Every single second of every single moment of his opening statement was filled with the sound of his voice which when you think back upon it you have to admit you were kind of amazed because there wasn’t a single comma or period or pause I mean did this guy even need to breathe it didn’t seem like it because he just kept going and going and going without regard to oxygen or jury expectations or even the court reporter it was almost as if he was afraid that the thought of pausing would let someone else start talking and that would simply be unacceptable for him so rather than pausing for even a moment and letting you think about what he was saying he just kept talking and talking and…

Unfortunately, many trial lawyers’ opening statements and closing arguments seem to feel like this.

They either have such a poor understanding of the pause’s importance of pausing or don’t know how to effectively pause that you’re tempted to say, “Whoa, buddy! Stop! Take a breath before you pass out!” One of the most powerful tools in your opening statement and closing argument toolbox is the well-placed pause. Often, that brief moment of silence following a profound thought can be more important that the words themselves.

“WHY SHOULD I PAUSE?”
Imagine reading a newspaper without a single comma, period, or paragraph indentation – just word after word after word. How far could you read before losing your train of thought?

An opening statement or closing argument without any pauses feels exactly the same way to your jurors.

Do you want the jury to remember your message? To understand it? Do you want them to take the message into the jury deliberation room, and incorporate it into their verdict? If so, you need to give them a chance to stop and reflect upon what you’re saying. Here are three reasons why you need to effectively pause during your opening statements and closing arguments:

A pause lets us think. Many trial lawyers ask rhetorical questions during closing argument, but then move immediately to their next sentence without pausing. This robs the jury of their chance to think about how that question should shape their verdict or how it might apply to their deliberations. Pausing for a moment lets the audience answer the question and wrap their minds around your message.

A pause helps us feel. During opening statements, you often describe emotional scenes of great pain, fear, or loss. The best trial lawyers describe these moments with such clarity that the jurors feel exactly what happened to the clients and, on their own initiative, place themselves in the clients’ shoes. (Notice that I said, “on their own” — please don’t think I’m encouraging you to make any arguments that violate the Golden Rule!) After describing an emotional scene, give the jurors a moment of silence so that they can absorb its impact and “feel” the same experience.

A pause helps us absorb ideas. Your message travels at the speed of sound. Even in the largest of courtrooms, it travels from your mouth to the jurors’ ears almost instantaneously. But often, it takes a few extra seconds for your message to travel the last few inches from the jurors’ ears to their brains. Pause for a moment, and you’ll give your message enough time to complete its journey.

“WHEN SHOULD I PAUSE?”
There are several opportunities in every opening statement and closing argument where you might consider pausing:

• After you’ve said something important
• After you’ve asked the jurors a rhetorical question
• When you want the jurors to think
• When you’ve asked the jurors to remember a moment in
  their past or envision a common experience
• When you hit an emotional moment
• As a transition between points

Look through the outline of your opening statement or closing argument to find moments where your jurors need to mentally “breathe.” Notate your outline or make a mental note, so that you purposely pause at the appropriate moment.

“HOW DO I EFFECTIVELY PAUSE?”
Even when they purposely pause during their presentations, most trial lawyers underestimate the amount of time that they’ve paused. What seems like an eternity of silence before the jury may, in fact, last only a second or two. Here are three tips for holding your pauses for maximum impact:

Count silently. “One Mississippi, two Mississippi, three Mississippi, four Mississippi…” and then resume.

Look around. Make eye contact with at least three different members of the jury before continuing.

Get uncomfortable. Pause for one second longer than feels comfortable. The pause won’t be nearly as long as you think it is. You’ll feel uncomfortable, but your jurors won’t.

Effective trial lawyers know how to pause at the right moment and hold their pauses long enough to let jurors think, feel or respond appropriately. When you master the skill of pausing in your openings and closings, you’ll enhance the impact of emotional moments in your case and will help your jurors absorb the important issues in your case. It may feel uncomfortable at first, but before long, those pauses will become a natural part of your repertoire, and an essential element of your winning arguments.

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It might be the back alley of a dive bar where a man was bludgeoned to death, the potato chip aisle at a local grocery store where the plaintiff claims he slipped and fell, or a tiled and antiseptic operating room where your client’s husband died during routine surgery. In each instance, regardless of whether the case is civil or criminal, the location is the same: it’s the “scene of the crime.”

In your last case, how many times did you visit the “scene of the crime” before trial began? Once? Twice? Half a dozen times?

Unfortunately, if you’re like many lawyers, the answer is probably “none.” Oh sure, you looked at photos, examined a map of the area, and listened intently as your witnesses described the scene, but when it comes right down to it, you never actually left the comfort of your office to go visit the scene.

For as long as I’ve been a lawyer, I’ve always heard how important it was to visit the scene. Law school buddies said I should visit the scene, but I didn’t listen. Trial partners told me that I should visit the scene, but I didn’t listen. Judges and senior attorneys said, “Go!”, but I didn’t listen.

