Wednesday, September 28, 2022

Winning Speech Techniques for Opening Statement





As we discussed in prior articles here delivering a compelling opening statement is storytelling. Storytellers have storytelling techniques that bring the story to life and make it persuasive, engaging and interesting.

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 view point 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.

The LANGUAGE you use in opening should be clear and simple. Don’t do this:  

“The decedent walked into the room.”

“What were the points of impact between your vehicle and the adverse vehicle.”

“What was the nature of your conversation?”

“The aforementioned party subsequently was wrongfully terminated.”

TOO MANY DETAILS and the story gets lost and TOO FEW DETAILS and the story isn’t real. Eliminate unnecessary details that clutter the story. Include details that make the story real.

Watch the following scene of storytelling from the movie A Time to Kill. Assume that the lawyer is giving an opening statement for the prosecution or plaintiff. 

Evaluate it for the content – is it a compelling story about a human being and involving human values and needs?

Evaluate the storytelling – What storytelling techniques are used?


Note that the lawyer had a viewpoint – that of a reporter. The language chosen is simple and clear. There are enough details to bring the story alive. The story is told in the present tense ("she falls" rather than "she fell") as though the jurors are watching it happen before them. 

The story paints 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 – 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.

Finally, the WORDS CHOSEN for this story reach the mind and move the heart. There is a big difference between “she said” and “she begged.”





Thursday, September 22, 2022

Content of a Compelling Opening Statement




This post, like the prior one, is dedicated to how to select the content of your opening statement, which at its core is storytelling. The first post on the content of opening statement concentrated on telling a human story, which is usually a story about your client. This article covers four other components of a compelling opening statement story.

The second essential of the opening statement story is that it should be about values and needs. It should be about the values we all share. Values the jurors care about. Those values include such things as family, personal safety and integrity. 

All our trial stories are about the deprivation of human needs. Either setting things right because of a deprivation – someone was injured for example or preventing someone from being deprived – for example losing their liberty or being unjustly held liable. Simply put, it’s a story of good versus evil – a David against Goliath story. Typically, your client is David.  Your client is the one the jury should root for.

Ideally, the opening statement story is about a hero’s journey. Your client’s journey. Joseph Campbell famously wrote and spoke about the hero’s journey. It is the story of mythology in which the hero sets out on a journey but encounters an ordeal. We root for the hero to overcome the ordeal and succeed in the end. The hero’s journey is so familiar to us-think: Jaws; Star Wars, or Wizard of Oz

Here is an example of opening during which the trial lawyer recounts the hero’s journey story. In Novell v. Microsoft, the plaintiff’s legal theory was that Microsoft committed anticompetitive acts to undercut Novell’s WordPerfect word processor software and thus gain an unfair advantage for Microsoft’s software. Novell’s lawyer said this in opening statement:

“Novell wanted nothing more than to compete on the merits of its products. Microsoft, however, had other plans.  Microsoft, as you were told yesterday, has a monopoly in operating systems.  The evidence will show that Microsoft was threatened by Novell's applications and middleware products and took anticompetitive actions against those products in order to protect its operating systems monopoly. Instead of competing with Novell on the merits, Microsoft engaged in deception, a classic bait and switch where Microsoft offered Novell and other application developers some very exciting and important technology and then pulled the rug out from under them.  Microsoft did this in order to tilt from [sic] the playing field in Microsoft's direction.”  

Third, for the story to be compelling, it must be credible. A story is credible if it comports with common experience of the jurors.  For instance, jurors can understand the theft of intellectual property if it is a story of theft. The story must also be supported by credible evidence.

The fourth and final component of an opening statement is that it contains a theme. It can be challenging to find the perfect theme for your case. You will know the perfect theme when you find it. A good theme expresses the core idea of your case theory. That theme should be just a few words, ideally one sentence. That theme should be simple, clear and memorable. It should be familiar to the jurors. And it should not be susceptible to backfiring. For example, if you use a baseball theme, it is likely opposing counsel will find a way to say you struck out.

The following are themes that trial lawyers have found tried and true:
Power and control—for example in a domestic violence case
Accountability—many applications for this one, such as in a negligence case
A uniform is only as good as the man or woman who wears it—police corruption
Innocents don’t conspire—a conspiracy case in which a conspirator testifies
Trust and betrayal of trust—child abuse
Fair play—many applications for this one, for instance Novell v. Microsoft
Having a scapegoat—classic defense theme
Misplaced blame—product liability case
Broken promises—for example in a breach of contract case 
Ignoring the consequences—again, product liability
A deal is a deal—again, a contract case.

