In a recent article on how to structure and deliver a potent opening statement, the author, Director-Elect of the National Trial Academy, wrote the following:
To simplify a case mired in complex terms and evidence, avoid using legalese and overcomplicating the facts and evidence. Simply put, use plain language. Below is an example of two ways in which the same point can be made:
“The evidence will illustrate how the plaintiff failed to exercise due diligence in fully examining and scrutinizing the investment opportunity.”
“You will hear testimony about how the plaintiff failed to check it out before investing her money.”
Philippa Ellis, OPENING STATEMENT, THE IMPORTANCE OF MAKING IT MEMORABLE, 48 The Brief 26, 27 (2019). The author commended the second approach.
The suggestions of simplicity and succinctness are well taken. However, the illustrative example – “You will hear testimony about how the plaintiff failed to check it out before investing her money” – is not the effective way to present.
First, a word about juries and comprehension in general. There are really two concerns here – the educational/knowledge level of jurors; and the ability of jurors at any educational level to grasp and retain the critical points to be made in an opening statement.
Clearly, any particular jury will have its own mix of educational background. It is often the case that the educational level is low. The infamous quote is that of Herbert Spencer – a jury is “a group of twelve people of average ignorance.” Levin and Emerson, Is There a Bias Against Education in the Jury Selection Process?, 38 Conn. L. Rev. 325, 325 (February 2006). But that same article shows the results of a jury study where 46% of jurors had a bachelor’s degree or higher.
One must be careful with data. The same tabulation by Levin and Emerson can be read in a variety of ways. 96% of selected jurors had a high school degree or more is one reading; another is that 27% had only a high school diploma, if that. 38 Conn.L.Rev. at 336. And a degree is not the same as being educated. As another article notes, “American parents with young children have an average reading level between seventh and eighth grade.” COMMENT: CAN LAYPEOPLE REASONABLY ASSESS MEDICAL MALPRACTICE DAMAGES?, 16 Fl. Coastal L. Rev. 403, 404 (Spring, 2015).
So simplicity is needed, both for comprehension and for retention. People forget much of what they hear, and a simple story is what is most easily retained.
What, then, is wrong with the proposed opening line of
You will hear testimony about how the plaintiff failed to check it out before investing her money…
First, the opener should dispense with the prefatory “you will hear” language. Lawyers default to this or the pattern “the evidence will show” when all these phrases do is eat up time, break up the flow of the story-telling, and make the proposition sound less certain.
That one change would transform the line to a much stronger assertion of
The plaintiff failed to check it out before investing her money
But the work is not done. “Check it out” is too ill-defined to paint a picture; and “check-it-out” will mean different things to different jurors, permitting an abundance of stories to flourish. So rather than a conclusory term, specifics are needed:
The plaintiff never talked to the bank; she never asked a stock broker; she never even talked to her own uncle, who teaches finance at the local university. She saw the ad and sent in the money.
Now, everyone knows what “check it out” means and the jury has standards to immediately criticize the conduct.
So – “yes” to simplicity, but “no” to unnecessary prefaces and conclusory terms.