Category Archives: Opening statement

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Be the Guide They Can Trust

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During opening statement and throughout the entire trial, you must be the guide that jurors can trust to keep them safe during trial
Be the Guide Jurors Can Trust

The Hippo is One of the Most Dangerous Animals on Earth

If you’ve never seen a hippopotamus up close before, you’re missing a memorable experience.  In cartoons, they’re portrayed as peaceful, docile creatures that wouldn’t harm a fly.  In the Hungry Hungry Hippos game, they’re colorful, cute, and cuddly.  But that’s not quite true.  They’re huge, temperamental creatures, capable of biting a man in two.  And here I was, less than ten feet away from not one, not two, but three of them!

But I wasn’t scared.

Why?  Because I had a guide that I trusted.  My guide’s name was Tim.  Tim looked the part of an adventurer.  He was clad in khaki clothing, with a pith helmet on his head and a pistol by his side.  He didn’t just dress the part – he carried himself with the confidence of someone who had been down
this river hundreds of times before.  When he spoke, it was obvious that he
was well trained and knew these waters like the back of his hand.

I wasn’t scared.

With Tim as our guide, I, and everyone else on the boat, felt safe.

Just as he’d done before when we’d encountered elephants, giant snakes, and other dangers, Tim guided us past the hippos, safely returning us to our initial port of call.  We thanked him with a round of applause and stepped ashore, relieved that we had chosen the right guide.

Your role in trial is similar to Tim’s role on that jungle river cruise.

You must be the guide the jurors can trust.  Trials are foreign territory for most jurors.  They want a guide to lead them past pitfalls, show them the landmarks, and get them safely to their destination.  In trial, that destination is a just verdict.  From the moment they walk into the courtroom, they’re looking for that guide.  Here are six steps you can take to become the guide they trust.

1. Be sincere.  There’s no magic formula or 12 Step Program you can follow here.  You either are, or you aren’t.  If you can’t do this, none of my other advice can help you.  When you’re sincere, you’re telling the jurors a story that you believe.  When you don’t believe the story you’re telling, the jurors sense that, and you can’t be effective. Re-examine your evidence and the law until you find a different story…  One that fits the facts and the law, one that you do believe.

2. Don’t ask them to believe the impossible.  Each lawyer starts the trial with a credibility account.  You make small deposits over time, building up your credibility with the jurors.  When you ask jurors to believe the impossible or to doubt their common sense, you make a huge withdrawal from your account.  You’re asking them to believe you, rather than a lifetime of experience.  Who do you think they’ll believe?

Lawyers thrive on examining the nuances and the minutiae.  Admit it – you’ve read the back of a ticket to a sporting event or a parking garage, right?  Most people won’t delve into a matter that deeply.  That’s why you need to ask someone who’s not a lawyer to evaluate your arguments.  If they feel you’re asking them to ignore their common sense, you need to re-work your argument.  The closer you align your arguments with common sense, fairness, and general expectations, the better your chances of becoming the guide they can trust.

3. Don’t be an obstructionist.  Jurors want to hear the evidence and decide the case.  If you act as an obstructionist throughout the trial, the jurors won’t think you’re the guide they can trust.  Yes, the judge will tell the jury that you’re supposed to object.  Yes, the judge will instruct the jurors that the lawyers are not on trial.   But those instructions won’t help you if the jury decides that you’re trying to prevent them from learning the truth.

Do you need to object?  Sure, sometimes you need to object.  But most of the time, you don’t.  If you’ve done an effective job as an advocate, you addressed the important evidentiary issues before the trial started, outside of the jury’s presence.

In trial, strategically evaluate whether or not you need to object.  For example, if you’ve seen witness Jones out in the hall, and you know Jones is definitely going to testify, you don’t gain much by shouting “Objection!  Hearsay!” when Smith says, “I heard Jones say…”

Yes, you’re technically correct.  It’s a proper evidentiary objection.  It’s hearsay.

But trials aren’t like law school exams.  You don’t get points for pointing out every evidentiary issue.  If the evidence is going to be admitted, don’t bother digging into your credibility account and unnecessarily objecting.  The jury doesn’t think, “Wow, this guy is a master of the evidence code!  Let’s give him bonus points for knowing all of the proper objections!”  Instead, they think, “Whatever Jones said must hurt his case.  Why else wouldn’t he want us to hear it?”

Later, when Jones testifies, they’ll hear exactly what he said.  A double-whammy for you – they not only hear it, they think you tried to prevent them from hearing it.

4. Don’t misquote the evidence.  Don’t put a sharp spin on it, either.  Collectively, they have a better recollection of the evidence than you do.  They’ll know if you’re misquoting the evidence or putting a questionable spin on it.  If they can’t trust you to accurately discuss the evidence, they can’t trust your arguments, either.  Then you’re no longer the guide they can trust – you’re more like a used car salesman, trying to sell them something they don’t want.

