Introducing Complex Case Themes During Opening Statements
A. Capture the Audience in The First 30 Seconds
As we have all heard anecdotally, one never gets a second chance to make a first impression. Practically speaking, the first impression a lawyer makes on a jury is during jury selection. However, because of the constraints of jury selection, any impression a jury can draw regarding the case itself can only come from inferences and innuendo. The first impression a lawyer can directly and affirmatively make on a jury regarding the case itself is in opening statements.
Because of Twitter, Facebook, and websites like Buzzfeed and the like, attention spans are decreasing. Keeping anyone's attention for more than about 60 to 90 seconds is a herculean task. Every song ever recorded, the sum total of human knowledge, millions of games and every film, television show and cartoon ever broadcast are two clicks away at all times, and that's just on desktop computers. On phones, it's even worse with text messages and social media.
To have any chance of getting anyone's attention, your content needs to get right to the point - otherwise, you might lose your listener for good. According to research from the National Center for Biotechnology Information, from the year 2000 to the year 2015, the average attention span has decreased from 12.5 seconds to 8.25 seconds. Email and smartphone use have created listeners who are constantly looking for the next bit of content before processing the one in front of them. For example, an office worker, on average, checks his email inbox approximately 30 times an hour and smartphone users, on average, pick up their phone approximately 1500 times per week. (1)
In Charles Becton and Terri Stein, Opening Statement, 20 TRIAL LAW. Q. 10, 10 (1990), appears the following statement: "Empirical studies conclude that after hearing opening statements, 65 to 80 percent of jurors not only make up their minds about the case, but in addition, in the course of the trial, they do not change their minds.” This oft-repeated assertion is false. See William L. Burke, Ronald L.Poulson, and Michael J. Brondino, Fact or Fiction: the Effect of the Opening Statement, 18 J. CONTEMP. L. 195 (1992). Jurors do not make up their minds during opening statements (before they have heard any evidence). However, they do decide in opening statements what the case is about, and they use that to process the evidence they hear throughout the remainder of the trial.
So, armed with the knowledge that the first impression is vital, and that the first impression must be made quickly, the next step is to determine how to capture that attention and make that impression.
The first step is to tell the jury a story you would want to hear. Compare the two opening statements below, and the difference is clear. The first is the initial 30-45 seconds of the opening statement by the prosecution in the famous case of the People v. O.J. Simpson.
"Your Honor, Judge Ito, Mr. Cochran and Mr. Shapiro and Dean Uelmen, to my colleagues seated here today in front of you and to the real parties in interest in this case, the Brown family, the Goldman family and the Simpson family and to you, ladies and gentlemen of the jury, good morning. I think it’s fair to say that I have the toughest job in town today except for the job that you have. Your job may just be a little bit tougher. It’s your job — like my job, we both have a central focus, a single objective, and that objective is justice obviously. It’s going to be a long trial and I want you to know how much we appreciate your being on the panel. We appreciate the personal sacrifices you’re making by being sequestered. We understand that can be difficult.”
Think of the salacious facts of this case. It’s far and away the most famous case of the twentieth century and the alleged murderer was one of the most recognizable sports celebrities of the time. But instead of capturing the jury’s attention with those facts, the prosecutor decided to actually instruct the jury as to how long and difficult the trial would be. Now compare that to the first 30-45 seconds of the opening statement given by the plaintiff’s attorney in wrongful death action commenced by the estates of Ronald Goldman and Nicole Brown Simpson based on the same set of facts.
"On a June evening, the 12th of June, 1994, Nicole Brown Simpson just finished putting her ten-year-old daughter, Sydney, and her six-year-old son, Justin, down to bed. She filled her bathtub with water. She lit some candles, began to get ready to take a bath and relax for the evening. Nicole then called the restaurant and asked to speak to a friendly young waiter there. Nicole asked this young waiter if he would be kind enough to drop her mother’s glasses off. The young man obliged and said he would drop the glasses off shortly after work, on his way to meet his friend in Marina Del Rey. The young man’s name was Ron Goldman. He was 25 year old. With the glasses in hand, Ron walked out of the restaurant, walked the few minutes to his apartment nearby, to change. He left the restaurant at 9:50 p.m.”
