Opening Statements: Don't Bore the Jury

Updated: Aug 5, 2019


Recently my wife had an interesting experience with her middle school speech class; an experience I believe can be very instructive for trial attorneys. She was listening to her students deliver the speeches they had been working on the prior week. As one of her shy and somewhat awkward students walked to the front of the class to deliver his speech, my wife could see he was anxious; and she was anxious for him. She knew how much he dreaded getting up in front of the class.


The first words out this student's mouth were: "I want to tell you all about the scariest thing that ever happened to me..." From those few words to the end of the speech, the rest of class listened with rapt attention.


In contrast, the next day was the turn of one of the popular, self-confident, and cocky boys to give his speech. He thought his popularity would carry the speech and the students' attention. However, once he got up to the front of the class, he learned a tough lesson; His popularity didn't carry anything. His speech started out with the words: "Hi, as you all know, my name is John Doe. Today my speech is going to be about solar energy. What is solar energy? I looked up the definition and here is what I found: Solar energy is radiant light and heat from the sun that is harnessed using a range of ever-evolving technologies such as... blah, blah, blah."


As he spoke, the other students' attention began to wander almost immediately, and rather than listen to the speech, the students started talking among themselves and became a bit disruptive.


Needless to say, the first introduction was far better than the second, and even though the first student wasn't very self-assured or popular and the second student was, everyone paid attention to the first student. Why? The same reason you read beyond the first sentence of this blog post – because it started with a story.


Humans Love a Good Story


Besides "ice cream," what are a child's favorite words? "Once upon a time..." This is because they know a story is going to follow. Adults are no different. Everyone loves a good story and in fact, we are actually neurologically wired for stories (Leo Widrich, 2012).


Stories in Opening Statements


Let's look at the first 145 or so words from two contrasting opening statements. The first is from the OJ Simpson criminal trial and the second his civil trial.


The Criminal Trial

Your Honor Judge Ito, Mr. Cochran and Mr. Shapiro and Dean Uelmen, and to my colleagues seated here today in front of you, and to the real parties in interest in this case, the Brown family, the Goldman family and the Simpson family, and to you, ladies and gentlemen of the jury, good morning. I think it’s fair to say that I have the toughest job in town today. Except for the job that you have. Your job may just be a little bit tougher. But your job, and like my job, both have a central focus, a single objective, and that objective is justice, obviously. It’s going to be a long trial, and I want you to know how much we appreciate your being on the panel. We appreciate the personal sacrifices you’re making by being sequestered. We understand that can be difficult.


The Civil Trial

On a June evening, the 12th of June, 1994, Nicole Brown Simpson just finished putting her ten-year-old daughter, Sydney, and her six-year-old son, Justin, down to bed. She filled her bathtub with water. She lit some candles, began to get ready to take a bath and relax for the evening. Nicole then called the restaurant and asked to speak to a friendly young waiter there. Nicole asked this young waiter if he would be kind enough to drop her mother’s glasses off. The young man obliged and said he would drop the glasses off shortly after work, on his way to meet his friend in Marina Del Rey. The young man’s name was Ron Goldman. He was 25-years old. With the glasses in hand, Ron walked out of the restaurant, walked the few minutes to his apartment nearby, to change. He left the restaurant at 9:50 p.m.


Imagine you are a juror seated in one of the "trials of the century"– the OJ Simpson criminal trial – and it's going to last eight months. Now imagine the first words from the prosecution bore you out of your mind, and you've got eight more months to go. Imagine instead you're on the OJ Simpson civil trial and the first words from the plaintiff's attorney intrigue you because he's telling you a suspenseful story. Which would you prefer?


Tell Good Stories


Simply telling a story isn't good enough. Think about a time when you have been told a story that was too long, boring, never got to the point, contained too many details, didn't have characters you cared about, was confusing, or lacked a good payoff. In those circumstance the story becomes burdensome and counterproductive because the audience becomes uncomfortable, annoyed, and bored. Avoid doing this to a jury. Conduct a little research on elements of good storytelling before you begin constructing your story (e.g., here, here and here are good places to start).


Considerations for the Jury


While there are many ways to tell a good story, I have found the following three points valuable to consider when developing stories for opening statements:

  1. Make your story character driven with emotional content. Studies on storytelling and neural activity in the brain have found that character-driven stories with emotional content result in better understanding of the key points a speaker wishes to make and enable better recall of these points weeks later" (Paul J. Zak, 2014). Isn't this what you want in the jury room - better understanding and better recall?

  2. Put yourself in the shoes of the jury. Ask yourself: "If I were seated in that jury box, what story would captivate me?" It's also vital to know your audience. You don't want to alienate your jury by including something in your story that might work in New York City, but not Fort Worth, Texas.

  3. Test. As you start developing your story, try it out on some people and see what works and what doesn't, and make refinements as needed. But you need honest feedback, so don't test it on people who work for you and might be reluctant to be critical. Also, remember that attorneys think differently than lay people, so when possible don't test your story on other lawyers.

  4. Start with the story. How much of your opening statement is in story format is a case by case decision and depends on many variables. The key thing to remember is that if you don't start your opening statement with a story, you risk losing the jury's attention when they are most willing to give it. And once it's lost, good luck getting it back.

Conclusion


Everyone knows that well-told stories are captivating. Remember, jurors want to know why they are there, they want to know what happened, they don't want to be bored, and they don't want their time wasted. So, during one of the few times attorneys can speak directly to jurors, don't blow these precious few moments with a bunch of formalities and redundant introductions. Tell them an intriguing story.

Jeff Dougherty, M.S.

President - Litigation IQ

713 392 8135

Jeff@LitigationIQ.com

www.LitigationIQ.com



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