spin like a toy top, careen into the
median with a thunderous clash of metal and mortar and collide with the life and future of an
anxiously expectant mother holding an ultrasound photo of her baby boy on her lap. Or, as the
driverless car fact pattern suggests, tell the story of the young woman who, through sheer grit
and determination, survived the crash that killed her other family members, swore to dedicate her
life doing something meaningful in their memory, struggled to put herself through school to
become a mechanical engineer and, after decades of trial and error, developed a driverless car to
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eliminate the human frailties that she observed causing fatal crash after fatal crash. The words to
use flow from putting yourself in the scene and experiencing it.
OUR TIPS:
Use active verbs: As opposed to “his car was struck by the defendant,” try “the front
fender punctured his driver side door and folded his small car in half.”
Use descriptive verbs: Slouched rather than sat; scurried rather than walked; lunged
rather than moved; studied rather than looked; screeched to a halt rather than stopped.
Use adjectives and adverbs that paint a picture or portray what happened: Blinding
white light; the erratic gait of a distracted texting teen; the methodical approach of a scientific
perfectionist; meticulously testing the device over and over and over again; courageously forging
ahead with a concept that would catapult the safety of cars beyond anyone’s imagination.
Employ literary and stylistic techniques:
Alliteration – using the same letter or sound at the beginning of adjacent or closely
connected words:

mangled metal and mortar

meticulous, methodical mastermind

serious, sincere scientist

drunk, distracted driver
Analogies/Similes/Metaphors – comparisons between two things usually to illustrate
their likeness:

“Life is like a coin. You can spend it anyway you wish, but you can only spend it
once.”
Antithesis – introducing two opposite or contrasting propositions:
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
“And so my fellow Americans – ask not what your country can do for you but
what you can do for your country.” John F. Kennedy
Ellipses – a leading statement followed by a slight pause or deliberate silence:

“And then, when you would have expected a sound, a whistle, a warning, there
was . . . nothing.”
Hyperbole – unreal exaggeration used to emphasize the real situation:

“That excuse is as old as time.”
Juxtaposition – contrasting one thing with another:

“It was the best of times, it was the worst of times, it was the age of wisdom, it
was the age of foolishness . . .” Charles Dickens
Parallel Structure – two or more words, phrases or clauses structured similarly in length
and form:

Dogs are loyal, loving and obedient.
Memorable Phrases – using a phrase that resonates and is easily recalled:

“Learn from yesterday, live for today, hope for tomorrow. The important thing is
not to stop questioning.” Albert Einstein
Repetition and Refrain – using themes or concepts several times, like a chorus:

“The woods are lovely, dark and deep
But I have promises to keep,
And miles to go before I sleep,
And miles to before I sleep.”
Robert Frost
Rhetorical Questions – asking a question to make a point rather than elicit an answer:
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
If it was tested, where is the data?

If it was studied, where is the research?
Tricolon – a series of three words, phrases or concepts:

Government of the people, by the people, for the people. Abraham Lincoln

Their plan was well-considered, well-developed and well-executed.

