Opening Argument (Part 3)

September 19, 2011 Opening Argument

It is a performance.

The opening argument is the first act of a drama.

For a long time, the opening argument was underrated and neglected by trial lawyers. It was at best an afterthought. We invested our thinking into the final argument. That was the apex of the trial. The last act. The denouement. When you would rise to the heights of Clarence Darrow and leave the jury in tears. Your client hoisting on his shoulders in a victory march out the courtroom doors.

Well, perhaps an exaggeration, but we all aspired to make the dramatic, convincing, persuasive final argument. Little did we know that the opening might be a better vehicle for persuasion. It took psychologists, trial consultants and others in the human arts to set us straight. That is one reason why I like business books on presentations and persuasion instead of the trial advocacy books. They know more about human persuasion. The marketers and salesman study human beings so they can sell to them.

We, for the longest time, bought into the great myths of the law. We are beginning to see the flaws in the assumptions made about human behavior. The realization began with the Harrisburg 8 trial and the dawning that sociologists, body language experts, and psychologists had a lot to teach us, but only if we would listen. That is the hard part. Trying to get the profession to change. Dinosaurs still roam the landscape.

This quote is from an article in the ABA Section of Litigation newsletter: “Opening statements, as the name clearly specifies, are not arguments, although sometimes they are erroneously referred to as such.”  Erroneous? Now you see why I don’t recommend legal publications?  This is pure bunk. The only lawyer in the courtroom who is neutral is the judge. The lawyers are advocates. Everything they say is for a purpose, to establish their case. They are always advocating. Everything is calculated once they walk into the courtroom. If not, they need to get another job. Statement? Anyone in my class who calls it an opening statement flunks.

Let me give you a recent example of why it is an argument, not a statement. Plaintiff’s lawyer Robert Mongeluzzi was 20 minutes into his opening argument describing the surgery his client had suffered when a juror pitched backward in her chair, her eyes rolling back in her head, and lost consciousness. Mongeluzzi had been painting his client’s medical procedure in vivid detail. The paramedics were called and the trial suspended. The defense promptly settled for $10 million. The highest pretrial offer had been $2.5 million.

On Monday my class worked on the opening argument. That’s why I’m writing about it this week.  Watching the students and injecting my ideas got me energized and focused on the subject.

While preparing for class, I looked back on my 40 years trying cases and realized most of my skills are self taught. This was especially so with opening arguments. When I went to law school, there was no instruction, no class, and only one seminar which touched on matters like this. Then I read perhaps a few articles. That is it. The rest was all on the job training.

It surely is better today than in mine. The law school teaches some but not all of these skills. Lonnie Rose has created a great program, but more is needed. He wants to expand it and have a Litigation Skills Certificate Program. I am all in favor of that. Now all he has to do is convince the powers that be at the school.

Let’s examine the importance of the opening argument: marketers know it is easiest to convince people of what they already know. People select things that already match their mindset. That is why liberals tune into MSNBC and conservatives to Foxworld. Thus the mindset of the jurors as they hear the testimony and evidence is important. But how do they make up their minds?

In this age of rapid decisions, overload of information and instant communications, we often do not take the time to think through a decision. We all develop opinions quickly, then do our best to confirm them.  The clinical term is confirmation bias.

When you combine these two psychological principles, we can see why the opening argument is so important. It is the first time the jury clearly hears the contentions of the parties. They start to lean one way. Once they do that, they seem to accept evidence which confirms their original thoughts and reject that which doesn’t. So the opening is your best chance to get them on your side.

“The most difficult subjects can be explained to the most slow-witted man if he has not formed any idea of them already; but the simplest thing cannot be made clear to the most intelligent man if he is firmly persuaded that he knows already, without a shadow of doubt, what is laid before him.”  Leo Tolstoy 1897.

Malcolm Gladwell wrote a book called “Blink.” He is basically proving the adage we we constantly make choices in the blink of an eye. In the blink of an eye, our brains process an enormous amount of information. This comes from our lizard brain, or brain stem, which warned us when a T-Rex was about to eat us. This is also where we get the expression to follow your gut.

A recent Cornell University study, using mock jurors, proved that 85% exhibited “pre-decisional bias.” Meaning their bias from the party they favored in the beginning of the trial formed their interpretation of the evidence as it came in. The more confident, the more biased.  The jurors quickly make up their minds who is credible and who is suspect. Thus the stronger the opening, the better chance of persuading.

Beware of another myth from the brilliant legal texts: jurors irrevocably make up their minds during the opening arguments. Not true. This comes from a misreading of the famous Kalven and Zeisel research in Chicago that they wrote about in their book “The American Jury.” It is a persistent myth among trial lawyers. It is not true. They never said it. But the myth persists. What is true is that jurors get an impression about the case. They favor one side or the other. The danger in that is that they tend to “ear” the evidence in a way to justify their original view of the case. That is why a strong opening is necessary. The jurors form an attitude, and why create a mountain for you to climb. You shape the meaning for what they are about to hear. You create the lens through which they will see and hear the evidence. You want them to absorb it through the POV of your opening.

So we started with the openings last Monday. If we had the time, I would have each side re-write and re-give their openings. Not that they were bad, but we can make them so much better. It takes a lot of work and practice to do the best, not be just everyday or mediocre. That is not good enough. I demand perfection!

This is the first time the jury hears the facts. They need help understanding what the case is about and how to do their job. It is all new to them. The lawyer must relate in a coherent manner. Start with the case theme, build rapport, humanize the client and tell the story of the case.

Begin with a powerful phrase. One that captures their attention. Let’s take the defense argument because she had a great theme. Unfortunately it was hidden among a lot of stuff. Stuff that was not dramatic and persuasive. I want drama.

“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.”

Then tell the story of the case. Tell it in chronological order because it makes the most sense with the facts of the problem.

Throughout the trial, return to this theme time and time again. Firmly plant in their mind.  Make it part of a human interest drama.

Then come back to the theme at the conclusion of the opening. The opening argument is a must win proposition. You must clearly communicate the evidence by highlighting your most compelling arguments.

If I had free rein in teaching evidence and trial advocacy, I would keep working at the openings until we are either exhausted or get to the best version we can. Time and credits would be irrelevant. The key is grasping how to do it. Once that is accomplished move on to the next skill.  The purpose is not to fulfill a requirement, but to get the idea.

Richard Sharpstein commented on my first minute of the opening post. Richard always performs colorful and persuasive arguments. So Richard, if you have some good examples, please send them so I can post them. If anyone else has some good opening lines in either trials or presentations, please share them with me. Let’s get a good collection going.