COLLECTIVE WISDOM

COLLECTIVE

WISDOM

DESIGNING AN EFFECTIVE

OPENING STATEMENT

www.nita.org 2

COLLECTIVE WISDOM Designing an Eective Opening Statement

Designing an Eective Opening Statement

It is paradoxical to write about a component of trial—the opening statement—that there is no

absolute right to present. Although taken for granted as a trial advocacy essential, the United

States Supreme Court has implicitly stated there is no Constitutional violation if opening

statements are curtailed or precluded entirely.

1 Herring v. New York, 422 U.S. 853, 863 n.13 (U.S. 1975).

2 https://plaintiffmagazine.com/recent-issues/item/a-mind-is-a-terrible-thing-to-change (last visited Nov. 12, 2023).

3 United States v. Salovitz, 701 F.2d 17, 19 (2nd Cir. 1983).

When holding that there was such a right for

closing statements, the Court explained that “[n]

othing said in this opinion is to be understood as

implying the existence of a constitutional right

to oral argument at any other stage of the trial

or appellate process.”

Lower courts have run

with that proposition, reiterating as an afrmative

statement that there is no constitutional right to

make an opening statement and rejecting claims

of ineffective counsel when a lawyer chooses to

forego it.

That is remarkable, because no one questions

the importance or potential efcacy of an opening

statement. That efcacy has taken on the status of

an eternal truth, with too many claiming that 80%

of verdicts are decided at the end of openings,

a point even regurgitated in decisional law. But

that is a myth, as Hans Zeisler, the author of the

research to which it is attributed, has made clear.

No researcher posed that question—but the

assertion lives on.

The 80%-mind-made-up fallacy does not

diminish the power of and opportunities found

in the opening statement. Whether it is the

primacy affect, the framing effect, the distilling

of a complex set of facts into a logical story that

makes comprehension and retention possible,

the creating of a theme that resonated and

conveys the righteousness of the cause, or the

rst (or early) step in creating trust between jurors

and counsel, the opening paves the way for a

successful trial.

Before going further, it is important to note that

the opening statement as a component of a

trial has not always been a staple of American

jurisprudence. “[T]here was no settled body of

English law concerning opening statements to

which the framers of our Constitution could look

when the Sixth Amendment was drafted in 1789.”

But it has its origins in Anglo-American legal

history, albeit with a function different from that of

persuading the factnder:

In an 1835 English murder trial, Rex

v. Orrell, 1 Mood. & R. 467, 7 Car. & P.

774, 173 Eng.Rep. 337, 338, counsel for

the prosecution, after stating the facts,

www.nita.org 3

COLLECTIVE WISDOM Designing an Eective Opening Statement

indicated that there was evidence of

previous expressions and declarations

of the prisoner which he (the prosecutor)

would not detail, whereat the presiding

judge, upon consultation with an

associate, ruled as follows: “We think

the fair course toward the prisoner is to

state all that is intended to be proved.”

And even where permitted, it was not always the

custom to make use of an opening. The waiving

of opening statements “was a frequently agreed-

upon maneuver at the turn of the [twentieth]

century, simply designed to move cases along more

quickly.”

But opening statements are commonplace now,

expected by juries, embraced by advocates, and

often written into Rules of Procedure. Among the

many aspects of the opening statement, some to

consider are:

Getting up close. The opening is actually the

second (if not third) opportunity for counsel to

become known and, perhaps trusted, by the

jurors. The rst—when courts permit attorney

involvement—is jury selection, a time where

themes may be presented and common

connections developed. Next is in the pre-

opening interaction with the judge and opposing

counsel, where behavior is scrutinized. But it is

in the opening when the relationship is that of 12

(or eight) to one—the lawyer speaks directly to

4 Calhoun v. Commonwealth, 378 S.W.2d 222, 223 (Ky. 1964).

5 Curriden and Phillips Jr., CONTEMPT OF COURT 83 (New York 1999).

6 State v. Loughbom, 196 Wn.2d 64, 71 (Wash. 2020).

jurors. Not “in their space” or “in their faces,” but

directly and with the chance to have their complete

attention. It is also the time for credibility to be

gained or shredded.

It is a “statement.” Courts regularly afrm

that the pre-evidence speeches by counsel

are a “statement” of the case and may not be

“argument,” although in hundreds if not thousands

of reported decisions the term “opening argument”

is used by appellate courts. One example will

sufce: “the prosecutor appealed to the war on

drugs several times during opening argument. . . .”

Yet the line between persuasive explanation of

what the case will show and outright argument is

ill dened at best in at least two regards: denition

and application.

In his comprehensive review of this, L. Timothy

Perrin writes that:

The rules preclude discussion of

inadmissible evidence or evidence

of doubtful admissibility during the

opening statement. The advocate may

only discuss evidence that he has a

good faith belief will be introduced

during the trial. Moreover, the lawyer

may not discuss the law beyond a

brief or cursory mention, and may not

express personal opinions about the

evidence or the case. These limits share

universal acceptance among lawyers

www.nita.org 4

COLLECTIVE WISDOM Designing an Eective Opening Statement

and judges. Some courts also prohibit

any discussion of the opposing side’s

evidence in the case.

Notwithstanding this summary, he adds that:

[t]he term “argument” carries a precise

meaning in the context of the opening

statement, connoting a limitation that is

narrower than the dictionary denition.

The rule against argument does not

attempt to preclude lawyers from

presenting their side of the dispute.

Instead, it forbids advocates from

interpreting the evidence for the jury

by drawing conclusions or inferences

from facts. Unfortunately, determining

the precise parameters of “argument”

is extraordinarily difcult, often leaving

lawyers, commentators, and even judges

confused or uncertain. . . .

As to where that line is, jurists indeed stake out

their own positions. Here are some illustrations:

• The defense describing a prosecution witness

as someone who bullies smaller people,

uses drugs, and is reluctant to testify was

impermissible, with the rst two comments

being improper forms of character attack and

the nal comment about reluctance being

speculation. Taylor v. State, 2021 Tex. App.

LEXIS 6990 (Tex. 5th Court of Appeals 2021).

7 Perrin, L. Timothy, From O.J. TO McVeigh: The Use of Argument in the Opening Statement, 48 Emory L.J. 107, 111 (Winter 1999)

(footnotes omitted).

8 Id. at 112 (footnotes omitted).

9 Commonwealth v. Kapaia, 490 Mass. at 796.

• The prosecution describing its own witness as

“reluctant” was proper as part of an opening

statement “because it described Everesha’s

testimony that was later admitted.” Allen v.

Koenig, 2022 U.S. Dist. LEXIS 240395, *29

(Cen. Cal. 2022).

• “The prosecutor may refer in opening

argument to evidence that the State intends to

introduce, including evidence that is arguably

admissible but is later excluded.” State v.

Debler, 856 S.W.2d 641, 656 (Mo. 1993).

• Misstating the signicance of an item of proof

is error. Commonwealth v. Kapaia, 490 Mass.

787, 800 (Mass. 2022).

There does come a point where the play on

emotion becomes too great, and error occurs.

Kapaia, above, is one such example:

[T]he opening statement here went

beyond humanizing the proceedings and

setting the stage . . . [T]he inammatory

rhetoric regarding the nature of the

scene and the family’s memories of the

victim was a predominant theme of the

prosecutor’s opening, particularly during

the early part. Ultimately, the repetitive

use of emotionally provocative language,

focusing the jury’s attention on the

victim’s family’s last memories of the

victim, constituted an erroneous appeal

to the jurors’ sympathy. . . .

www.nita.org 5

COLLECTIVE WISDOM Designing an Eective Opening Statement

It would have been ne to narrate the

facts, especially that family members

witnesses the murder—including details

of the crime itself—but relating the

emotional impact of bearing witness

crossed the line.

It is [Maybe] Not “Evidence.” The traditional

caveat provided to jurors is that the opening

statement is not evidence. As one court elaborated

when applying that principle,

the plain language of Maryland Rule

5-404(a)(2)(C) makes clear that a

prosecutor is not permitted to offer

evidence of an alleged victim’s trait

of peacefulness to rebut statements

that defense counsel makes during an

opening statement. Rather, under the

plain language of Maryland Rule 5-404(a)

(2)(C), there must rst be evidence

presented by the defense that the victim

was the aggressor before a prosecutor

may offer rebuttal evidence of the

alleged victim’s trait of peacefulness

. . . Nothing whatsoever in Maryland

Rule 5-404(a) indicates that “evidence”

includes opening statements.

Yet some courts have ruled to the contrary.

More caution must be applied here. Some words

stated in an opening may be deemed a binding

10 Ford v. State, 462 Md. 3, 34 (Md. App. 2018).

11 See, e.g.. United States v. Campo Flores, 945 F.3d 687, 706 (2nd Cir. 2019) (allowing in a prior consistent statement before the declarant/

witness is cross-examined due to the attack leveled during the opening statement).

12 Weida v. Kegarise, 826 N.E.2d 691, 697 (Ind. App. 2005). See also Mosqueda v. Delgado, 2021 Cal. App. Unpub. LEXIS 3726 (Cal. App. 5th

Dist. 2021).

judicial admission. “[A]ttorneys can bind their

clients by unequivocal statements in pleadings

or opening statements, before evidence is

introduced; when such a statement is made

before evidence is presented, it can speed the

trial process by eliminating the need for proof on

admitted items.

It is a moment of opportunity. Opening

statements should be the second chance for the

jury to get to know—and trust—you and your case.

Often forgotten are the opportunities to “pre-open”

during jury selection, but even when counsel is

cognizant of that option it may be foreclosed by the

judge precluding counsel from active participation.

But voir dire or not, the opening is the rst

guaranteed time when there is no barrier (other

than possibly a lectern) between counsel and the

jurors. It is the time to address these individuals,

people you now know something about—their

occupation, family, values and concerns. It is “up

close” but not “in their space” time.

