It’s seven days before trial and the lead trial lawyer has the opening statement nearly perfected. The visual presentation is complete — no more tweaks. The fourth run-through led to only a few minor recommendations to change a sequence here, change some language there. It feels right in terms of tone, voice, emotion, evidence, and a dash of sriracha sauce on top. For most professionals in our industry of trial consulting, this story is a dream. It rarely happens, for many reasons. But it should happen much more often, also for many reasons.
Others have done the hard work of establishing scientific research, theory, and practical impacts of opening statements on juror and jury decision making. In our 40+ combined years of experience assisting trial lawyers, we have seen many different approaches. Many work well. Some do not. Most lead to lessons. Some lead to strong beliefs about what not to do as part of preparing for trial. In this column, we focus on the nuts and bolts of how you can prepare.
Step One: Prepare for Your Opening. Yes, it needed to be said but hopefully no more details are necessary. For whatever reason, many attorneys procrastinate and wait until the last minute to start preparing for their opening. After the clear first step of getting started, there is no next step that predominates successful opening statement preparation. Instead, we aim to give you eight recommendations to consider adding to your preparation process. In the likely event you already do some or most of them, we provide some flavor and perspective to make your process even sharper.
Do What Works for You. Per the first point, this does not include avoidance, procrastination, or ignoring the reality you must give an opening statement. Instead, do what fits with your process. We have seen very successful preparation include the following central elements, with many attorneys doing these things in various sequences and at various intervals based on their personal preferences, brain and work habits, and the availability of our most precious resource: time.
Outline in bullet points to get the organization, sequence, and big ideas.
Draft as a script to hone the language and nail the details.
Create a visual presentation deck to visualize the elements.
Shuffle these in whatever order you like, but for the best opening statement preparation, the best trial lawyers frequently do all three at one point. And these are all for a single opening statement.
We frequently draft opening statements, create demonstrative visuals and graphics, and recommend specific argument structures for our clients. After years of honing our processes, one of the most effective processes incorporates the following steps, often in this order.
Storyboard a General Structure. We often use notecards, an iPad drawing app, or even excel spreadsheets to create storyboards of the key structural points. The point is to use a method which allows you to see the big picture points clearly but also to move them easily around so you can evaluate alternative sequencing and what it might look like to remove a key point or add a potential point into the mix. The utility of notecards is hard to beat. You can write the word or phrase of the six to ten biggest points in big scrawl and move them around to test their logic, flow, and necessity. Of course, a good old outline works too. These points often look something like:
– Introduction/Silver Bullet
– Put People In a Place: The Bad Guys Hatch a Plan to Hide Their Conduct
– Present a Problem: The Good Guys Learn They Have a Problem
– The Solution Hides: The Bad Guys Deny Responsibility for the Problem
– The Search for a Solution: The Good Guys Try to Solve the Problem
– The Solution Hides Some More: The Bad Guys Continue to Deny, and Deceive
– The Discovery: The Bad Guys Get Found Out
– The Result: The Lawsuit May Finally Solve the Problem and Hold the Bad Guys Accountable
Develop the Key Visual Support. Usually this happens before, during, and after the storyboarding process. Sometimes the central thematic graphic is obvious and in place from the start. Many times, the visual concept that ultimately predominates the opening statement is not clear or not fully developed until much later or even at the very end of the process. Do not let a lack of visual ideas stop you from starting. Do not stop looking for the best visual ideas just because you’ve made it nearly to the end of your process. The best graphics are often developed late in the game. Finally, projecting your outline and bullet points onto a screen is not visual support.
Outline a Specific Presentation. Now you’re putting more words on a page and starting to identify language, transitions, and locate your key visuals within the larger structure. This step should include some cognizance of flow, pace, high points and low points, emotional changes and cognitive load (i.e., how easy or difficult is it for jurors and judges to comprehend the substance at any given moment). You’ve gone from inspiration to skeleton-making. You can still move bones here and there but if you’ve created a good story, you’ll mostly be making sure you know where the big moments lie, how to build to and from them, and where to land the visual, thematic, linguistic, and emotional accents to build a story which sticks.
Draft a Script for Critical Moments. The first three minutes are critical. The last two minutes are critical. The moments before, during, and after the climax are critical. The re-gatherings are critical. The re-gatherings are the moments in between the introduction, climax, and conclusion when you need to re-gather your audience’s attention and remind them why they need to continue to listen and attend to the next part of your story. Drafting these critical moments is not to be word-perfect and tie you to a script which limits your delivery or human connection. It is intended to organize and articulate in detail the specific flow, language, and specificity you need for these key parts of your story. These paragraphs should not create pressure to “do it like you plan” or to say it like you’ve written. They should provide freedom to improvise and build upon what you have scripted in advance when you’re making adjustments and connecting with your audience in the moment.
Practice. Get to know the story, the outline, and the critical points. Practice the flow, the words, the transitions, and the timing of using your visual support in effective ways.
Translate to Talking Points and Director’s Notes. Eventually, move away from a script, switch from an outline, and convert to talking points on a page or on notecards. You should include reminders for your stage direction — when you want to shift your physical position, when you want to use silence or volume. This often looks something like:
– Start slow, low
– Story: bad guys in the restaurant
– Long pause < “we got ‘em by the neck”
– Theme: deny and deceive
– Transition: “not three days later, in Seattle…”
Final Step: Forget Everything. At some point, stop preparing. Go for a walk. Go see a movie. Have a glass of wine. Meditate. Whatever turns it off and lets it simmer while your life goes on without it. This strategy helps not only in terms of relaxation and detachment; it almost always leads to at least one insight or inspiration because you’ve created space for something new to intervene. Don’t skip this step. It’s one of the most fun.
And remember, at the end of it all this work is supposed to be fun. When it’s time to deliver, don’t put pressure on yourself to “get it right.” Just let it rip and enjoy it. You’ll do better that way.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO.