In sum, the content of a compelling opening statement is composed of a human story about human values and needs that is credible and all tied together with a theme.




Monday, September 19, 2022

Opening Statement is Trial Storytelling

 



This is the second in a series of articles about opening statement and closing argument - how to effectively craft and deliver them to a jury. We began with the concept that delivering an opening statement is storytelling. What are the essentials of a compelling story? A compelling story that will make the jury want to render a verdict for your client.

First of all, it should be a story about a human being. A person whom the jury can care about – normally your client. Someone to root for.

Here is Daniel Petrochelli, representing the plaintiffs in the O.J. Simpson civil case at the beginning of opening statement, telling the stories of two people who are about to be killed: 

“On a June evening, the 12th of June, 1994, Nicole Brown just finished putting her ten-year-old daughter, Sidney, and her six-year-old son, Justin, down to bed.  She filled her bathtub with water.  She lit some candles, began to get ready to take a bath and relax for the evening.  The phone rang.  It was 9:40 p.m.  Nicole answered.  And it was her mother, saying that she had left her glasses at the restaurant nearby in Brentwood, where the family had all celebrated Sydney’s dance recital over dinner, just an hour before.  Nicole’s mother asked if Nicole could please pick up her glasses from the restaurant the next day.  Nicole said, of course, good-bye, and hung up.  Nicole then called the restaurant and asked to speak to a friendly young waiter there.  Nicole asked this young waiter if he would be kind enough to drop her mother’s glasses off.  The young man obliged and said he would drop the glasses off shortly after work, on his way to meet his friend in Marina Del Rey.  The young man’s name was Ron Goldman. He was 25 years old. . .”

Sometimes the person you represent is not all that easy to like because he is accused of murder, or for another reason. Watch a former prosecutor Mark O’Mara and now a defense lawyer in the George Zimmerman second-degree murder trial for the shooting of 17-year-old Trayvon Martin. 



What did O’Mara do to humanize Zimmerman? He refer to him by his first name, not as “my client.”  He addressed the impression of a defendant in a criminal case. He put his hand on Zimmerman’s shoulder. He humanized him.

What if your client is a corporation? In Novell v. Microsoft, the plaintiff’s legal theory was that Microsoft committed anticompetitive acts to undercut Novell’s WordPerfect word processor software and thus gain an unfair advantage for Microsoft’s software. Microsoft responded with its defense message that Novell’s product failed not because of Microsoft’s anticompetitive acts, but because Novell made bad choices and Microsoft makes great products. 

Here’s how David Tulchin Microsoft’s counsel humanized the defendant corporation:

“Microsoft’s Counsel: “Now, let me tell you a little bit about Microsoft. Many of you know a piece of the story.  Bill Gates was 19 and at Harvard College in Massachusetts in 1974, I believe, when he became very interested in actually a – what was then called a mini computer that he saw in a magazine, dropped out of college, and with his boyhood friend, Paul Allen, went to work in writing a computer programming language called Basic.  Some of you may even have heard of Basic.  A few years later, Bill Gates and Paul Allen, who had started Microsoft, bought a software program from a company in Seattle, modified it, and developed what was called Microsoft DOS or MS DOS.”

The next post will examine other essentials of a compelling opening statement, specifically the values-and-needs and credibility components well as having a case theme.



Sunday, September 18, 2022

OPENING STATEMENT IS A GOLDEN OPPORTUNITY

 


The next series of articles here will focus on opening statement and closing argument - how to effectively craft and deliver them to a jury. We begin by exploring why opening is so important to trial persuasion.

Opening Statement is a GOLDEN OPPORTUNITY. It is a trial lawyer’s chance to communicate counsel’s message in counsel’s own words to the jury.
Opening statement is a golden opportunity for three reasons. First, you can provide them with the story in your own words. Opening statement will aid jurors in organizing and understanding the evidence as it is presented during trial, creating a sketch on the jurors’ mental canvas.  Brushstroke by brushstroke, the sketch gains color, and the jury can visualize the picture you want them to see. 

Jurors want a story. Our history is a history of storytelling. We pass on our culture with storytelling. Our stories are told online, in plays, in the news, in movies; it’s all storytelling. If you don’t provide a story. opposing counsel’s case narrative may control the jurors’ perception of the case. Alternatively, if opposing counsel does not supply a convincing case narrative, the jurors are likely to concoct their own, and this story may not be in your favor. 

Second, opening statement provides a first impression on the jury. For the first time, jurors hear your full message.  According to the rule of primacy, an audience is likely to remember what they hear first.

