Persuasion at Trial: Opening Statements
The opening statement is a valuable contributor to the persuasion process at trial. Through opening statements each side lets the jury know what evidence they will present and what this evidence is supposed to prove. This is the primary opportunity for attorneys to present their positions to the jury prior to the introduction of the evidence upon which the jurors will base their decisions. The critical feature of opening statements is that frameworks are advanced as to how jurors should view the case, an important component since jurors will process evidence in light of whichever framework they adopt. Because information consistent with an adopted framework is generally more easily remembered than information contrary to the adopted framework, a major battle is won when the attorney gets the jury to view the evidence in the case from his or her perspective.
Features of Persuasive Openings
Persuasive opening statements include many features:
First, they present a clear theme of the case. A good theme provides the jurors with both the conceptual framework for the facts and the emotional undercurrent for the case. Themes should be short and concise. A good rule of thumb is to think of a short phrase or sentence that jurors could use to answer the question, "What kind of case are you sitting on?" For example, "This case is about a company who polluted our water just to make more profits," would be a potential theme in a toxic dumping case.
Second, persuasive openings are well-organized. This is not as obvious as it sounds. The theme is reinforced by the content of the presentation and manner in which it is made. Consideration is given to the placement of key information or points in the presentation, capitalizing on the presence of primacy and recency effects. Primacy and recency refer to the principle that information is remembered best when encountered first or last, respectively. The issue of when primacy or recency effects will dominate is complex. However, as a rule, information encountered in the middle of a presentation is remembered least well.
Third, effective opening statements take advantage of persuasive techniques such as rhetorical questions and inoculation strategies, carefully weaving them into the fabric of the presentation. Rhetorical questions help persuasion by guiding the jurors' search for answers and, in some cases, implying answers on their own. For strong cases, placing rhetorical questions near the beginning of the presentation or subdivision of the statement fosters persuasion because the answers will be forthcoming. However, for weak cases, rhetorical questions placed in the beginning of the presentation reduce persuasion because the answers to these questions are either not forthcoming or are equivocal. Rhetorical questions are also effective when placed near the end of the presentation when they address the weak points of the opponent's case.
Inoculation is a technique which increases the resistance to persuasion. As the name implies, this technique is analogous to the medical technique of inoculating patients to increase their resistance to disease. Inoculation in persuasion occurs by exposing jurors to a weakened version of the opponent's arguments and successfully refuting these arguments, thus making the jurors aware of counterarguments to the opponent's position. When the opponent later raises the argument, jurors are able to more successfully resist it.
Fourth, persuasive opening statements enable the jurors to see the case from the client's perspective. They take jurors from the realm of the outside observer to that of an actor in the event being recreated by describing the events as seen through the client's eyes. This shift in focus enables jurors to have greater empathy for the client. Obviously, jurors cannot be asked to "put themselves in the party's shoes." However, jurors will be placed in those shoes by an opening statement that effectively walks them through the case.
Fifth, persuasive opening statements do not ignore problem areas in the client's case. Damaging evidence is anticipated and discussed. The "sting" of this evidence is removed by portraying it in the best light. Not only is the impact of the evidence attenuated, but the attorney is viewed as being more open and honest by jurors.
Sixth, effective opening statements call into question the credibility of critical opposing witnesses, where possible. Knowing in advance that witnesses have credibility problems in their testimony strengthens the listener's resistance to persuasion by those witnesses, thus reducing their effectiveness.
Seventh, good opening statements take advantage of the fact that jurors must understand key legal standards and terms before they view the case in order properly to integrate the information. In view of this, key terms are briefly discussed in language that jurors can understand. However, noncritical legal terms and procedures or long digressions as to the law detract from the persuasiveness of the presentation and are not included.
Eighth, persuasive opening statements are presented with confidence. The language is "powerful." It is direct, not qualified. In addition, the choice of words and phrases used is important. Words used to describe a person, object or event which are differentially "loaded" produce different perceptions in the minds of jurors. Persuasive opening statements take advantage of this fact with words being chosen that produce the most favorable psychological impact.
