One of the most difficult parts of preparing for trial is writing an opening statement. Condensing thousands of pages of documents, dozens of hours of deposition testimony and numerous expert witness reports into a clear, concise summary is a daunting challenge for even the most experienced litigator. Adding to the challenge is the fact that an opening statement can do much more than simply present a “snapshot” or outline of the case. The opening statement is a critical part of a successful trial strategy because it can affect the way jurors perceive the entire trial.
To understand the potential power of the opening statement, one must understand how jurors (and human beings in general) make decisions. When confronted with new, complex, or incomplete information, people instinctively construct mental stories to help them understand that information. These stories help people organize and simplify information, fill in any gaps in the information, draw conclusions, and make decisions.
In court, jurors construct these stories early in the trial in order to make sense of the case. The story a juror creates is a product of two things: 1) the information presented and 2) the jurors’ pre-existing experiences, values, and attitudes. Once formed, the stories jurors have created in their minds influence the information they pay most attention to during the rest of the trial. Evidence that fits the juror’s story will be seen as more credible and important than evidence that does not. When jurors begin their deliberations, they do not recall and weigh the specific pieces of evidence presented by each side. Instead, they tell each other their stories, and in so doing, they reconstruct the evidence to fit those stories.
Why is telling a persuasive story in the opening so important? Because a persuasive story told in the opening statement can preempt the stories some jurors would have constructed on their own. As a result, a persuasive story told in the opening statement can influence how jurors will view the evidence and testimony to come.
So what makes for a good story and a good opening statement? That depends largely on the particulars of the case, but I’ve found one guideline to be helpful: everything in an opening statement should help explain why your side deserves to win and the other side deserves to lose. Anything that does not meet that guideline can probably be left out.
Having helped many attorneys draft their openings, here are some topics that sometimes find their way into a first draft that I usually mark for deletion:
• A history of the jury system.
• An explanation of why juries are important to democracy.
• An explanation of why the American legal system is the best in the world.
• Quotes from historical figures on the merits of juries.
All of these topics are fascinating and worthy topics of discussion, but they have nothing to do with explaining to a jury why you deserve to win and why the other side deserves to lose.
Alienating or marginalizing the jury also does not help explain why your side deserves to win and the other side deserves to lose. This may sound obvious, but an opening should not include:
• An explanation of why you only have to prove one thing in order to win, or
• An explanation of why, if the jurors agree with you on one part of the case, then they must vote in your favor on all parts of the case.
Some of these statements may be true. But jurors like to decide for themselves what is and is not an important part of a case, and how they are going to go about making their decision. While the law may specify that jurors must answer certain questions in order to reach a verdict, jurors must be given at least the illusion of freedom that the decision is in their hands. Your explanations of the questions to be answered on a verdict form are best left for the closing remarks.