Keeping your opening statement promises

Moving isn’t the easiest thing in the world. When you move from one home to another, you’re basically transferring your entire life (and your family’s life) to a new destination.

What we recently moved between homes, we had too much stuff (more specifically, too much HEAVY stuff) to move by ourselves, so we had to hire a moving company. Out of all the movers we contacted, only one of them called us back, but they did a terrific sales job. He told me how all of their movers were bonded, how reliable they were, how careful they were, etc. etc. Most importantly, he promised me that they’d be at our home “sometime between 11 AM and 1 PM” to help us move.

11 AM arrived, and as you’d expect, the movers weren’t on time, but no big deal — they said they be there between 11 and 1…

12 PM… No movers.

1 PM… No movers.

2 PM… Still no movers, but when I call the moving company, he tells me that the truck got stuck in traffic, and promises me that they’ll be there “in half an hour.”

3 PM… No movers, and my calls go to voicemail.

4 PM… No movers, and no return phone call. I finally get through to a customer service representative, and he tells me that the truck had a mechanical problem, but will be there in “half an hour.”

5:15 PM… No movers, and no return phone calls, but I get a promise that they will be there “first thing” tomorrow morning, between 8 and 9 AM.

Next day…

8 AM… No movers.

9 AM… No movers.

10:14 AM… Finally, only 23 hours and 46 minutes later than expected, the movers arrive!

Now let me ask… Regardless of how great a job they do moving our items from Point A to Point B, do you think I’ll ever use their moving company again? Do you think I’ll ever recommend their moving company to any of my friends or colleagues? If you asked me for a removal companies UK recommendation, do you think I’d be neutral, or do you think Id tell you to stay far away from this company? No because, each company is different and all strive in different areas.

The reason that I’d never trust them again isn’t because the truck was late. I understand that trucks can get stuck in unexpected traffic or that they can break down… That’s not a big deal.

The problem is that they PROMISED me the truck would be there, and then when they learned they couldn’t keep their promise, they didn’t do anything about it. If they’d simply called me to let me know the truck was running late, I could have rescheduled other errands I had planned, and gone on about my day. The truth is, I didn’t necessarily need them to be at the house at 11 AM or 1 PM. They could have come by at 3 PM or 5 PM or even 8 PM that evening, it wouldn’t have mattered. What I really needed was to be able to trust that they would show up, and to know that I could count on them to keep their promises.

So what’s that got to do with winning jury trials and persuading jurors?

Are you making promises in opening statement? Are you telling the jurors that certain exhibits will be admitted into evidence? (“You will see video tape footage showing Ms. Jones playing Jai-Alai, even though she claims to be a quadriplegic!”) Do you tell them that witnesses will testify? (“You’re going to hear from Skipper Jones, who witnessed the crash, and he’s going to tell you that the light for Mr. Octon’s car was RED!”) Do you tell them that you’ll be impeaching your opponent’s witnesses? (“You’re going to hear that the plaintiff’s star witness has been convicted of 13 crimes of dishonesty, and is an 8 time convicted felon!”)

There’s nothing wrong with making promises in opening statement. In fact, if you’re not promising the jurors anything during opening statement, you’re probably not giving them any reason to listen to you.

But, if you are going to make promises during opening statement, you need to keep your word. If you don’t, your jurors will hold it against you, EVEN IF THE LAW DOESN’T REQUIRE WHAT YOU PROMISED!

For example, let’s say that you’re a criminal defense attorney, and during opening statement, you promise the jurors that your client will testify, and that he’ll reveal who the REAL killer is during his testimony. But after the prosecution rests their case, you decide that they’ve done a horrible job, and don’t want to put your client on the stand because it will give the prosecutors a chance to resurrect their case.

Even though the law doesn’t require you to prove who the real killer is, your jurors may still hold you to your promise. Jurors expect you to be a man or woman of your word. So, if you’re going to make any promises during opening statement, be prepared to deliver upon them. If you don’t tell them who the real killer is, they may think you’ve failed to meet your burden (even though you don’t have one), and may hold it against your client.