It permits clarity. Knowing the importance of the

“story” as key to an effective opening statement,

we often forget that each juror may hear that

story in their own way, distorting or reinventing

the images and narrative you hope to convey. To

that end, it is the time for pictures, for making the

courtroom the scene of the occurrence, for using

descriptive words (“the car was ipped onto the

driver’s side, crushed so badly that the steering

wheel was pushed into the back seat”) rather than

www.nita.org 6

COLLECTIVE WISDOM Designing an Eective Opening Statement

adjectives (“it was a devastating, horric crash,

one that totaled the car”).

It demands clarity. Lawyers are prone to ignoring

the “curse of knowledge,” forgetting that because

they know all the facts the listener does also.

The “curse” leads us to tell a tale with missing

links—for example, all of a sudden the words “and

then Ms. Jones drove away in the Volkswagen”

appears. We know who Ms. Jones is, and we

know where the Volkswagen was parked or why

it was there, but the jurors don’t. This dilemma

requires coherence and testing—the opening must

be road-tested before trial on people unfamiliar

with the case. If they can tell you the gist of the

case, your opening has coherence; if they ask

“Wait a minute, who is Jones?” you have a gap.

It provides “repeatables.” Themes count.

So do individual words. And the opening, by

highlighting each, paves the way for repetition

and reinforcement during trial. Those repeatables

become the link to the closing.

It permits the building of credibility. Credibility

may come best from simply letting the facts—pure

facts—tell the case best, letting jurors assess

them as logical and reasonable and from there

drawing their own conclusions. Credibility across

the trial may come from promises that are made

in opening and then kept. And credibility certainly

comes from acknowledging damaging if not

damning facts, the “we’ll be the rst to tell you that

. . .” exposure that leads to inoculation.

www.nita.org 7

COLLECTIVE WISDOM Designing an Eective Opening Statement

It is where your opponent’s credibility may be

damaged. When you open rst, the responsive

opening must be studied word for word, phrase

for phrase. What is being conceded, what

promises are made that ultimately are not kept,

what doors may have been opened for proof

previously deemed inadmissible. When you open

second, seizing upon what your opponent did not

acknowledge—the “opposing counsel failed to

tell you that . . .” moment—is critical in generating

doubt about your opponent’s case. Related to this

is the “ip,” a phrase or concept deployed by your

opponent that can be turned on its head and used

to your advantage.

It may be the time to begin explaining the

law. Notwithstanding the tedium of discussions

of law and the ways in which they broke the

ow of storytelling and judges disfavoring such

discussions, an opening statement may be the

time to discuss legal concepts briey, in user-

friendly language, to the extent they are needed to

frame the case. Tread lightly: cover this briey, but

do so wisely.

It needs to be cognizant of listener attention

span. Would that there was a single, provable,

test of attention span. Writers claim anywhere

from eight seconds to the ten- to 15-minute

range, and of course whatever the number is it

is variable across individuals and the tasks they

are performing (e.g. listening versus listening,

taking notes and asking questions). But whatever

the number is, it is not limitless. A useful rule of

thumb is 30 seconds, the time urged for those who

create commercial advertisements. Depending on

local custom, a greeting may be essential before

beginning the statement—but then it is time to dive

in to the case, doing so with techniques such as

peripeteia that will capture attention.

It requires a story. An opening that tells a story—

brief, memorable, consistent with stories the

community has experienced or can embrace—is

the best communication mode. If you don’t provide

a story, jurors will take your facts and reframe

them into their own stories, a loss of control of the

narrative that can only damage your cause.

This overview only begins the discussion of how to design and offer an effective opening.

What follows are essays by leading advocacy instructors nationwide on specic aspects of

the opening statement.

Jules Epstein, Editor

www.nita.org 8

COLLECTIVE WISDOM Designing an Eective Opening Statement

Rachel Brockl

Director of JD Flex, Litigation Program Competition Director, and

Visiting Associate Professor of Law

Golden Gate University School of Law

PRACTICAL TIPS TO HOOK A JURY

IN OPENING STATEMENT

If you talk to any litigator, they will tell you how

important closing argument is and to always be

thinking about what you will argue at the end to

win your case. However, studies have shown that

at least some jurors, if not a majority, will make

up their minds about how they will vote in a case

after they hear opening statements. Thus, it is

imperative that trial attorneys present clear and

captivating opening statements to prevail. Having

been a litigator myself—trying more than 30 jury

trials as a prosecutor—and now a law professor

teaching a variety of courses on trial skills, I

have seen quite the gamut of techniques used in

opening statements.

Structure matters. If a jury is unable to follow the

story you are presenting, this puts you at a major

disadvantage for the rest of the trial. To keep it

simple, I follow this type of structure for openings:

theme, theory, set out the time/date/location, and

then tell the story chronologically. I avoid departing

fromthe story with llers like, “you will hear . . .” or

“this person will testify about . . . .” I nd it much

more effective at keeping the listener engaged

by staying in story mode. If there are multiple

important issues in my story, I organize the sections

in an easy-to-follow structure and explain who

each person is in detail so the jury can remember

them. So often, we see opening statements with

characters mentioned so briey that when they are

mentioned again during an important issue section,

we have no clue how this person relates to the case.

If possible, I use photos or other exhibits that have

been approved by the judge in my opening and I

always conclude with a clear and succinct ask from

the jurors about what I want them to do at the end.

The theme of an opening statement tends to mystify

some. It can be one word, a catchy bumper sticker,

a proverb, a quote, a sound, etc. For those who

struggle to pick a theme right off the bat, I suggest

workshopping your theory rst. After you have

those few sentences that describe your case as

neatly and as understandably as possible, the

theme is much easier to pin down. For example,

say my case theory is about my client who was

wrongfully accused because “the police failed to

interview available witnesses, did not collect video

evidence, and did not follow up on suggestions

that would have proven he did not commit x crime.”

I can now come up with several themes without

the jury needing to know the rest of the facts. For

example, I might use “lazy police work,” or “shoddy

investigation,” or “rush to judgment.” Once you have

www.nita.org 9

COLLECTIVE WISDOM Designing an Eective Opening Statement

a clear theme, you can now move on to more

advanced techniques, like weaving your theme

through each witness who hits the stand for use

in closing argument later.

Keep jurors in the story and consider word

choice. Don’t take the listener out of the story

with phrases like “ladies and gentlemen,” “you

will hear,” “they will tell you,” etc. Keep jurors

engaged as if they are watching a movie trailer

rather than a rehearsed list of facts. We are

taught about how short attention spans are

and primacy/recency, so why not start with

an attention grabber? It’s important to take

the jurors to the scene with you by using vivid

imagery in your wording. A non-descriptive

example: “He was driving a car through the

intersection when another car collided into him.”

A more descriptive example: “John was driving

a red 1992 Honda Civic at 45 miles per hour in

a 50-mile-per-hour zone when a 7,000-pound

silver Ford F-150 pickup truck plowed into the

driver’s side of his car at 80 miles per hour. The

truck hit John’s Honda so hard that it took off

both doors and the airbags went off.”

Many new attorneys get timid about how

far they can go with their persuasiveness in

opening statements. They tend to pull back and

avoid approaching the line between persuasion

and argument. I often tell my students, when

they are confused about whether they are in

argument territory, to ask themselves if they

could add the phrase, “The evidence at trial

will show . . .” before the sentence they think

is argumentative. Typically, this will weed out

www.nita.org 10

COLLECTIVE WISDOM Designing an Eective Opening Statement

the overstepping inferences, opinions, or outside

information used as argument and afrm the

convincing description of the facts. Using this

technique has often worked in trials where I faced

an opponent who loved to interrupt my ow with

objections during opening. I would tell the court that

I could rephrase, and I would use the safety line,

“The evidence at trial will show . . .” before I repeated

the exact sentence that was initially objected to.

A common mistake made by both prosecutors and

defense attorneys is giving the other side’s version

of the story too much credit. While it can be a good

strategy to get ahead of the other side’s defenses

or harp on the prosecution’s weak case, novice

attorneys can be seen spending most of their time in

opening focusing on the defense’s alibi or repeating

the facts of the prosecutor’s favorite evidence,

instead of building up their own case. My practice

is to present my best facts rst, then comment on

the issues with the other side briey to minimize

or neutralize them, if possible, then wrap it up by

repeating my theme and presenting my ask.

Stay composed. Your reputation with the jury is

important and opening statement is where you can

get them on your side early. I have occasionally

spoken with jurors after a verdict has been rendered

and there were times when all the jurors talked

about was how the attorneys carried themselves

throughout the trial. Just like a Yelp review, they

always want to talk about the negative.

Presenting an engaging opening statement at the

start of trial is critical to the outcome. To do this

effectively, you will need to offer a clear structure,

tell a solid theme and theory, stay in story mode,

use descriptive language, test your persuasiveness,

focus on your strengths, and keep your cool.

Following these techniques has proven to be

successful for me in court, and I hope they will

prove to be advantageous for others.

www.nita.org 11

COLLECTIVE WISDOM Designing an Eective Opening Statement

Veronica J. Finkelstein

Associate Professor

Wilmington University School of Law

Litigative Consultant

U.S. Attorney’s Oce for the Eastern District of Pennsylvania

SETTING EXPECTATIONS USING THE

RHETORICAL TRIANGLE

The opening statement is a critical part of

any trial. It is the advocate’s rst meaningful

opportunity to utilize Aristotle’s rhetorical triangle

to set expectations for the fact-nder. According

to Aristotle, an effective advocate appeals to the

audience in three specic ways: logos (logic),

ethos (credibility), and pathos (emotion). These

three types of appeals form Aristotle’s rhetorical

triangle. An effective opening statement uses the

rhetorical triangle to set reasonable expectations

that the advocate can meet throughout the trial.

Using these appeals, the advocate primes the

audience to expect and be satised with the trial

presentation to follow.

