Be advised that I wrote this article for my own, Eric Roy’s, benefit. If you are looking for a substantial and thorough understanding of the subject matter I refer you to the published works of David Ball and or Don Keenan. These two have written substantially on the subject and are highly regarded in the field. The bulk of my information on this subject comes from these individuals and David Ball in particular with regard to this article.
The first premise which we need to keep in mind is that of premature advocacy. Premature advocacy happens when we try to advocate prior to developing credibility with our jurors. Remember that attorneys are distrusted to some extent in modern society. Plaintiff’s trial lawyers are particularly mistrusted. Moreover the jurors know that you, as plaintiff’s counsel, have a stake in the ultimate outcome of the case. As a result you will have to work to develop their trust. If you try to advocate early on in your trial, before establishing this trust with the jurors, you will only create more distrust. This is why David Ball explains that we as plaintiff’s lawyers need to be teachers before we can be advocates. This is especially the case in the earlier parts of trial. Thus through voir dire and opening we need to be teaching almost exclusively. This allows us time to develop trust and credibility with our jurors. It also allows us to instruct the jurors so that they can begin to form a general understanding of the facts of the case. Trials are complicated affairs. We need to focus on teaching the case so that the jurors understand the initial framework of the case. We can make arguments later down the road after obtaining credibility and understanding with our jurors.
Thus, when you teach the case you want to come off as being completely neutral. If the jurors watch you in action they should have no idea as to whether you represent the plaintiff or the defendant solely by watching your opening statement. In order to “teach” the case properly you need to filter out bad information from good. When I say “bad” information I am typically speaking of clutter. For whatever reason we as attorneys wish to bombard the jurors with information. Unfortunately trials are tedious and boring affairs for most jurors. As a result the more information you lay on these jurors the less they can retain of your information. Thus, a core concept to keep in mind both throughout trial and in your opening is to limit the amount of information you disseminate. Focus on only presenting your best information. By limiting the amount of information you present you make it easier for jurors to understand your case while at the same time making your presentation more enjoyable to the jurors as they don’t have to work so hard to find meaning in your presentation.
David Ball has created a template which we can use in crafting our opening statements. This is not the only template out there but it is a very good one for plaintiff’s personal injury cases. The template is effective for several reasons, one of which being that it keeps you on track, and keeps you from advocating or spilling too much information too soon. The template begins by first teaching the jurors what the rules are. This means that you will have already created rules. For a good book on rules see “Rules of the Road” by Rick Friedman. The general idea behind rules is that you first show that these rules exist and you then show how the defendant violated those rules. Thus when preparing your opening you should already know all the rules in existence which Defendant has violated. However, when you do your opening just focus on your one or two most important rules. Remember, less is more in trial advocacy. When you begin your opening start with your rule, right off the bat. For instance, “a long haul truck driver should conduct a safety check before driving his rig”, “if the driver does not do a safety check and as a result someone is hurt, the truck driver is responsible for the harm”. This is an example of a rule. You want your rules to be rules that are obvious and undeniable. Ideally, you get your defendant to admit to the truth of the rule in deposition prior to your trial. Or you otherwise can find your rules in safety manuals or just common sense. Your jurors should be very commonsensical. Do not use legalese. Do not use complicated language.
After you tell the jurors your one or two rules you can then move on to the next step. The next step involves telling the story of what the defendant did. In this segment you need to tell a very simple story of the defendant’s actions. The important concept to remember here is that you need to keep this story revolving around what the defendant did. You don’t need to focus much on your client’s actions or any other parties’ actions. Focus on the Defendant’s actions. You want this case to be about the Defendant and what the defendant did wrong. When you tell your story of what the case is about be sure to tell it chronologically. We as humans are hard wired to learn and receive information in a chronological format. So keep your story simple and keep in chronological and focus on the defendant’s actions.
There are many tools which can be employed which will help keep your story to be understandable to the jurors. One of which is to speak in the present tense. People listen and pay attention better to present tense narratives than they do to past tense. Thus always tell you story as if it is happening right now in the present tense. Your story needs to focus on actions that the defendant did. Use an active voice when speaking about these actions and begin your sentences with the name of the defendant followed by the action he or she undertook. In this way you keep the focus on the Defendant and at the same time you keep the story moving forward. When you tell your story don’t talk about subjective understandings of the Defendant. This will be viewed as premature advocacy. Only narrate facts that can objectively be observed. Thus don’t talk about anything the Defendant felt. Don’t tell the jury what the Defendant’s motives were. Let the jury speculate as to feelings, emotions, and motives of the defendant. As soon as you start including these non-objective facts you begin advocating. Remember, it is premature to advocate at this stage in trial. The jurors will be much surer of something if they figure it out for themselves, rather than having you force it down their throat. When it is their own idea they will stick to it much more strongly than if it is an idea impressed upon them by you as an attorney.
When conducting your opening, as stated you want to be focusing on the defendant and the defendant’s actions. You don’t need to spend time talking about your client. Remember that we as humans tend to pass blame on to victims for the negative circumstances that bestow the victim. We do this innately as a way of protecting our psyche. We assume that such “accident” would never happen to us as we would do things differently. Thus when we, as advocates, begin talking about our client, the plaintiff, and what the plaintiff did or did not do the jurors immediately begin thinking about what the plaintiff did wrong which resulted in the damaging incident. Despite lack of logic in this jurors will be quick to pass blame on to the plaintiff, no matter how bizarre that may be so as to rationalize that such consequences could never happen to themselves. Thus don’t spend time talking about your client in opening. Your client is just a passive individual who was injured because of the Defendant’s actions.
When telling a story, such as in opening statement, try not to use pronouns too often. Pronouns confuse the listener. You need to keep your story as simple and easy to follow as possible. When you refer to your client in opening don’t refer to your client by first or last name. Refer to your client generically such as “the driver”. In this way your client, the plaintiff, becomes an individual just like the juror. Jurors are “drivers” too. The jurors children are “drivers” and “patients” and “bicycle riders”. By referring to the plaintiff in these terms you make the plaintiff the same as the juror. Thus making the juror and or his family susceptible to the same type of injury as a result of Defendant’s negligence. Don’t use your client’s name until the very end of your story at which time you can use it for the first time.
When you tell your story be sure to take your time. Pause as necessary so as to give the listener time to process the information. Give each sentence in your story equal weight. Don’t rush through sentences as you don’t want the jurors to begin thinking some information in the story is less important than other information. You want your jurors to consider every word and sentence that comes out of your mouth to be of high and equal importance. This again is why you are cutting all filler content and all useless information from your story, and trial for that matter. So speak concisely, clearly, and in plain language at a pace your listeners can follow. Don’t be afraid of pauses. Speak only as to the defendant’s actions, don’t advocate, and don’t talk much about your client in opening. Finally, when you tell your story don’t stop at the time of the accident occurs. Go further and discuss the very next thing that the defendant did following the accident. Sometimes this next act or lack of action of the defendant can be very important and add to culpability.