5. Admit weaknesses.  Admit your weaknesses before your opponent trumpets them, and you’ll take the wind out of his sails.  The jury thinks, “Yeah, we already knew that.  The other attorney already told us the strengths and the weaknesses of his case.  He’s the guide we can trust to lead us through the evidence.”

When you expose your weaknesses, you show them why you win, despite the weaknesses in your case.  If you don’t mention the weaknesses in your case, your opponent gets to say, “And [BAD FACT] is so damaging to Mr. Wilcox’s case, he didn’t even mention it to you.  Why?  Because there’s nothing he can say to make it go away!”

6. Avoid sidebars.  When you ask to approach the bench, it’s because you’re trying to keep the jury from hearing what you’re saying.  You’re trying to keep a secret from them.  How do you react when someone tries to keep a secret from you?  Aren’t you resentful?  Isn’t it your natural inclination to be curious about what they’re trying to keep secret?

It’s no different with your jurors.  When you ask to approach the bench, they want to know what you’re keeping from them.  Some of the jurors will lean forward in their seats, trying to eavesdrop on your conversation with the judge.  You can’t blame them, can you?  Don’t arouse their resentment – avoid sidebars unless absolutely necessary.

A good guide is essential to a safe journey.  Just like Tim guided our boat to safety, you’ll guide the jurors to a safe destination.  When you become the guide the jurors can trust, they will look to you to guide them through the evidence.  When the evidence leads to a fork in the road, they will trust you to guide them to safety.  They will trust you to guide them to a just verdict.   Follow these simple guidelines and you’ll become the guide your jurors follow.  You’ll lead them through the evidence, and lead them to safety.

[Oh, and if you ever find yourself at Disney World, waiting in line to ride the Jungle Cruise, please do me a favor, and say “Hi!” to Tim!]

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Ask for What You Want

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How many times a day do you ask judges, clients, or co-workers to do something or to give you something?  During any given week, you probably make hundreds, perhaps even thousands, of requests.  You ask your co-worker to work on a project, you ask your assistant to handle a client issue, you ask your kids to help with the dishes…  The number of requests that you make each week is staggering.  But how many of those requests are actually granted?  Have you ever had a problem with someone not doing not what you asked?

Why?  You’re a lawyer.  Shouldn’t you be the master of persuasion who can get what you want, when you want it, and how you want it, every single time?

Unless your name is “Svengali the Master Manipulator,” chances are that many of your requests are not being granted, or at least not being carried out exactly the way you’d like to see them handled.  But it’s not because your requests are falling on deaf ears.  In fact, your listeners are probably hearing exactly what you’re saying.  The problem is that you’re asking for the wrong thing.

That’s because when most people make requests, they don’t ask for what they want.  Instead, they actually ask for what they don’t want.

For example, has your boss ever asked you to work on an important client issue?  Many bosses will say something similar to, “This is our most important client, so whatever you do, don’t mess this up!”

But look at the embedded command in that request for help: “Mess this up.”  Rather than asking you to do a great job or to help the client, your boss is telling you to do the exact opposite of what he really wants done.

The reason he’s telling you to do the opposite of what he wants is because our brains aren’t wired to hear the word “Don’t.”  Our minds think in images.  When you hear the word “Orange,” you don’t think of the letters “O-R-A-N-G-E.”  Instead, you think of the fruit, the color, or maybe even a bottle of orange juice.  When you recall information, your mind pulls up the pictures that help you “see” the memory.

This phenomenon makes it difficult to see the negative of something.  If I ask you to think of “Not an Orange,” your brain has difficulty following my request, because it doesn’t have a readily available picture for “Not an Orange.”  Instead, your brain reverts back to your picture for “Orange,” because that’s the only picture it can pull up.  Rather than thinking of what I hoped you would think about, you actually began thinking of the exact opposite.

The same thing happens when your boss tells you “don’t mess this up.”  You don’t have a readily available picture for “Not Messing Up,” but you sure have a great picture of “Messing Up.”  Your picture for “Messing Up” may include the image of you fumbling and bumbling your way through the presentation, missing an important legal development in your research, or maybe even an image of you sleeping through the filing deadline.  Whatever your picture of “Messing Up” looks like, that will be the image that jumps into your mind when your boss tells you not to mess up.

That’s why it’s important to ask for what you want, rather than what you don’t want.  Rather than telling you “not to mess this up,” your boss would get better results from you by saying, “This is our most important client, so I know you’re going to do an exemplary job.”  Rather than embedding a negative command into your head, now your boss is embedding a positive command, “Do an exemplary job.”  Your brain can absorb this positive request and put it into action, because you know (hopefully) what an exemplary job looks like.

