Whether you like it or not, jurors will judge you based upon their first impressions.  Your first impression determines whether the jurors will listen to you, how much they’ll like you, and whether or not they’ll find you credible.  A bad first impression isn’t necessarily set in stone, but it will take a tremendous amount of effort to overcome their initial “gut reactions,” 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 openings, how many times did you hear the lawyer take advantage of the power of “primacy” to create a powerful first impression?  Probably not many, right?  In most cases, attorneys completely waste the first moments of their opening statements.

A Tale of Two Openings: Identical Facts, Different Outcomes

It doesn’t mater how important your case is.  If you don’t capture the jurors’ attention in the first moments of your opening, they may pay less attention (or no attention) to what you say.  For example, look at the first 144 words (about one minute) of the prosecution’s opening statement from one of the most famous cases of the 20th century, the O.J. Simpson murder trial:

Your Honor, Judge Ito, Mr. Cochran and Mr. Shapiro and Dean Uelmen, 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.  It’s your job — like my job, we 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.

Why does the prosecutor think that the jury’s job will be tough?  Don’t they think they’ve got a good case that will persuade the jurors?  Rather than grabbing the jurors’ attention and demonstrating the strength of their case, the prosecution begins by essentially saying, “This is gonna be long, it’s gonna be painful, and you’re gonna have a hard time reaching a verdict.”  The next few minutes aren’t any better.  By the time he eventually gets around to talking about the murder, there’s a substantial risk that the jurors tuned him out, because he didn’t give them any reason to listen to him.

Now compare that example with the first 148 words (again, about one minute) of the opening statement given in the civil case:

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 year 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.

Doesn’t he do a better job of grabbing your attention and making you want to continue listening?  That’s why you want to grab your jury’s attention, preferably within the first 15-20 seconds of your opening statement, and give them a compelling reason to listen to you.  Don’t squander this opportunity by wasting their time describing how a trial works, re-introducing yourself, or thanking them for their time.  During the entire trial, the jurors will never be more interested in what you have to say than during these first few moments of your opening statement.  Yet how many times have you heard attorneys waste the first moments of their opening statement with empty phrases like these:

• “This is what we lawyers call an opening statement…”
• “I appreciate the time and the attention that I know you will devote to this case today…”
• “Opening statement is our chance to tell you what the evidence will show…”
• “My name is James Minster, and it’s my privilege to represent Kyle Lauten…”
• “An opening statement is like…
  —- a roadmap…”
  —- a recipe…”
  —- the table of contents to a book…”
  —- the cover of a jigsaw puzzle box…”
• “Jury service is an honorable tradition, and I want to thank you for taking time out of your busy schedules to serve on this jury…”
• “Opening statement is my chance to show you how the pieces of the puzzle fit together…”
• “Before I begin, let me remind you that what Mr. Wadsworth said is not evidence, and what I say isn’t evidence, either…”[This last phrase is the worst of the bunch.  Why not go ahead and tell the jurors, “Ignore everything I say, because it doesn’t count”?!?]

Do any of those statements grab your attention, compel you to listen to the rest of the case, or persuade you to find in favor of their clients?  What a wasted opportunity!  During trial, you’re in a constant battle for your jurors’ mindspace.   If you don’t give them a compelling reason to listen to you, something else will attempt to occupy their thoughts.  In the back of their minds, they’re wondering how long the trial will take, whether their spouse will remember to pick up the kids from daycare, what’s happening at work while they’re gone, and a thousand other random thoughts.  They do their best to push those thoughts out of their heads, but if you don’t engage them, those thoughts will creep back in.  That’s why it’s essential the first words out of your mouth say something significant, so the jurors want to listen to your entire opening statement.

