Continuation of presentation and notes from seminar from Kentucky Justice Association and Kentucky Defense Counsel on Trial Techniques & Strategies.
Opening Statements from Plaintiff Perspective
- Contrasted with voir dire where you are talking with the jury. Here talking to the jury.
- Rule - Remember talking to, communicating and relating with the jury. Hiding behind podium and reading statement not effective; deprives them of the opportunity to relate to you and thus must prepare, prepare, prepare. Preparation is the key to everything done in the courtroom; preparation includes selecting the right cases with the right facts.
- Practice it out loud and listen to how it sounds to your ear.
- Writing it out.
- Words used; big words not needed to communicate with members of jury who come from ALL walks of life and education. Be careful. Even using voir dire is problematic. Lawyers can't even agree how to pronounce it! Voy dire vs. Vwah deer.
- Short, simple and declarative sentences.
- Timing - few parishioners saved and jurors persuaded in 20 minutes. C
- Purpose is to inform the jury.
- Theme established.
- State the Facts and the Issues; don't argue. Abe Fortas once said to clerks if he could write the facts then he could win the case. Thus, how you present the facts is important. Think of presenting them to a friend over a cup of coffee when telling what the case is about in a casual situation.
- How? Lay it out and put defense on defensive immediately.
- Connect facts to the issue.
- Eg., medical negligence; this case is about rules and every hospital has rules called policies and procedures; the purpose is to provide good patient care; this case is about a hospital not following their own rules.
- Good experts can make a good opening when offering a great expert.
- Prepare the opening statement like a textbook. Lead with impact statement. Then follow with issue and facts and end with a good emotional last line.
- Present all sides. Don't run from weaknesses.
- Discuss dollar amounts.
- Use exhibits.
- Use clear simple declarative statements.
- Use your own words.
- Write out the opening statement, and practice it out loud.
- Watch your personal demeanor - stand straight; don't hide behind podum; eye contact; keep hands out of pocket; appropriate dress; speak clearly; formality at the beginning - "May it please the court".
- The law - plaintiff needs to make out the prima facie case.
- Get psyched up, inspired, motivated.
- Remember the nobility of the profession and approach the opening with that attitude. Think of Atticus Finch and the reverend telling Scout to stand up, your daddy's passing by. Goose bump moment.
Opening from Defense Perspective
- Don't have luxury of selecting facts.
- Three points
- Select theme.
- Develop, if possible, a single exhibit that tells it all. Think of Russ Herman and his "storybook"
- Narrowing the issues made against your client. Knock out red herrings; focus on the plaintiff and cause of injury.
- Themes
- Personal choices - made by the parties.
- State it in a few sentences.
- Purpose/trying to accomplish.
- Again, preparation. Second to only good closing.
- Defendant's conduct was reasonable and responsible. Work up some reasonable doubt in plaintiff's presentation.
- Remember where you are and who you are talking to. Talk their language.
- Introduction
- Ice breaker.
- Personalize yourself.
- Put jury at ease; humor ok if works for you.
- Speak positively of your client.
- Speak positively of your venue.
- Don't say anything you can't prove, else other side will make you eat those words. Be candid and truthful in everything you say.
- Use rhetorical questions and frame them in what you want juror to think about in relation to your defense. Why are we really here today? What is this case really about? Get them thinking in framework of how and what you are defending.
- State them in 2 or 3 sentences
- Ice breaker.
- Prepare a factual outline/roadmap
- Powerpoint
- Timeline
- Medical terminology
- Medical glossary
- Damages. Defendant counsel rarely addresses unless very large and exorbitant (so plaintiff's be careful about the 8.01 interrogatories). Note many plaintiff's counsels spend little time with client on how reached those numbers.
- Undisputed facts. Eliminate trivial and disjointed. Note the absence of such evidence. Lay out the correct things done by your client. Eg., did all the right things and are here because of an unforeseen event.
- Hold something back. Serve it up later after foundation laid and let them evolve on their own.
- Disputed issues and fact versus those not disputed. Confront weaknesses.
- Identify experts and backgrounds and specialties,.
- Compare the evidence.
- Issues for the jury to think about with rhetorical questions, paraphrasing instructions (on duties, standard of care, causation and substantial factor).
- Conclusion - tell the jury to be patient, keep open mind since plaintiff goes first, they have power to decide. Demonstrate jury's verdict should be in defendant's favor.
- Tools of persuasion.
- Narrative, conversational.
- Capture their attention without invading their space.
- Demonstrative evidence with exhibits, powerpoint (TM), Elmo etc., blowups, overhead projector, surgical instruments.
- Powerpoint caveat = a glitch can ruin the whole show.
- Color slides; plasma displays.
- Be professional and courteous. Watch objections, jurors don't like this.
- His outline had a list of case authorities.
Jury Consultant Comments
- The story is the most important part of your opening. People think in stories; what story do you want to tell. Example, tell me what you are going to say, say it and how it is supported, and tell me what you said.
- Summarizing your summary judgment.
- Just the facts, m'am.
- Misconceptions: Don't have to respond to everything they say, jury is not necessarily going to focus on my biggest weakness, don't need to address each and every issue.
- An additive model (more is better) versus an averaging model (less can be more).
- The best way to be boring is leave nothing out. Voltaire.
- If I had more time I would have written less. Mark Twain.
- Spending time on a bad aguement can give it traction!
- Persuasion is showing jurors how your case story meets their expectations. "If you want to ride a wild pony, then take it in the direction the pony is going." Same for a jury.
- Basic principle - easier to go with current than fight it.
- Meets jurors expectations, internally consistent, has principles worth fighting for, it answers all the important questions, focus on things other side does not want to talk about, and give jurors reason to decide in your favor.
- Don't use jargon.
- Personal responsibility in personal injury. (This reminds me of the old saw that the body you have when you are young is the body your creator gave you, but as you get older, its the body you deserve; but did you deserve to be hit). Think of accountability, personal responsibility.
- Developing story looks at what jurors are likely to tell themselves. So see what you can do to facilitate that story. This is how focus groups help. Why should jurors want to find for your client. What are the principles the juror cares about. What have you not told the jury they deem important and you left it blank (else they will fill in the blank). Also, revealing your own "bad" facts takes the sting out of it when you are the plaintiff (as other side will serve it up to the jury on a silver platter and make you eat it).
Thanks to William Garmer, Kenneth Williams and Dr. Stuart Miles for their fine presentation.I have re-edited these posts and deleted the names of the presenters. Not because I want to deny them individual credit, but because I did not risk improper attribution and embarass them based upon my summaries and poor typing. However, they all did an outstanding job from both sides. Kudos to the Kentucky Justice Association and the Kentucky Defense Counsel on a job well done and an incredible cooperative effort to educate and promote the professionalism of the bar.
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