To be candid, I rarely went to the scene because I always came up with an excuse for why I didn’t need to go:

“Hey, I’ve got a full caseload, with dozens of pending cases. 99% of all cases never go to trial, so why waste my time visiting scenes on cases that I know will be resolved?”

“You don’t really expect me to go to the scene of the murder, do you? That place is dangerous! Heck, a guy got killed there! (Um, I mean a guy was ‘allegedly’ killed there…)”

“I’ve seen the photos and a map of the area, so I’ve got a pretty good idea of what the place looks like.”

(Do any of my excuses sound familiar?)

Then one day, I found myself listening to someone whose advice I really trusted. This man’s worldly wisdom was more valuable than anything I’d ever learned in law school. He wasn’t a lawyer, but lawyers listened to him. In fact, his influence extended far beyond the courthouse walls. I have it on good authority that countless legislators, law school professors, judges (even a few Supreme Court Justices) still listen to everything he says, and will go out of their way to see him if he visits their town.

So who was this sage? Perhaps you’ve heard of him: His name is Jimmy Buffett, and the advice he extolled came from the song “Mañana” on his Son of a Son of a Sailor album. Here’s what he told me:

“Don’t try to describe the ocean if you’ve never seen it –
Don’t ever forget that you just may wind up being wrong…”

Buffett has given us some great advice over the years (“I took off for a weekend last month, just to try and recall the whole year,” “Come Monday, it’ll be all right,” “Barmaid, bring a pitcher, another round of brew…”) but this is probably the most useful advice he’s ever given to aid your pre-trial preparations. And if Jimmy Buffett’s recommendation isn’t enough to get you out of the office, here are three more reasons why you’ll want to visit the scene of the crime:

1. You’ll present better opening statements. If I asked you to tell me what one of the courtrooms in your courthouse looks like, you could probably describe it in great detail, couldn’t you? That’s because, in your mind’s eye, you can “see” where the jury box is located, the height of the judge’s bench, and the distance between the witness box and the attorney’s tables. When I ask you to describe the courtroom, you simply access your visual memory and tell me what you “see.”

In much the same way, going to the scene helps you “see” how the events unfolded, which lets you bring the action to life during your opening statement. Instead of cobbling together random details from witness statements and various reports, you simply transfer the images from your mind’s eye into your jurors’ minds.

2. You’ll extract more detail during direct examination. Possibly the greatest benefit of visiting the scene is that you’ll start pulling far more detail out of your witnesses during direct examination. For example, compare these two direct examinations from Driving Under the Influence (DUI) cases. The first is by a prosecutor who only read the police reports and talked with his witnesses:

Q: Officer, when you turned on your lights and sirens, how close were you to the defendant’s car?

A: About 2 car lengths behind him.

Q: Where were you when you turned on your lights and sirens?

A: On Main St., just past the Dunkin’ Donuts.

Q: Once you turned on your lights and sirens, did he stop his car?

A: No, he didn’t stop for about 250 yards, until he reached Miller’s Pub.

Q: Were there any other safe places to stop his car?

A: There were several, but he didn’t stop in any of them.

That’s not too bad, right? You know that the driver didn’t stop his car, even though the police officer’s lights were flashing and his sirens were wailing. You also know that he passed by several other safe places to stop his car. At this point, you might even be thinking that the reason why he didn’t stop the car was alcohol-related. But look at how much better the direct examination becomes if the prosecutor actually has first hand knowledge of how the scene looks:

Q: Officer, when you turned on your lights and sirens, how close were you to the defendant’s car?

A: About 2 car lengths behind him.

Q: Where were you when you turned on your lights and sirens?

A: On Main St., just past the Dunkin’ Donuts.

Q: Just past the Dunkin’ Donuts is a Waffle House, right? Is that a safe, well lit, place to stop?

A: Yes.

Q: Once you turned on your lights and sirens, did he stop in the Waffle House parking lot?

A: No.

Q: What about the Applebee’s after that? Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Applebee’s parking lot?

A: No, he didn’t.

Q: How about Bennigan’s? Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Bennigan’s parking lot?

A: No, he didn’t stop there, either.

Q: Tell us about McDonald’s. Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he pull over into the McDonald’s parking lot?

A: No, he kept driving.

Q: Bob’s Big Boy? Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Bob’s Big Boy parking lot?

A: No, he drove right past it.

Q: The Hess gas station, is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Hess gas station?

A: No, he didn’t.

Q: Officer, where did the defendant finally stop his car?

A: About 250 yards after I first turned on my lights and sirens, at Miller’s Pub.

By visiting the scene, you can ask more intelligent questions and elicit more details from your witnesses. This lets you fill in all of the “holes” in their testimony and present a complete picture for the jurors.

3. Your cross-examination will be more lethal. Your witnesses and investigators don’t know as much about the case as you do, so they can easily overlook cross-examination insights which would seem obvious to you. When you visit the scene (rather than relying on second hand information) you will uncover clues that others wouldn’t even recognize as being important. Those clues may be the winning edge you need to poke holes in opposing witness’s testimony.