The erroneous concept was concocted; the urban myth then developed; the
inaccurate legend lives on.
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GRAPHICS
Appropriate graphics or demonstrative exhibits add much to an Opening. They can often
depict a scene, a product, an operation or even aspects of a deal far better than innumerable
words. Telling a story in Opening does not mean you cannot or should not use graphics. To the
contrary, graphics serve to augment, clarify and emphasize points in your story. A timeline may,
in fact, afford you greater flexibility in straying from a chronological narrative than telling the
story without one. A timeline provides the opportunity to describe certain events that fit your
storyline and, at the same time, allows the jury to see where those events fit in a more linear
sequence. Photographs, diagrams, charts, videos, timelines and other graphics can and should be
included in a story-based Opening.
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EDITING/SELECTIVITY
Telling an effective story in Opening depends on your willingness to be selective and edit
your Opening multiple times. You cannot describe every witness, exhibit and event. You must
pick and choose which are the most critical to telling a persuasive and winning story. You must
also be willing to review and edit your Opening until you achieve the order, perspective, tone,
flow, language and cumulative effect that conveys the story in the most moving and meaningful
way for your client. Start early and allow enough time to create the Opening story you want to
tell. Once you delve into it, you will find yourself enjoying the effort and looking forward to
delivering it to a jury.
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CONCLUSION
Trial lawyers pay lots of attention to how they conclude their Closing Argument but do
not always give as much thought to how they should end their Opening Statement. Yet, it is
crucial to finish the story at the end of your Opening Statement much like a television drama
brings everything to resolution at the end of the hour. You do not want to have the jury hanging
in suspense or wondering what you want the outcome to be. Although you cannot argue, it is
your job to give them a clear sense of direction at the end of the Opening, not only explaining
how the story resolves but conveying through your compelling conclusion what their verdict
should be. The conclusion should be strong, clear and firm, if not emphatic. Leave no doubt that
there is only one right result for the case.
One of the most effective techniques for the end of the Opening is to echo the thematic
refrain you started with. It creates a bookend effect matching the introduction and conclusion of
your Opening. While the temptation may be to be more direct and pointed, try to stick to your
story and keep your conclusion in keeping with the story you have told.
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VOICE PRODUCTION SKILLS
The sound of your voice often has more impact than the actual words that you speak or
the content of what you say.
BECOME AWARE OF YOUR VOICE!
There’s only one person who hears your voice as you do, and that’s YOU. Everyone else
hears it after it has left your voice production mechanism and has gone into the air out of your
mouth. Everyone else hears your voice the way it sounds when it is recorded. Few people are
confident and comfortable with the way they sound when recorded but there are things you can
do to improve the quality and carrying power of the sound of your voice.
HOW DOES A VOICE MECHANISM WORK?
Your larynx is the hollow group of muscles that sits on top of your windpipe, which is
connected to your lungs. Your larynx contains vocal folds, or cords, which open during breathing
and close during swallowing or speaking. Air, which flows from your diaphragm past your vocal
cords, enables them to vibrate and to create sound. Remember that your sound begins with the
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breath. Breathing correctly is essential for a good, healthy sound. You cannot achieve a resonant,
healthy, carrying sound without proper breathing, and proper breathing begins with good
posture.
WHAT IS GOOD POSTURE?
How you look when you stand, sit, and walk makes a distinct impression. Good body
alignment is essential in making a good impression and in breathing properly to support your
speaking voice.
Good posture is the correct alignment of body parts so that the body is supported by the
right amount of muscle tension working against gravity. Muscles and ligaments work together to
keep the body upright and in balance. Not only does good posture look good and support the
breath properly, but researchers have found that standing with good posture actually gives you
confidence in your own thoughts.
When standing, weight should be on the balls of the feet, shoulders rolled back and down
comfortably and the head positioned level as if it is “floating” above the top of the spine. Knees
should not be locked but ever so slightly bent with the entire spine allowing for its natural
curves. Stomach and “core” muscles should be engaged and hips should be centered without
pushing forward or back.
Check your posture by looking in a full length mirror. If you haven’t had good posture it
is not easy to fix overnight because your core posture muscles have adapted to the incorrect
alignment. With practice, however, correct posture and good habits can gradually replace bad
habits. Study images and practice good posture or get professional help from yoga classes or
body alignment technique.