The jury in this case already knew that they were there to hear about the death of these two people. That was explained in jury selection. As such, the plaintiff’s lawyer did not need to begin with the gory details of the death. Instead, he told a detailed story of the two plaintiffs when they were alive. The jury listened to this, humanizing these people, armed with the knowledge that the story would end with two violent deaths. This is how you grab the jury’s attention.
B. Introducing Supporting and Damaging Evidence
The introduction of "bad facts” and "damaging evidence” in opening statements is not universally advised. However it is a practice I follow regularly. Because of propaganda, television tropes, and massive advertising campaigns by plaintiff’s lawyers, many people are skeptical of lawyers and lawsuits. Because of that juror skepticism, lawyers must avoid losing credibility in any way possible. Introducing this damaging evidence can be a tool to bolster the credibility of your case. If you communicate to the jury that you are fully aware of the damaging evidence but still believe wholeheartedly in your case, the jury can feel safe doing the same. In addressing unfavorable facts in your opening statement, concentrate on those facts that are critical to the arc of your narrative. Avoid wasting valuable time enumerating all of the weaknesses of your case. Once you establish trust and credibility with the jurors by presenting a cohesive, if blemished, story, they are more likely to overlook or reconcile minor weaknesses revealed later on in the trial.
For defense lawyers, introducing facts damaging to plaintiff’s case is obviously important. It’s especially important because the defense lawyer has the opportunity to give its opening statement after plaintiff has given his. The only negative impact to doing so is again to make certain you do not lose the credibility of your case. If you tell the jury in your opening about some significant damaging evidence to plaintiff’s case and, for evidentiary reason, that evidence is never presented, the jury will remember and hold it against you. If you believe that a piece of evidence damaging to plaintiff’s case may be inadmissible because of an evidentiary issue, the prudent decision is to omit it in your opening.
This issue is best explained through a more narrow focus. The majority of cases I have tried are at trial because of one very specific issue-the serious injury threshold. The majority of automobile accident cases tried in New York State are tried because of this issue as well. The manner in which these cases are defended is through multilayered, complex innuendo. You will probably never hear a defense lawyer call your client a liar or a malingerer, but the entire defense is predicated on proving exactly that, without ever saying it. As such, this defense needs to be addressed in opening statements. Rick Friedman, in his book Polarizing the Case discusses this at length. He suggests "calling out” the defendant and laying bare the innuendo of their defense. He gives the following sample opening:
"You will hear a lot of witnesses and see a lot of evidence in this case. But in the end, there is really only one major issue you need to decide: is [plaintiff] a liar, a cheat and a fraud? That is the defense in this case. And if the evidence shows that she is a lair, a cheat and a fraud, you should send her out of this courtroom without a cent. Under the law, she would be entitled to nothing. But the evidence will actually show that she is injured; that she is telling the truth. It will show that the defense is attacking her this way to avoid paying for the harm they have caused, hoping you will not make them pay.” (2)
The principle espoused above is generally a principle of control. Litigators are taught in early practice to anticipate defenses to their case. The principle above takes that a step further and asks an advocate to actually frame, label and name that defense. This is especially important for plaintiff’s attorneys in openings because of the ability of plaintiff to give its opening statement first. If plaintiff can control the narrative of the defense, the stage is set for the remainder of the trial.
C. Preparing Judge and Jury to Focus on Specific Elements of Trial
A juror and a judge cannot be persuaded by information that he or she cannot recall. As such, an attorney must utilize the effects of primacy and recency to focus judges and jurors on specific elements of trial. The primacy effect, in psychology and sociology, is a cognitive bias that results in a subject recalling primary information presented better than information presented later on. For example, a subject who reads a sufficiently long list of words is more likely to remember words toward the beginning than words in the middle. The recency effect is a cognitive bias that results in subjects recalling words and information given at the end of a long list better than those in the middle. The combination of these two cognitive biases is known as the Serial Position Effect. The Serial Position Effect is the tendency of a person to recall the first and last items in a series best, and the middle items worst. In delivering an opening statement, a lawyer can exploit this cognitive bias by ensuring that key information is presented at the beginning or the end of his statement.