Setting Expectations

Setting expectations is critical. In the case of a

jury trial, the advocate faces an audience largely

mystied by the entire trial process. Although

the jury knows something about the nature of

the case from voir dire, that information was

presented in a fragmented way. Being told by a

judge “this is a car accident case expected to

last three days” suggests more questions in a

juror’s mind than this statement answers: Is this

a minor fender bender or a fatal crash? Was one

driver under the inuence of alcohol or drugs?

Will the trial involve nuanced questions about

the cause of the accident, or are the mechanics

straightforward? The more an advocate

anticipates a juror’s questions and answers them

by setting realistic expectations in the opening

statement, the more the jury can focus its

attention on the substance of the evidence.

Although the fact-nder in a bench trial is an

experienced jurist, that fact-nder nonetheless

benets from clear expectations set at the outset

of trial. An opening statement that concentrates

on the key disputed issues helps the judge focus

on the evidence that most matters to the ultimate

determination. The judge likely has a substantial

docket; the opening statement is a pithy way to

remind the judge which case this is and why it

deserves attention.

In addition, each time the advocate speaks to

the judge in a bench trial, the advocate also

addresses a less overt audience: the judicial

law clerk. Whether sitting in the courtroom or

listening to a recording in chambers, the clerk

plays a critical role in helping shape the ultimate

opinion issued in the case. Unlike the judge, who

can interrupt the trial and question witnesses

to ensure comprehension of the testimony, the

www.nita.org 12

COLLECTIVE WISDOM Designing an Eective Opening Statement

clerk plays a more passive role. The clerk likely

has considerably less litigation experience and

substantive knowledge than the judge. Setting

expectations in a bench trial not only aids the

presiding judge but also that judge’s clerk. A

prudent advocate considers what the clerk might

need or want to hear.

For these reasons, an opening statement is

critical whether the advocate addresses a jury or

a judge. No matter which audience is addressed,

the advocate shifts the audience to side with the

advocate’s client. By setting clear expectations

that appeal to logos, pathos, and ethos, the

rhetorical triangle helps the advocate gauge

what trial strategy to predict in that opening.

Although it is possible to persuade using just

one of these appeals, it can be more effective to

craft a trial strategy that considers all three types.

A balance is useful. If one appeal fails, another

type may succeed.

Setting Expectations Using Logos

Appeals to logos focus on rationality. These

types of appeals typically rely upon facts, gures,

and data. Although appeals to logic may not

viscerally grab a fact-nder the way appeals

to emotion may, fact-nders nonetheless rely

heavily on logic in reaching their decisions. If

a litigant’s presentation of evidence does not

“ring true” to the fact-nder, that fact-nder will

struggle to return a verdict for that litigant no

matter how emotionally invested the fact-nder is.

www.nita.org 13

COLLECTIVE WISDOM Designing an Eective Opening Statement

Stated another way, the opening should tell the

fact-nder a story that is both authentic to lived

experiences and consistent with the evidence.

In advance of trial, a prudent advocate will muster

a comprehensive list of all the immutable facts

that will be admitted at trial. Immutable facts

are those that cannot be changed. From an

evidentiary perspective, these are the facts that

the parties either agree upon or that the opposing

party cannot dispute. That advocate will then

craft a narrative story that is likely to be true given

those facts. In that way, without saying expressly

“logic is on my side,” that advocate will set

expectations for the trial that are inherently logical.

Consider for example a slip-and-fall trial where

the plaintiff pedestrian claims that one January

afternoon she fell on ice allowed to linger on the

defendant property owner’s sidewalk. Plaintiff’s

counsel might be tempted to use the opening to

tell the story of that day from the plaintiff’s point

of view, describing her testimony that she saw

ice on the sidewalk. The plaintiff’s perception

is not an immutable fact. Any witness’s

perception can be attacked or impeached. If a

source whose accuracy cannot reasonably be

questioned, like a weather report, states the

temperature and precipitation that day, those

facts are far more immutable than the plaintiff’s

testimony that she saw ice.

Prudent counsel considers promising the fact-

nder that it snowed for hours before the accident

and never warmed above freezing rather than

promising that the plaintiff will testify she saw ice.

The former strategy allows plaintiff’s counsel to

harness the power of logic. Defense counsel will

have to convince the fact-nder of a conclusion

that runs contrary to logic—that there was no ice.

Appeals to logos focus on the evidence. An

effective opening statement should set

expectations for that evidence that can be

www.nita.org 14

COLLECTIVE WISDOM Designing an Eective Opening Statement

fullled and that appear consistently with the

world as experienced by the fact-nder.

Setting Expectations Using Ethos

Appeals to ethos focus on credibility and authority.

These types of appeals ask the fact-nder to

put trust in the advocate. Advocates often make

subtle appeals to ethos without even realizing it.

As any experienced advocate knows, fact-nders

pay close attention to how advocates behave

in the courtroom. Jurors track which advocates

most often object to evidence, and whether those

objections are sustained. Judges notice who is

well prepared with organized exhibit binders and

visual aids ready to present on screen at the snap

of a nger. Advocates who consider this already

recognize the power of ethos.

The opening statement is a key opportunity to

reinforce for the fact-nder that the advocate is

one who can be trusted. In the case of a jury trial,

the opening comes on the heels of the voir dire

process. The information jurors learned during

voir dire is fresh in their minds. What’s more,

this information was largely provided to them

by the most important and credible person in

the room: the judge. An advocate who takes the

information provided by the judge and reinforces

it in the opening does a few subtle but effective

things. First, this advocate incorporates into the

opening information that the jury already knows

and has accepted as true. It aligns the advocate

with the truth. Second, it also aligns the advocate

with the judge, suggesting to the jury that if the

judge is credible—so too must the advocate be

on the side of truth.

Early in the opening, the advocate should harken

back to information from voir dire. Compare two

approaches plaintiff’s counsel might take early in

the opening statement of the slip and fall case.

Plaintiff’s counsel could say, “This case is about

what happened to Jane Doe on January 3.” That

would orient the jury to the important date in the

case. But that is all this statement would do.

Instead, plaintiff’s counsel might refer back to the

voir dire process, subtly fullling a promise made

by the judge to the jurors. Plaintiff’s counsel

might instead say, “During the questioning and

answering process, the judge asked if any of you

knew the plaintiff Jane Doe. You heard her name,

and the judge told you you’d learn more about

her. Now you’re going to learn what happened

to her on January 3.” The substance conveyed

is the same but the second approach bolsters

the advocate’s credibility. A promise was made

during the voir dire. It is fullled in the opening.

This suggests that the entire story told by the

advocate in the opening is also likely to be true.

Even in the case of a bench trial, an opening that

sets reasonable expectations and anchors those

expectations to immutable facts builds ethos. By

promising the fact-nder that certain facts will be

adduced at trial that the advocate is certain will

be adduced, the fact-nder makes a promise that

can always be fullled. That advocate becomes

viewed as reliable, because that advocate’s

representations from the opening statement are

fullled through the presentation of evidence.

As each piece of evidence is admitted that was

predicted in the opening, the admission reinforces

that the advocate is a truthteller who can be trusted.

www.nita.org 15

COLLECTIVE WISDOM Designing an Eective Opening Statement

Appeals to ethos focus on the advocate. An

effective opening statement shows the fact-nder

that the advocate should be trusted. When the

advocate meets the promises made in the opening,

the fact-nder has a reason to believe that

advocate in other situations—like when credibility

must be evaluated or evidence must be weighed.

Setting Expectations Using Pathos

Appeals to pathos play on the fact-nder’s

emotion. These appeals ask the fact-nder to

evaluate the case using beliefs and values.

They invite the fact-nder to use creativity and

imagination.

It is largely ineffective to simply tell a fact-nder

how that fact-nder will feel about the evidence.

Statements like “you will feel sorry for my client”

or “you will want to award my client damages”

are unlikely to persuade. Emotions are personal.

Emotions are experienced. They are self-

validating. Rather than tell the fact-nder how

to feel, an effective opening sets an expectation

of what emotions the fact-nder will feel during

the trial by providing a glimpse of that feeling of

emotion during the opening. Then, when the fact-

nder indeed feels that emotion during the trial,

that experience is automatically validated.

One effective way to evoke an emotion during the

opening is to tell the client’s story from the point

of view of the litigant as the litigant experienced

the underlying events. This requires telling the

story from the litigant’s point of view, in present

tense. It often requires a non-linear narrative,

because individuals are not omnipotent and learn

information out of sequence.

In the slip-and-fall case, plaintiff’s counsel can

invite an emotional reaction from the fact-nder

by telling the story of the accident from the

plaintiff’s point of view as the plaintiff lived that

experience. Rather than narrating the day in past

tense starting with the snowfall that morning,

plaintiff’s counsel could tell the story of that day

in present tense starting with the plaintiff feeling

her feet slide out from under her as she fell face-

rst onto the pavement.

By focusing the opening on the plaintiff’s

experience as the plaintiff lived it, plaintiff’s

counsel invites the fact-nder to experience the

shock and distress along with the plaintiff. This

sets an expectation in the opening that the fact-

nder will nd the defendant’s actions shocking

and distressing. When evidence adduced at trial

causes feelings of shock and distress, the fact-

nder will feel validated in having that reaction to

the evidence.

Appeals to pathos focus on the litigant. An

effective opening statement gives the fact-nder

a reason to reinforced when identifying with that

litigant. The more the fact-nder identies with

the litigant the more the fact-nder will nd ways

to side with that litigant at the conclusion of trial.

