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.
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!