In a recent psychological study, the subjects received one of two sentences. For example, one may be given "Steve is smart, diligent, critical, impulsive, and jealous." and the other "Steve is jealous, impulsive, critical, diligent, and smart." These two sentences contain the same information. The first one suggests positive trait at the beginning while the second one has negative traits. Researchers found that the subjects evaluated Steve more positively when given the first sentence, compared to the second one. (3)
It is imperative that these two principles are used to focus the judge and the jury on those specific areas of your client’s story that you believe are most important.
The next important tool for focusing a jury’s attention is the use of visual aids. Numerous studies show that individuals tend to recall pictorial information with far more ease than speech. In selecting persuasive visual aids for your opening statement, focus on conveying a critical theme or juncture of your story with simple, easy-to-grasp pictures, charts, or photographs. Take those facts or themes you deem to be most important and reduce them to easy to understand visual aids. The use of these visual aids should be confined to those issues of most importance. Using them sparingly serves direct the jury to their importance and permits the jury to focus and recall them throughout the trial.
D. Opening Techniques that Simply Don't Work
Thus far, the techniques and advice offered have been esoteric and anecdotal. However, there are actual rules and case law regarding sufficiency of an opening statement as well as the right of parties to an opening statement. All the techniques set forth above are completely irrelevant, if counsel fails to meet the minimum requirements of an openings statement. After the jury is selected, judges will charge the jury with general charges from the Pattern Jury Instructions. The trial judge will charge the jury as follows regarding opening statements.
PJI 1:3 Openings and Evidence
"When I have completed these opening instructions to you, the attorneys will make opening statements to you in which each will outline for you what (he,she) expects to prove. The purpose of such opening statements is to tell you about each party’s claims so that you will have a better understanding of the evidence as it is introduced. What is said in such opening statements is not evidence. The evidence upon which you will base your decision will come from the testimony of witnesses here in court or in examinations before trial, or in the form of photographs, documents, or other exhibits introduced into evidence. Plaintiff makes an opening statement first, and is followed by defendant. After the opening statements, plaintiff will introduce evidence in support of (his, her) entire case before the defendant introduces any evidence, although exceptions are sometimes made to that rule in order to accommodate a witness. After plaintiff has completed the introduction of all of (his, her) evidence, defendant may present witnesses and exhibits. If (he, she) does so, plaintiff may be permitted to offer additional evidence for the purpose of rebutting defendant’s evidence. Each witness is first examined by the party who calls that witness to testify, and then the opposing party is permitted to question the witness. Additional examination and questioning of a witness may occur.”
The Court has now made the jury aware that this opening statement is not evidence. The lawyer need not reemphasize that point and make his remarks seem less significant.
What follows is a recitation of case law regarding sufficiency of opening statements.
Hoffman House v. Foote, 172 N.Y. 348 (1902). The complaint is only to be dismissed if it can be demonstrated that (1) the complaint did not state cause of action, (2) the cause of action is conclusively defeated by admitted defense, or (3) admissions or statements of fact made by plaintiff’s counsel in opening statement absolutely precludes recovery.
Benz v. Burrows, 191 A.D.2d 1021, 594 N.Y.S.2d 929 (4th Dept. 1993). Such motions are strongly disfavored and "should not be granted ‘unless it is obvious that under no circumstances, and under no view of the testimony to be adduced, can plaintiff prevail.
Peterson v. County of Nassau, 995 F. Supp. 305, 319-320 (E.D.N.Y. 1998): "Trial courts possess broad discretion to determine when the conduct of counsel is so improper as to warrant a new trial.” Not every improper or poorly supported remark irreparably taints the proceedings.
Pappas v. Middle Earth Condominium Ass'n, 963 F.2d 534, 540 (2d Cir.1992): Only if counsel's conduct created undue prejudice or passion, which played upon the sympathy of the jury, should a new trial be granted. See also Matthews v. CTI Container Transport Int'l Inc., 871 F.2d 270, 278 (2d Cir.1989); Smith v. National R.R. Passenger Corp., 856 F.2d 467, 470 (2d Cir. 1988).