Whether in a jury trial or bench trial, the opening

statement is a critical opportunity. It offers

an advocate a chance to set expectations by

appealing to logos, ethos, and pathos. By doing

so, the advocate can effectively persuade the

fact-nder from the very outset of trial and

increase the chances of a favorable judgment or

verdict at the conclusion of trial.

www.nita.org 16

COLLECTIVE WISDOM Designing an Eective Opening Statement

Gary S. Gildin

G. Thomas and Anne G. Miller Chair in Advocacy

Penn State Dickinson Law

KISS (KEEP IT SIMPLE, STUPID) 2.0:

TOTS (TELL ONLY THE STORY)

As of this writing, the band KISS has just played

the nal concert on their End of the Road

farewell tour, ostensibly the last live performance

before retirement. Coincidentally, the time is ripe

to bid farewell to another KISS: the longstanding

acronym capturing the strategy for opening

statements in favor of one aligned with what

neuroscience reveals the jurors’ brains will be

doing as they listen to the opening.

What Does the Law Assume is the Effect

of the Opening Statement on Jurors?

The law’s view of the opening statement

rests on the behavioral presumption that has

animated the American trial process from its

founding to the present. Our dispute resolution

system assumes that during the trial each

juror will warehouse the evidence as it offered,

withholding judgment until they have received

the judge’s nal instructions on the law and

discussed the evidence with their fellow jurors

(who likewise have simply been repositories

of evidence during the trial). The law permits

opening statements only to facilitate the jurors’

ability to understand the legitimate bases of their

eventual verdict—the testimony of witnesses and

content of exhibits—when they are later offered.

As the opening statement is not itself evidence,

jurors most certainly should not be reaching any

conclusion about the case based on the opening.

What Will the Brains of the Jurors

Actually Do While Listening to the

Opening Statement?

The past 30 years have witnessed a

technological revolution that has allowed

neuroscientists literally to see the human brain

process information.

The resulting ndings are

entirely at odds with the prescriptive effect of

the opening statement and require that—while

remaining safely within the guardrails of the

rules—lawyers treat the opening as a seminal

persuasive moment of the trial.

Contrary to the law’s conceit, it is impossible to

prevent a juror’s brain from reaching a decision

while hearing a properly crafted opening

1 In the interest of not burdening the reader with the law professor’s stock in trade of excessive footnotes, I have omitted citations to the

literature on which this article is based. I will gladly share those authorities with any reader who wants to take a deeper dive into the underlying

neuro and social science. With apologies for the shameless plug, for a fuller exposition of neuroscience and the factual story of the case, see

Molly Townes O’Brien & Gary S. Gildin, TRIAL ADVOCACY BASICS (3d ed., 2022), Chapters Three and Four.

www.nita.org 17

COLLECTIVE WISDOM Designing an Eective Opening Statement

statement. For at every moment our brain is

automatically, unconsciously, and unstoppably

making a prediction based upon everything we

are perceiving through our senses. Otherwise,

we likely would not have survived to serve

as lawyers and jurors. As we wandered the

savannah, we had to respond to sights and

sounds that could represent either friend

or life-threatening foe. Our brains evolved

to instantaneously make and act upon a

prediction—a prediction reached by comparing

what we are presently sensing to what we

had experienced in the past. Once it nds a

sufciently similar match to a prior occurrence,

the brain predicts that current reality mirrors

that earlier experience and signals the body to

react accordingly.

As our lives ceased to hang in the balance, the

human brain evolved to include a frontal cortex

that harbors the capacity to organize knowledge

and make considered strategic decisions after

carefully weighing alternatives. Nevertheless, our

brains continue to command immediate action

based upon autonomous, subconscious, and

constant predictions—with the database being

our lived experience. Where what we sense is

analogous to what previously has occurred in our

www.nita.org 18

COLLECTIVE WISDOM Designing an Eective Opening Statement

life, the brain predicts that the past experience

explains the present state of affairs and

immediately signals the pertinent action. Our

brain will not waste precious and nite energy

that would be necessary to engage its executive

functions. Instead, our brain will ignore, or even

suppress data that contradicts the prediction.

Despite the judge’s instruction, then, as each

juror listens to your opening, their brain is

automatically associating what you are saying

with their past experience. That personal

history includes not only events; the brain of

the juror has neurally linked each past occasion

with the character traits and motivations of

the persons involved in the episode. If the

character, motive, and plot portrayed in your

opening sufciently resembles an analogous

incident in the juror’s life history, their brain

instantly will predict that is what occurred. For

the balance of the trial, the juror unknowingly

will watch only for testimony that conrms

that prediction, and will ignore or even push

away evidence that would force the expensive

expenditure of glucose to reconsider.

How Will the Jurors’ Minds Organize

What They Hear in the Opening?

Given what we now know about the operation

of the brain, our opening statement must be

calculated to cause the jurors automatically to

predict that our factual version of the disputed

event giving rise to the trial is what actually

occurred. What should we include in our

opening, then, to trigger the prediction?

Even before the neuroscientic community’s

game-changing discoveries about the brain,

social scientists concluded that jurors make

sense of evidence as it is offered by tting the

testimony into a story that bears resemblance

to the juror’s life. The principal criterion for the

juror to nd a story plausible is its coherence—

consistency between (1) the character traits of

the person whose story we are telling, (2) their

motivations, and (3) their actions.

The newer revelations in neuroscience conrm

and explain the earlier ndings of social

scientists. Our brains are not pre-wired; rather,

from the time we were babies our brains form

distinctive neural pathways linking (a), what

we experience through (b), interactions with

other persons having certain traits, and who

(c), had reasons for how they acted. Our

opening statement will cause the jurors’ brain

to subconsciously predict, accept and then

defend our factual version as true only if (1) we

tell one person’s story; (2) the story relates a

single version of what occurred (as opposed to

offering alternate plots); (3) the person whose

story we are telling had a motive to act as

we portrayed; and (4) their motive arose and

can be explained by earlier events in their life,

the backstory we will call character (not the

evidentiarily prohibited prior similar acts offered

to show a propensity to repeat these actions).

Put another way, our opening must tell a story

whose character → motive → plot continuum

simulates universal human experience.

www.nita.org 19

COLLECTIVE WISDOM Designing an Eective Opening Statement

What Should We Not Do in our Opening

Statement?

If we tell a congruent story in our opening that

adequately parallels the jurors’ lived history,

their brain automatically and subconsciously will

predict, accept as true, and decline to reconsider

that version of the facts. Our equally important

task in opening is to avoid sabotaging that

prediction. As lawyers, we marry the unique

capacity to explain why every piece of evidence

may be relevant with the competitive instincts

that render us loathe to consign any fact to

the cutting room oor of our opening. Further

complicating matters, we know that at the

conclusion of the trial the jurors will be called

upon to apply the facts to the law. Consequently,

we feel remiss if we fail to point out the burden

of proof and legal elements in our opening.

Yet every word out of our mouth that does not

relate the character → motive → plot continuum

will serve only to hinder the prediction we

aim to trigger. The longstanding acronym for

openings—KISS (Keep it Simple, Stupid)—while

remaining true, should be retired in favor of one

that more pointedly accounts for the lessons of

neuroscience: TOTS, or Tell Only The Story.

Does Telling Only the Story Violate the

Rules Governing Opening Statements?

The unstoppably persuasive effect of telling a

congruent story admittedly cannot be reconciled

with the law’s yearning that the opening

statement is not evidence that should convince

the jurors. On the other hand, as long as our

opening recounts facts that will come from the

mouths of witnesses and the content of exhibits,

Telling Only The Story lls the law’s prescription

that we preview what our evidence will show.

As we are not discussing the credibility of either

party’s witnesses or attacking our adversary’s

factual theory of the case, Telling Only The Story

does not constitute impermissible argument,

Conversely, were we to ignore the lessons

of neuroscience and choose not to Tell Only

the Story, we would fail to utilize the “skill,

thoroughness and preparation” that Model Rule

of Professional Conduct 1.1 requires for the

competent representation of our clients.

www.nita.org 20

COLLECTIVE WISDOM Designing an Eective Opening Statement

AVOIDING COMMON PITFALLS

FOR PROSECUTORS IN OPENING

STATEMENTS

Prosecutors have great advantages in criminal

trials: a presumption of credibility because

they represent “The People,” investigative

tools that far exceed those of most defendants,

and the structural advantage of being the

rst (primacy) and the last (recency) to talk to

the jury. But these advantages aren’t without

pitfalls. As criminal defense attorneys (and

former prosecutors), we have seen prosecutors

repeatedly fall into them. Opening statement

can be particularly perilous because the

prosecution has to give an overview of the entire

case, educate the jurors on the law they will

be applying, and do it all without knowing what

the defense will say. In an effort to do all these

things, prosecutors sometimes try to do too

much. This can come off boring, disorganized,

and confusing to jurors, who haven’t been living

with the case for a year. It can also lead to a

prosecutor overselling their case in a way that

catches them off guard later. This article focuses

on how to avoid these mistakes with three pieces

of advice: keep it simple, make it digestible for

jurors, and stay focused on what you know you

can prove.

Keep it Simple, Keep it Interesting

There are many trial lawyers who believe you can

win a case with a great opening statement. While

that may be subject to debate, there is no debate

that you can completely lose the jury with a boring

opening statement.

Boring opening statements often fall into one of

three categories: (1) too long, (2) too confusing, or

(3) too complicated. And each of those problems

can be solved by picking a simple theme and

sticking to it.

Why is the theme so important? It helps you, and

the jury, focus on what the case is really about. A

simple theme also gives the jury something to

focus on and follow. It can make even the most

complicated set of facts interesting and easy to

understand. When the jury hears certain facts

or views certain evidence, they will be able to

Jo Perini-Abbott

Executive Director

Lewis & Clark Advocacy Center

Michelle Kerin

Principal

Angeli Law Group

Amy Potter

Principal

Angeli Law Group

www.nita.org 21

COLLECTIVE WISDOM Designing an Eective Opening Statement

think about how it ts into your theme. This is

particularly so, if you weave your chosen theme

into your trial presentation and closing argument—

an article for another day.

