The below advice was developed for a lecture to Temple trial team members as work to ‘up our game’ in various aspects of courtroom advocacy. The advice, with minimal modification, is also useful for practicing attorneys.
- Why concentrate on the opening statement? It is where we are judged first, and our performance shapes how mock trial judges/real world jurors see our case and our skills
- Why concentrate on the opening statement? More and more is being taught and written about persuasive story-telling, so that is where we need to focus.
- What is a successful model for the opening? A story that immediately attracts attention, going from the normal to the shocking or one that immediately unsettles and conveys a looming disaster. Consider this song:
It was the third of June, another sleepy, dusty Delta day
I was out choppin’ cotton and my brother was balin’ hay
And at dinner time we stopped and walked back to the house to eat
And Mama hollered out the back door “Y’all remember to wipe your feet”
And then she said “I got some news this mornin’ from Choctaw Ridge”
“Today Billie Joe MacAllister jumped off the Tallahatchie Bridge”
- What does this all mean? Fine-tune that opening paragraph.
- What about word choice? Paint a picture.
- What can’t happen in an opening? Using a phrase or making a point that the other side can seize upon; misstating the proof; promising what you can’t do; and failing to acknowledge a glaring problem with your case.
- What if you open second? Rule 1 – listen for gifts/flaws [note for closing argument; and possibly for going off-script in the opening].
- What if you open second? Rule 2 – never use the word “story” or say that there are “two stories” or “two sides;” tell what actually happened.
- What if you open second? Rule 3 – the jury has already heard the basic facts; don’t regurgitate, just build off of them.
- What if you open second? Rule 4 – 99% of the time, stick to your script; 1% call out the opposition for something they said when opening [but not in your first paragraphs]. Example:
Plaintiff’s lawyer said these words – “they created a killing machine.” No – Jones Industries created a machine that packs chicken breasts into boxes. A machine made to industry standards. A machine that became a problem only because…
- What rules apply to both sides? Credibility; respect for the jury.
There are more points to be made – where to position oneself (be it in the courtroom or in a virtual setting); when and how to use demonstratives and exhibits; the importance of brevity; and the ‘tell it to a friend and see if they can then tell the story of the case back to you’ test for narrative integrity and completeness. But begin with these points and your opening statement will be much improved.