5 TIPS FOR A WINNING OPENING STATEMENT

 

Storytellers have techniques that they use to bring the story to life and make it persuasive, engaging, and interesting. These are techniques you can employ when crafting and delivering an opening statement. Here are five tips:

1. Viewpoint 

To be effective, a story should be told from a viewpoint. When the story is told from a viewpoint it is more likely that jurors will connect with it. There are at least three viewpoints to select from: (1) Your client’s viewpoint or the victim’s viewpoint if you are a government lawyer; (2) the third person’s or reporter’s viewpoint - like the Greek Chorus looking down on the play’s action, and (3) the omniscient viewpoint – the shifts from one viewpoint to another.

2. Language

The language you use in opening should be clear, simple, and devoid of any legalspeak. Don’t do this:  

• “The decedent walked into the room.”

• “Let’s consider the points of impact between my client’s vehicle and the adverse vehicle.”

• “The aforementioned party subsequently was wrongfully terminated.”

3. Details

Give the jurors too many details and the story gets lost. Give them and too few details, and the story isn’t real. Eliminate unnecessary details that clutter the story. Include details that make the story come alive and become real.

4. Word Pictures

If you want to evoke emotion, paint word pictures. Look at this paragraph and read it as fast as you can: 

Aocdcrnig to a rsereearch at Cmabrigde Uinervtisy, it dse-no’t mtaetr in what oerdr the ltteres in a word are, the olny iproamtnt thing is that the frsit and lsat ltteer be in the rghit pclae. This is bcuseae the human mind deos not raed ervey lteter by istlef, but the word as a wlohe. Olny 57% of plepoe can do it.

Interesting—isn’t it? Our brains don’t think in words or numbers—we convert them into pictures. We convert words into pictures and emotions. Language does this. We see words. Go right to it – paint pictures and create emotions.

5. Word Choice

The words you select can be ones that y reach the mind and move the heart. There is a big difference between “she said” and “she begged.” When the story calls for it, pick the right words to express emotion.

If you found these storytelling tips useful, you could get a copy of my new book Addressing the Jury: Opening Statement and Closing Argument. This short book is reasonably priced at $8.99 for the Kindle ebook and $9.29 for the paperback. Click here to get your copy.

Part 3: STRATEGIES & SKILLS FOR EXTRACTING THE TRUTH ON CROSS-EXAMINATION

 

In case you haven't read Part 1, just click here.

   

In case you haven't read Part 2, just click here.

BOOK: The Pizza Connection: Lawyers, Money, Drugs, Mafia 

As has been previously stated here and in Cross-Examination Handbook, the primary goal of cross-examination is to capture the truth from the witness. On cross, you shouldn’t be trying to discover anything; you shouldn’t ask any interrogatory questions. You know the truths that the witness has to offer, and you aim to extract those known truths. If the witness fails to provide the truths that you can prove by direct or circumstantial evidence or by common sense, the witness will suffer the consequences.

The Pizza Connection case provides a stark example of how a witness’s testimony can be exposed as comical if the witness refuses to provide the truthful answers. The Pizza Connection case was a mega-trial involving 18 defendants who were charged with a $1.6 billion heroin smuggling and money laundering that stretched from Brazil to small pizzerias in the the Midwest. Trial lasted from October 24, 1985 to March 2, 1987.

The following is an excerpt from Shanna Alexander’s book The Pizza Connection: Lawyers, Money, Drugs, Mafia 318-320 (Weidenfeld & Nicholson) (1988) in which she describes United States Attorney Robert Stewart’s cross-examination of an alibi witness and it’s a gem of a cross: 

(Defense counsel) Larry Bronson’s defense of (defendant) Sal Greco is focused on his client’s need to prove that he was not in a Bagheria farmhouse in early March 1980 watching a heroin quality-control test. Bronson will show he [Greco] was quietly, busily at home in New Jersey. He calls Greco’s good friend and tax accountant, Justin Pisano, a man who keeps detailed date books. 

Under patient examination by Bronson, the witness goes through a precise account of driving to the Jersey Shore three Sundays in March to go over Greco’s accounts and to visit nearby pizzerias with his client in order to compare their business with that of the Greco pizzeria in Neptune City. 

