By Christopher L. Tritico
The opening statement is one of those parts of a trial that lawyers tend to get lazy about. It is a crucial point in the trial as the lawyer is earning trust and setting up the case for later. The opening statement needs to be well thought out and prepared. A smooth, concise, thorough and confident opening statement will give you an edge as the evidence begins. In the criminal defense world, it is the last time that you get to speak last, so make it count.
The opening statement really begins in voir dire. In your voir dire you will set up the theme of your case. This is the theme that you will carry throughout your case. It has always been my view that you set up the theme in voir dire and hit it again in the opening; the jury now knows what to listen for. After jury selection, an opening statement is your chance to thoroughly tell the jury what your case is about. You set it up in your voir dire, now you can take your time to fully explain the case in a favorable manner.
Keep in mind that the jury does not know who to trust. The opening statement must be developed and planned in advance. Your delivery of the story is essential. Generally speaking, the first time you give your opening statement, should not be before the jury. Your opening statement must be delivered in a manner that conveys your themes, outlines the key facts and witnesses, and shows your innocence.
The purpose of the opening statement is to plant seeds in the minds of the jurors that you can cultivate throughout the trial. The first thing you want to do is plant a theme that the jury can easily remember. Themes can be one word, a triplet, or some catchy phrase.
“This case is about the search for the real demon”
“Prevarication and perjury”
The length of the theme is not important; what is important is that the jury can hang on to it throughout the trial, and take it back with them during deliberations.
Do not start with a quote from some ancient historian or stories about yourself and law school professors. The jury does not care. Don’t bore them into a catatonic state before you even get started. Be yourself, not someone else you saw try a case. Play to your strengths.
I want the theme to be engaging. I want it to be catchy. I want it to be something that will cause the jury to think about it all through the trial.
Theory Of The Case
After you lead with a theme, you need to get the jury focused on your theory of the case. It should be logical, and must be easy for the jury to understand. It is a short story of what is to come later in your opening statement. “This case is about the search for the real demon.”
Mark Smith shot and killed Charles Manson on May 1, 2006. You will learn Mark was forced to defend himself from the vicious and brutal assault of Charles Manson. You will hear that Manson is a demon, a monster. This case is about the search for the real demon. You see on May 1, 2006 Mark was a carefree college student. Just a kid, that is, until he met Charles Manson. Manson, for no reason that we can discover attacked and beat Mark. What I am asking you to do here, at needs to be done here, is to search out and find the real demon.
Introducing The Parties, Events And Witnesses
The jury needs to like your client. You want to personalize him as much as possible. Ask him to stand up as you introduce him to the jury. While you are introducing him, put your arm around him. Show the jury immediately that there is nothing to be afraid of when they look at your client. A soft hand on their shoulder speaks volumes to the jury.
Talk about his past. If he was born and raised in the same town as the trial, stress that. “He is one of us” “he went to school right here.” Talk about his family, wife, kids, job, and community involvement. This person needs to be humanized. The prosecutor will call him the defendant. You should never call him defendant, my client, or anything other than Mr. Smith, Charles Smith or Charles. If you do not show respect towards your client, neither will the jury. If you are in federal court you will only call him Charles once, and then get your ass chewed out.
While you are personalizing your client, you want to de-personalize the other side. Refer to the State as “the government.” However, be careful not to offend a juror with racial or sadistic labels. Be careful how you characterize things also. Is it an “illness”, or a “sickness”. Assume someone on your panel has a family member with the same problem, and it will help you from mischaracterizing something and offending a juror. The State will be doing the same thing.
The same applies to the words you use to describe things or events. “She was late, in a hurry, driving a big, black, heavy, gas guzzling, SUV” versus “She was just a soccer mom trying to get her kids to school in their beautiful brand new car”. Tone of voice is crucial when delivering your lines.
As important as your tone of voice, is the emphasis you place on certain words. For example, the phrase, “I never said I would give you the money,” can convey different meanings depending on what words you emphasize. “I never said I would give you the money,” versus, “I never said I would give you the money,” versus, “I never said I would give you the money. Emphasis in each phrase changes the meaning completely.
As you progress, you want to introduce the people who will be testifying for you. “We will bring you an expert today, Dr. Michael DeBakey…” When you introduce your players, you want to tell the jury a little bit about what they will be testifying about. And remember, your witnesses “testify” and “give evidence”. Opposing counsel’s witnesses will be “telling you stories”.
Look at the jury. Don’t look through them, talk to them. Look each one of them in the eye. At appropriate times look the prosecutors in the eye. If you are questioning the integrity of the “victim” look them in the eye when you do it. When you look at the jury, the jury will look at you as well. On this idea pick, the complaint well. If your victim is an 88-year-old lady dragging an oxygen bottle behind her – leave her out of your opening!