So, what makes a good theme? Simplicity. For

example, while a prosecutor almost never has to

prove motive, asking yourself why a defendant

may have committed the crime is often the easiest

way to develop your theme. Is this a case about

Revenge? Greed? Anger? You can use the

answer to create your theme.

Once you have a theme, you need to implement

it. You need to grab the jury at the start. You

should tell jurors your theme within the rst or

second sentence of your opening. Then, develop

a story that tracks the theme. Don’t just use the

theme once at the beginning; you need to weave

it through your story. Tie the evidence you are

going to present back to the theme and at the

end of the opening, remind them of your theme

before you tell them what you are going to ask of

them (i.e., telling them that at the end of the case,

you will return and ask them to nd defendant

guilty of all charges).

Picking a theme and sticking with it will help you

develop a simple opening that will tell jurors what

they should be looking for as you marshal the

evidence in your case.

Pack a Punch by Making it Digestible for

Jurors

Because the government has the burden of proof,

some prosecutors fall into the trap of providing

too much detail about what evidence will be

presented. This approach typically does not

frame the issues for jurors and often overwhelms

them with too much information right out of the

gate. Moreover, this approach can bury the

government’s really compelling evidence. Jurors’

attention level during opening statements is at

one of the highest points compared with the rest

of trial. As such, giving a concise, well-organized

opening statement, using your theme and key

facts, is more effective than a longer one with

more detail. It will highlight the government’s

best evidence and leave the jury eager to hear

the whole story.

This starts with ruthless editing of which facts

you tell the jury about in your opening statement.

The jury will not remember all of the details you

provide them so stick to the most important

and compelling ones (and as discussed below,

the ones you are certain you will prove) to

demonstrate your theme and story. By cutting out

excess facts, you will make your opening shorter

and easier to follow.

In addition, effective storytelling must be

structured. Your story must have a clear

beginning, middle, and end focusing on the key

evidence you will present in a way that also

explains the charges the defendant is facing

(more on that below) and tells the jury what

you will ask of them once all of the evidence is

presented. Disorganized opening statements do

not help the jury focus on their task and often

conceal or mute key government evidence.

Finally, one of the most effective tools to make

sure you have an organized and digestible

www.nita.org 22

COLLECTIVE WISDOM Designing an Eective Opening Statement

opening statement is to practice your opening

statement in front of people. Unlike closing

and rebuttal arguments, there is almost always

sufcient time to prepare and practice opening

statements before delivering it to the jury.

Mooting your opening statement in front of

others who will provide honest and constructive

feedback is critical to ensure you are hitting the

mark with your opening statement. You may be

tempted to only practice your opening statement

in front of your fellow prosecutors; this, however,

is a mistake. Your jury will likely not have any

lawyers on it, and denitely will not have any

prosecutors. As the rst party to address the jury,

you need to make sure your opening statement

is understandable to and frames the issues and

facts appropriately for lay people. As a result,

mooting your opening statement to non-lawyers

will provide you with some of the most valuable

feedback to rene and sharpen your presentation

to reach your exact audience.

Tell a Story, But Don’t Forget to Tell them

What the Charges Are

Imagine you and the defense have given your

opening statements and one of the jurors

sends a note to the judge with a question. The

question is simple: Is anyone going to tell us

what the defendant is charged with? (This really

happened.) You may have told a great story but

www.nita.org 23

COLLECTIVE WISDOM Designing an Eective Opening Statement

if the jury does not know what they will be asked

to nd at the end of the case, it really does not

matter. You need to have a theme and stick to it,

but do not forget the basics.

For prosecutors, it can be hard to strike balance

between storytelling and telling the jury what you

have to prove. Yet, giving the jury a roadmap of

the charges so that they can follow the evidence

is critical. If they do not know what they are going

to be asked to decide, they may struggle to

identify the most important pieces of evidence.

For a simple case—for example, a drug

distribution charge—it can be easy. Your theme

may be the defendant sold drugs to fund his

extravagant lifestyle. It is easy to talk about how

and when he sold drugs (the charge) and then link

it to his fancy car (the theme).

But add in a conspiracy count and suddenly

you have to talk about overt acts and other

people. Or think of a more complicated set of

charges—a white-collar fraud case—that has

terms like “interstate wires” and a “scheme to

defraud” in the jury instructions. It may seem

like you have to throw storytelling out the

window to explain the charges. You don’t. You

just need to simplify things.

The elements can—and should—weave into

your theme. Do not be scared off by the legal

terms sprinkled through the jury instructions. The

opening is a simple roadmap, not an appellate

brief. Think about how you would explain the

charges to a high schooler; you need a simple

version of what you have to prove without a bunch

of legal jargon.

So, back to the white-collar defendant. In the end,

he may not be any different than the drug dealer.

Instead of selling drugs, he told lies to fund his

lifestyle. You may be hesitant to simplify it too

much because you know at the end of the case

the instructions for fraud may span a couple of

pages. But you just need to give the jurors the

basic outline of the charges, so they know what

to listen for during trial. You can even front the

fact that it might seem complicated. Tell the jury

the defendant is charged with wire fraud, but then

explain that wire fraud is simply a bunch of lies

meant to get people to give away their money.

And it involves using the wires which you will learn

is just another way of saying emails (or whatever

your wires are). Then, before they get too bored,

make sure you highlight some great emails or

other evidence and tell them how it ts into both

your theme and the elements.

Stay Focused on What You Know You

Can Prove

Defendants have one big advantage: surprise.

While there are some reciprocal discovery

obligations (and these vary by state), defendants

can often shield their defense theory until

they present their case. This makes opening

statements a particularly risky area for

prosecutors. The prosecutor must lay out their

theory before they know what the defense will say.

As the trial unfolds, the prosecutor can shift and

respond, but only if they left enough room to do so

in their opening statement.

A prosecutor may build up the testimony of

their lead witnesses without knowing what

impeachment the defense attorney has in their

www.nita.org 24

COLLECTIVE WISDOM Designing an Eective Opening Statement

pocket; a prosecutor may overly demonize

the defendant because they don’t know the

defendant’s story; or a prosecutor may simply

put too much stock in what they think their

cooperating witnesses will say. Any one of these

mistakes will harm the credibility of the prosecutor

and leave the jury feeling like the prosecutor

did not live up to their promises. So, what can

a prosecutor do to ensure they can still tell a

compelling story?

First, prosecutors should be careful about

overcommitting to what their witnesses will say

and the importance of their testimony. Previews

of important witness testimony should be

buttressed by a preview of the corroborating

evidence of that testimony. For example, a

prosecutor may explain, “You’ll hear from the

defendant’s business partner that they conspired

to make false statements to the bank. He will

take this stand and admit that they agreed to

make false statements and that they both did

make false statements to the bank.” This is

powerful, but risky. The jury is primed for the

testimony and will be actively listening for it when

the business partner is called to the stand. If

the business partner doesn’t say that or if they

hedge on whether there was a conspiracy, it

will be a glaring problem for the jury. Defense

counsel will gleefully point it out in closing. (This

did, in fact, happen to one of the authors when

she was a prosecutor.) But if the preview of

testimony in opening is buttressed by the other

evidence that makes the same point, the risk

dissipates. “But even without the testimony of the

business partner, you’ll see the books and emails

don’t match. That is fraud: a lie to obtain money.”

This pairing signals to the jury that the testimony,

while important, is not a make or break moment

for the case.

www.nita.org 25

COLLECTIVE WISDOM Designing an Eective Opening Statement

Second, prosecutors should be very careful when

characterizing the defendant. The defendant

is on trial for a specic crime, not for being a

generally bad person. But the prosecutor can

overreach: by hinging their theme and story on

the defendant being a “bad guy,” the prosecution

is biting off more than they have to. The jury may

like the defendant; the defendant’s backstory

may resonate with jurors; something that may

seem inexplicable to the prosecutor may have

a valid explanation, or at least an explanation

that the jurors nd credible. While passion and

an appeal to emotion is important, with very few

exceptions, that emotional pull should not hinge

on an assumption that the jury will dislike the

defendant. Because dislike of the defendant is not

(and should not be) what the prosecution is about.

As defense counsel, the hardest openings to rebut

are ones where the prosecutor actually shows

some level of compassion for the defendant but

then refocuses the jury on the very specic crime

and the facts that support the crime. When a

prosecutor can do that well, the case becomes

more difcult to defend. It tells the jury that much

of what the defense will present is not relevant, no

matter how strong the emotional pull.

Finally, do not be afraid to address potential

weaknesses in your case during opening

statement (and make sure you learned those

weaknesses in the investigation). For example,

if a key prosecution witness has a signicant

criminal history or a strong motive to lie, tell the

jury why they should believe the witness or how

their testimony will be corroborated with other

evidence. By addressing weaknesses in your

case before the defense spends their 20 to 30

minutes of opening statement talking about those

weaknesses, it will accomplish three things: (1)

the jury will trust you because you told them

evidence that might undermine your case; (2) it

will take the sting out the weakness because they

have already heard about it; and (3) it will cause

the jury to hear the defense case through the

prosecutor’s lens.

Prosecutors have a great advantage in being the

rst to speak so long as they can keep it simple,

keep it digestible, and not oversell their case.

www.nita.org 26

COLLECTIVE WISDOM Designing an Eective Opening Statement

Kaelyn J. Romey

Visiting Lecturer—Trial Advocacy

UC Law San Francisco

MASTERING OPENING STATEMENTS:

ESSENTIAL SKILLS FOR LEGAL

PRACTICE AND BEYOND

Learning to draft effective opening statements

provides necessary transferable skills that will

enhance your legal practice. In the dynamic

landscape of legal practice, the ability to

deliver compelling opening statements is an

indispensable skill that transcends courtroom

boundaries. This skill set is not just about winning

cases; it fundamentally shapes a lawyer’s

approach to communication, analysis, and

advocacy in all areas of legal practice. Prociency

in delivering opening statements is a foundational

element for broader professional competence.

