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Anatomy of a Civil Trial

Crafting the Statement In crafting the statement, develop the beginning, middle

and end. Te beginning should grab the listener with an impact theme. Aim for a strong beginning as people retain those things they hear first and seldom change their mind, known as the principle of primacy. If counsel can seize the jury’s attention with the essence of the case during the first minutes of opening, counsel can take full advantage of the principle of primacy. Similarly, the principle of recency states that jurors tend to remember the last thing said to them. Information placed in the middle tends to be the least remembered of all. Tese combine to make the order of facts tremendously important.

Set Out the Key Facts What are the key facts in the case? Inundating the jurors

with too many facts will dilute the important facts of the case and may lose the jury’s attention altogether. All of the best opening statements are selective in the facts they highlight. By reducing the facts of a case to their core, counsel can concentrate on their persuasive force. When considering the facts, who will counsel be focusing on? What conduct? Studies have shown that beginning with the defendant’s conduct tends to make the most impact on juries. Te theory behind this is that beginning with the plaintiff ’s actions makes the jury question why he or she did or failed to do something. By carefully choosing and ordering the facts to support the opening’s compelling theme, counsel can maximize the chances that the jury will find in his or her client’s favor. Te middle is obviously where the facts and evidence

are woven into the theme. Tis is the place for persuasion and drawing the jury into the story, using the theme to relate the evidence into general principles and universal truths. Rhetorical questions help the guide the jury and frequently allow the juror to deduce the answer. Rhetorical questions are most effective when placed at the beginning of a strong case. Tey may also be effective when used to exploit the weak points of the opposing side’s case. An effective opening statement must communicate not only the verdict counsel wants, but why it is the right verdict in the case. Any opening statement that does not argue the case by properly ordering the facts is usually ineffective.

Te end of the opening statement should be dramatic

and powerful and connect with the opening. Here is the place for the call to action, involving the jury in the process to make the right and just decision. A successful opening statement avoids overstatement.

Never overstate what the case is about or state something which counsel will be unable to prove. Don’t promise Paris

if you’re going to Dundalk. Credibility is an important factor and overstatement of the case impacts and weakens credibility. In a similar vein, defuse or mitigate the known weaknesses and problems in your case early, sometimes known as innoculation. All cases have both good and bad facts. While it may not be helpful to mention the bad facts in opening in all cases, it does not mean that they should be ignored. At a bare minimum the theory of the case must accommodate the bad facts. Sometimes the best way to deal with bad facts is to acknowledge them early and openly so as to minimize their detriment to the case. Acknowledging bad facts may help preserve and enhance counsel’s credibility with the jury. Continually repeat certain words and the chosen theme

throughout opening statement. Repeating specific words or phrases which relate to the theme gives them more significance and importance. In addition to the theme, it may be helpful to give the case a name. Instead of opening with stating that this case is one regarding self-defense, perhaps counsel could name the case “David and Goliath 2” in keeping with a theme of assault with disparity in size of the players. Any properly themed case could render a short but catchy name for the jury to remember the theme.

Trial Reporter / Spring 2012 7

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