Before you can create persuasive and attention-grabbing opening lines, you’ll need to follow Yoda’s advice and “unlearn what you have learned.”  Here are three quick and easy guidelines for things not to say in the initial moments of your opening statement:

1. Don’t Introduce Yourself (Again)

When the trial began, the judge told the jurors who you were.  Then you probably introduced yourself again during jury selection.  Why would they want to hear you talk about yourself again during opening statement?  Your client’s story is the star of the case, not you.  At the end of the trial, it won’t matter if the jurors forget your name, forget your face, or even go out of their way to completely erase all memories of you from their memory banks.  When the trial is over, the only thing that will matter is whether or not they see (and believe) the story of what happened to your client.  So don’t waste any time talking about yourself during opening statement – you’re not that important.

2. Don’t Suck Up

Another common mistake is the gratuitous “thank you” designed to ingratiate you with the jury:

• “Thank you so much for being here…”
• “My client and I really wanted to thank you for performing your civic duty today…”
• “Jury duty is a special privilege and the most sacred of your citizenship duties…”
• “I appreciate the time and attention that I know you will devote to this case today…”
• “Jury service is an honorable tradition and I want to thank you for taking time out of your busy schedules to serve on this jury…”

The biggest problem with these types of statements is that they’re often insincere.  Too many lawyers attempt to curry the jury’s favor with hollow praise.  This tactic rarely works, because jurors easily see through the insincerity.  There’s nothing wrong with (sincerely) thanking jurors for their service, but wait to express your gratitude until sometime later during your opening.

3. Don’t Describe How an Opening Statement Works

Some lawyers begin by telling the jurors what an opening statement is:

• “An opening statement is my chance to outline for you what the evidence will show…”
• “This is my chance to show you how the pieces of the puzzle fit together…”
• “An opening statement is like a recipe for a cake…”
• “This is what we attorneys call an opening statement…”

Thanks to the countless legal thrillers and jury trials on TV, your jurors have more than a passing familiarity with the legal system, so there’s no need to describe how a trial works or how an opening statement works.  Don’t bog the jurors down with this information.   Besides, none of that information helps the jurors see the events that led up to trial or shows why your client deserves to win.

Remember: These first few moments are your best chance for grabbing the jury’s attention and getting them to listen to you.  Don’t squander that opportunity on something that won’t help you win your case.  Give them a reason to listen to you within the first 15-20 seconds, and your jurors will be hooked for the rest of your opening statement!

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The fewer obstructions between you and your jurors, the more persuasive you will be.  Yet many trial lawyers purposely place an obstacle between themselves and their jurors.  That obstacle?  Their notes.

Here’s the slippery slope your notes create: The more notes you bring with you to the lectern, the more you will depend upon them.  The more you depend on your notes, the less eye contact you will have with your jurors.  The less eye contact you have with the jurors, the less persuasive you will be.

Rather than bring copious notes to the lectern, try to bring no more than a one page outline with you.  Write out the main bullet points of your arguments, rather than word-for-word arguments, and you’ll force yourself to spend more time talking with your jury.  Your goal is to use an outline, not a script.  It’s okay to read quotations, it’s okay to read snippets of testimony, but please, don’t read your argument!

Here are a few tips you can use to minimize the amount of notes you bring to the lectern:

Use visual aids instead of an outline. If you use posters or computer images to help the jury follow your closing argument, you can embed your notes directly into your presentation.  Let’s say you have three posters for closing argument, one for each of the three elements you need to prove.  You can use the posters to remind you what point you should argue next.

Add secret messages on your flipchart. If you are using a flipchart, you can write notes to yourself on the flipchart.  If you write the notes in pencil, your jurors will never see your notes.  You can quickly glance at your handwritten note while explaining the flipchart to the jury, and they’ll never know you’re reading from your notes.

Use Presentation Mode in PowerPoint. In presentation mode, your laptop projects images onto two different monitors: the projection screen and your laptop monitor.  The jury only sees the images projected on the big screen.  You, however, see a completely different image on your laptop screen.  On that screen, you can type in whatever reminders you need, so you appear to be presenting without benefit of notes.

Embed secret images into your PowerPoint slides. You can also add secret to your PowerPoint slides.  In the bottom left hand corner of your slide, create a text box and type a few bullet points.  Use a simple font like Arial, and change the font size to 8 points.  At that size, most jurors won’t even see the text.  Their eyes will be focused on your larger text, and won’t look down at your hidden message.