Mastery is crucial to your success inside and

outside the courtroom.

Opening Statement Goal

A good opening statement in court serves

as a crucial element in the trial process,

playing a pivotal role in shaping the fact-

nder’s understanding while providing their

rst perception of the case. A good opening

statement is clear, organized, and credible, with

a compelling narrative that connects emotionally

and respectfully with the fact-nder. It sets the

stage for the evidence to come and plays a vital

role in framing an understanding of the case.

The skills needed to master the art of effectively

delivering an opening statement are crucial for

your overall advocacy.

Keep It Simple and Organized

A good opening statement should clearly outline

the essential elements of a case. It must be

well organized, logically structured, and easy to

follow. Just as jurors are not usually legal experts,

neither are clients. It is crucial to avoid complex

legal jargon and instead use plain language to

not leave anyone behind. An opening statement

should be accessible and understandable

to individuals with no legal background. The

minute someone has to contemplate the

meaning of a word or legalese, you have lost

them in communicating your story. When you

are presenting the facts, the relevant law, and

describing how the evidence will support the

case, it should always be clear and easy to follow.

The goal is to provide listeners with a detailed

roadmap of what they can expect to hear and see

throughout the case. To be successful, you must

continue to work on your delivery until you can

easily and clearly explain the important issues to a

non-lawyer.

www.nita.org 27

COLLECTIVE WISDOM Designing an Eective Opening Statement

First Impressions are Powerful and

Require Clarity and Brevity

A well-crafted introduction not only informs

but also engages the fact-nder, framing the

entire narrative. Imagine a complex corporate

tax litigation case, where the crux of the matter

lies in a web of contractual nuances. Here, the

opening statement serves as a beacon, guiding

the court through intricate legal and factual

mazes and a necessary map to “follow the

money.” You want to be known for your ability to

break down complex cases into straightforward

narratives. This clarity is equally crucial in client

interactions, where simplifying legal jargon

and presenting actionable advice fosters trust

and understanding. The essence of clarity and

brevity can be honed through deliberate efforts:

practice summarizing complex cases or legal

principles into concise, understandable terms

with colleagues and non-lawyers. Writing legal

blog posts or participating in legal discussions

outside the courtroom can provide valuable

practice in distilling complex legal ideas into

clear, concise statements.

Example: A lawyer representing a

tech company in patent litigation

must explain complex technology

in layperson’s terms. The ability to

condense intricate details into a

clear, concise opening statement is

key. This skill is equally vital in client

consultations, where explaining legal

scenarios in understandable terms

goes a long way to building trust and

clarity with your client.

www.nita.org 28

COLLECTIVE WISDOM Designing an Eective Opening Statement

Tell a Relatable Story

One of the most effective ways to connect and

relate to a listener is through storytelling. Using

a compelling narrative that weaves the facts of

a case into a coherent and engaging story can

be powerful. This means presenting the facts in

a way that is relatable and understandable for

the listener. The easier it is for your listener to

understand the story, the easier it will be for them

to remember it. A good story can help a jury see

the case from your client’s perspective, making

them more invested in the outcome. Remember

to give enough details to make it interesting

while allowing the fact-nder to “picture” what

is happening when you tell your story. Bringing

them along into the story makes it easier for

them to remember it.

Enhance Your Power of Persuasion

Reviewing historical cases can illustrate the

power of narrative. Polished attorneys who

weave legal arguments into a compelling story

about equality and justice can play a key role

in persuading the court on important issues.

Storytelling in opening statements creates a

connection with the audience, transforming

abstract legal concepts into relatable stories. To

develop this skill, lawyers can study landmark

cases and analyze how the attorneys presented

their opening statements. Practicing storytelling

in a non-legal context, like volunteer work or

public speaking engagements, will enhance your

ability to tell a story. Engaging in pro bono cases

and explaining legal concepts to non-lawyers is

an excellent way to rene this skill.

Example: In environmental law, lawyers

often face the challenge of persuading

public authorities or courts to see

the broader impact of decisions. A

persuasive opening statement can be

a game-changer, inuencing decision-

makers’ viewpoints and swaying public

opinion.

Be Credible and Honest

Credibility is key in an opening statement.

Lawyers must present the facts and the

case honestly, without exaggeration or

misrepresentation. Listeners often sense any

insincerity; if you lose credibility, it can be

detrimental to your case. To maintain credibility,

you should acknowledge case weaknesses up

front and address them directly. Mastering this

skill allows you to effectively prepare your client

to understand the realities of their case and

helps you set boundaries and client expectations

for realistic outcomes.

Make an Emotional Connection and

Respect the Listener

While the opening statement should be factual

and logical, connecting with your listener on

an emotional level is also important. Instead

of using theatrics, try highlighting the human

aspects of the case. Empathy can be a powerful

tool in helping listeners understand the impact of

events and decisions made at the heart of each

case. Showing respect for a fact-nder’s role

in the trial process is essential. Remember that

culling through documents and witness testimony

and simplifying the facts is your job, not theirs.

www.nita.org 29

COLLECTIVE WISDOM Designing an Eective Opening Statement

Remove all unimportant facts that fail to support

your case theory. Respect includes not wasting time

with unnecessary information and acknowledging

appreciation for your listener’s attention.

Analyze and Craft Logical Arguments

A lawyer’s capacity to analyze a situation,

predict potential outcomes, and construct logical

arguments is the backbone of effective advocacy.

Consider a complex multijurisdictional merger

where the lawyer must analyze diverse legal

frameworks and present a unied argument.

Developing a coherent opening statement in

such scenarios is like setting the chessboard

before the game begins. To enhance these

analytical skills, lawyers can engage in moot

court competitions or in-house trainings

tackling hypothetical cases. Regularly reading

and discussing recent legal judgments and

understanding how judges construct their

arguments can also provide insights into building

logical, persuasive arguments.

Example: Consider a merger and

acquisition deal where a lawyer must

analyze multiple facets and present

a coherent strategy to stakeholders.

Crafting opening statements enhances

analytical thinking, allowing you to

practice dissecting a complex case and

presenting it logically.

Build Public Speaking Condence

and Presence

Public speaking is a critical skill for lawyers, and

the courtroom provides a unique platform to

master it. Consider the transformation of a junior

lawyer, initially hesitant, growing into a condent

speaker capable of commanding the courtroom.

This evolution is crucial not just for courtroom

battles but for all aspects of legal practice,

including negotiations and client presentations.

Regular practice is key to developing this skill.

Participating in public speaking clubs, volunteering

to summarize new case law developments,

and conducting workshops and seminars can

offer valuable opportunities to build condence

and receive feedback. Additionally, observing

seasoned attorneys in court and noting their

speaking styles, body language, and audience

engagement tactics will provide practical

insights. Repeated practice in delivering opening

statements will help you grow into a condent

speaker. This transformation is crucial for

leadership roles, where addressing boards, panels,

and large audiences is necessary. Condent public

speaking is a key leadership attribute.

Powerful Skills You Can Transfer to

Your Practice

Mastering the skills used in executing a strong

opening statement will enhance your overall

effectiveness in various legal contexts.

1. Improved communication. Crafting and

delivering an effective opening statement

require clear and persuasive communication.

This skill is crucial in negotiating settlements,

mediating disputes, and presenting

arguments to clients and fact-nders.

2. Effective storytelling. A good opening

statement involves storytelling, helping

to make a complex legal issue more

www.nita.org 30

COLLECTIVE WISDOM Designing an Eective Opening Statement

understandable and relatable. This skill

is valuable in explaining legal concepts to

clients and in persuading decision-makers.

3. Critical analysis. Preparing an opening

statement involves analyzing many facts,

evidence, and legal principles to construct a

coherent narrative. These skills are essential

in legal research, drafting legal documents,

and developing legal case strategies.

4. Organized preparation. An effective

opening statement requires thorough

preparation and the ability to organize

information logically. This skill is benecial

in all aspects of legal work, including case

preparation, document management, and

strategic planning.

5. Public speaking condence. Delivering an

opening statement builds your condence

and public speaking ability helping you speak

authoritatively in various forums.

6. Persuasive advocacy. The primary aim

of an opening statement is to persuade the

listener. Mastery of persuasive advocacy is a

core skill, useful in all areas of legal practice.

To be persuasive, we need to be genuinely

curious about people and understand how

they make decisions.

7. Adaptability. The ability to adapt to the

audience and things that occur at trial

demonstrate exibility and resilience. These

qualities are very important in our dynamic

and unpredictable legal eld. Listening

and pivoting when needed will make the

difference between you being a good

advocate and being a great one.

Remember These Tips to Help You

Reach Your Goal

Effectively summarizing information and

communicating in a direct, concise manner

is critical for lawyers who advocate for their

clients. The ability to be direct and concise is not

www.nita.org 31

COLLECTIVE WISDOM Designing an Eective Opening Statement

just a communication skill but a strategic tool

in legal advocacy, enhancing clarity, efciency,

persuasiveness, and your overall effectiveness.

Consider the following points as you prepare for

your next client assignment.

1. Send clear client communication. Clear

and concise communication is essential in

explaining legal matters to clients, who may not

be familiar with legal terminology or concepts.

It also helps manage client expectations and

assists them in making informed decisions.

Being concise ensures the core message is

clear and not lost in unnecessary details. This

is crucial in legal settings where every word can

inuence the outcome.

2. Be efcient. Legal proceedings often

operate under time constraints. Summarizing

complex information succinctly respects

time limits and can be more persuasive than

lengthy arguments.

3. Enhance your client’s comprehension.

Your listener may not have specialized

knowledge needed to understand complex

legal jargon or convoluted arguments. Simple

explanations make things more accessible

and understandable.

4. Focus on key issues. Being direct and

concise keeps the focus on important issues.