Stewart’s cross-examination of Pisano becomes this prosecutor’s finest hour. He concentrates on the March date-book entries. 

“On March 2, yes, I drove down to see Greco,” Pisano says, “and we had a leisurely dinner.” 

“You told us yesterday you were in no rush, right?”
“Yes.”
“And that’s the truth, the whole truth, and nothing but the truth?” 

‘Yes.”
“Then what is this appointment for 7:00 p.m., with Troviatta?”
“Just a tax appointment. Early March is income tax time, and I made many Sunday and night appointments to service all my tax clients.”
“What is Troviatta’s first name? Where does he live?”
“I don’t remember. I don’t even think I do their taxes anymore.”
Stewart remembers. He says Pisano was thirty-five miles away from Greco’s pizzeria that night, in the heart of Manhattan, at Lincoln Center, at the opera.
Pisano emphatically denies this. He has only been to Lincoln Center once in his life, to hear Pavarotti.
“Are you an opera fan?”
“Nope. Only been to one opera in my life, when I was in high school.”
Stewart shows the witness, and the jury, the Sunday-evening newspaper opera listing for March 2, 1980, at the New York State Theater at Lincoln Center: La Traviata. Bronson objects. “Misleading the witness, your Honor. His witness’s tax client is named Troviatta—with two t’s.”
“And the advertisement for the opera is spelled T-R-A-V-I-A-T-A, right?”Stewart asks. “No. It’s La Traviata,” says Pisano gamely.
“La Traviata?”
“Right. I don’t see the comparison to Troviatta.”
“Except for the time. That’s a coincidence. Isn’t it?”
Pisano agrees, and Stewart directs him to look at the entry for two Sundays ahead, 

March 16, at one in the afternoon.
“Are you referring to Carmen? Carmen Sangari, who I no longer do?”
“Carmen Sangari?” Stewart produces the New York Times, and asks him to read aloud the opera listing for that Sunday afternoon. Pisano looks, and agrees that this is truly an amazing coincidence. 

Spectators have begun to giggle. But Stewart is not finished. He directs the wit- ness’s attention to his diary entry for the following Sunday at 7:00 p.m. “Is that a tax client of yours?” 

The giggling turns to guffaws. The notebook says, “Barber of Seville.” 

This cross illustrates that no matter which way the witness responds, the cross-examiner wins when the question require that the witness concede the truth or suffer the consequences.

Another striking example of how to catch the truth on cross-examination occurred during the manslaughter trial of Conrad Murray who was Michael Jackson’s doctor. That cross illustrates the axiom that a cross-examiner must know the answer before asking the question on cross. The answer sought is the truth that either supports the examiner’s case theory or undermines the other side’s case theory. The proposition holds true for lay witnesses and, as the following example shows, for expert witnesses as well.

Conrad Murray, Michael Jackson’s doctor, was prosecuted for involuntary manslaughter. The defense called Dr. Paul White to testify to, among other things, that Jackson self-medicated with his own stash of propofol thereby causing his own death. Prosecutor David Walgren relied on concession-seeking cross-examination to build his case against Dr. Conrad. Walgren asked questions to which he knew the defense expert had to answer in a way that was favorable to the prosecution. They included:

"Do you agree that there are instances where Dr. Murray deviated from the standards of care in his treatment of Michael Jackson on June 25, 2009?"

"And would you agree that there were instances where Dr. Murray deviated from the standards of care in the preceding two months of treatment, as relayed by Dr. Murray in his statement to police?"

“Have you ever used propofol in someone’s bedroom?”

“Have you ever heard of anyone doing that prior to this case?”

Murray’s expert Dr. White had to make these concessions because they comported with common sense and the standard of care for medical treatment of a patient. 

Cross-Examination Handbook covers this concession-seeking cross-examination technique, including how to identify the content of this type of cross – what the truth that the witness must concede - and how to construct and conduct a smooth flowing and effective cross to elicit the truth.

