Set the Tone for Trial with Your Opening Statement

Your opening statement should set the tone for what the jury can expect from you for the rest of trial. Tone has several dimensions. Disposition – whether your presentation of the case will be aggressive or agreeable. Demeanor – are your affable and charming or all business? Delivery – whether you’re engaging or monotonous. How I present my case and myself to the jury changes with each trial and is dependent upon the facts and my arguments.

In January, we tried a case in which the parties agreed about how the car-motorcycle wreck had happened. We agreed what the plaintiff’s injuries were and which treatment was related to the accident. We agreed about everything except how much the case was worth. And that is exactly what I had planned to tell the jury. My opening was going to be short to emphasize there wasn’t much to this case. And I was going to be as agreeable as possible, because I was representing the insurance company, and that can be a hard chore.

But I didn’t get to deliver my opening because the Plaintiff got cold feet after jury selection. I wrote a couple months ago that I didn’t love my voir dire. But I do assume that my opening statement was going to be incredible. I probably would have received applause from both the panel and the judge.

[This is an excerpt from Stop Putting Out Fires: Building a More Efficient and Profitable Law Practice]

War stories about setting the tone with your opening statement

Mark: Openings absolutely should set the tone for the rest of trial. Contrast my first trial with my last trial. In the first trial, a pathological liar tried to shoplift, then called her disbarred lawyer boyfriend to come help. He didn’t tell anyone he WASN’T her lawyer, then he gave her an incriminating piece of evidence which she folded up and shoved in her bra – on video.

In the last trial, a career criminal got drunk and beat up his girlfriend, an older woman with terminal lung cancer. He left, and the upstairs neighbors came down to help her. He came back with a big knife. The upstairs neighbor tried to intervene, and he stabbed the neighbor in the chest.

One opening was very somber, leaning on calling this guy a hero, and asking what could have happened if he hadn’t been there. The other opening was just playing the video and almost laughing … because it was a ridiculous, dumb, almost fun trial, and nothing was at stake. There wasn’t really a victim – only Kroger, who got their stuff back since they apprehended her in the store.

Robert: Tone matters a lot. The monotone guys who sat behind the podium lost jurors fast. The animated people who changed up their speed and tone kept juror attention.

I did a lot of mock trial in law school and did very well at it, despite it being something I got little training in, and I really do believe in composure. I do practice a lot and am a big believer in theory and theme (actually, I’m a big believer in doing it throughout your case, not just at trial). But composure matters more than anything. We live in a society that watches law and order, CSI, and any number of bizarre legal shows where everyone is pithy. We aren’t trained actors, but we are compared against them

Nathan: To this point, I lost a he-said-she-said trial last year and the jury basically said I didn’t put on enough of a ‘dog and pony show’ whereas Plaintiff did.

Robert: I admire your restraint in not strangling them for saying that.

Nathan: They were sold by him really selling his client’s story, even though it was somewhat incredulous, and my taking what I perceived as the more reasonable road of just clarifying things. I mean, it was tough b/c they were essentially saying that had I been more animated and seemed ‘more convincing’ somehow, they might have been swayed to my side, which I think was objectively more reasonable.

That’s a tough proposition for me because I know my cases inside and out and present them based on facts, logic, etc. But I think they were basically saying, you didn’t have that ‘you can’t handle the truth’ moment that made us believe in the case so that’s why you lost. Time to sign up for acting lessons I suppose

Robert: I think that can also just be them saying that they didn’t believe that you believed your story. Ya, you were reasonable, but you didn’t live it like the other guy did.

Nathan: That could also be true, the whole thing was just crazy and stupid. Essentially a verbal altercation b/t the aunt and baby-momma resulting in an alleged hit-and-run (and this is a civil lawsuit). Like people are throwing bleach at each other. The one woman is supposedly thrown up on the hood and carried for a block to be thrown off. The Plaintiff couldn’t produce her witnesses. Everything about her story reeked of fabrication. And my lady was just like yea, that’s nuts it didn’t happen. So I went with the ‘eyeroll’ this lady is out to get her and this seems fabricated story.

Robert: Oof.

Nathan: But, that being said, it was a good point to have to internalize. Of trying harder to sell it without making it seem forced.

I share those stories to illustrate the importance of setting the tone for trial with your opening statement. But they also show that you may have the facts and law on your side, but if you don’t hit all the right notes the jury wants to hear, they might not go with you regardless.

This post is part of a series about opening statements. Last week, I wrote about whether your opening statements should be planned out or extemporaneous. Next week will be a discussion about using your opening statement as a roadmap for trial.

Photo by Garry Knight.