Finally, the attention level of the jurors at the opening statement stage is at one of the highest points during the entire course of trial. Persuasive opening statements capitalize on this fact by making full use of the statement and not shortchanging the presentation.With this overview in mind, there are a number of recommendations that can be made. While not meant to be exhaustive, what follows is a list of 13 recommendations. The watchword for considering these recommendations is flexibility. These recommendations must be tailored to fit each case, given its unique characteristics.
Start with your theme.
Ideally, the opening statement should start with a clear statement of the theme of your case. The theme should be short, consisting of a one- to two-sentence statement which sets out the factual and emotional bases for the case. The theme should be reinforced during the presentation by restating it, particularly near the end of the statement.
Be clear and organized.
Present your opening statement in a clear and organized manner. Do not confuse the jury. Digressions detract from the impact of the statement and should not be included. Simplify complex material by telling jurors how you will cover this material and its significance to the case in advance of a full discussion of it.
Pay attention to the language used.
Project confidence in your case by being direct and using a "powerful" style. In addition, choose key phrases and words carefully. Use words that maximize desired impact.
Do not overstate your case.
Present a detailed, powerful but realistic picture of your case. Overstatement of your case can be detrimental, particularly if the opponent points out these overstatements in closing arguments to the jury.
Start strong and end strong.
Capitalize on primacy and recency effects by starting your opening in a strong manner and ending it likewise. For important points you want remembered in the middle of the presentation, do something which increases the jurors' attention, e.g., draw on a blackboard, use a flip chart, or simply move away from the podium (change of location). This variation in presentation will produce immediate increases in attention.
Choose the time for rhetorical questions carefully.
For strong cases, rhetorical questions are best placed near the beginning of the presentation. For less strong cases, rhetorical questions are best placed near the end. It is also beneficial to place rhetorical questions near the end of the presentation to focus the jurors' attention on the weaknesses of the opponent's case.
Inoculate jurors as to the opponent's major arguments.
Where possible, anticipate major arguments or theories of your opponent. Address them in a weakened form and refute them. This will enable jurors to be more successful in resisting persuasion on these points.
Anticipate problem areas of your case.
Disclose problems such as damaging evidence which you expect to appear at trial. Take the sting out of these problems by briefly addressing them and putting them in the most favorable light.
Briefly discuss key legal concepts.
Briefly explain key legal concepts or standards. Show how the evidence can be favorably applied to these key concepts or terms. However, discussion of legal procedures is best left to the judge since it will detract from the persuasiveness of the presentation. Never start your opening statement by saying, "What I will say is not evidence"; there is no need to tell jurors to ignore you.
Use physical evidence.
Use a few important items of physical evidence that will help the jurors better understand your presentation. Clear and understandable summary charts, time lines, organizational charts and other demonstrative evidence can enhance the verbal presentation. In addition, the jurors' interest and attention will be increased by the introduction of this material.
Do not hide behind the podium.
Do not use the podium as a shield behind which you hide from the jurors. Leave the podium to demonstrate critical events. The movement will increase the jurors' attention and, more importantly, facilitate their understanding of the event.
Remind jurors of commitments.
During the course of voir dire you should have jurors commit to certain positions, e.g., being fair or not holding something against the client. Reinstill this commitment by reminding them of their promises.
Do not waive opening statements.
Opening statements rarely should be waived or deferred. By waiving or deferring an opening statement, the attorney risks the jurors adopting the opponent's view of the case at the outset of trial.
Opening statements play a key role in communicating the framework for how jurors should view the evidence. Persuasive opening statements contain many common features. By paying attention to these features and using the recommendations contained in this article, attorneys can consistently present persuasive opening statements. While opening statements do not win cases by themselves, they prime the pump for success.
About the editor:
Jeffrey T. Frederick, Ph.D., is the Director of Jury Research Services for the National Legal Research Group. He has consulted with attorneys since 1975 on jury selection, case preparation, and trial presentation issues. He is a frequent speaker at continuing legal education programs across the nation. His publications include two books, Mastering Voir Dire and Jury Selection: Gaining an Edge in Questioning and Selecting a Jury (ABA Press, 1995), The Psychology of the American Jury (Michie Co., 1987), and a number of articles on the topics of voir dire, jury selection, and persuasion. Those interested in information on jury research services are encouraged to call 1-800-727-6574.
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