Byte of Prevention Blog

by Jay Reeves |

How to Drop a Bomb in Your Opening Statements

opening statementsThe next time you stand up in court to deliver an opening statement, look over at the jury box and see each of the jurors as a potential client.

That’s the advice of one litigator who has been involved in some of the biggest trials of the past half-century.

“Your first goal is to show the jury that you are professional, articulate and nice,” says Washington DC lawyer Brendan Sullivan, who for 45 years has represented US Senators, cabinet members and Colonel Oliver North. “Present your story of the case in a way that makes each juror conclude: ‘I want that lawyer, if I ever need one.’”

Six Tips For Blockbuster Openings

An effective opening statement tells a great story and sets the tone for what will follow. Here are six tips from top trial attorneys, courtesy of the ABA Journal:

· Don’t waste time. Too many attorneys waste too much time explaining standards of proof or the history of juries or some other dry and generic topic. Whatever the main theme of the case may be, get to it quickly and describe it memorably. Tell jurors about a key piece of evidence that will prove your theme. This reinforces the theme and, just as important, establishes you as the director of the events they will see and hear about. (Abbe David Lowell of Chadbourne & Parke, Washington DC)

Use visual aids. Some lawyers say using visual aids may detract from your presentation. In this day and age, however, many jurors expect lawyers to use visual aids in court. Be mindful not to bore the jury with aids while delivering your opening statement, as it may affect your credibility throughout the case. (William R. “Billy” Martin of Miles & Stockbridge, Washington DC)

Drop a bomb. When on defense, I am a great believer in Herbert Stern’s teaching that you should try to start with a bomb. (Stern is a criminal defense attorney in New Jersey and author of Trying Cases to Win.) The jury is often so biased by the time you rise that you must concisely raise distrust of your opponent’s overall reliability and candor, or nothing wonderful can follow. The bomb usually takes the form of specific evidence that the plaintiff “chose not to show” and “never mentioned.” Those things the jurors will take as true must be a part of the story of why your client is right. Don’t address them as problems. Incorporate them. They can be trivial, so long as they’re organic. With the air out of the balloon when your opponent tries to pop it, instead of shock, jurors can think: “And? Got anything to add?” (John B. Quinn of Quinn Emanuel Urquhart & Sullivan, Los Angeles)

Go light on details. The key to a successful opening is a compelling and coherent narrative—or, for the defense, a compelling counter-narrative—that is built around a simple, engaging and forceful presentation of the theme of your case. The goal is to craft a lens through which the jury will see the evidence that provides the jurors with a view of what happened that leads inexorably to your desired outcome. The details matter less; the story is all. (Howard M. Shapiro of Wilmer Cutler Pickering Hale and Dorr, Washington DC)

Don’t be a raving lunatic. Demonstrate to the jury that you actually believe that your client is in the right and that if your client does not prevail, then justice will not have been served. You can’t say those words, of course, but your attitude and your sincerity will get the message across. Never say anything bad about the opposing lawyers during opening statements. Jurors don’t like that early in the case. Be firm and gentle in opening, so that when you close and pound the table with certainty about your client’s position—or innocence—you will not be seen as a raving maniac from start to finish. (Brendan V. Sullivan Jr. of Williams & Connolly, Washington, DC)

Lay down a marker. If you go first, know your materials cold; if second, know them cold but also respond to your opponent’s opening at least a little. Lately, I have borrowed a favorite tactic of my late and much-missed partner, Mark Hulkower, in my defense openings in federal criminal trials. I identify and emphasize a critical issue where I have the upper evidentiary hand. Then I dramatically step away from the podium, point to the floor and say with a flourish, “I am going to put down a marker. I am going to prove X, Y and Z when these prosecutors say it is A, B and C. Woe to me if I don’t. This is not just a lawyer’s hot air. I have to come back to you after the evidence for closing argument, and if I have not proven X, Y and Z, give me the stink eye or, worse, don’t look at me at all. But if I do prove X, Y and Z, you know what it means for the government’s case.” It’s a high-risk strategy to be sure—and I’m on a nice winning streak. Thank you, Mark. (Reid H. Weingarten of Steptoe & Johnson, Washington, DC)

What strategies for opening statements have worked for you?

Source: ABA Journal

About the Author

Jay Reeves

Jay Reeves practiced law in North Carolina and South Carolina. He was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. He is the author of The Most Powerful Attorney in the World, a collection of short stories from a law life well-lived, which as the seasons pass becomes less about law and liability and more about loss, love, longing, laughter and life's lasting luminescence.

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