Part 2: STRATEGIES & SKILLS FOR EXTRACTING THE TRUTH ON CROSS-EXAMINATION

 

                                David Boies                                            Ted Olson

BOOK: Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality

In case you haven't read Part 1, just click here.

In the book Redeeming the Dream, the authors David Boies and Theodore Olson recount their battle as trial lawyers to bring marriage equality to gay and lesbians. It is a superb insider’s look at the case, and a must read for trial lawyers. In an earlier piece here, David Boies’s methodology for preparing and conducting cross-examination in the case against Proposition 8 was examined. Redeeming the Dream provides even more information about Boies’s approach to cross, which centers on revealing the truth or exposing the witness’s mendacity or misconception, and examples of how it works in practice. Co-counsel and co-author Ted Olson provides even more in the book when he describes Boies’s manner when examining witnesses.

CONCEDE THE TRUTH OR SUFFER THE CONSEQUENCES

As we have explained in Cross-Examination Handbook and in my Cross-Examination blog, the primary goal of cross-examination should be to seize the truth that the witness must concede or suffer the impeachment. In Redeeming the Dream, Olson describes David Boies’s approach in this way: 

“David has said that cross-examination is the true test during a trial. A witness is alone up there on a witness stand. He or she does not know what to expect, has sworn to tell the truth, and must answer question after question. The right to confront adverse witnesses in a criminal case is guaranteed by the Sixth Amendment to the Constitution for a very good reason: It is the acid test of the adversary system, which is at the heart of our system of justice. It is one thing to make assertions; it is quite another to have to defend them on a witness stand.”

The following is one of the examples of David Boies mastery of the concession-seeking strategy. In this instance, he cross-examines a defense expert David Blankenhorn. Olson describes the examination as follows:

“David’s cross-examination continued the theme of his voir dire, emphasizing that Blankenhorn’s direct relied virtually exclusively on work done by other people, and that Blankenhorn was merely reporting on what selected scholars had said. The witness was initially reluctant to further admit his own lack of qualifications:

“Q: You’re just a transmitter of the findings of scholars, correct?

“A: Well, you’re putting words in my mouth now.

“Q: No, sir.

“David then read Blankenhorn what the witness had admitted at his deposition:

“I’m simply repeating things that they say. I can assure you, I’m not making any of this up on my own. These are not my own conclusions. I’m a transmitter here of findings for these eminent scholars.’

“The court, of course, did not need Blankenhorn to summarize what others had said. That such was the case was bad enough. That he initially resisted admitting it further reduced his credibility.”

Perfect cross. Boies knows the truthful answer that the witness must give, and thus, Boies testifies: “You’re just a transmitter of the findings of scholars, correct?” Blankenhorn must say “yes.” However, Blankenhorn failed to concede the truth of Boies’s testimony, and the witness paid the consequences. 

THE PATIENCE, FOCUS AND STYLE OF THE CROSS-EXAMINER

Co-counsel and co-author Olson is effusive in his praise of Boies patience, focus and style as a cross-examiner, describing it in these words:

“. . . (A)mong his most notable skills are patience and focus. He can’t be brushed aside or worn down by an evasive witness. He will calmly persevere, certain of what he is going for and he will remember exactly, literally verbatim, what a witness said in an answer to a prior question an hour before, several hours earlier, or even the previous day. He has an avuncular style- gracious, polite, respectful-but intense and relentless nevertheless.

“He can change the subject suddenly, catch a witness off balance, and yet return to that subject at a point when the witness has gone on to think about something else. He is adroit, quick, and hypnotic, and is so disarmingly easygoing, agreeable and charming that it is easy to see, in retrospect, how a witness could slip or slide into a  position from which there is no escape. But if you are that witness, even if you sense it is coming, it is like sinking into quicksand. The harder one struggles, the more powerful the undertow.”

“David Boies serves as an excellent role model for any cross-examiner. As the saying goes, “You don’t have to be cross to cross-examine.”

David Boies (preeminent trial lawyer in such cases as the Microsoft antitrust case and the Gary Shandling case) and Theodore Olson (former Solicitor General and opposing counsel to Boies in Bush vs. Gore) served as co-counsel in the California Proposition 8 case. Olson commented on how Boies cross-examined and deposed the defense experts in that case as follows:

“People think it happens all the time because it happens on television. What we used to call a ‘Perry Mason moment’ when the witness breaks down and confesses. That does not happen. But it sort of does happen when David does it.”