But even when you can’t deliver on your promises because of circumstances beyond your control, all is not lost.

The question is, can you explain to the jury why you’re unable to meet your promise? Better yet, can you get someone to explain it from the witness stand, so you’re not stuck trying to argue from your heels during closing argument?

For example, if you intended to call Skipper Jones as a witness, but couldn’t call him because he died midway through your opening statement (it was too long and too boring, so he hung himself in the hallway), the jurors will want to know why Skipper Jones isn’t going to take the witness stand. Before you start playing Skipper’s video deposition or reading a written copy of his deposition, have one of the medical team testify (“That dude is dead”) so your jurors aren’t left in the dark wondering why he’s not there. They won’t like it as much as if you’d kept your promise, but at least they understand why you’re unable to keep your word. By being upfront and honest, you maintain your integrity with the jury, and don’t give them any reason to doubt you.

In summary, here’s a good rule of thumb for making promises in opening statement: It’s better to underpromise and overdeliver. Make it easier than they thought it would be, and the jurors will thank you for it. Make it more difficult than you promised them it would be, and they’ll hold it against you until they reach their verdict. As a lawyer, your word should be your bond, both inside and outside the courtroom. Break it at your own peril!

Trial Lawyers at the Scene of the Crime

Murder crime sceneIt might be the back alley of a dive bar where a man was bludgeoned to death, the potato chip aisle at a local grocery store where the plaintiff claims he slipped and fell, or a tiled and antiseptic operating room where your client’s husband died during routine surgery.  In each instance, regardless of whether the case is civil or criminal, the location is the same: it’s the “scene of the crime.” 

In your last case, how many times did you visit the “scene of the crime” before trial began?  Once?  Twice?  Half a dozen times?

Unfortunately, if you’re like many lawyers, the answer is probably “none.”  Oh sure, you looked at photos, examined a map of the area, and listened intently as your witnesses described the scene, but when it comes right down to it, you never actually left the comfort of your office to go visit the scene.

For as long as I’ve been a lawyer, I’ve always heard how important it was to visit the scene.  Law school buddies said I should visit the scene, but I didn’t listen.  Trial partners told me that I should visit the scene, but I didn’t listen.  Judges and senior attorneys said, “Go!”, but I didn’t listen. 

To be candid, I rarely went to the scene because I always came up with an excuse for why I didn’t need to go:

“Hey, I’ve got a full caseload, with dozens of pending cases.  99% of all cases never go to trial, so why waste my time visiting scenes on cases that I know will be resolved?”

“You don’t really expect me to go to the scene of the murder, do you?  That place is dangerous!  Heck, a guy got killed there!  (Um, I mean a guy was ‘allegedly’ killed there…)”

“I’ve seen the photos and a map of the area, so I’ve got a pretty good idea of what the place looks like.”

(Do any of my excuses sound familiar?)

Then one day, I found myself listening to someone whose advice I really trusted.  This man’s worldly wisdom was more valuable than anything I’d ever learned in law school.  He wasn’t a lawyer, but lawyers listened to him.  In fact, his influence extended far beyond the courthouse walls.  I have it on good authority that countless legislators, law school professors, judges (even a few Supreme Court Justices) still listen to everything he says, and will go out of their way to see him if he visits their town. 

So who was this sage?  Perhaps you’ve heard of him: His name is Jimmy Buffett, and the advice he extolled came from the song “Mañana” on his Son of a Son of a Sailor album.  Here’s what he told me: 

“Don’t try to describe the ocean if you’ve never seen it —
Don’t ever forget that you just may wind up being wrong…”

Buffett has given us some great advice over the years (“I took off for a weekend last month, just to try and recall the whole year,” “Come Monday, it’ll be all right,” “Barmaid, bring a pitcher, another round of brew…”) but this is probably the most useful advice he’s ever given to aid your pre-trial preparations.  And if Jimmy Buffett’s recommendation isn’t enough to get you out of the office, here are three more reasons why you’ll want to visit the scene of the crime:

1. You’ll present better opening statements.  If I asked you to tell me what one of the courtrooms in your courthouse looks like, you could probably describe it in great detail, couldn’t you?  That’s because, in your mind’s eye, you can “see” where the jury box is located, the height of the judge’s bench, and the distance between the witness box and the attorney’s tables.  When I ask you to describe the courtroom, you simply access your visual memory and tell me what you “see.”

