Learning From Mistakes: Failing to Story Tell in a Defense Opening

A successful opening statement:

  • Draws in the listener from the first sentences;
  • Narrates facts into a story-board or framework that the audience – judge or jury – is familiar and comfortable with;
  • Tells that story with less attention to finite details and more to ensuring that the gist is grasped;
  • Is persuasive without becoming argumentative;
  • Strikes an emotionally resonant chord; and
  • Leaves the listener desirous of and receptive to confirmation as the evidence unfolds.

The dilemma is for the defense lawyer, he/she who opens second. If the moving party has indeed set the stage with a compelling narration, the defense must quickly move the listener to a new narrative, a story at least as compelling, familiar and morally satisfying. If this does not occur, there is only one framework and one set of expectations.

One author has described this as having and setting a “hook,” much as in fishing:

An ordinary opening statement relies upon each juror to supply the motivation to actively listen. A hook is a story device that functions in three important ways: (1) by supplying motivation to listen, (2) by offering an anticipation of what will come later, and (3) by providing an immediate connection between the lives of the audience and the characters in the story.


The failure to do this is seen in a juxtapose of two openings in a criminal homicide prosecution where the stakes were extraordinarily high – a life sentence without possibility of parole. To the lawyers who fail to quickly and convincingly present a story, the comparison of opening statements may bring home the need to rethink strategy and style.

The prosecution opening, shown below but with victim and witness names changed, is a vivid illustration of how story-telling captures the listener and begins the trial persuasion process.

What you’ll see really soon is this horrific tragedy is more suffering than any one young 23 year old man and his mom would ever, could ever and should ever endure.

Beyond the seven or eight or nine shots to the man’s body – and make no mistake about it, [victim], who people affectionately knew as [Tony], on January XX of the year 2006, on the 2200 block of XXXX Street…in South Philadelphia, was shot by to people using two revolvers again and again and again and again in his torso, his stomach, his legs, his feet, his back.

Beyond all of those shots – so many that we don’t even know how many – was two years of quadriplegia, two years of tubes, ventilator, two years of IVs, two years of “living,” end quote, two years of surgeries and infection after infection after infection.

Only to be told after those two years – and he fought valiantly – only to be told “We can’t do anything more for you, you’re going to die.”

The power of this opening and its emotional charge cannot be denied. To the defense counsel, then, the challenge is paramount – to offer a competing, equally compelling and morally satisfying narrative, and to do so from the first moment when juror expectations and the potential to ‘set the hook’ are high.

What happened instead?

Wow, you heard it.

The D.A. laid it all of the facts, laid out what happened, laid out what you’re going to hear, laid out the proof, laid out the evidence.

I don’t even know why we picked you all.

Obviously, based on what the D.A. just told you, this young man is guilty.

I mean, he told you that there was a witness who saw him on the scene.

There was a witness who heard [the defendant] say something.

There was the decedent himself who gave up [my client’s] name.

Let me do this.

I am going to try and make this as quick as possible within the next, I don’t know, five or seven minutes and then sit down and see if the prosecutor can back up what he said.

Let me stop there. As a reader, please ask yourself the following questions:

  • Did defense counsel draw in the listener?
  • Is there an alternative (or any) story?
  • Did defense counsel reinforce the prosecution story by retelling in in his first words, including the portions that inculpate his client?
  • As a juror, do you want or feel the need to continue listening?
  • As a juror, are you agreeing with defense counsel that “this young man is guilty” and it is unclear why we [the jurors] were picked for such a waste of time?
  • And, by the way, have you mentioned the client by name, let alone humanized him?

The list could go on and on. Later in the opening counsel told the jurors that his client was accused because “the prosecution got information, the police got information. For whatever reason they decide the information is valid, and they go out and arrest the person…” What story board does this fit – other than one of two independent groups that we as citizens rely on believe the defendant to be guilty?

Late in the closing counsel finally gave a hint of his defense. “You’re going to see that not only is the prosecution evidence flawed, it’s fatally flawed.” Yet this admonition came with no guidance what was flawed, or how to look for flaws – was never defined or even hinted at.

That the defense to these charges was difficult cannot be denied. But if that defense was that “the prosecution evidence [is] flawed, it’s fatally flawed,” then that should have been the headline and the story. It wasn’t. [We can leave for another time whether “fatally” flawed is the best word choice for a homicide case.]

The lesson? Hopefully, that seeing [reading] such an opening breeds believing in the premise that an opening with no story is no opening at all; and the next time an opening is given by the defense it won’t highlight the adverse evidence and fail to offer a competing narrative. Wouldn’t that be a story.