A Few Thoughts
About Opening Statement
Reading a transcript requires you to imagine the methods of effective communication that the advocates are employing. As you read the words of the prosecutor and the defender in Goldberg your mind's eye should imagine certain models of the lawyer's physical presence that may develop rapport with the audience of jurors:
appearance - dress to impress your message.
stance - feet apart and firmly balanced, do not rock back
position - stay within an informal conversational distance, e.g.,
5-10 feet from the jurors;
do not pace back and forth;
touch the rail only when you are trying to ignite attention.
movement - always with a purpose; don't roam; find anchor points from which to discuss specific subjects.
body language - understand microexpressions (1)(2)(3) , yours and the jurors; also known as kinesics (1).
hands - show em your hands
not clasped behind your back,
not in your pockets, and
not in a fig leaf over your
hand gestures - give, show,
chop, in a comfortable zone
arms - avoid little T-Rex arm movements.
eye contact - show all the jurors your eyes.
voice - pitch, tone, volume,
pace, pause, etc.
attitude - enthusiastic, but remember that the jurors have thin emotional commitment to the case at this stage (before any evidence has been presented).
There are certain persuasive devices that may be found when reading a transcript. Here are some that you might discover:
timing of when to deliver your opening - in many jurisdictions, the defense has the option of giving its opening statement immediately after the prosecution or waiting until the beginning of the defense case-in- chief.
Note: The most common practice
is for the defense to give its
opening back-to-back, rather
than deferring until later; it's risky to leave the plaintiff/prosecutor's
opening unanswered for a substantial period of time; jurors start forming opinions from the opening bell.
central case theme - the short pithy words that briefly describe the case.
the elephant in the corner -
facing the weaknesses in your case - notice how the prosecutor in this blood-drenched stabbing case faces the fact that she has no blood or DNA evidence.
introducing yourself one more time - The people who teach the mock trial courses at some schools seem to teach students to reintroduce themselves to the jury immediately after delivery of the hook. I question the efficacy of this practice in the real world if you have already been introduced by the court and/or by yourself at the jury voir dire stage.
introducing your client - If you want to introduce your client to the jury early on it is okay to have the client stand up and tell the jury a bit of biographical information about him. Some lawyers like to go over and stand by the client when introducing him.
primacy - what the jurors hear first, i.e., the hook, grabber or attention- getting device used at the beginning of the opening.
recency - what the jurors hear last, i.e., the strong wrap-up at the end.
exit , closing or dismount line,
i .e., the very last thing you say
in opening statement; the principle of recency says that
the jurors will remember it well.
visuals - any tangible documents or exhibits, real or demonstrative,
you might display during your opening (by moving to preadmit them and securing permission of the trial court); typically only a couple of key exhibits; if you don't display a visual, you can foreshadow its importance with words.
labels - how the lawyers name the actors. Does the defense refer to the defendant as "Dror" or "Mr. Goldberg" or "Dror Goldberg"? Note that a good defense lawyer won't label his client with the impersonal generic "my client."
Does the prosecutor label the accused as "the defendant" or "Mr. Goldberg"?
language or word choice - the right words (verbals) in the right order; graphically descriptive words that create vivid mental images of the events in question without hyperbole (overstatement).
triads - consider packaging your message in groups of threes (words, phrases or sentences)
In my trial advocacy course, I
ask that students first plan, prepare and perform; then they review, reflect, and revise (refine).
The Rule of Three applies to oral statements as well as writings.
use of the present tense - to bring the jurors into crucial events you are describing by making them
use the first person (I) - when you ask the jurors to view the situation from the standpoint of a particular character in the story.
active or passive voice -
In a sentence using the active voice, the subject of sentence performs the action, e.g. John cut the apple. In a sentence using the passive voice the subject receives the action, e.g., The apple was cut by John.
Circumstances vary (1), but if you want the action in your story to move, don't live in the passive voice; use the active voice when you want the story to move.
use of elements of storytelling - the story you tell in opening statement shows why you should win the verdict; remember that
a good story often involves interesting circumstances of time and place, a protagonist (hero, champion, leading actor, victim), antagonist (opponent, adversary, provocateur, villain) and conflict, capped by a simple, common sense, morally proper solution to the conflict; a good story also has an emotional content that appeals to the feelings of the listener.
Note: If you don't provide the
jurors with a story of the case,
they will construct their own.
repetition - using different words, help the jurors to hear and remember your key points by repeating them in different ways and in different mediums.
cultivate a feeling of ethos (good or bad character or credibility) re the victim or accused - introductory description of the background of a principal character, e.g., introducing the victim/defendant to the jury to humanize the person you champion and denigrate the opposing claimant.