In much the same way, going to the scene helps you “see” how the events unfolded, which lets you bring the action to life during your opening statement.  Instead of cobbling together random details from witness statements and various reports, you simply transfer the images from your mind’s eye into your jurors’ minds.

2. You’ll extract more detail during direct examination.  Possibly the greatest benefit of visiting the scene is that you’ll start pulling far more detail out of your witnesses during direct examination.  For example, compare these two direct examinations from Driving Under the Influence (DUI) cases.  The first is by a prosecutor who only read the police reports and talked with his witnesses:  

Q: Officer, when you turned on your lights and sirens, how close were you to the defendant’s car?

A: About 2 car lengths behind him.

Q: Where were you when you turned on your lights and sirens?

A: On Main St., just past the Dunkin’ Donuts.

Q: Once you turned on your lights and sirens, did he stop his car?

A: No, he didn’t stop for about 250 yards, until he reached Miller’s Pub.

Q: Were there any other safe places to stop his car?

A: There were several, but he didn’t stop in any of them.

That’s not too bad, right?  You know that the driver didn’t stop his car, even though the police officer’s lights were flashing and his sirens were wailing.  You also know that he passed by several other safe places to stop his car.  At this point, you might even be thinking that the reason why he didn’t stop the car was alcohol-related.  But look at how much better the direct examination becomes if the prosecutor actually has first hand knowledge of how the scene looks:

Q: Officer, when you turned on your lights and sirens, how close were you to the defendant’s car?

A: About 2 car lengths behind him.

Q: Where were you when you turned on your lights and sirens?

A: On Main St., just past the Dunkin’ Donuts.

Q: Just past the Dunkin’ Donuts is a Waffle House, right?  Is that a safe, well lit, place to stop?

A: Yes.

Q: Once you turned on your lights and sirens, did he stop in the Waffle House parking lot?

A: No.

Q: What about the Applebee’s after that?  Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Applebee’s parking lot?

A: No, he didn’t.

Q: How about Bennigan’s?  Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Bennigan’s parking lot?

A: No, he didn’t stop there, either.

Q: Tell us about McDonald’s.  Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he pull over into the McDonald’s parking lot?

A: No, he kept driving.

Q: Bob’s Big Boy?  Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Bob’s Big Boy parking lot?

A: No, he drove right past it.

Q: The Hess gas station, is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Hess gas station?

A: No, he didn’t.

Q: Officer, where did the defendant finally stop his car?

A: About 250 yards after I first turned on my lights and sirens, at Miller’s Pub.

By visiting the scene, you can ask more intelligent questions and elicit more details from your witnesses.  This lets you fill in all of the “holes” in their testimony and present a complete picture for the jurors.

3. Your cross-examination will be more lethal.  Your witnesses and investigators don’t know as much about the case as you do, so they can easily overlook cross-examination insights which would seem obvious to you.  When you visit the scene (rather than relying on second hand information) you will uncover clues that others wouldn’t even recognize as being important.  Those clues may be the winning edge you need to poke holes in opposing witness’s testimony.

  • “You said you were sitting in the Starbucks at 4:25 PM, looked out the window, and saw my client, Money Richpockets, run a red light and hit your best friend, Harvey Deadbeat, isn’t that right?”
  • “That day was a clear day, wasn’t it?”
  • “Not a cloud in the sky, right?”
  • “The sun was shining brightly from the west.”
  • “Earlier, you said that you had a clear view of the crash, because the sun was directly behind you as you looked out the window, right?”
  • “The Morgan St. glass shop is directly across the street from the Starbucks, isn’t it?”
  • “The glass shop has a 20′ x 10′ mirror in the front of the store, doesn’t it?”
  • “And between 3:50 PM and 4:45 PM, the sun shines directly onto that mirrored window, doesn’t it?”
  • “In fact, the light reflects directly into the Starbucks, blinding the barristas.”
  • “They close the front blinds as soon as the light hits the espresso machines, so that no one in the store gets blinded, don’t they?”