Third, because you deliver the message, you control how it is crafted and presented.  During the rest of the trial until closing argument, the evidence will necessarily be presented in fragments, and it will often be introduced out of chronological order.  But, throughout your opening, your message should be clear and convincing.  In the rest of the trial until closing argument, however, your messengers will be witnesses.  Although you have some control over how witnesses impart information, you do not have complete control.



Thursday, September 1, 2022

New Book: Pretrial Advocacy: Planning, Analysis and Strategy 6th Edition

 


Proud that Aspen Publishing will soon be launching Pretrial Advocacy: Planning, Analysis and Strategy 6th Edition which I co-authored with Marilyn Berger and John Mitchell.  The above image shows what the cover will look like. New to this edition are the following:

  • Comprehensive organizing system for pretrial and trial
  • New material on preparing a witness for trial
  • Updated coverage of electronically stored information (ESI) and e-discovery practice
  • Advancements in the use of technology to create persuasive visuals for litigation
  • COVID impact on pretrial practice with respect to 
    • Conducting and defending depositions online
    • Mediation by videoconference
    • Greater us of written motions and responses

This book is one of the reasons, besides teaching at Seattle University Law School, that I haven't blogged for a while. Probably won't get much blogging done in the near future because we are working on the 5th edition of Trial Advocacy.




Friday, August 5, 2022

Book Review of The Appellate Prosecutor

 


I was delighted to read a review of The Appellate Prosecutor in last month's issue of The Journal of Appellate Practice and Process (Vol. 22 No. 2 Summer 2022). The article entitled "Something Reinforced, Something New: A Review of The Appellate Prosecutor" was written by Tessa L. Dysart, Assistant Director of Legal Writing and Clinical Professor of Law, University of Arizona, College of Law.
Professor Tessa's observes:

"I have been teaching appellate advocacy for over a decade. Yet, when I pick up a book or article on the topic, I often find that I still learn something new in the reading. And, even if I learn nothing new, per se, in the reading, I find important concepts re-solidified, new ways to approach important topics, things I disagree with, and a reminder that practices and customs do vary by jurisdiction. The Appellate Prosecutor both taught me something new and reinforced familiar, but important, concepts. It is a book I recommend to any appellate attorney but especially one that represents the government in criminal appellate matters.

"The Appellate Prosecutor is an anthology of essays on appellate practice, with a special emphasis on attorneys who represent the state on appeal in criminal law matters. Although this emphasis is pronounced in certain chapters, I think that most appellate attorneys, even defense-oriented appellate attorneys, will find something of value in the book. The chapters run the gamut of appellate practice, from protecting the record at trial to brief writing to oral advocacy to even how judges conference cases. The individual chapters were written by state appellate judges and state appellate prosecutors, and the volume was edited by Ronald H. Clark, a longtime state court prosecutor and Distinguished Practitioner in Residence at Seattle University School of Law. . ."

The full article can be read here.  The Appellate Prosecutor book can be purchased here.



Sunday, June 26, 2022

THE BEST JURY SELECTION HANDBOOK



Carolina Academic Press published Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection (374 pages) by me and my co-author Thomas O’Toole. CAP makes the following statements about the book:

Jury selection can be a terrifying experience for even the most seasoned trial attorneys. Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection dissects the process and highlights the strategic choices available to trial attorneys at every step of the process. This book is intended for lawyers who are acquiring their jury selection skills, veteran trial lawyers who want to refresh and expand their approaches and law students. In essence, this book provides a comprehensive view of the jury selection process that can help all attorneys get a better perspective on the strategic choices available to them at every step of the process. 

The book offers two perspectives on the principles and practices for conducting jury selection: that of a trial advocacy professor, who has extensive trial experience as well as trial advocacy training, and that of a jury consultant, who has picked over 200 juries across the country in state and federal courts on a wide variety of civil and criminal matters with exposure up into the billions.

The book provides practical guidance for how to prepare for jury selection; craft motions and responses to motions regarding voir dire; exercise challenges; make favorable impressions of counsel, the client, and the case; break the ice and question prospective jurors; and evaluate jurors and tap into hidden beliefs and pre-dispositions. 

The book provides role-play jury selection assignments for both a civil and a criminal case that can be utilized in law school trial advocacy and clinic courses and in lawyer CLE or in-house law firm professional development training sessions. 

Robust online appendices provide examples of jury questionnaires, motions and responses to motions relating to jury selection, and transcripts of a dozen complete jury selections in both federal and state courts and civil and criminal cases.