PRINT PAGEOpening Argument: The First Minute

Written by Roy Black

Do not waste the power of the opening moments. Get your audience involved immediately. Let them know you won’t waste their time. Their attention naturally high, they are spending the first couple of minutes sizing up you and your case.

They are begging you — tell me the story. I need to understand your case. Make it as clear as you can. This is the essence of advocacy — the telling of the true story of the case. Do it with a jolt, not a whimper. Don’t waste this precious moment with inanities, words of appreciation or other trite boring phrases.

Begin with a dramatic statement. “Yesterday, December 7th 1941, a date which will live in infamy.” Spend a lot of time working on your first sentence. Prepare it, polish it, and practice it. Then practice it some more.

For getting attention it is hard to beat the opening lines spoken by Gideon Hausner in Adolf Eichmann’s trial:

“When I stand before you here, Judges of Israel, to lead the prosecution of Adolf Eichmann, I am not standing alone. With me are six million accusers. But they cannot rise to their feet and point an accusing finger towards him who sits in the dock and cry: I accuse. For their ashes are piled up on the hills of Auschwitz and the fields of Treblinka and are strewn in the forests of Poland. Their graves are scattered throughout the length and breadth of Europe. Their blood cries out, but their voice is not heard. Therefore I will be their spokesman.”

Here is David Ball in a civil case:

“Good morning.
A police officer is never allowed to needlessly endanger anyone. Experts from the Indiana Police Training Center, along with every police officer who will testify, will agree that a police officer is not allowed to use more force than necessary, not even when making an arrest.
This is because using more force than necessary can needlessly endanger people, which everyone agrees is never allowed. They will also agree that when a police officer uses more force than necessary, and as a result injures someone, the officer is responsible for the harm.
Now let me tell you the story of what happened in this case.”

Read the first 144 words (about one minute) of the prosecution’s opening statement from the O.J. Simpson murder trial:

“Your Honor, Judge Ito, Mr. Cochran and Mr. Shapiro and Dean Uelmen, to my colleagues seated here today in front of you and to the real parties in interest in this case, the Brown family, the Goldman family and the Simpson family and to you, ladies and gentlemen of the jury, good morning. I think it’s fair to say that I have the toughest job in town today except for the job that you have. Your job may just be a little bit tougher. It’s your job — like my job, we both have a central focus, a single objective, and that objective is justice obviously. It’s going to be a long trial and I want you to know how much we appreciate your being on the panel. We appreciate the personal sacrifices you’re making by being sequestered. We understand that can be difficult.”

Why does Marcia Clark think that the jury’s job will be tough? Shouldn’t she say they have a strong case? Rather than grabbing the jurors’ attention demonstrating the strength of their case, the prosecution begins by essentially saying, “This is a tough case to prosecute and you have a hard job.”  It didn’t get much better after that. By the time she gets around to talking about the murder, the jurors may have tuned her out, because she didn’t give them any reason to listen to him.

Now compare that drivel with the first 148 words (again, about one minute) of the opening statement given in the civil case:

“On a June evening, the 12th of June, 1994, Nicole Brown Simpson just finished putting her ten-year-old daughter, Sydney, 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. 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 year old. With the glasses in hand, Ron walked out of the restaurant, walked the few minutes to his apartment nearby, to change. He left the restaurant at 9:50 p.m.”

You must grab their attention within the first few minutes and give them a compelling reason to listen to your case. Don’t squander this opportunity by wasting their time telling them how a trial works, re-introducing yourself, or thanking them for their time. The jurors will never be more interested in what you have to say than during these first few moments of your opening statement. Yet lawyers continually waste these first moments with blather like:

“Nothing I have to say is evidence.”
“An opening statement is my chance to outline for you what the evidence will show  . . .”
“This is my chance to show you how the pieces of the puzzle fit together . . .”
“An opening statement is like a recipe for a cake . . .”
“This is what we attorneys call an opening statement . . .”
“Thank you for being here.”
“I am privileged to represent Sally Smith.”
“Opening is like a roadmap.” (Wow they are exciting!)
“What I say is not evidence . . .”
“Jury service is an honorable tradition and I want to thank you for taking time out of your busy schedules to serve on this jury . . .”

The opening is the story of the case, not what you are going to say but what happened to the people. Forget the vapid cliches of jigsaw puzzles, road maps or my favorite, the table of contents. Instead think of those clever 30-second multi-million dollar Superbowl commercials. They certainly get our attention.

Start with a clear statement of the theme of your case. It should be short, consisting of a couple of sentences which disclose the factual and emotional bases for your case. A good example came out of our first mock trial today. This should have been the first sentence of the defense opening:

“This case is about a desperate father who trusted the wrong person at the wrong time and ended up in the wrong seat here in the courtroom.”

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5 Comments to Opening Argument: The First Minute

  1. September 14, 2011 at 9:33 pm | Permalink

    Great insite, Roy.

  2. Monte Burke's Gravatar Monte Burke
    September 14, 2011 at 9:36 pm | Permalink

    A greatly worded example of the dynamics of brevity. Brilliant and poignant in it’s effect. I become bored reading Marcia Clark’s statement. The lesson is not just for lawyers but anyone who wants to hone their skills of persuasion.

    Thanks Roy
    monte

  3. Richard Sharpstein's Gravatar Richard Sharpstein
    September 14, 2011 at 10:15 pm | Permalink

    Once again Roy…simple eloquence. Opening is the first punch,the throw down . It is the attention grabbed from mid air. It is the beginning movement in a symphony. It is dramatic. Strap the jury in and take them for a ride. Use it or lose it.Many advocates wrongly do believe it is a roadmap.That leads to a fast trip down a dead end street.

  4. September 15, 2011 at 2:11 am | Permalink

    S/He who hits first, hit’s twice? lol Another GREAT blog by a master of Laws.

  5. louis acevedo's Gravatar louis acevedo
    September 15, 2011 at 8:11 am | Permalink

    I have always enjoyed your arguments. They are like great screenplays. Act One, the first few pages outlines the characters and captures the audience, Act two identifies the conflict and the prosecutor’s missing case. And, finally, Act III the summation – the resolution the justice that should occur. As the US Marine motto goes – I am one of the few, one of the proud, to have taken your class and interned at your law firm. Priceless!

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