Once upon a time, if you needed to get from Houston to Chattanooga, you’d get out your trusty Rand McNally roadmap and plot your course. Using various waypoints, you’d figure out how to get from your launch point to your destination. An opening statement should be used in just the same way.
Your opening statement should be a roadmap for the jury that gets them from the launch point (i.e., they’ve been seated on the jury panel and know almost nothing about the case) to the destination (i.e., entering a favorable verdict for your client). The waypoints are the evidence you will reveal along the way that guides the jury and affirms to them they are on course.
One of the best ways to do this is with a theme you can emphasize throughout the case. A theme doesn’t have to be a gimmicky catchphrase. But it should be something that binds together the story you’re telling and the evidence you’re presenting to support your case. You should lay the foundation for your theme during voir dire, and use your opening to map out your case for the jury by showing them how the facts align with your theory of the case.
Your opening statement should be a roadmap for the jury
Here are some of the thoughts from litigators on LawyerSmack about on using your opening statement as a roadmap:
Kate: Themes are good. Trial is inherently boring, especially civil trials. I think a theme helps the jury stay engaged to an extent. If you can weave your theme through each phase of trial, it helps your points stick in jurors’ minds. Themes are tough – you don’t want to be cheesy. If the jury feels like you’re trying to sell them, it will turn some people off to you. Content? Give them the 30,000 foot view of your case and then highlights of what you know you can/will prove. This gives them signposts to look forward to.
Also, general overarching concept for opening: juries inherently have a variety of different learning styles. One person learns best by listening, another by writing/engaging, another visually, etc etc. Understanding the way humans learn/internalize information and finding a style that subtly caters to all at once is very effective for not “losing” any of your jurors.
Mark: I don’t like rote “themes” – like, those catchy phrases that you repeat a few times throughout the trial. To me, they make you seem fake. Too practiced.
Nathan: I would say I just try to flesh out overarching themes as opposed to getting too specific for a variety of reasons, including b/c I don’t want to say a jury will hear something and then due to evidentiary or other issues, they don’t.
Alan: It is the roadmap for trial. At least from the plaintiff perspective. I would assume its the same from the defense side as well
Bret: If [the opening statement] doesn’t set the theme, it’s wasted.
Alan: Unless you’re defending a small car wreck and the plaintiff’s lawyer gets up and gives an hour long opening and bores the s*** out of the jury. Then stand up and say something to the effect of “I don’t want to waste your time listening to me. Let’s just see what the evidence is and then let you decide.”
Bret: Yeah, but that is somewhat risky. You better be REALLY SURE that they bored the jury. In closing, could be argued, “They couldn’t be bothered to tell you what they thought the evidence would show, because they know they can’t argue with what the facts in this case are. I told you what it was, and they said ‘Ok, we’ll see.’ Well, guess what? You saw. The evidence says ….”
Alan: That also assume the jury can disregard the “always about me” mentality. I would say in response to that, “We are here because we have been arguing about the facts for over 2 years of litigation. What I argue to you doesn’t matter. What matters is the evidence presented to you. And there was no evidence of x …”
Bret: I sure wouldn’t say “what I argue to you doesn’t matter.” Haha. But yeah, focusing on the evidence is key.
When you’re preparing for your opening statement, make sure to give thought to how you can use it as a roadmap to lead the jury to the destination you’d like them to arrive at – a favorable verdict. The jury needs guidance, and if you aren’t the one to provide it, opposing counsel will be.
Here are two other recent blog posts on opening statements:
- Should Your Opening Statements be Planned Out or Extemporaneous?
- Set the Tone for Trial with Your Opening Statement
Artwork by Jenn Vargas.