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HOW TO BREATHE TO SUPPORT THE VOICE
To properly support your voice, you cannot breathe as you do when you are relaxing,
talking on the telephone, or working at your desk. Those activities require only shallow
breathing, which is pretty much performed automatically.
When breathing to support the voice for sustained speaking, you must breathe from the
diaphragm, which is a ring of muscle that acts like a bellows: it forces air in and out. Breathing
from the diaphragm allows you to fill your lungs with air to its capacity so that you will have
enough air to complete your phrase or your thought. You need the air for carrying power and
intensity. In the act of speaking we control the rate of exhalation, so practice taking air in for a
shorter time than exhaling air out. As you inhale, feel the rib cage muscles expand and the belly
rise. Do not raise the shoulders.
WHAT DO YOU SOUND LIKE?
Courtroom speaking requires more energy than speaking in normal life. Jurors gauge
character and likeability by sound.
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Pay attention to the pitch of your voice. What does MONOTONE mean? It means not
varying the pitch in your voice. It is monotonous and puts people to sleep. Work on several
speech patterns. Don’t repeat the same speech pattern in every sentence or thought. It will
become monotonous and your listeners will tune out. Always vary the pitch when you speak.
Think of melody in music.
Do not end your phrase on a higher pitch unless you are asking a question. Do not end
every phrase on a very low pitch, either. Pitch DROPS at the end of a thought. When the pitch
goes UP or DOWN at the end of a thought it is a SIGNAL to your listener that more info is
coming or that NO more info is coming. VOLUME means loud and soft. You all know that more
volume gets attention. So, use it when it’s appropriate. But don’t forget, LESS VOLUME will
sometimes get attention when used in contrast. Consider softer, less volume for emphasis.
If you have a small voice or need to increase your vocal range, consider vocal training for
projection. Some courtrooms have wall and ceiling surfaces that reflect and absorb certain
pitches and some have surfaces that resonate with certain pitches. Consider working for a bit
with a professional voice teacher to assess your particular instrument and increase your potential
for greater carrying power and flexibility.
MICROPHONES
Some courtrooms are equipped with microphones for the purpose of recording,
amplification, or both. Be familiar with how to use a microphone for amplification. You must be
aware of the distance between your mouth and the microphone, because the volume of your
voice is affected by the distance. You do not want to be so far away from the microphone that it
is ineffective and you do not want to be so close that it causes feedback or distortion.
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Practice adjusting microphones so that they amplify your voice, and don’t distort it. Take
the time to adjust the microphone and ask if you can be heard.
ARTICULATION
Slurred consonants prevent speakers from being understood. Speak distinctly, do not
over-enunciate but speak more clearly than you think is necessary.
CLARITY
Use consonants and don’t drop ends of words. Don’t use contractions that end in n’t.
Didn’t can sound like did.
Shouldn’t can sound like should.
Wouldn’t can sound like would.
Couldn’t can sound like could.
You won’t know if jurors misheard you, so instead of using these contractions, use did
not, could not, should not, etc. Don’t drop the pitch or volume at the end of your sentence
because you run out of air. Practice speaking on the breath to the end of your thought or
sentence.
SPEED AND RHYTHM
Most speakers speak too fast. Especially when nervous; especially when passionate.
Don’t deliver a 30 minute summation in 10 minutes. Use PAUSES effectively.
Do not merely memorize your Opening and Summation. Learn them, so if interrupted or
distracted you can find your place and be a human being. Tell a story as if you were around the
dinner table. Engage us, as if you were telling a really great joke.
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THE POWER OF THREE; TRICOLONS
Three is the smallest number of elements that can form a pattern. Concepts and ideas
presented in groups of three are known to be more interesting, more memorable, and more
pleasing to the ear. (Notice the group of three in the previous sentence.) Most people can
remember three things and using the power of three creates an impression of completeness.
Using tricolons can make your speech sound rhythmical. Some of the most famous quotes and
famous jokes are structured in threes.
For example:
“Tell me and I forget. Teach me and I remember. Involve me and I learn." (Benjamin
Franklin)
It’s no accident that the defendant ignored the warnings.
It’s no accident that the defendant shouldn’t have driven the car.
It’s no accident that plaintiffs were seriously injured.
RECORD YOUR VOICE
PRACTICE SPEAKING BY VIDEOTAPING OR RECORDING YOURSELF.
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Practice reading out loud at courtroom energy (not volume) for 10 minutes a day. Read
speeches, letters, novels, plays, monologues, copy television commercials, anything. Read at
various pitch levels. No monotones. Get used to 10 minutes a day at courtroom energy. Even a
minimum of 10 minutes per day will quickly improve your vocal strength and endurance and
richness of tone.
After one year of just 10 minutes per day, your voice will sound more authoritative, more