Tell The Story
Jurors can easily follow and remember a good story. Your opening statement has to be a story that the jury will remember and believe. You want the jury to re-live your client’s experience. They only know what you tell them. You have to entertain the jury while you do it. Showing your conviction is key. You can be emotional – but not too emotional. Never be sappy. Nor do you convey your emotion by being too loud, unless something in the facts calls for it. It is ok to make them laugh. It is ok to tell them a joke. Only tell a joke if you are funny. Don’t know if you are funny? Here is a simple test, walk up to a group of people and tell a joke. If no one laughs, you are not funny!
Keep your story organized and logical. Once the jury is lost, they will tune you out. Keep it short. I have over the years modified my style from taking as long as possible on everything to making everything as short as possible, while ensuring that I have covered everything. You cannot tell the jury about every little detail, and they cannot remember every little detail. You cannot tell them in a matter of a few minutes every detail.
Anticipate what the other side’s theories are, and try to dismiss them with whatever facts or reasons you have. If you paid attention to the state’s voir dire and their opening, you know their theory by now. Spend a little bit of time dispelling it, but not too much time. You want the jury focused on your case not theirs.
You also want to anticipate your obvious and apparent weaknesses. You want to present your weaknesses in a manner that is not as damaging. If the jury hears it first from opposing counsel, it will make twice the impact, and the jury will wonder what else you are hiding. I never want the jury to feel like I am lying to them. If you start off a liar, you probably will not be able to recover from that.
Simultaneously, do not talk about something you cannot prove, and do not over-state the evidence. Not only will the jury remember that, but opposing counsel will reinforce it and hammer you with it during closing arguments.
Do Not State Personal Opinions Or Argue
The jury wants to hear the story; they do not care about your personal opinions. Save your arguments for closing. You want to state the facts with adjectives and descriptions that favor your side. The picture you paint here could well be the picture for the entire trial. Mark shot and killed Manson. He did. However, he did what he had to do to protect himself from the vicious attack that he was under. Imagine a pit bull attacking a child. The child did nothing wrong. The pit bull is nothing more than a mean spirited killer. It attacks without provocation. It attacks without warning. It attacks to kill. The only way to stop the attack is to kill the dog first. Your words paint a picture.
Lastly, never say “I believe,” “I think,” or anything that contains the word “I”. Telling the jury what you think or what you believe is not persuasive. Storytelling is. Use positive phrases to paint your picture. The evidence will show. You will learn. You will see.
Burden Of Proof
Cleverly remind the jury that the burden of proof is on the state. “While I don’t have to prove anything here, the state does, I will show you what they do not want you to know….” Where you place the burden of proof block depends on the type of case, your strategy, and/or whether it is civil or criminal, and if you are prosecuting or defending. But you place the burden of proof information near the beginning, or near the end. If you try and put the burden anywhere else in your opening, your opening will not appear organized.
Courtroom Location And Delivery
When giving your opening, you need to maximize your presence in front of the jury. Generally, you want to be in the middle of the jury, only a few feet away. If you are too close, they will be uncomfortable and not focus on your story. If you are not close enough, it makes you less impressive, and again, the jury will lose focus.
You need to make eye contact with each juror at some point in time in your opening. But do not stare at any one juror. Nor do you stare at the floor. Do not sway back and forth. Walk around the courtroom at the appropriate times. From time to time, move to a different spot in front of the jury to hold their attention.
Body language is important. The jury is scrutinizing everything you do. You do not want to look like a statue, nor do you want to look like Gumby. Project confidence. Make gestures and use your hands occasionally. However, do not move so much that they are distracted.
Talk to the jury. Do not present a speech. Do not read from a note pad. You need to use “pregnant pauses.” Meaning, if you have just told the jury an important fact, don’t say anything for a couple of seconds. Let that important piece of evidence sink in with the jury. There are times when the point is so strong you may want to repeat it after the pregnant pause.
Your voice is a powerful tool. Use it. Do not yell at the jury and do not whisper. Recall the last time you heard someone give a speech in a monotone voice reading from a prepared script. I am willing to bet that you do not recall one thing they said. Make no more than an outline of the matters that you want to cover. If there is no podium put it on the edge of counsel table. If you need to, glance at it to make sure that you have covered everything. If you make the outline the morning of trial you, will never cover everything that needs to be covered, and it will not be organized in a logical manner when you deliver it.
End With Your Theme
When you are wrapping up your opening, bring it back to the Theme. Primacy and recency with the jury is important. Tie your facts and theories to your Theme. When you are finished delivering your last line, don’t just turn and walk away immediately. Stand in front of the jury, in silence, and look across the panel.
Lastly, do not thank the jury for their time during your opening statement. There is plenty of time to thank them during voir dire and after the trial. Instead, challenge them. Ask them to listen to every witness. To look at every piece of evidence. Challenge them to follow the instructions and not make a decision until they hear all of the evidence. “Because if you do that, when you do that – you can only come back with the correct verdict.”
Take a short amount of time and think about your opening statement. Take a little time and map out an outline. If you do these two things, you will be better prepared and more effective. Your client will thank you for that later.