Gerry Spence & the Art of Advocacy
Professor James R. Elkins College of Law | West Virginia University
"I know no rule of law that says the opening statement must be brief, although it should fairly state what the intended proof will be. . . . If the story is complicated, there is no better place to explain it and to make it understandable than in the opening statement." [Spence, Win Your Case, at 136]["When a long, detailed opening is given, the risk is that we'll make representations that we'll fail to prove during the trial, so that during final argument our opponent will take our overstatements and shove them into dark and painful places. Still, in balance, I favor the longer, detailed story. The jury is still relatively fresh. They are eager to hear our side of the case, and we must remember that the opening is our first opportunity to establish the justice of our case in the minds of the jury." Id. at 137]
Points in Making an Effective Opening Statement
"In order to deliver an effective opening statement, it should be presented as you would present and tell a story. Telling a story is one of the most persuasive means of communication. How this is done is through a story to tell the information, the evidence you have, so that the jury will understand it, and its relationship to the theme. How we persuade is how we deliver and tell our story to the jury. Storytelling is the most basic means of communication."
"You want to capture the jury’s attention in the first few minutes in a way that will convey your case in a theme with simple language, and then proceed to tell the story so they can follow and understand. Avoid clichés and boilerplate statements like 'What I say is not evidence.' 'This is a road map.' 'It is like a jigsaw puzzle.' 'At the close of the case, the court will instruct you.' 'It is your decision to determine the facts.' 'It is now my opportunity to give an opening statement to tell you what I think the evidence will be.'”
"Reveal your weaknesses. To defuse or mitigate the known problems or weaknesses in your case, identify those matters early on . . . ."
"Avoid legalese and use everyday language. Car rather than vehicle, before rather than precedent, after rather subsequent, heart attack rather than myocardial infarction, brain damage rather than hypoxia ischemia encephalopathy. The words should be simple and direct in everyday English."
Them a Picture
"A strong opening statement is critical to success at trial. It should be the jury's road map through the maze of legal issues and facts in any lawsuit. But lawyers who are too steeped in the minutiae of a case instead turn their opening statements into a recitation of facts loosely strung together by chronology."
"Jurors cannot interpret the facts of a case as the lawyer wants them to without a solid interpretive guideline. The case theme should be explicit, not implicit, and established clearly during the opening statement . . . ."
"The easiest way to find the story in a lawsuit is to investigate what was occurring with the people involved and why. The lawyer then builds the story using the case theme as the basic premise."
Exposing Weaknesses: "There is a tendency in opening statements to put one's best foot forward. . . . [W]hat jurors hold against lawyers isn't so much the weaknesses of their case, it is that lawyers often try to hide those weaknesses. A stronger position is to expose case weaknesses before . . . counsel has a chance to use them to its own advantage."
Your Story Through Opening Statement"
"Opening statement is the story of your case, and the technique for delivering the story is, not surprisingly, storytelling. Openings are filled with tortured phrases like 'The evidence will show,' 'And then the defense will call to the stand,' and 'It is our contention that.' More often than not, the lawyer uses three or four of these favorites and repeats them throughout the opening."
"Storytelling is the heart of what you need to create a winning beginning. It's not that difficult. We are all natural storytellers because we are all natural story listeners. Everyone likes a good story, including jurors. You go where the power is, and the power is in the story of your case."
"The magic of the detailed opening exists in telling an interesting story. An interesting one will have action verbs and colorful phrases."
"Although the jury will remember better a story told in a chronological sequence you do not have to start at the beginning. You might start with the most significant event in the case, tell it in a sentence or two, and then go back and pick up the story line from the beginning. This allows you to end with the beginning. Remember, this last statement is still part of the story, and you should say it from your point of view, so it is not out of context."
"Understanding the story comes from your knowledge and sincere belief in the facts of your case. You should master the facts so the story is part of your gut, not just your mind."
On good and evil: "This may be expressed as good guys versus bad guys, heroes versus villains, or the big and powerful versus the weak and powerless. Still, this concept seems to always be present in good stories. Explore these concepts with every witness in your case." ("In many criminal cases you will be involved in, you want to paint the opposition as mistaken and, therefore, simply human, while you represent your client as a victim of an understandable human catastrophe.")
"Think about the words and phrases you will use to describe the major witnesses in the case based on how you will depict them in the story. By the end of your opening statement, jurors must know who is good and who is bad, who is right and who is wrong, who is the victim and who is the perpetrator."
Statements: You Never Get a Second Chance to Make a First Impression
"Every single case, regardless of its size, must have a theme that the attorney raises in voir dire, mentions in the opening statement, brings out through the testimony or exhibits, and hammers home during the closing argument. The theme of the case consists of a one sentence summary of what the case is about. It is best to employ one or more “feeling” words as part of your theme. The theme is not the legal or cerebral reason why you should win (insufficient evidence), but instead, it visually describes why you should win (e.g., “Keep your eyes on the weight of the evidence, not on the weight of the cocaine.”).
"One of the most powerful weapons in the communication arsenal is the use of trilogies. For some unexplainable reason, people learn in threes. I do not know why doubles or quadruples are not equally effective. Trilogies have been with us since biblical times (father, son, and holy ghost.) In school, we are taught the 'ABC’s' and not the 'AB’s' or the 'ABCD’s.' Traditional wedding vows employ trilogies (honor, love, and cherish) and we even express allegiance to our country in a trilogy of colors (red, white, and blue). Within the context of an opening statement, the attorney should employ trilogies to convey the defense or the client’s state of mind."
Your Opening Statement Should and Should Do
Uses of Storytelling During Opening Statements
Statement in Criminal Cases
Jury Bias in the Opening Statement
Video: A Factual Account of the Crime
Prosecution Opening Statement in the Stacy Brown Murder Trial
The First Two Minutes During Opening Statement
Prosecutor's Opening Statement: The Nuremberg Trial
Opening Statement in the LaBarre Trial (Insanity Defense)
News Account: Opening Statement in Fred Russell Trial (Vehicular Homicide) -- Jury Selection in the Case -- Victims' families ready for Russell to face justice -- Raw: Voicemail left at Russell home after fatal crash -- Collision survivor testifies in Russell trial -- Russell's fate in jury's hands -- Jury ends first day of deliberations at Russell trial -- Russell Convicted
Joel J. Seidemann, In The Interest of Justice: Great Opening and Closing Arguments of the Last 100 Year (New York: Regan Books, 2004)
L. Timothy Perrin, From O.J. to McVeigh: The Use of Argument in the Opening Statement, 48 Emory L. J. 107 (1999)
Shelley C. Spiecker & Debra L. Worthington, The Influence of Opening Statement/Closing Argument Organizational Strategy on Juror Verdict and Damage Awards, 27 Law & Hum. Beh. 437 (2003)
Sunwolf, Talking Story in Trial: The Power of Narrative Persuasion, 24 (28) The Champion 1 (2000)
Gerald Reading Powell, Opening Statements: The Art of Storytelling, 31 Stetson L. Rev. 89 (2001)
Steven Lubet, The Opening Moment, 34 So. Tex. L. Rev. 109 (1993)
L. Timothy Perrin, From O.J. to McVeigh: The Use of Argument in the Opening Statement, 49 Emory L. J. 107 (1999).
What Your Opening Statement Should and Should't Do
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