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Tuesday, January 18, 2011

Opening Statements: Finding the Essence....

Dear Friends,
I was working with a young group of lawyers this week and we were struggling with crafting persuasive opening statements. Given their level of experience these advocates are quite accomplished. I suggested that each of them prepare, on their own, an opening statement based on a criminal case that I provided. I then had them present their openings one after the other.
It was amazing to see the degree of similarity between their presentations. Each told a story in a relatively chronological fashion. They focused on both the strengths and the weaknesses of their cases and ended with the standard plea to the jury that you could hear by stepping into any local courtroom.
They were procedurally correct, cohesive and quite presentable. Unfortunately they did not sing. I literally found myself unable to remember any specifics within 10 minutes of having heard them. Why?
I think it is because they did not put a question in my mind that I would spend the rest of the trial trying to answer; the openings simply lay in the courtroom – like a day old buffet that no one has the will to put away. I was not energized to pay attention to their case in chief, in fact, I was somewhat concerned about how they might present it intelligibly - and this was from some good lawyers.
So, I have these advocates who are capable, accomplished and competent. How do I make them something more? There's the rub....
All of us who teach advocacy have struggled with the competent attorney who has done the okay thing, the safe thing - the predictable thing. What to do? There are a lot of different ways to potentially proceed, but the one I chose was to focus them on the core of the reason behind their case and how the opening statement reflected that. I wanted them to identify the essence of their case so we could see if they had told the story that would bring us to that point.
I wanted to know the core of what they were trying to prove, why it was important and how they were going to do it.
The answer to these three questions leads an advocate to the path they must take during the opening statement to capture the jury’s attention. When searching for these answers force the advocates to answer the questions succinctly.
They should be able to tell you their goal in 3 sentences or less. When they reduce it to that degree they can begin to get their arms around it conceptually. This almost invariably leads them to the hook that captures the essence of the story. Sometimes that hook arises from what happened, sometimes it comes from why it matters, and occasionally it can be found in how it is presented. But find it you must, there can be no try here - only do.
Using these three simple questions focuses the advocate, but the only way to make certain that they get it is to then have them craft and present an opening based upon the answers they have just rediscovered.
Of course before you do that you need to model the behavior for them so they see how to do it, but that is fodder for another post.
All the best,


  1. Charlie was being fed some variations on a basic gruel ( aka opening) and not finding it at all grabbing. Why? He says because they did not sing. I take that as, 'because they did not sing to him, they did not connect with him, they did not capture him'.

    Great communicators 'join' with the audience, take the audience with them, and are felt to respect the audience.

    There's a simple screening test. The communicator who understands the needs and wants of their audience talks about 'us', the one who doesn't talks about 'you'.

    Singing to Charlie ( aka every decision maker) requires that 'what', that 'why' and that 'how'. But that's not enough. Singing also requires soul and that's not a formulaic task: it's something that comes from deep within and reaches out to envelop the audience.

  2. Judge Christina Habas wishes to share the following:

    Opening Statements – is there a MORE important and rarely well-performed part of a trial? NO. I’ve now sat through hundreds of trials, both as advocate and observer, and I have to say in all that time, only 2 Opening Statements were what they needed to be.

    I have a friend, who is an artist. She has boiled down every case to a formula:

    Everyone is going along just fine.
    Somebody makes a decision(does something).
    = All hell breaks loose.

    Dang, is she ever right! I have decided that if I had a Polaroid camera at the very point of that “decision” and took a picture, that I begin my Opening with describing that picture. VOILA! It works in almost every case, and keeps to your 3 sentence idea. Try it, you might like it.

    Tina Habas

  3. I love Judge Habas's Polaroid camera moment, and I intend to try it in my trial ad class this semester.

    I've had experiences similar to Charlie's with a class delivering well-organized, mechanically correct opening statements that lack "the essence," "the sizzle," "a soul," or any other similar metaphor. I think part of this is related to when in a course the students are giving the opening statement.

    If the opening statement exercise is close to the beginning of a course--for example, right after the case analysis chapter--my thought is that the students don't yet have enough experience with THIS CASE to prepare a meaningful opening. They haven't examined witnesses yet. They haven't seen their case vulnerabilities played out on cross examination. Most importantly, they haven't had the opportunity to stumble upon or find the memorable phrases that actually form the heart of the case.

    If the opening exercise occurs closer to the end of the course, as they are preparing for the final trial, I think the chances of students delivering meaningful opening statements is much higher. By this point, they really know the case and can better channel it in their openings.

    The last couple of times I've taught trial ad, I've moved the opening statement exercise to the very end of the term, just before the final trial. I've found the timing change to be quite helpful.

    Chris Behan

  4. I am thinking about doing opening twice - once at the beginning of the course and then again when I do closing arguments. I know that it can cause timing issues, but it might be nice to then compare all three presentations on video.