Use bullet points. Rather than use an entire script of notes, condense your arguments to single bullet points.  Try to use fewer than 7 words to describe each of your argument points.  With only a few words written for each point, you’ll be forced to take your eyes off the paper and look at your jurors.

No matter which technique you use, endeavor to become less dependent upon your notes.  Eliminate the barriers between you and your jurors, and you’ll make more frequent eye contact with your jurors.  The more eye contact you make with them, the more persuasive you’ll be.

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Whenever an attorney asks me to help them with their opening statement, I usually ask them a series of questions to help assess the true value of their case:

Question #1: “What do you like about your case?”

It sounds like a silly question, but it’s actually quite important.  The more time you invest in your case, the more weaknesses you start seeing in your case.  That’s an invaluable asset for realistically evaluating your case, but unfortunately, it often leads to tunnel vision.  Some lawyers become so fixated on their case weaknesses that eventually, that’s all they see.  They magnify those weaknesses out of proportion until they start feeling overwhelmed.  Before long, these lawyers can actually start believing that their case is unwinnable.

Obviously, that’s not true.  All that’s happened is that they’ve lost sight of their case strengths.  If it ever happens to you, take a clue from the time when Apollo Creed took Rocky to the inner city gym in Rocky III. All you need to do is get back to basics and remember your inner strengths.  Answer these questions and you’ll remember why your case is winnable:

• “Why did you initially decide to take this case?”
  When the case first came into your office, what did you like about it?  Was it the client?  The opposing party?  The legal issues?  What was it that made you think, “This is a good case, and I can win it”?
• “How did you feel the first time you heard the case details?”
  Did you feel an emotional tug on your heartstrings?  Did you get angry?  What was your emotional response when you learned about the case?
• “What did you say to your spouse / best friend / trial partner the first time you told them about the case?”
  How did you sum up the case for them?  What facts did they fixate upon?  What grabbed their attention?  What did they like most?  How did they respond?

By getting back to basics, you’ll tap into the memories of what first attracted you to the case.  By the end of your opening statement, if the jurors feel like you did when you first learned about the case, the battle is half-won.

Question #2: “What do you hate about your case?”

Your case isn’t perfect.  If it was, you wouldn’t be writing an opening statement, because your opponent would have made an incredible offer and the case would already be settled.

Nope, your case isn’t perfect, so if you’re going to present a persuasive opening statement, you not only need to focus the jury’s attention on the strongest elements of your case, but you’ll also need to prepare them to handle the weaknesses in your case.  You can’t ignore your case weaknesses during opening statement, because if you don’t address them, your opponent will exaggerate them and make it look like you’re hiding things from the jury.  To be effective, you’ll need to create an all-encompassing opening statement that successfully incorporates your case weaknesses into a persuasive storyline.  So, what’s wrong with your case?  What are the weaknesses and the difficulties you’ll need to overcome?  Here are some of the problems you might experience:

Bad facts? Sometimes a single fact can be a case-killer.  What is the worst fact in your case?  What is the best fact in your opponent’s case?

Credibility issues? Do any of your witnesses have criminal histories?  Reputations for dishonesty?  Have they previously made statements that conflict with what they’re expected to say during trial?

Conflicts in the evidence? Do your witness statements agree with the physical evidence?  Do the witness’s statements agree with what other witnesses have said about the case?

Lack of proof? Are there any gaps in the evidence?  Do you have two forms of proof for every essential element, in case one form of proof falls apart or becomes inadmissible?

Legal hurdles? Are there any legal technicalities affecting the admissibility of your evidence?  Will the evidence be partially admissible?  Will you need to survive a Frye type hearing before your witness may testify?

Financial hurdles? Can you afford to hire experts?  The best ones?  (Or at least more persuasive than your opponent’s experts?)  Will financial issues force to use a recorded deposition rather than a live witness, or limit your use of demonstrative aids?