What does David Boies have as his goal when he examines opposing witnesses to elicit concessions? Regarding his goal for examining witnesses, he made this observation regarding how he approached the experts in the Proposition 8 case: “Before you can get a witness to admit the truth you have to get the witness to understand what the truth is.”

In essence, when Boies deposes an adverse witness or cross-examines a witness, he seeks to have the witness admit the truth. 

This is neither a new nor novel concept. In Francis L. Wellman’s Art of Cross-Examination, which was published in 1903 and is still in print, a New York trial lawyer Emory Buckner wrote: “More cross-examinations are suicidal than homicidal.” He attributed this to a mistake in conception as to the purpose of cross. Buckner explained: “The purpose of cross-examination should be to catch the truth, ever an elusive fugitive.”

The following is an example of Boies extracting the truth from a defense expert witness Katherine Kay Young in the case against Proposition 8:

Boies – Q: Do you believe that children are advantaged by increasing the durability of the relationship of the couple raising them?

Young – A: Yes

Q: And you believe allowing gay couples to marry will increase the durability of the gay couple’s relationships?

A: Okay, I’d say yes.

Q: And increasing the durability of these relationships is beneficial to the children they’re raising, correct?

A: On that one factor, yes.

Boies has put it this way: “Cross-examination is probably the best we have to really get at the truth. We put somebody on the witness stand, call them to answer questions and it takes an extraordinary person to be able to successfully lie without being tripped up.”

New Evidence in Practice Second Editiion Coming Soon

We now have both the front and back covers for the second edition of Evidence in Practice: Skills and Strategies for Pretrial and Trial with Practice Exercises. In February of next year,  Aspen Publishing will publish our new edition and we are excited. The back cover explains what this new edition offers and why we are so excited about this book and its companion website that offers videos and much more. 

Here is the description of the book on the back cover: 

Here is the back cover in larger type so it is easier to read: 

EVIDENCE IN PRACTICE

Skills and Strategies for Pretrial and Trial

With Practice Exercises

Second Edition

Marilyn J. Berger

John B. Mitchell

Ronald H. Clark

Evidence in law school focuses on legal theory and doctrine. Bridge the gap between classroom and courtroom with EVIDENCE IN PRACTICE: Skills and Strategies for Pretrial and Trial, with Practice Exercises, Second Edition. Designed for law students, paralegals, and trial lawyers, this versatile go-to guide provides clear instructions and examples for making and meeting objections, introducing exhibits, laying evidentiary foundations, and much more. The updated and streamlined Second Edition clearly explains all the evidentiary law and procedure that applies to mock trials, moot court, pretrial litigation, and trials. 

The updated Second Edition features essential content, insights, and resources:

   • Making and meeting evidentiary objections

   • Anticipating when opposing counsel will offer inadmissible evidence 

   • Quick-reference lists of objections that may be raised at each stage of a trial 

   • Wording and phrasing for each type of objection 

   • How to protect the record when raising or meeting an objection

   • Counteracting unscrupulous behavior by opposing counsel

   • Considering the ethics of making or meeting an objection

   • Drafting and arguing motions and responses to motions

   • Laying evidentiary foundations for exhibits and witness testimony 

   • Using predicate questions to establish the admissibility of evidence

   • Introducing and displaying exhibits

With the online videos, case files, and practice exercises available with this text, you can develop or hone the full range of skills and strategies that consummate trial lawyers apply in pretrial and trial to all matters of evidence. 

_________________________________________________________

We are very excited and happy about this new edition. It will be a real gift to trial lawyers and future trial lawyers.

