Seven Things You Should Stop Doing in Opening
The rules about opening statements are mostly about substance rather than form. Broadly speaking, you are limited to topics that will actually make their way into the actual trial. As such, you cannot generally discuss dismissed claims. Nor can you show the jury evidence unless it is either unobjected to or highly likely to be admitted. There’s a prohibition on “argument” that varies substantially from court to court and often boils down to mumbling “we expect the evidence to show” before saying anything terribly contentious. And usually, you’re given a time limit by the court.
But within those topical rules, the format of the presentation is up to you. If you practice long enough, you’ll see a variety of effective styles. You will also see some extremely mediocre speakers making the same mistakes over and over again. While I cannot make you a more effective public speaker, I can beg you to please stop repeating the same bad habits and tired turns of phrase that make me cringe every time I hear them in a courtroom.
So, what are seven things that you should stop doing in closing?
1. Giving an Oscar Speech
The first five minutes of your opening might just be the most important five minutes of trial. The jury is all focused on you and genuinely wants to hear what you have to say. As the days and weeks of trial go on, you will have to fight for their attention. You may literally have to watch jurors nodding off in the back row as you prove your case. But not when you start your opening. The jury is listening now! You need only speak to them.
So, for god’s sake, do not squander that attention by talking about procedural nonsense. Do not begin your speech by thanking your team or your client as though you just won an Academy Award. Do not talk about how important it is to keep an open mind or how the evidence is going to come in a little at a time. Do not talk about the trial schedule. Most of the time the court will explain the basic trial process in the opening instructions anyway, but even if it doesn’t, Hollywood has spent the last 80 years educating Americans about how a trial works. And while real trials are longer and duller than what appears on television, the fictionalized accounts are close enough procedurally. You aren’t Perry Mason, but you operate in the same conceptual universe. No juror is going to fall out of their chair with surprise when you put a witness on the stand and start asking questions.
Similarly, do not fall back on tired old metaphors like “this trial is a jigsaw puzzle, and my speech is the picture that tells you how to put it together.” The jury doesn’t care about any of that! They expect to hear a story that ends in a lawsuit. They want to know what happened, who wins, and why. So, tell them why you should win immediately. While they’re still paying attention.
2. Complex Organizational Charts
Nothing makes me feel more at ease than seeing opposing counsel put a sprawling org chart in their opening PowerPoint. If there are fewer than four names on it, there are much better ways to display that information than an org chart. And if there are than four names on it, you’ll be lucky if anybody in the courtroom is still paying attention by the time you move on to the next slide. There’s a reason that most novels don’t begin with an org chart of the characters and several paragraphs about who reports to whom. Even the Silmarillion puts that kind of stuff in an appendix.
I’m not saying that an organizational chart is a useless piece of paper. Org charts can be very helpful after you’ve become familiar with some key individuals and need to clarify relationships and hierarchies. But an org chart is a punishingly ineffective way to learn about people or businesses for the first time. If you think that it’s genuinely important, save it for a witness examination where you can walk through it slowly using names (and ideally photographs) that the jury has already learned. Don’t try to force it in opening. Tell a story instead.
3. Indecipherable PowerPoint Icons
I prepare my own PowerPoints, but I understand why others do not. It’s a lot of work and there are benefits to hiring skilled graphic designers who have artistic talent and aesthetic taste. But for reasons I cannot fathom, trial graphics firms often insist upon adding “illustrative” icons that look like the most generic clip art imaginable. For example:
I often see these kinds of images in opposing counsel PowerPoints, and I cannot fathom why. Nobody is persuaded by them. Sure, I can figure out that you threw a little calculator beside some bullet point about “calculation” but what value have you added there? If it’s not aiding the jury’s understanding or persuading them that you’re correct, cut it.
4. Speaking For More Than Ten Minutes Without a Visual Aid
Most jurors haven’t been in school for years. Listening to a person they do not know speak uninterrupted for extended periods of time is well outside of their ordinary experience. No matter how skilled a speaker you are, it is extremely difficult to keep a jury’s attention with just words for more than a few minutes at a time. And if you try to do it for an hour or more, you will lose them, along with the judge and most of the attorneys as well.
So, you must use visual aids unless they are utterly forbidden by the court. Ideally the visual will resonate with or help to explain your words. But even if it’s just a picture of the person that you’re speaking about, giving the jury something to look at that changes every few minutes will keep them a little more engaged in what you have to say.
5. Reading Your Speech
Some lawyers speak extemporaneously. Some rely on notes or shorthand. And some write down every word that they plan to say. All of these styles are fine and all of them can be very effective. But what is not effective is looking down at a piece of paper and reading it out loud. You need to be looking at the jury while you speak to them, and you can’t do that if your eyes are buried in a script.
My personal background is in extemporaneous public speaking and I’m quite comfortable with either no notes, or notes of any level of specificity. But even when I’ve written my opening out word for word and plan to deliver precisely what appears on the page, I do not look down at the page and read it. I don’t have to do that and neither do you.
How do I manage that? Practice. Your opening should already be in your brain before you stand up. The notes are there to keep you on target (perhaps loosely or perhaps very tightly) but either way the words are coming from your mind or your memory to your mouth. You can glance at the page, but you don’t read from the page. The juror’s eyes are on you and yours have to be on them.
6. Hiding your Best Pieces of Evidence
Opening is no time to pull punches. If you’ve got a document or a deposition video that makes the other side look terrible, do not hide it until day four of trial. Show it to the jury now. They want to see it now, and you want the impression that it creates to sit with them throughout the trial. You want the jury to still to be thinking about your bombshell evidence when the other side is walking through their witness’s biographies or introducing some dull invoice.
Narrative storytelling is important, and some lawyers get bogged down on details that the jury cannot understand. But the opposite is just as dangerous and it’s a mistake I’ve seen people make more than once. If you’ve somehow prepared your opening and haven’t included your most powerful exhibit – think long and hard about how to work it in.
7. Getting Into the Weeds
But keep in mind what a bombshell exhibit is and what it isn’t. In litigation, sometimes you stumble across a document that totally undermines the other side’s story and makes it much more likely that you’re going to win. It’s exciting, so you immediately show one of your colleagues. If they’re up to speed on your case, they’re usually excited too.
But sometimes they aren’t, so you spend five minutes explaining the backstory and why the document matters. And by the end, they usually understand why you’re excited. But they aren’t excited themselves because no document is actually that interesting if it requires a bunch of explanation and backstory to understand.
Keep that in mind when you’re deciding what documents to put in your opening. While you want to use your most effective pieces of evidence, evidence that requires five minutes of explanation is not going to have the same emotional resonance to the jury that it does to you. Use that evidence during witness examinations where you can give it the proper setup. Don’t confuse the jury with it when they can’t possibly understand it.