Visiting the scene of the crime can make the difference between whether the jury “sees” what happened to your client or not.  Your pre-trial preparation won’t be complete until you’ve visited the scene of the crime, so block off some time in your calendar and go.  You’ll be glad you did, and so will your client!

Don’t Think About a Purple Elephant!

There’s something strange about how our brains work.  For some reason, our brains don’t seem to comprehend the word “Don’t” very well.  In fact, our brains have the power to completely ignore that single word while still hearing every other word in the statement.  It happens on a subconscious level.  When we hear the word “Don’t,” we ignore that word and follow the rest of the command.  If you’ve ever coached sports, you probably noticed the difference between telling an athlete, “Don’t miss this shot” vs. “You’re going to make this shot.”  When you tell players, “Don’t miss this shot,” they’re more likely to miss.  For some reason, “Don’t” gets lost in the shuffle, leaving only the command: “MISS THIS SHOT!”

The reason that happens is because our minds latch onto the strongest image available.  You use words to create verbal images.  The verbal images you create determine whether jurors focus on what you’re asking for, or if they focus on the complete opposite of what you’re asking them to do.  Here are some other examples of how words can affect imagery and outcomes:

WRONG PICTURE RIGHT PICTURE
“You’re going to be meeting with our #1 client.  Don’t screw it up.” “You’re going to be meeting with our #1 client.  I know you’re going to handle things professionally.”
“The game is on the line.  If I miss this kick, we lose the game.” “I’m going to split the uprights, and we’ll win the game.”
“These are our most expensive wineglasses — whatever you do, don’t drop them.” “These are our most expensive wineglasses — hold onto them carefully.”

Do you feel the difference between the right picture and the wrong picture?  You know that when you tell a guest, “These are our most expensive wineglasses — whatever you do, don’t drop them” that the glass will soon shatter on the floor.  But when you phrase the same request positively, it completely changes the picture you create in someone’s minds.  Changing the image changes the outcome.

As a trial lawyer, you’re a wordsmith.  It’s your responsibility to craft words with care and precision, creating verbal pictures that achieve your desired results.  You have an obligation to your clients to maximize the persuasive impact of your messages.  One simple technique you can apply to achieve that goal is to create the right pictures in your jury’s mind.  You can do that by phrasing your language in the form of positive images, rather than negative images.

Unfortunately, lawyers are notorious for using negative language.  Think about criminal defense attorneys, for example.  They don’t want their jurors to focus on the fact that their client isn’t testifying, because they’re afraid the jurors will think the defendant isn’t testifying because he’s guilty.  But what do these attorneys do?  They tell the jury, “Don’t hold it against my client if he doesn’t testify.”  Translation?  “If he doesn’t testify, you should hold it against him.”

Prosecutors and plaintiff’s lawyers make the same mistake.  They regularly ask the jury, “Don’t hold us to a higher burden of proof than required by law.”  What do you think the jury is going to do after they hear that?

Judges aren’t exempt, either: “Objection sustained.  The jury must disregard that statement.  Don’t pay any attention to that evidence.”  If you had all day to think about it, you couldn’t come up with a better way to highlight that statement for the jury.

Your goal this week is to find a better, more positive way, to illustrate your points during trial.  Spend a few moments thinking about your last trial and review how you asked the jury to think about your most important points.  How did you phrase your language?  Did you phrase your requests positively or negatively?  Did you ask for things you didn’t want?  The picture that you paint in the jurors’ minds is likely to be fulfilled.  What types of images are you creating?   Focus on creating positive images in your jurors heads, and the persuasive impact of your courtroom presentations will improve immediately.