Construct legal arguments emphasizing

key points to inuence the decision-making

process.

5. Build your credibility. Articulate your points

succinctly to be seen as more credible and

trustworthy. This perception can positively

inuence how listeners view your arguments.

6. Use persuasive nonverbal communication.

Your effectiveness is based on how things are

said, not just what is said. Non-verbal cues

like eye contact, proper tone of voice, and

clear body language can signicantly impact

how your message is received. Engaging

through condent, open body language can

help establish a connection enhancing your

persuasion.

7. Take strategic advantage. Your acute

ability to quickly summarize a situation or

argument can provide a strategic advantage

in negotiations and court proceedings.

Swift responses and adaptations to new

information or arguments can help overcome

arguments by the opposing side.

Skills encapsulated in delivering effective opening

statements—clarity, storytelling, analytical

reasoning, condence, and clear communication—

are fundamental to legal practice. They transcend

the courtroom, inuencing how lawyers

communicate with clients, negotiate deals, and

present cases. By consciously integrating skills-

enhancement strategies into your daily practice,

you will excel in court and elevate your overall

professional capability. Today’s practice demands

the ability to adapt to the evolving demands of the

legal profession. As a lawyer, investing in mastering

this skill will elevate your courtroom performance

and amplify your overall professional effectiveness.

www.nita.org 32

COLLECTIVE WISDOM Designing an Eective Opening Statement

Charles H. Rose III

Dean and Professor of Law

Claude W. Pettit College of Law

ANCHORS AWAY: CREATING

MOMENTS THAT RESONATE

At our best, trial lawyers are storytellers. We

talk about storytelling all the time in advocacy

courses, CLEs, and sometimes even in our

sleep. I’ve been thinking lately about the

structure of a good story, the ways in which

story structure are limited by the law, and our

overwhelming need to speak for our clients

as effectively as possible. I thought it might

be useful to provide some context about how

storytelling can enhance opening statements

and some of the things I think about when

creating an opening.

I’ve actually been struggling to put this into

context for this article. Initially I thought I’d

do a deep dive into the structure of opening

statements, the legal justication for allowing

them, and then outline methods for using them—

but I’m not going to talk about that.

I then thought I might discuss with you how a

grabber line can condense a case in a way that

removes every extraneous piece of material,

leaving you with a condensed core resonating

with the truth of what you are saying—but I’m

going to leave that for another time.

Next I considered opening with a call to our

deep ancestral roots, pulling you through a

predetermined story into the light of the re

of our shared humanity. I was going to share

with you how storytelling has roots in ancient

traditions, where it was used to pass down

knowledge, culture, and values, unveiling how

this historical context underscores its power

in shaping perceptions and beliefs. We would

dance by the proverbial re together, passing

down the wisdom of generations of trial

lawyers—but that’s a chapter in my next book,

so you’ll have to buy it to get that experience.

As I cast about for something to say that might

really makes a difference for you in the small

amount of time we have together, I thought

about how we could share best practices for

incorporating a story into an opening statement.

But that would be a very long article, almost a

book chapter, so I’m not going to talk about that

either. But that storytelling piece resonates, so

how might I give you one thing? How could I

anchor it in your mind? My good friend Jules,

as he politely prodded me to get this done,

mentioned an anchoring demonstration I did

years ago. When I read his email I thought that’s

it: anchoring. So what are we talking about?

www.nita.org 33

COLLECTIVE WISDOM Designing an Eective Opening Statement

If you have read Anthony Robbins, or have

done work with Rafe Foreman,

you have some

idea about anchoring. Anchoring is a way for

us to create physical spaces in the courtroom

that are tied to both the memory of events in the

courtroom and the testimony of witnesses. This

idea ows from neurolinguistic programming

(NLP) and psychodrama. We create a physical

map with our actions. It identies what we want

jurors to remember and ties their emotional

reasoning and reactions to that map.

This allows

us to bring the physical space into our oral

storytelling tradition, multiplying the impact and

anchoring the memory and emotional response of

the jury to an event that happened during the trial.

There are many different techniques found with

psychodrama and NLP, I want to talk about using

one: anchoring. The idea behind anchoring is

that you choose a physical location within the

courtroom and you tie particular portions of your

1 Much of the work Rafe Foreman has done teaching with me and others is grounded in psychodrama. Psychodrama “accesses that part

of us that, though invisible, provides the script from which we live—our psychological and emotional world, with all of its uniquely personal

meaning, logic and signicance. The world that drives and denes us.” Dayton Ph.D., Tian. THE LIVING STAGE: A STEP-BY-STEP GUIDE

TO PSYCHODRAMA, SOCIOMETRY AND GROUP PSYCHOTHERAPY (p. 4). Health Communications, Inc.. Kindle Edition.

2 Bandler, Richard; Roberti, Alessio; Fitzpatrick, Owen. THE ULTIMATE INTRODUCTION TO NLP: HOW TO BUILD A SUCCESSFUL LIFE (p.

11). HarperCollins Publishers. Kindle Edition.

www.nita.org 34

COLLECTIVE WISDOM Designing an Eective Opening Statement

case to it. For example, when I talk about a

particular contested fact, I do so from an identied

location in the courtroom. I stand there during voir

dire, opening statement, examination of witnesses,

and closings when referring or establishing that

fact. Your physical location and movement during

this process anchors the fact to that location within

the courtroom and allows you to reproduce that

emotional feeling for the jury when appropriate.

You anchor when it matters. The jury remembers

your location and actions during important

moments of the trial. By standing there, I am

planting a memory in that place. It grows during

the trial as you water it with additional references.

At the end of trial, you harvest that fact during

closings. Now, there is danger here. You can’t

plant too many facts, and you don’t want to anchor

things that don’t matter, and a little bit goes a

long way. It is a lot like looping—done properly, it

pulls people into the story and validates it. Done

improperly, it is just annoying. You must have

properly analyzed your case to pick the moments

that are sufciently important that you wish to

anchor them in the courtroom.

Anchoring is an effective tool to increase the

emotional impact of the stories we tell during trial.

Storytelling engages our emotional reasoning,

assisting us in making decisions when the facts

aren’t clear and a way forward must be found.

We now know emotions play a crucial role in

human decision making, and storytelling is an

accepted means in the legal context of connecting

emotion to facts, anchoring in moment that the

jury will remember when they write the nal

story of your case during deliberations. Use an

anchor to make sure the story the jury tells in the

deliberation room is the one that wins your case!

3 Gottschall, Jonathan. THE STORYTELLING ANIMAL: HOW STORIES MAKE US HUMAN (p. 16). Houghton Mifin Harcourt. Kindle Edition.

www.nita.org 35

COLLECTIVE WISDOM Designing an Eective Opening Statement

Henry C. Su

Adjunct Professor of Law

American University Washington College of Law

Stephen S. Weinstein Advocacy Program

1 W.W. Norton & Co., 2023.

2 Basic Books, 2023.

3 Wilson, 1:7–9.

4 Lane Fox at 25.

SPEECH ACTS: A HOMERIC LESSON

ON PERSUASIVE STORYTELLING

I nd it useful to talk about opening statements

and closing arguments in the same lecture.

Why? Because I get to emphasize that both

presentations by a trial lawyer to a jury (or judge)

are opportunities for advocacy. And I will stress

the word advocacy, making clear I am well aware

of the cardinal rule that an opening statement

must not contain any argument. But making an

argument, I point out, is not the only way that

we can advocate in a courtroom. Rather, we

can also advocate by telling a persuasive story,

which is the role of an opening statement.

Just as trial lawyers and trial advocacy professors

have looked to Aristotle, the author of a treatise

on Rhetoric, as a spiritual guru on how to make

a persuasive argument, I have looked to another

renowned gure from ancient Greece—Homer, the

author of the epic poem The Iliad—as a spiritual

guru on how to tell a persuasive story. In my mind,

Homer and Aristotle essentially and guratively

bookend the trial; they personify the opening

statement and closing argument, respectively.

What lessons on persuasive storytelling can

trial lawyers draw from Homer? Let’s focus,

appropriately, on the beginning of The Iliad with

Book 1. To help make my points, I will refer to

two recently published works on Homer: a fresh

plain-English translation of The Iliad by Professor

Emily Wilson of the University of Pennsylvania,

and an illuminating analysis of The Iliad’s enduring

inuence, Homer and His Iliad, by Emeritus Fellow

Robin Lane Fox of Oxford University.

Specically,

I rely on and quote from Wilson’s translation of

“Book 1: The Quarrel” and on Chapter 2 of Lane

Fox’s book, entitled “Doing Things with Words.”

We can view Book 1 of The Iliad as Homer’s

opening statement about a dispute between

two parties, namely “the conict between

great Agamemnon, lord of men, and glorious

Achilles.”

What makes Homer’s retelling of this

conict so vivid and captivating to listeners is his

extensive use of brief speeches given by the two

disputants, which are akin to statements made

orally or in writing by litigants in our cases. As

Lane Fox observes,

much of the content of what

Agamemnon and Achilles say constitute what

philosophers of language call “speech acts,” i.e.,

www.nita.org 36

COLLECTIVE WISDOM Designing an Eective Opening Statement

instances when “by saying something we do

something.”

In the context of the hearsay rule,

we would call these verbal acts, i.e., statements

that are performative as opposed to assertive or

declarative, and hence not hearsay.

Let’s look at two examples from Book 1. In

urging the prophet Calchas to step forward and

speak freely about why the god Apollo is so

angry at the Greeks, Achilles promises to protect

him from any repercussions:

You do not need to worry now. Speak

freely and tell us what you know about

the gods. By Lord Apollo, the dear

son of Zeus, to whom you pray when

you reveal to us the gods’ intentions,

Calchas, this I swear—no one will

lay a heavy hand on you beside the

hollow ships, not while I live and see

the light. Not one of all the Greeks will

harm you, even if you speak about Lord

Agamemnon, who now styles himself

the best by far of all the Greeks.