pleasant to listen to, and eventually more PERSUASIVE.
WHEN TO SEEK PROFESSIONAL HELP
If you have a distinct vocal quality that you wish to improve, if you wish to eliminate a
regional accent, or if your voice becomes hoarse during trials, consider taking a few lessons with
a professional voice and speech teacher.
PHYSICAL MOVEMENT
Choose physical movement for the effect you want.
Standing with weight evenly distributed looks strong, capable, and balanced. If you
continually shift your weight from leg to leg, you will look nervous and insecure. Shifting weight
from side to side at random can make you look nervous and insecure. Do not pace back and
forth.
When you take a step, take it for a purpose and not to relieve nerves. If you are not going
somewhere, stand still. Aimless wandering reduces your authority. Stillness conveys confidence
and strength. Do not sway or rock back and forth.
If you balance your weight on one foot or lean, you look more relaxed, softer, and more
intimate. Use this for contrast when appropriate, but leaning or balancing weight on one foot still
requires energy and good posture. Don’t cave in.
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GESTURES
Gestures are merely visual punctuation. Gestures underline and emphasize. Mere speech
is not enough. When you are fully engaged in, listening intently, asking questions, or
emphasizing a point and not delivering a speech, hands almost always take care of themselves.
They move into action to support what you are saying, and flow from natural speech. Gestures
humanize, emphasize, and clarify. Few people in public keep hands still. Some use their hands
more than others. Don’t overdo it.
If your hands do not move naturally, simply let them hang at your sides. Give them a job:
the job is to touch the sides of your coat or skirt. If they need to have a job, make them touch
your trousers or skirt, until you need them to gesture.
Don’t stand with hands clasped in front of you, which is a weak, defensive position.
Don’t stand with hands clasped behind you, which looks too authoritative. Keep hands at your
sides until ready to use. At rest, keep hands at your sides. When at rest, don’t touch face, chin,
hair, ears, rub nose, Keep your hands away from your face. Don’t cover your face.
Don’t grasp the podium in a death grip and don’t lean on it. Podiums and lecterns are not
recommended, although they may be mandatory in some jurisdictions. Make every effort to get
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away from a podium in order to approach a witness, to lead a demonstration, to take something
off counsel table and return it later, etc. Consider moving away from the podium shortly after
you begin your Opening Statement. This can foster trust with the jury.
SETTING THE STAGE
Consider thinking of the jury as your guests. Imagine you have invited them into your
space, one in which you are comfortable and at home. A space in which you wish to make sure
the jurors are comfortable, feeling special and well taken care of.
Create a situation in which you behave in the way that you want the jury to see you:
capable, confident, caring, welcoming, respectful, etc.
COUNSEL TABLE
What kind of impression does your counsel table and space give to the jury? Does it look
professional and trustworthy or messy, cluttered?
CREATE A SPACE
Set your stage when describing an event to a jury. Choose the space where you will recreate the scene from your client’s point of view. (Actors find the best light.) No glare from the
windows; no activity behind you. Consider making the jury turn to look at you. Use the space to
re-create the actions in your story. When you are finished describing the actions, do not diminish
the impact of your story by violating the space. Step out of the space to continue your story after
you have described your action.
MOVING ON YOUR “STAGE”
Move when you want to make a transition. To signal different portions of your Opening,
or to emphasize, move with purpose. Find reasons to punctuate your presentation with
movement, even if it is simply going to the easel, walking to your table to get a pointer, back to
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the easel, back to the table for notes, back to the easel. Use these movements to punctuate your
story. Use the act of sitting down for emphasis.
COMMUNICATING WITH A JURY
Don’t ever forget that for true communication to take place, the information has to be
both sent AND received. There are several principles that you can master that will assist you in
doing all you can to make sure your information is received.
Aristotle, the Greek philosopher, documented the secret to successful communication
over 2000 years ago. It involves communicating to an audience via three appeals: ethos, pathos,
and logos. Ethos is an appeal to the audience based on the perceived character and credibility of
the speaker. Pathos is an appeal based on emotions. Logos is an appeal based on logic and
rationality. Before real communication can exist, your listeners must accept these three appeals
from the speaker.
Ethos is the most powerful of the appeals because it flows directly from the speaker to the
listener. Ethos is based largely on the total package of how the speaker is perceived and includes
talent, idiosyncrasies, passion, mannerisms, intellect, voice, and appearance. If the speaker fails
to establish ethos, the audience will be unimpressed with logos and unmoved by pathos.
Think of ethos as your personal style and use your physical appearance, posture, voice,