STRATEGIES & SKILLS FOR EXTRACTING THE TRUTH ON CROSS-EXAMINATION – Part 1

 

                                        David Boies                            Ted Olson

BOOK: Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality

In the book Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality, the authors David Boies and Theodore Olson recount their battle as trial lawyers to bring marriage equality to gay and lesbians. It is a superb insider’s look at the case, and a must read for trial lawyers. In an earlier piece here, David Boies’s methodology for preparing and conducting cross-examination in the case against Proposition 8 was examined. Redeeming the Dream provides even more information about Boies’s approach to cross, which centers on revealing the truth or exposing the witness’s mendacity or misconception, and examples of how it works in practice. Co-counsel and co-author Ted Olson provides even more in the book when he describes Boies’s manner when examining witnesses.

CONCEDE THE TRUTH OR SUFFER THE CONSEQUENCES

As we have explained in Cross-Examination Handbook and in my Cross-Examination blog, the primary goal of cross-examination should be to seize the truth that the witness must concede or suffer the impeachment. In Redeeming the Dream, Olson describes David Boies’s approach in this way: 

“David has said that cross-examination is the true test during a trial. A witness is alone up there on a witness stand. He or she does not know what to expect, has sworn to tell the truth, and must answer question after question. The right to confront adverse witnesses in a criminal case is guaranteed by the Sixth Amendment to the Constitution for a very good reason: It is the acid test of the adversary system, which is at the heart of our system of justice. It is one thing to make assertions; it is quite another to have to defend them on a witness stand.”

The following is one of the examples of David Boies mastery of the concession-seeking strategy. In this instance, he cross-examines a defense expert David Blankenhorn. Olson describes the examination as follows:

“David’s cross-examination continued the theme of his voir dire, emphasizing that Blankenhorn’s direct relied virtually exclusively on work done by other people, and that Blankenhorn was merely reporting on what selected scholars had said. The witness was initially reluctant to further admit his own lack of qualifications:

“Q: You’re just a transmitter of the findings of scholars, correct?

“A: Well, you’re putting words in my mouth now.

“Q: No, sir.

“David then read Blankenhorn what the witness had admitted at his deposition:

“”I’m simply repeating things that they say. I can assure you, I’m not making any of this up on my own. These are not my own conclusions. I’m a transmitter here of findings for these eminent scholars.’

“The court, of course, did not need Blankenhorn to summarize what others had said. That such was the case was bad enough. That he initially resisted admitting it further reduced his credibility.”

Perfect cross. Boies knows the truthful answer that the witness must give, and thus, Boies testifies: “You’re just a transmitter of the findings of scholars, correct?” Blankenhorn must say “yes.” However, Blankenhorn failed to concede the truth of Boies’s testimony and the witness paid the consequences. 

THE PATIENCE, FOCUS AND STYLE OF THE CROSS-EXAMINER

Co-counsel and co-author Olson is effusive in his praise of Boies patience, focus and style as a cross-examiner, describing it in these words:

“. . . (A)mong his most notable skills are patience and focus. He can’t be brushed aside or worn down by an evasive witness. He will calmly persevere, certain of what he is going for and he will remember exactly, literally verbatim, what a witness said in an answer to a prior question an hour before, several hours earlier, or even the previous day. He has an avuncular style- gracious, polite, respectful-but intense and relentless nevertheless.

“He can change the subject suddenly, catch a witness off balance, and yet retun to that subject at a point when the witness has gone on to think about something else. He is adroit, quick, and hypnotic, and  is so disarmingly easygoing, agreeable and charming that it is easy to see, in retrospect, how a witness could slip or slide into a  position from which there is no escape. But if you are that witness, even if you sense it is coming, it is like sinking into quicksand. The harder one struggles, the more powerful the undertow.”

David Boies serves as an excellent role model for any cross-examiner. As the saying goes, “You don’t have to be cross to cross-examine.”

IMPROVING YOUR LEGAL WRITING SKILLS and FREE CHAPTER

In a book I edited, titled The Appellate Prosecutor: A Practical and Inspirational Guide to Appellate Advocacy, the Honorable Paul Turner, who when the book was published was Presiding Justice of the California Court of Appeals Second Appellate District of Los Angeles, California, contributed a chapter. Judge Turner’s chapter focuses on the art of writing, specifically on crafting the short declarative sentence, which he referred to as “The Declarative Sentence: The Key to Good Legal Writing.” 