Rohring v. City of Niagara Falls, 192 A.D.2d 228, 230-231, 601 N.Y.S. 2d 740 (4th Dep't 1993): "When the conduct of counsel has "permeated the trial and created a climate of hostility that effectively destroyed the defendant's ability to obtain a fair trial, reversal is the appropriate remedy." (citing DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184, 290 N.Y.S.2d 1(1992)).
Johnson v. Lazarowitz, 4 A.D.3d 334, 771 N.Y.S.2d 534 (2d Dep’t 2004): Court ordered a new trial based on inappropriate reference to insurance coverage and several "vituperative remarks made by the attorney for the sole purpose of inducing the jury to decide the case on passion rather than on the basis of evidence.”
Valenzuela v. City of New York, 2008 N.Y. Slip Op 9733, 59 A.D.3d 40, 869 N.Y.S.2d 49(1st Dep’t 2008): Court reversed jury verdict and ordered new trial based on counsel’s conduct in injecting his own view of how the accident occurred, bolstering his own credibility to the jury by asserting that he had visited the accident scene, and accusing the defendant of fabricating evidence.
GSGSB, Inc. v. New York Yankees, 1997 U.S. App. LEXIS 17433, 122 F.3d 1056 (2d Cir.1997): Second Circuit affirmed trial court’s finding that inappropriate remarks by counsel during opening statement were not prejudicial due to curative instructions. Counsel’s remarks included references to inadmissible testimony, references to the death of his client for the purpose of evoking sympathy; and unsubstantiated allegations of fraud.
Cohn v. Meyers, 509 N.Y.S.2d 603 (2d Dep't 1986): Court found that defense counsel's opening and false remarks that the plaintiff was responsible for defendant's wrongful arrest and three-day incarceration, were made with utter disregard for the truth and created a "substantial possibility of injustice" which was not cured by the trial judge's jury instruction.
Estes v. Big Flats, 41 A.D.2d 681, 340 N.Y.S.2d 950 (3d Dep't 1973): Court reversed judgment for plaintiff in action to recover for personal injuries and property loss sustained in an automobile accident where counsel for the plaintiff referred to the fact that defendant had insurance for the claim and misrepresented defendant's statements in its pleadings. The court stated that "in such a close case of liability this prejudicial conduct cannot be condoned and constitutes reversible error."
Cherry Creek Nat. Bank v. Fidelity & Casualty Co. of New York, 202 N.Y.S. 611, 614 (4th Dep't 1924): "The rule allowing counsel when addressing the jury the widest latitude in discussing the evidence and presenting the client's theories falls far short of authorizing the statement by counsel of matter not in evidence, or indulging in argument founded on no proof, or demanding verdicts for purposes other than the just settlement of the matters at issue between the litigants, or appealing to prejudice or passion."
O’Connell v. Jacobs, 181 A.D.2d 1064, 583 N.Y.S.2d 61 (4th Dep’t 1992): Plaintiff’s counsel’s assertion in opening that plaintiff suffered from nightmares linking the defendant to the assault violated court’s pre-trial ruling excluding admission of that evidence, and thus resulted in prejudice notwithstanding trial court’s curative instruction to the jury.
In 2009 rules regarding opening statements were codified in the Rules of Professional Conduct, 22 NYCRR Part 1200.10 The regulations still broadly indicate, however, that counsel are entitled to pursue the aims of opening—stating the contentions and what the evidence will prove toward those contentions—as long as they conduct themselves ethically.
Rule 3.1: Non-meritorious Claims and Contentions bars lawyers from raising claims and defenses that are frivolous, i.e., either unwarranted under existing law, known to be materially false, or with no purpose save delay. This appears more applicable to the pleadings stage, but on its face would bar counsel from trying to resurrect in opening any contentions that have already been dismissed or stricken from the pleadings.
Rule 3.2: Delay of Litigation also forbids tactics with no substantial purpose other than delay or needless expense. This rule has no analogue in the old Code, but it would appear to support trial judges in imposing time limits on opening, particularly where those limits apply to both parties. One could imagine, though that some time limit could be found on appeal to be so low, especially in complex trials, as effectively denying the right to an opening.