and eye contact to establish good character and credibility.
EYE CONTACT
Making eye contact with people can take some getting used to and may require practice.
What is good eye contact? People tell you to use it, but no one tells you how to do it.
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Eye contact says to another:
I see you.
You’re important.
What you think matters.
Gives POWER.
Also says: I LET YOU SEE ME.
Your eyes should be on whomever you are talking to.
You want them to see you thinking, caring, calm, and capable.
Be careful: looking at an individual juror more than a few seconds can cause discomfort.
Move your glance easily from juror to juror. Pretend you are conversing with several friends at a
gathering and you are including all of them in the conversation.
PAN from face to face, like a camera: to establish eye contact with a group, think of a
camera PANNING, taking in a scene.
LATERALS, for emphasis: to make a point, pick out one person and speak to them.
Choose another person in a different area for a few seconds, then another person, to emphasize
several points.
Whether speaking to judge or jury, eye contact is important. Eye contact has to be
maintained; even when you are moving. Because eye contact makes you feel and look like you
are having a conversation with real people, you will sound natural and not as if you were making
a speech. This increases likeability. (Ethos)
USE OF NOTES
Never glance at your notes while speaking.
Never glance at your notes while listening. (To a witness or judge)
Don’t lose eye contact; it comes first. Look at your notes while PAUSING.
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When you know you have to glance at your notes, complete your thought and stop
talking. Then, glance at your notes. It sounds like such an easy thing, but you’d be surprised at
the number of speakers who look down at their notes while they are making a point.
When searching for a word, never look down.
When searching for a word, always look up.
CHARISMA
Develop charisma; it is a learnable skill. Begin by practicing having a look on your face
that is open and pleasant. Be comfortable smiling, frowning, and laughing as you tell your story.
Facial expressions help listeners to see as well as hear your passion.
Charismatic people are often good storytellers, with an engaging manner when speaking
and explaining. They are capable of communicating their message clearly and concisely and
being serious and injecting humor where appropriate to keep their audience attentive and
focused. Charismatic people will use open, relaxed, body language including lots of eye contact.
They will watch for feedback from their audience and clarify their position accordingly. The
charismatic person can be empathetic and considerate towards others, remembering details from
previous conversations and therefore gaining respect and trust.
A sincere smile, maintaining eye contact and being polite and courteous are very
effective ways of getting people on your side. People are much more likely to do things for you,
if they are treated well and if you are nice to them. Make the jury believe that you are always in
control, that you are aware of everything going on around you, that you take your position
seriously, that you are trustworthy, and that you consider them and your client most important.
DO NOT TALK LIKE A LAWYER. DON’T USE WORDS THAT ARE PERFECT FOR
BRIEF WRITING.
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Talk like a normal person. Legalese is not clear to jurors or witnesses. If you can’t be
easily understood, people stop listening. And they will trust you less, because honesty is clear
talk.
For example, don’t say “Did you have occasion pursuant to the foregoing to submit said
document?” If you must use legal language, tell the jurors what the term means each time you
use it.
VOICE INFLECTIONS
When people speak, their inflection does not go downward until they have reached the
end of their thought. If your inflection slides down before you have delivered the thought, the
listener may assume that you are bored with the subject or you are obviously reading your
presentation.
What is an inflection? The rise and fall of the voice throughout one’s tonal range. Three
types: rising, falling and sustaining of a vowel on a single note.
TICS
Be aware of nervous habits or tics and work on reducing them. Particularly annoying is
the use of empty connector words. Repeating the answer of the witness before asking the next
question is also annoying.
Don’t say “okay” or “I see” after each answer of the witness before asking the next
question.
Don’t say “um” or “er” or “and” at the beginning of each question while you think of
how to begin.
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These examples make people think you have to organize your thoughts on the run. There
is nothing wrong with thinking before you speak or ask questions, but keep silent while you
think.
CHANGE IS GOOD
Rhythm: a great attention-control technique. We notice rhythm change not sameness.
When rhythm is unchanging attention may wane. When rhythm changes, the attention flows.
Rhythm is inherent in words, phrasing of questions, sequence of witnesses, visual displays, etc.
When you control the rhythm of these elements, you control the attention of the jury. Consider
these things when learning to vary rhythm: pacing, tempo, intensity, volume, and regularity of
repetition. Spatial changes include color, brightness, mass, contrast, texture, blend, and framing.
Our brains are dulled by sameness but powerfully aroused by change, for example:
Read any sentence aloud. Then reread it aloud exactly the same way but pause before any
word. This is a rhythm break and it serves to emphasize the next word or phrase because it
attracts attention.
This is one method that professional actors and speakers use to get audience attention:
combine the short pause with vocal emphasis on the desired word or phrase and Voila! You
clarify the point of your sentence and increase the impact of the
sentence. Variety is the key to jury attention. The brain is attuned
to change/modification but tunes out sameness or constancy. Don’t
speak and maintain a constant pitch, volume, inflection, or pace.
In your presentation of your case, consider alternating
between quiet and forceful, fast and slow, calm and busy, simple
and complex, important and trivial, public and private, frightening
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and comforting, city and rural. Modulate your presentation by alternating types of witnesses, the
nature of the questions you ask them, and the visuals you present. Vary the kinds of testimony
you present; mix them up.
Study rhythm in life and in your favorite art forms. Become an expert in avoiding
similarities and provide alteration to shake things up. Use the things you notice and study to help
you design and control the attention of jurors.
REPETITION
Carefully consider saying something more than once. Keep in mind that repetition
emphasizes, but it can also signal to the jury that you are going to repeat everything so listeners
will not listen as carefully. If you need to repeat important points or themes, then use different
presentation methods when repeated: vary repetitive materials by choosing direct testimony,
charts or drawings, photographs, visceral description. Make sure the repeated material is
STRONGER the second time. Progressively increase in intensity.
INTERACTION WITH ASSISTANTS, COURT STAFF, OPPOSING COUNSEL
Monitor your behavior with others. Treat others with courtesy and professionalism as you
would want to be treated. The jury watches everything you say and do. Don’t take visible delight
in winning technical spats. Any kind of showing off, arrogance, etc., can antagonize jurors. No
one likes to listen to a ham or a show off and no one believes them. Never forget that jurors
notice every single thing that you do and they share it with the other jurors.
Make the jury believe that you are always in control, you are aware of everything going
on around you, you take your position seriously, you are trustworthy, and you consider them and
your client most important.
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DEALING WITH STAGE FRIGHT
Stage fright is anticipation, not fear. Some actors never experience stage fright while
performing. Most actors, however, do experience stage fright while auditioning. It can be
terrible; frightening. What is the difference between performing and auditioning? The difference
is eye contact. Actors do not make eye contact with audience members when performing,
because there is an invisible wall that exists between the actors on the stage and the audience. At
an audition, however, there is no audience and actors need to make eye contact with the creative
people who will decide whether they get the part.
Making eye contact with people can take some getting used to and may require practice.
Usually, stage fright does not come from fear. If you are well prepared, there is no reason
to be afraid. Rather, stage fright is actually ANTICIPATION. It is anticipation for doing
something that you know how to do, that you are comfortable doing, once you get there, and
something that, when it goes well, you want to do over again. The high that you experience from
speaking and doing well disappoints when it’s over. That’s what anticipation is; you can’t wait to
get there. (And if you’re an experienced attorney, you can’t wait to talk about it once it’s over.)
Being on TRIAL, is like auditioning. So much is at stake.
Ways to combat stage fright:
Breathe.
Think calming, positive thoughts.
Use the fear to your advantage, channel your energy.
Remember that you are a member of a TEAM and not alone.
TAKE YOUR ROYAL TIME
Don’t let yourself be rushed. When you prepare and begin at your own pace, you gain a
feeling of control. Control calms anticipation.
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THE MOMENT BEFORE
What is it? One of the most valuable acting techniques. Before you begin, you do not
speak, but you do all these things:
Make eye contact first.
Pause.
Pleasant, open face.
Breathe.
Begin with your first line.
ALL THESE THINGS HAVE TO BE DONE TOGETHER!
Standing up from your chair, or walking into the courtroom.
Walking around the table to face the jury.
Think. Say to yourself:
POSITIVE THOUGHTS. They can be anything that means something to you. For
example:
I’m at home here.
I look great today.
I am ready to do this.
Look how good my posture is.
I am a capable professional with something to say.
I am the Master of the Universe.
The jury likes me.
DARN IT! I’M GOOD.
The Moment Before must be practiced. Practice thinking positive thoughts with an open
and pleasant look on your face, while breathing and making eye contact, while walking to your
position in front of the jury or podium. Review your opening line in your head and have the
emotion and meaning that you want your opening line to convey on your face before you utter
the first word. That is called The Moment Before. Master the use of The Moment Before and you
will engage your jury before you even begin to speak.
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