Rather than merely telling the audience that

“Achilles promised to protect Calchas from

any harm for speaking the truth,” Homer gives

them the actual oath that Achilles utters in the

presence of the assembled Greek warlords,

including Agamemnon, a bully before whom

Calchas quavers (“I am afraid I may enrage a

man who has great power over all the Greeks,

5 J.L. Austin, How to Do Things with Words, Lecture IX, 108 (Oxford University Press, 1962). See also John R. Searle, Speech Acts: An Essay

in the Philosophy of Language (Cambridge University Press, 1970).

6 Wilson at 1:115–25.

7 Id. at 1:105–09.

8 Id. at 1:133–38.

9 Id. at 1:143–44.

whom everybody follows and obeys. A leader is

more powerful and stronger when he is angry

with a lesser man.”).

Achilles’ spoken words

convey the gravity and solemnity of his pledge

to Calchas far better than any narrative Homer

could have mustered.

The Greeks subsequently learn from Calchas

that Apollo will not be appeased until

Agamemnon returns Chryseis, a young woman

whom he has taken as a war trophy and slave,

back to her father, a priest of the sun god,

“without a ransom or reward.”

Upon hearing this,

Agamemnon ies into a rage (“You prophet of

disaster! Your words have never done me any

good.”),

making clear that in giving up Chryseis

to save the Greek army from Apollo’s wrath, he is

www.nita.org 37

COLLECTIVE WISDOM Designing an Eective Opening Statement

taking someone else’s trophy:

. . . Now go, nd me another trophy, so

I am not the only Greek commander

who lacks a trophy. That would be

unfair. You can all see my trophy going

elsewhere.

Are you commanding me

to give her back? Fine—if the Greeks

provide another trophy to satisfy my

heart and make it fair.

But if they do not give one, I shall come

and seize a trophy for myself—your

trophy! Or that of Ajax or Odysseus!

The man I visit will be furious.

Agamemnon’s spoken words amount to a

speech act, too. This is not an idle debate over

or an exploration of available options; everyone

understands it as an inexorable command from

the Greek overlord—something that is to be

done purportedly out of his sense of “fairness,”

even though the other man “will be furious.” And

Agamemnon’s announced directive packs far

more punch than Homer blandly telling listeners

that “Agamemnon agreed to give up Chryseis on

the condition that he be presented with another

woman to take as his trophy.”

Homer’s lesson for trial lawyers, then, is this. When

we try cases that include speech acts, e.g., a

breach of contract, a claim of sexual harassment,

or a charge of disorderly conduct, rather than

simply describing what the party did, refer to the

10 Id. at 1:157–60.

11 Id. at 1:182–88.

12 Theresa Moore, 1st ed. 2015.

words spoken or written by them in the opening

statement. Those words will make a more colorful

and indelible impression on the jury, which is

exactly what we want to do coming out of the gate.

Let me illustrate with an example from a case

le published by the National Institute for Trial

Advocacy. Kemper v. Nita City Cubs Holdings,

Inc.

is a lawsuit by Jessica Kemper against

the Nita City Cubs, which own and operate the

stadium where their baseball team plays its home

games, for injuries she sustained from being hit in

the back of her head by a souvenir bat that ew

from the hand of a drunken and rowdy fan. One of

her legal claims is that the Cubs negligently and

recklessly trained, advised, and supervised their

employees who sell beer to the fans. With that

claim in mind, which of the following makes for a

more effective opening statement?

Version 1: As you will see from internal emails

between Lara Kotkin, the Cubs’ Director of

Security, and Ben Stone, the beer vendor

responsible for Ms. Kemper’s section of the

stadium, the Cubs didn’t want to jeopardize fans

having fun in the stands when they trained their

employees on how to deal with ghts and other

dangerous incidents. The Cubs wanted to give

their fans a good time at the stadium, especially

if the team wasn’t playing well.

Version 2: In training their stadium employees,

the Cubs prioritized fun in the stands and beer

sales. In one email exchange between Lara

www.nita.org 38

COLLECTIVE WISDOM Designing an Eective Opening Statement

Kotkin, the Cubs’ Director of Security, and Ben

Stone, the beer vendor responsible for Ms.

Kemper’s section of the stadium, regarding

the protocol for dealing with ghts and other

dangerous incidents, Stone quips, “You’re telling

us we can’t get these knuckle heads drunk

when Castro can’t nd the plate with a map and

compass!? C’mon Lara—you know what the

people want! And it sure ain’t the Nita City Cubs

this season. New motto for the team: Wait ‘til

next beer!☺”

Kotkin responds, “Always the comedian, aren’t

you Ben?;) You’ve been with us a long time, so

you know the deal. Make sure the rookies are

following your lead as our model vendor! Fan

favorite who keeps them comin’ back.”

[displaying Exhibit 12 to the jury]

The words in the email exchange tell the story of

an organization that irresponsibly puts beer sales

and fun in the stands over fan safety more starkly

and persuasively than the narrative version. Both

Stone’s and Kotkin’s emails contain speech acts:

Stone’s “new motto for the team” is performative

through and through, showcasing his intended

conduct in the stadium, and Kotkin’s directive to

“make sure the rookies are following your lead as

our model vendor” signals her approval, as Stone’s

supervisor, of his conduct. We put those words in

front of the jury and let them evaluate their import.

No argument included; no argument required.

Furthermore, as we can readily see from the

above example, the words used by our witnesses

13 Lane Fox at 24.

reveal something about their character, which

too is on display for the jury to evaluate. Stone

blithely disregards any notion of safety protocols,

and Kotkin betrays her position by exposing

herself as someone who cares more about the

organization’s bottom line than stadium security.

Lane Fox makes the same observation about

Book 1, noting that the “speeches implicitly

reveal their speakers’ character whether the

haughty inconsiderateness of Agamemnon,

causing the sending of a plague and then the

quarrel, or Achilles’ swift temper, becoming

violently enraged, or Nestor, dwelling on his past

with the habitual discursiveness of an old man.”

In the above-quoted passages of The Iliad, for

example, we can see Achilles’ nobility radiate

through his rm promise to protect Calchas from

any harm, and Agamemnon’s self-centeredness

poke through his lack of concern with the

feelings of his fellow Greek commanders.

I conclude by commending Wilson’s translation

and Lane Fox’s exposition of The Iliad to trial

lawyers who are looking for something fun to

read while their jury deliberates. Like rhetoric,

storytelling is an art passed down to us by the

ancient Greeks (and other civilizations now

long gone). There is much that we can learn

from Homer’s techniques to make our opening

statements as effective as our closing arguments

in advocating for our side of the case.

www.nita.org 39

COLLECTIVE WISDOM Designing an Eective Opening Statement

Jules Epstein

Edward D. Ohlbaum Professor of Law

Director of Advocacy Programs

Temple University Beasley School of Law

WHAT THEY DON’T KNOW,

WHAT THEY MUST SEE

By the time of trial, hopefully no one knows the

case—every detail, every nuance, every name,

every event, every document, and every issue—

as you do. And now a condensed, meaningful,

and user-friendly summary of that universe

must be presented to people who know nothing

beyond the judge’s description that “members of

the jury, in this case it is claimed that . . .” and

perhaps the date, time, and location.

We all know that less is more, the story is the best

vehicle, and using descriptors [“the emergency

room nurse”] rather than names [Mx. Calandra]

will make the telling more comprehensible. But

what is often forgotten by counsel is ensuring that

sufcient knowledge is shared. It will show up in

something like this:

Mr. Blakely closed the front door.

The Volkswagen drove away.

Sounds very visual, but there is one problem.

Mr. Blakely’s name was never mentioned until

that moment; nowhere was the jury told about

a Volkswagen, where it had been and how it

connected to the case.

What is the cause of such incoherence? It

is the “curse of knowledge,” a condition that

aficts anyone with some advanced, specialized

or ‘insider’ knowledge. We—those cursed

with knowledge—hear the missing words (in

our example, who Mr. Blakely is and what the

Volkswagen has to with the case) and fail to say

them out loud.

The phenomenon is real, and the remedy only

moderately difcult. Check the draft opening

with a critic’s eye—will they get that reference,

are all the missing links there—or test it on an

audience of listeners who know nothing about

the case. If the audience can retell the story and

has no “who is this Blakely person” queries, you

are now in a place of ensuring that your points

have been made.

But even with narrative coherence the task is

not done. Jurors “see” words in their own way.

Consider this witness narrative (lifted from the

movie True Believer):

Q: Ms. Gayle, tell the jury exactly

what you remember seeing on that

evening.

www.nita.org 40

COLLECTIVE WISDOM Designing an Eective Opening Statement

A: I don’t think I’ll ever forget it. I was

walking east on Pell Street, I had

come from dinner with friends, and

I noticed a man walk past me. I

noticed him for two reasons. He

was walking very fast and his hand

was shoved inside his jacket.

Imagine that was your opening—Gayle, walking

along in the evening, saw a man walk past with

his hand in his pocket. Now pause—before you

read on, read the words again and close your

eyes to visualize it. Was the man coming from in

front, the side, or behind? If from the front, how

long was the face exposed? How crowded was

the street? Evening? Did that word choice affect

how light or dark it was?

This author has played this movie clip repeatedly,

rst without the video and then with—and the

audience comes up with different answers to each

of those questions. It turns out the witness saw

almost nothing of the perpetrator’s face.

The lesson is simple: if the words used are subject

to varying interpretations, you have lost the day

unless your closing shows the story. Walk through

it in the courtroom, making the space into Pell

Street; have video; or pause and add details so

ambiguity is reduced if not eliminated. Without

coherence and a shared vision, control is lost and

communication is ineffective.

These are just a handful of options. I suspect

there are a multitude more, be they case specic

or discipline specic. But if one starts with them,

they should bear great fruit.