Witness difficulties? Is your witness incomprehensible?  Does he need an interpreter?  Is he a sanctimonious jerk?  Does he have any character traits that will prevent the jury from listening to his story?

Societal expectations? Just because a landlord is legally entitled to evict a family on Christmas Eve doesn’t mean the jury is going to approve of his actions.  There may not be any duty to be a Good Samaritan, but will your jury understand?  Even if your case is legally viable, does it fly in the face of societal expectations?  Will you need to overcome jurors’ negative emotional feelings?

Question #3: “What scares you the most about your case?”

What is the biggest problem with your case?  Where is your Achilles heel?  As you look through the list of things you hate about the case, is there a recurring theme?  Is one of the problems more insurmountable than the others?  If your opponents have even half a brain, they’re going to focus all of their attention on that single issue.  You’ll need to be prepared to address it during opening statement, so on a fresh sheet of paper, answer this question: “The thing that scares me the most about my case is…”

Question #4: “Why do you still deserve to win?”

If your case is like most cases heading to trial, you probably wrote down an extensive list of problems, and didn’t have any difficulty identifying the thing that scares you the most about your case.  Now you need to show the jury why you still deserve to win this case, despite all of these problems.  (If you can’t do that, you might want to start thinking about settling the case immediately.)  For each issue (focusing especially on the issue that scares you most about your case), write out an answer to this question: “Despite [negative fact], we still deserve to win because…”  It might take creative thinking and late nights, but develop a response for each potential issue before you advance to the next step of preparing your opening statement.

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How many notes do you use during trial?

It’s a delicate balancing act.  Too few notes, and you run the risk of forgetting to address an important element of your case.  Too many notes, and you risk sounding scripted.

Here are a couple of quick tips for improving your use of notes during trial.

When Speaking Directly to the Jury

The importance of eye contact in the courtroom can’t be overstated.  The visible (sometimes barely visible) reactions of your jurors can help you decide whether or not to pursue an argument, whether to follow up on a line of questioning, and whether you need to return to a line of questioning to clear up potential misunderstandings.  You’ll need to pick up on the small non-verbal clues that they’re sending you, and you can’t do that if your head is buried in your notes.  Are they telling you to speed up?  To slow down?  Are they confused?  Bored?  Do they need part of the testimony repeated?  If you don’t look at them and read those clues, you’ll never know.

Make sure that you’re making eye contact with who you want to persuade.  Since you’re trying to persuade the jurors, rather than your legal pad, try to minimize how much time you spend looking at your notes.

When Speaking to a Witness

Jurors take their clues from you about how they should treat witnesses.  If you act like a witness is important, jurors are more likely to think the witness is important.  If you act as if the witness’s testimony doesn’t matter, they’re more likely to dismiss what he says, regardless of its actual importance.

When you look at your notes instead of making eye contact with the witness, it’s not only rude, it sends a message that you don’t care what he has to say and that his answers don’t matter.  To avoid sending the wrong message to your jury, look up from your notes and make eye contact with the witness before asking your question, and finish listening to his answer before you look down at your notes for your next question.  You can even hold eye contact with the witness for an additional moment after he finishes answering, to show that you’re paying close attention to what he’s saying and encourage the jury to pay more attention, too.  Just don’t stare at him, because it will make him feel uncomfortable and he’ll look uneasy on the stand.

Minimizing Your Notes

It’s okay to write out your arguments or questions word-for-word when you’re preparing for trial, so that you know what you want to accomplish.  But don’t make the mistake of bringing those scripts up to the lectern.  Those notes will become a mental crutch, and your eyes will never leave the page.

Anyone can read from a script.  With a well-scripted direct or cross-examination, you could pick someone off the street, send him into court with the script, and let him conduct the examination.  He’d do fine, right up until the point when one of the witness’s answers went off-script.  Then he’d be completely lost, and would have no idea what to do next.

Unlike trials on TV or in the movies, real trials don’t stick to a script.  Trial lawyers who depend on scripted examinations don’t always react very well when the unexpected happens.  That’s why, the fewer notes you bring to the lectern, the more freedom you enjoy.