Here is an excerpt from Judge Turner’s chapter:

“The most important way to improve your lega writing is to develop the skill of writing the short declarative sentence. Some people do not need to use short declarative sentences. In 1995, the Houston Chronicle reported that Alan Greenspan, the Chair of the Federal Reserve Board, said, “I spend a substantial amount of my time endeavoring to fend off questions and worry terribly that I might end up being too clear.” In 1992, the Wall Street Journal reported that one wag suggested that Alan Greenspan’s tombstone should read, “I am guardedly optimistic about the next world but remain cognizant of the downside risk.” 

“But as an appellate advocate, your job is to be clear; not to be uncertain like Mr. Greenspan. Your task is to develop the skill of writing the short declarative sentence so that words march promptly in proper order towards a logical conclusion. That statement of your mission warrants repeating. Your task is to develop the skill of writing the short declarative sentence so that words march promptly in proper order towards a logical conclusion. 

“Here is an example of this important way of communicating, and it is from the famous case of Palsgraf v. Long Island Railroad Company 248 N.Y.339, 340–341 (1928). It is the first paragraph of Chief Judge Benjamin Cardozo’s famous opinion. In law school, professors use the Palsgraf opinion to discuss proximate cause and negligence. More importantly, it is the example of great legal writing utilizing the short declarative sentence as a way to communicate. Here, with minor bracketed interruptions, is the first paragraph of Palsgraf: 

‘Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. [Stop reading now. How many words were the in the first sentence? 18. Now keep reading.] A train stopped at the station, bound for another place. Two men ran forward to catch it. [Stop reading again—how many words in this sentence that describes the hurried conduct of two different human beings in relation to a train leaving a station? Seven words—that is all; now start reading again.] One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues.’ 

“The longest sentence in this first paragraph of Palsgraf is 27 words, the one that begins, “A guard on the car...” That sentence consists of a series of short phrases strung together. Look at them: “A guard on the car, [5 words and a comma] who had held the door open, [6 words and a comma] reached forward to help him in, [another 6 words and a comma] and another guard on the platform pushed him from behind” [10 words and a period]. 

“The most important thing about this whole passage is a reader knows exactly, yes, exactly what happened. This accident happened on August 24, 1924, at the East New York Station in Brooklyn and everybody who reads the first paragraph of Palsgraf knows what happened 80 years later. That is communication, that is the power of the written word.” 

The Appellate Prosecutor: A Practical and Inspirational Guide to Appellate Advocacy is not just for prosecutors who are appellate advocates; it’s for all appellate advocates.

For a Free Copy of Turner’s Chapter, 

“The Key to Good Legal Writing.”  Click here. 

FREE copy of ADDRESSING THE JURY: OPENING STATEMENT & CLOSING ARGUMENT

 Get your FREE COPY of ADDRESSING THE JURY: OPENING STATEMENT & CLOSING ARGUMENT

Get  your FREE COPY of ADDRESSING THE JURY: OPENING STATEMENT AND CLOSING ARGUMENT - CLICK HERE

Addressing the Jury: Opening Statement and Closing Argument offers an in-depth explanation of how to craft a winning opening statement and summation and how to persuasively deliver them to a jury. Author Ronald H. Clark was a career prosecutor in King County, Washington, Senior Training Counsel at the National Advocacy Center, and he is currently a Distinguished Practitioner in Residence at Seattle University Law School where he has taught trial advocacy, pretrial advocacy, essential lawyering skills and visual litigation and technology.

Inside this accessible and comprehensive handbook, you’ll learn:

• How to structure a persuasive opening statement and closing argument
• Compelling storytelling techniques for a “golden opportunity” opening statement
• Attention-grabbing beginnings for an opening statement and closing argument
• How to deal with case weaknesses in an opening statement
• Strong concluding remarks for an opening statement and closing argument
• Closing argument pitfalls to avoid
• How to be a great persuader utilizing Aristotelian arguments and speech devices
• How to bring your opening statement and closing argument alive with visual aids
• 8 techniques for being a great persuader—having a winning delivery
• Trial attorney role models for you to consider emulating
• Triumphing over nervousness