I have now watched attorneys doing opening statement in over one hundred trials and focus groups. I am always amazed at the number of attorneys who miss the importance of the first impression the jury has of the case. In states like North Carolina and Oklahoma, it is voir dire, with its opportunity to let the jurors hear the real equities of your case through properly worded, open-ended questions, while at the same time getting a feel for your authenticity and your belief in your case and your client.
In states like South Carolina, where there is really no valid voir dire, it is opening statement where the jury first gets to hear your narrative story, which lets the jury decide for themselves that helping your client is the right thing to do. But repeatedly, I see attorneys fall short of connecting with the jury, especially at the beginning of their case, and the result is predictable- a defense verdict. Don’t get me wrong, trying a plaintiff’s med mal or other complex case is difficult. But many attorneys make it more difficult by refusing to properly prepare.
If you have ever been to a great rock concert (or even a a modern country music concert with someone like Keith Urban or Brad Paisley), you know that feeling of loving the non-stop, up tempo music that seems to go on seamlessly and naturally. It’s like the band is playing songs written with you in mind, and all the musicians and singers seem to fade into the background. No sour notes, no flat guitar solos, no drum beats out of time. Our trials should be like that.
But one of the main reasons the concert is so good is the immense amount of practice that goes into making it all look so “natural.” It starts with good song writing or selection, which is then “focus grouped” by playing the songs before small groups rather than big arena shows (why do you think major stars like Blake Shelton show up at small clubs in towns like Greenville, South Carolina and “tweet” to their followers about a free show that night- they are testing new material). Then hours of practice with the band to make sure each member knows their part. Sound familiar?
A trial has the same requirements. As the “band leader,” it is actually your responsibility to write the “songs,” focus the material before trial to fine tune it, and make sure the “band members” (trial presentation techs, paralegals, associate attorneys, etc.) each know their part. And most importantly, it is your responsibility to make sure that everyone (including you) practices, practices and practices some more so the jury sees your presentation as seamless and natural, just like a great rock or country show.
Do you write out your opening statement and focus group it before trial? Do you test your exhibits before focus groups to make sure the exhibits actually convey the point you want to make and move forward your theme or “brand?” Have you worked through with your trial tech the pages from the medical record you will need in opening or in direct exam of your first witness? Have you talked to your paralegal about what you expect before you start direct exam of the first witness? If not, shame on you. The jury expects these functions to look natural, as if it is all according to plan. This is especially true of the Millennial generation, who expect you to solve the case in 60 minutes or less (the time frame of a television show).
Are you prepared to use appropriate technology in the courtroom? One of the anecdotal experiments we ran during selected focus groups was to have some “presenters” (attorneys) hold an iPad during the presentations, while the opposing “presenters” (attorneys) did not use an iPad. The follow-up questioning (which asked which presenters were better prepared) consistanly came back with responses showing the presenters with the iPads as being the most prepared. This was true even if the iPad was not actually being used in the presentation, but just held for effect. The bottom line is that modern jurors expect a well-prepared, well-practiced voir dire and/or opening statement, followed by a case that moves seamlessly using appropriate technology. They expect engaging exhibits offered at the appropriate time to illustrate the point, with the central theme of the case kept out front (or “branded” in the slang of modern advertising lingo) until the end.
If this all sounds like too much work, or something you are not really willing to do, then do not be surprised by a defense verdict. Modern jurors are attending really good concerts, seeing 3-D movies and watching television shows that have great writers and directors who solve the mystery in an hour or less. They have graduated from schools that taught them with tablet computers, smart phones and smart boards. So do not be surprised when your opening that starts out ”Ladies and gentlemen, thanks for your time and let me explain to you the burden of proof” does not connect. Would you watch a television show or movie that started out that way? Neither would your jurors. In the courtroom they cannot change the channel, but they can tune you out.