When preparing the notes that you’ll bring to court, instead of writing out a word-for-word script, write down only what you need.  Rather than full sentences, use brief phrases or single words.  Besides, when you’re in the heat of trial, your eyes won’t easily focus on full sentences like “Mrs. Johnson, would you please tell us how you know the defendant?”  All you’ll really need is a quick reminder, like “RELATIONSHIP?” or “KNOWS DEFENDANT?” to prompt the correct question.

Make it Easy on the Eyes

Finally, if you want to minimize your time spent looking at the page and maximize your eye contact with the jury, it will help if your notes are easy to read.  To reduce how much time you need to look at the page, don’t rely on your chicken scratch handwriting.  Instead, type up your notes (preferably in 18pt or 24pt type) with a simple sans serif font.  You’ll be able to glance down at your notes for an instant, absorb the idea, and then immediately return to making eye contact with your jurors or your witness.  With a little practice and preparation, the jurors won’t even notice your use of notes, they’ll just focus on the strength of your case!

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How do you structure your closing arguments?  If you’re like many attorneys, you probably take advantage of primacy to start strong and tell the jurors how strong your case is and show them why you deserve to win.  Normally, that’s exactly how I coach law students and trial lawyers to structure their closings.  “Start strong,” I’ll say, “disclose your weaknesses in the middle, and then finish strong.”

But…  That’s not necessarily the “best” way to outline your closing.

Trial advocacy is art.  Unlike mathematics or science, where only one correct answer exists, art doesn’t necessarily have a “best” way of doing something.  Working from the same palette, Cézanne, Picasso and Dali each created radically different depictions of the human form, but none of their masterpieces can objectively be called “the best.”

The same is true of closing arguments.  There are many different approaches, but we can’t objectively say one of them is the “best” way of structuring an argument.

So, with that in mind, let me offer another approach for structuring your closing argument.

Rather than starting with your strongest argument, then saying “But, here’s the weakness with our case,” you might want to consider starting with your case weakness before discussing the strongest part of your case.  That’s because the word “but” indicates, “Put aside what I just said, and pay attention to what I’m about to say.”

For example, let’s pretend that during your semi-annual review, your boss tells you, “Overall, your job performance is excellent, but… your communication skills need improvement.”

If you’re like most people, you probably fixated on the negative portion of the evaluation, even though the overall evaluation said you were doing an excellent job.  It’s just human nature - when we hear the word “but,” we tune out the previous statement and focus on what follows.  Don’t believe me?  Just imagine the person you love most in the world telling you, “I love you more than anything else in the world.  You’re the most wonderful person I’ve ever met.  I can’t imagine life without you.  But…”

All it takes is one word and you’ve completely forgotten about how wonderful you are, haven’t you?

With that in mind, you may want to reconsider the structure of your closing argument.  Many cases have been won with arguments that basically said, “We have a strong case that deserves to win…  BUT, there are a few weakness in this case that you should know about.”  If you’re afraid this structure may increase the risk of jurors placing greater focus on your case weaknesses, you may want to re-write your argument like this: “There are a few weaknesses in this case that you should know about…  BUT, we have a strong case that deserves to win.”

You probably won’t want to try this format during opening statements, because at that point the jurors don’t know anything about your case yet, and you’ll want to fully maximize the power of Primacy by establishing a strong, positive image in your jurors’ minds.  However, by the time you reach closing arguments, the jurors have heard all of the testimony and seen all of the exhibits in your case, so Primacy doesn’t play as big a role.

By the time you reach closings, the only thing left is argument.  By discussing your weaknesses first before talking about the strength of your case, you may enhance your credibility with the jury and help them become more receptive to your arguments.

The important lesson is that there’s no “best” way to craft your closing argument.  Don’t get locked into thinking there’s only one way to structure your arguments or that there’s a “magic bullet” that will work in every trial.  Each trial is different, each client is different, and each jury is different.  As the trial lawyer, it’s your job to discover which structure you should use and which arguments you should make to create your “masterpiece” closing.  Good luck!

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