Rule 3.3: Conduct Before a Tribunal forbids misleading conduct in a variety of ways, even imposing an affirmative duty on counsel to remedy fraudulent conduct known to the attorney.15 Subsection (f) even requires lawyers to comply with local customs or practice and not to engage in ―undignified or discourteous conduct. Thus Rule 3.3 seems most applicable to opening statements.
Rule 3.4 Fairness to Opposing Party and Counsel bars lawyers from asserting facts unsupported by admissible evidence, asserting personal knowledge of facts in issue or expressing personal opinion as to the justness of a cause or the credibility of witnesses. Certainly counsel could fall afoul of this rule if swept away by their own oratory, though openings are typically more scripted than closing. Nor may a lawyer simply disregard a standing rule of a tribunal, though one may test its validity in good faith.
The above sets forth the codified rules of opening statements. Obviously, running afoul of these rules can result in a mistrial. What follows are some opening statement techniques that are used regularly, and, while these techniques are not improper, they are completely ineffective. These opening lines are especially ineffective but have lingered and are still used by seasoned trial lawyers despite their ineffectiveness.
"This is what we lawyers call an opening statement…"
"I appreciate the time and the attention that I know you will devote to this case today…"
"Opening statement is our chance to tell you what the evidence will show…"
"My name is Matthew Mosher, and it’s my privilege to represent John Smith…"
An opening statement is like…
The Table of Contents to a Book
The Cover of a Jigsaw Puzzle Box
"Jury service is an honorable tradition, and I want to thank you for taking time out of your busy schedules to serve on this jury…"
"Opening statement is my chance to show you how the pieces of the puzzle fit together…"
"Before I begin, let me remind you that what Pannozzo said is not evidence, and what I say isn’t evidence, either…"
These can be distilled into three major rules.
1. Don’t introduce yourself. It’s not about you. It’s about the parties. Tell the jury about the parties. You’ve already introduced yourself during jury selection.
2. Don’t patronize or “suck up.” Most jurors are not sitting in that jury box because they wanted to. They were compelled to sit and listen. As such, thanking them for doing something they were legally compelled to do is patronizing and insulting.
3. Don’t describe how the opening statement works. At any given time any person can find and watch several variations of “Law and Order” on television. Jurors generally understand how it works. Telling them again does nothing to help you win your case.
E. Introducing Parties and Character Analysis
Parties should be introduced as characters in the story you are telling the jury. They should be introduced as humans. The opening statement is really the lawyer’s first chance to begin his relationship with the jury as a whole. An effective opening personalizes the party and brings them into the relationship as well. David Ball, in his seminal work, David Ball on Damages breaks down the introduction of parties into the categories of “action” and “harm.” The introduction of the defendant framed by telling the jury not who the defendant is, but what the defendant did. Introducing the defendant by its actions dehumanizes them and reduces them to the totality of the actions presented in this case.
Plaintiff should be introduced by defining the harm that defendant caused them. Framing the plaintiff in such a way permits the jury to see the plaintiff has a wholly innocent victim of defendant’s wrongdoing rather than an active participant in the incident giving rise to that harm. (4) Again, this is an opportunity for counsel to control the narrative. Invariably, the trial judge will charge the jury with all the rules regarding evidence and burdens and the like, but the brief recitation by the judge is read to weary jurors who have probably heard and processed all the information they can handle. As such, it is important that counsel in its opening statement set the tone and control the narrative of the remainder of the case.
If a story is not about the hearer he [or she] will not listen... A great lasting story is about everyone or it will not last. The strange and foreign is not interesting - only the deeply personal and familiar.John Steinbeck, East of Eden
A trial lawyer is, first and foremost, a storyteller. Stories only work when the listener or reader can relate them. A good trial lawyer uses themes and narratives that cause the jurors to put them in the shoes of the parties without actually asking the jurors to do so. Be genuine, be authentic, and tell the jury a story about themselves. There is nothing more compelling than transparency and authenticity. In closing, I sincerely hope the information provided in these materials will find its way into a successful opening statement.