• “You said you were sitting in the Starbucks at 4:25 PM, looked out the window, and saw my client, Money Richpockets, run a red light and hit your best friend, Harvey Deadbeat, isn’t that right?”
• “That day was a clear day, wasn’t it?”
• “Not a cloud in the sky, right?”
• “The sun was shining brightly from the west.”
• “Earlier, you said that you had a clear view of the crash, because the sun was directly behind you as you looked out the window, right?”
• “The Morgan St. glass shop is directly across the street from the Starbucks, isn’t it?”
• “The glass shop has a 20′ x 10′ mirror in the front of the store, doesn’t it?”
• “And between 3:50 PM and 4:45 PM, the sun shines directly onto that mirrored window, doesn’t it?”
• “In fact, the light reflects directly into the Starbucks, blinding the barristas.”
• “They close the front blinds as soon as the light hits the espresso machines, so that no one in the store gets blinded, don’t they?”

Visiting the scene of the crime can make the difference between whether the jury “sees” what happened to your client or not. Your pre-trial preparation won’t be complete until you’ve visited the scene of the crime, so block off some time in your calendar and go. You’ll be glad you did, and so will your client!

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You only get one chance to make a first impression.

Whether you like it or not, jurors will judge you based upon their first impressions.  Your first impression affects how much jurors listen to you, how much they like you, and whether or not they’ll find you credible.  A bad first impression isn’t necessarily set in stone, but it takes a tremendous amount of effort to overcome someone’s initial “gut reaction,” so that means a negative first impression can taint every other interaction you’ll have with jurors.

So, if first impressions are so important, why do so many attorneys present such lousy first impressions during opening statement?!?

Think about the last 10 opening statements you heard.  Out of those ten openings, how many times did someone take advantage of the power of “primacy” and create a powerful first impression?  Probably not many, right?  In most cases, attorneys completely waste the first moments of their opening statements.  How many times have you heard an opening statement that started like this:

• “An opening statement is like a roadmap…”
• “Before I begin, let me remind you that what Mr. Wadsworth said is not evidence, and what I say isn’t evidence, either…”
• “My name is James Minster, and it’s my privilege to represent Kyle Lauten…”

(Yawn!)

What a wasted opportunity!  The first moments of your opening statement serve the same purpose as the first line of a book: they should grab the jurors’ attention and give them a reason to listen to you.  Think how great novels grabbed your attention with their opening line:

• “All happy families are alike; each unhappy family is unhappy in its own way.” (Anna Karenina)
  
• “In our family, there was no clear line between religion and fly-fishing.”  (A River Runs Through It)
  
• “Whether I shall turn out to be the hero of my own life, or whether that station will be held by anybody else, these pages must show.”  (David Copperfield)
  
• “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way-in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.”  (Tale of Two Cities)

  (Dickens not only knew he how to start a novel, he knew how to finish one, too.  Check out the closing line: “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to, than I have ever known.”)

[Those lines are a lot better than, “May it please the court,” don’t you think?]

Don’t waste the initial moments of your opening with drivel or blather.  Instead, you should follow the advice of my friend Pat Siracusa, who says lawyers should “punch a juror in the mouth” (figuratively, of course).

What he means is that your opening salvo should grab the jurors by their collars, pull them in, and give them a reason to pay attention to everything else you have to say.  A great way to grab their attention is to begin with the equivalent of, “I’ve got a story I want to tell you…”  Here are some examples you can adapt for your own cases:

• “It’s a warm July afternoon.  Mike Thompson thinks that he’s going outside to fix his sprinkler system.  But he’s mistaken.  His neighbor has been drinking, and he’s got other plans for Mike…”
• “It’s an early spring morning, and Julie Malcolm’s life is about to be changed forever…”
• “Let me take you back to an early December morning, just three years ago.  There are only two more weeks until Christmas, and 7 year old Bobby Sheridan is eagerly awaiting tonight’s trip to the mall where he’ll get to sit in Santa’s lap and tell him exactly what he wants for Christmas.  But because of a driver who is more focused on his Blackberry than where he’s driving, Bobby will never get to tell Santa what he wants.”
• “Mike Richards is a proud man.  Too proud.  And pride can lead a man to take crazy risks.”
• “It’s early March of last year, and Roger Wooden is the most successful salesperson in his company.  He’s also the only gay salesperson in his company.  And his co-workers can’t get that fact out of their heads.”
• “Lisa Hammish exercised every day.  She ate healthy foods.  She didn’t drink.  She didn’t smoke.  She took exceptional care of herself and she was in excellent shape.  But on a late Sunday afternoon in February of last year, none of that would protect her…”
• “This is a case about a young child’s eyes.”

The first words of your opening may be the most persuasive words of your entire opening statement.  Use those words to grab the jurors’ attention and draw them in.  If you can do that, your first impression will positively impact the entire trial.

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