If you’d like to get better results when you ask others to do something, take a moment to rephrase your request in a positive format before you make your request.  Anytime you feel yourself getting ready to say, “Don’t,” ask yourself, “What do I want this person to DO?”  Rephrase your question positively, so that the listener is given a positive command and clear direction for what to do next.  Here are some examples of how changing the phrasing of your request can change the outcome:

  • Rather than: “These are our most expensive dishes, so whatever you do, don’t drop them.”
  • Ask for what you want:  “These are out most expensive dishes, so whatever you do, hold onto them carefully.”
  • Rather than: “The game is on the line, so don’t drop the ball.”
  • Ask for what you want: “The game is on the line, so protect the ball.”
  • Rather than: “The statute of limitations has almost expired, so don’t miss the filing deadline.”
  • Ask for what you want: “The statute of limitations has almost expired, so file these pleadings by Friday.”

By changing the picture in your listener’s mind, you change the outcome.  Rather than urging them to focus on the negative outcome, you shift their focus towards the positive outcome that you desire.  Eliminate the word “don’t” from your request vocabulary, and ask for what you want.  When you do, your presentations and your requests will become dramatically more persuasive.

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How to Bring Your Opening Statements to Life

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No matter how exciting the next Super Bowl will be, it will lose its impact if you you watch it on a TiVo or DVR re-run.

But why?  The plays will be the same, the players will be the same, and the coaches will be the same.  Why would you care less about the replay than you would about the live event?

The difference between the two is suspense. When you watch the replay, you already know that the outcome has been decided.  It won’t have the same sense of excitement.  When you watch something unfold for the first time, however, it still has a sense of urgency and excitement to it.  “Will it end safely?”  “Will they survive?”  “What’s going to happen next?”

In the courtroom, you probably talk in the past tense during opening statements and direct examination because you’re describing events that have already happened and reached finality.  You already know the conclusion – but your jury doesn’t.  This is the first time they’ve heard about the events.  If you want to bring certain areas of your questioning to life, you need to switch your language to the present tense.  By switching to the present tense, you’ll help your jury feel that things are happening right now.

The first opportunity you’ll have to use the present tense technique is during opening statement.  To get the full effect, read this sample opening statement aloud:

“You’re standing on the corner of Indiantown Road and Central Boulevard, next to the Mobil station.  It is very early Tuesday morning – almost 3 o’clock in the morning.  To your left, stopped at a red light, sits Officer Ron Jones, a sixteen year veteran of the Jupiter police department.  In a few moments, his life will be changed forever.

“Overhead, you see the eastbound lights on Indiantown Road change from green… to yellow… to red.  Officer Jones begins moving forward, accelerating at a regular pace.  That’s when you see the Ford Expedition driving eastbound.  The driver of that large Expedition doesn’t stop for the red light.  He doesn’t slow down.  He drives into the intersection at approximately 65 miles per hour – nearly 20 miles per hour faster than the speed limit sign to your right.

“Officer Jones doesn’t have a chance to avoid the oncoming SUV.  The front left corner of the Expedition slams into the passenger side of his patrol car.  You hear the sound of metal slamming into metal.  The car spins completely around – a 360 degree turn.  Shattered glass flies in all directions.  Finally, both vehicles run out of energy and come to a complete stop.

“Approaching the driver of the Expedition, the first thing you notice is the strong odor of alcohol on his breath…

“Ladies and gentlemen of the jury, the driver of that Expedition is seated here in this courtroom – he is the defendant, Oscar Caswell.  On October 13, 2004, he was driving while under the influence of alcohol.  He struck and crippled Ofc. Ron Jones.  Today we will prove that he committed the crime of DUI – Serious Bodily Injury.”

Did you feel that all of the events were happening right now? If so, it’s because every sentence you read was phrased in the present tense:

  • “Overhead, you see the eastbound lights on Indiantown Road change from green… to yellow… to red.”
  • “The front left corner of the Expedition slams into the passenger side of his patrol car.”
  • “You hear the sound of metal slamming into metal.”

Here’s a quick practice point you can immediately integrate into your opening statements:   Read through your opening statement draft and look for any phrases written in the past tense.  Once you’ve identified any past tense verbsm shift the language to the present tense so that the events are happening right now. Put the jurors in the scene.  Take them there.  Let them watch the action unfold.  Your jury will perk up and pay more attention.

Using present tense language isn’t limited to the parts of trial when you’re doing all the talking.  You can also use the present tense during direct examination.  By asking questions in the present tense, your witnesses will answer in the present tense as well, breathing more life into their testimony.

Q. “Officer, which direction is that blue car driving?”

Q. “How fast is he driving now?”

Q. “He swerves towards your car – what do you do now?“

Don’t phrase every question in the present tense – that’s the same as highlighting every word on a page.  If you overuse this technique, you will diminish its power.  Instead, use the present tense to highlight the most action packed portions of your direct examination.

Here’s a final practice point for using present tense language to improve your direct examination: Don’t tell the witness you are going to do it – just switch to the present tense when you get to the part of their testimony you want to highlight.  Nine times out of ten, the witness will shift their testimony to the present tense and won’t even be aware that they did.