Injury Trials: Opening Statements
This brief article outlines some good tips to consider and use in plaintiff’s personal injury trials. These tips primarily come from legendary trial consultant David Ball. David Ball has written numerous books on plaintiff’s trial strategy. He is probably the best personal injury trial consultant alive, and a hero of mine. David Ball generally advises that when we tell the story of our cases we proceed in a chronological order. The reason for this being that this is the way in which human beings naturally process information, from beginning to end. Trials are complicated affairs to begin with. We, as good advocates, should make the information as digestible and understandable as possible. Thus chronological is the rule generally.
However, David Ball identifies an exception to this rule. This idea comes from theater. The exception is essentially that we don’t walk our jurors through all of the good parts of our client’s life only to get to the tragedy at the end. Theater has taught us that this dichotomy can be much more powerful if you explain the tragedy up front and then afterwards go on to describe how good the plaintiff’s life was before the tragedy/accident. This is a technique employed by the great Shakespeare. When the audience watches the happy parts or listens to the happy parts of a character’s life, the tragedy of the story becomes much more dramatic when these viewers or listeners already know the tragedy that ultimately overtakes the plaintiff.
You can do this by way of videos. You can do it simply by telling the story if you are a good story teller. Some lawyers believe strongly in the “day in the life video” others believe these videos typically bring down verdicts. But the idea here is that you will introduce the tragedy of the life that your client endures now, only then to go on to show the life he or she enjoyed before. Pictures of your client in the garden perhaps, vacation, sailing, or whatever else your client enjoyed doing and could do before the injury which is no longer available to him or her. Of course after opening you can begin calling one character witness after the next to explain who your client was before the accident and who he or she is now. But for opening start with the tragedy and then tell the jurors about who your client used to be.
At this point in trial, after showing what has happened to your client and who he was, you are now in a position to enable the jurors to fix the problem. David Ball suggests that at this point you offer a dollar figure to the jurors as to how much money they will need to allow in order to fix, help, and make up for the Plaintiff’s harms and losses. David Ball believes this is a good strategy as you want your jurors to have a dollar figure in mind as they process the information as the cases progresses. In this way you anchor the jurors to a high number. However there is another well accepted school of thought that advises not to give a dollar figure until closing argument. The rationale behind this is that you haven’t built the credibility with your jurors by the end of opening to offer such a large number. The fear is that you will disenfranchise your jurors and lose credibility if you present an enormous verdict amount to them in opening. I think both points here should be respected. That being said I think that David Ball’s idea might be better in that though you may lose some credibility with your jurors and some disenfranchising may occur on balance the benefit of anchoring your jurors to a very high number early on is likely of sufficient importance to justify the loss.
Before we put on our trial we need to think about who our client is and what stereotypes might apply to her. You can find out what stereotypes might apply to your client through a quick internet search. You can also ask your client. So for instance, if your client is wealthy white man you may ask him what stereotypes apply to him. Perhaps he will tell you that people assume he is greedy or arrogant. Perhaps you represent an immigrant, other stereotypes might apply. Sometimes these stereotypes are not good for your client. For instance, the stereotype attached to your client could be that of “welfare queen”. If this is the case, jurors aren’t likely going to want to allow much money for someone whos very existence has been dependent on state aid. Whatever the stereotype of your client may be you need to tell the jurors a different story. We don’t do this by saying explicitly that plaintiff is not greedy or plaintiff has always tried to support herself despite her dependency on the state. What we do instead is we tell stories about our client’s life which reflect a different personality than that of the stereotype. So if you represent the successful white business man and you believe the stereotype attached to him might be greed then you need to tell stories about how and when your client was giving back to the community. Describe some philanthropic endeavor your client pursues. Whatever it is that shows a character not supported by the stereotype should be put in front of your jurors. Begin doing this in opening. You can then use your character witnesses do this for you on direct examination.
A big point which David Ball points out is that during opening and all through trial for that matter we as plaintiff’s attorneys need to be succinct. We also need to be clear in our speech. Remember that trials are a rather odd and convoluted way of passing along information form the plaintiff to the jurors. Two attorneys thus have the ability to explain the case to their jurors. To do this they use opening, closing, direct and cross examination. Make it a point to be the attorney who can explain things in layman terms, using simple and concise language. If you can pull this off while your adverse counsel explains the case in a convoluted, ambiguous, and wordy way then the jurors will learn to stop listening to opposing counsel and rather just learn the case through you. For you are the easier of the two attorneys to understand so they will appreciate your ability to build rapport with them and educate them. As a result, your story becomes the one they listen to and you become the lawyer the jurors learn to like and trust.
When we do tell the story of the case, either in opening or in examination it is important to speak of motivations. Remember that we are biased. Jurors are not dumb, they know that we, as plaintiff’s attorneys, have a stake in the outcome of the case. Thus anything we say can be speculated upon. Thus if we want to convince the jurors that something happened it is good to tell the jurors why the defendant was motivated to act as you say he or she did. If you simply say the defendant was careless or in a hurry well the jurors may or may not believe you. If you can say why the defendant was motivated to be in a hurry or careless well then your story is believable. It may be wise to not even tell the jurors explicitly that defendant was in a hurry or that defendant was careless. Better to show the motivations for the defendant being careless or in a hurry and then let the jurors reach that same conclusion on their own. When the jurors reach a conclusion on their own without you shoving it down their throats they will become much more solidified in those opinions.