The Illinois Trial Practice Weblog

Tips on Opening Statements from David Ball

The sixth chapter of David Ball on Damages is titled “Opening Statement.” Here are Ball’s five tips to keep jurors listening, which require “overcoming five bad habits from law school”—

• Do not use too many words to make each point.

• Do not repeat obvious information. You need to say a date only once; after that, you can say “that night.”

• Do not use the passive voice. The passive voice sounds like legalese. Don’t say “the car was hit by the truck,” but “the truck hit the car.”

• Do not give speeches. Aim for informality. Speeches went out early in the last century.

• Never be satisfied with semi-clarity in place of crystal clarity. Your goal: to make every juror understand you the first time you make a point.

Ball’s book is a favorite among plaintiff’s lawyers. You can find it at Amazon.com.

Related post: "For Plaintiffs' Lawyers: A Reminder About Damages from David Ball."

Dabbling in Criminal Law?

The Illinois Trial Practice Weblog is mostly concerned with civil cases, something that unfortunately isn't obvious from the title. But even civil lawyers sometimes dabble in criminal cases. In fact, my longest trial experience ever was a three-month criminal trial in Greenbelt, Maryland, back in 1995 I was working for a large defense firm. I was the "second chair," as they say. I lived in a Marriott and had a heck of a time, especially when the jury returned a verdict in our clients' favor.

Admittedly, I haven't returned to criminal law since. If I did, though, I'd probably take a look at the CCJA's Criminal Pretrial and Trial Practice website. Here's how the CCJA describes its mission--

The Center for Criminal Justice Advocacy was formed as a free, nonpartisan, grassroots training resource to assist new lawyers in becoming competent criminal trial practitioners. Our public service mission is to provide newly licensed sole practitioners and prosecutors, who toil daily in criminal courtrooms across our country, with a body of materials that support a structured analytical approach to planning, preparing, and conducting a persuasive and convincing criminal trial. 

On this site, you will find techniques for honing your pretrial and courtroom presentations. All the pages are information-rich with skills you can put into practice. Feel free to explore the thousands of hyperlinks to other web-based sources, providing a world of practice enhancing data at your fingertips.

There are plenty of examples on the website, including a number of sample opening statements that will please the readers who've said my "Notes on Opening Statement" is lacking in this sort of concrete detail.

I highly recommend the site for criminal law. Now, where are the similar sites for civil cases?

Not the Answer You Want? Take Care in Phrasing the Question

From The Psychiatrist Blog comes news that "witnesses are potentially highly suggestible and words are important"--

In one example participants were shown a 30 second videotape of 2 cars colliding, then they were asked questions about the collision. Some participants were asked "About how fast were the cars going when they hit?’ For other people the word ‘hit’ was replaced by ‘smashed’, ‘collided’, ‘bumped’ or ‘contacted’. These words have very different connotations regarding both the speed and force of impact, and this was reflected in the estimated speeds given.

In one example participants were shown a 30 second videotape of 2 cars colliding, then they were asked questions about the collision. Some participants were asked "About how fast were the cars going when they hit?’ For other people the word ‘hit’ was replaced by ‘smashed’, ‘collided’, ‘bumped’ or ‘contacted’. These words have very different connotations regarding both the speed and force of impact, and this was reflected in the estimated speeds given.

In short, be aware of the connotations of the words you choose. It's an important point not only when you're questioning a witness, but also when you're addressing a jury. Meanwhile, if you're on the other side of the table, be on the alert for objectionable misuses of too much "suggestion." A question about the speed of two cars that had "smashed," for example, would lack foundation if the smashing hadn't yet been established by the witness. The question would also be vague and, perhaps, argumentative.

Thanks to a reader for tipping me off to the post at The Psychiatrist Blog.

Communicating with Juries: Demonstrating the Order in Chaos

For suggestions about the use of tables, charts, glossaries, and timelines at trial, take a look at "How to Uncomplicate the Complicated," by Michael A. Geibelson and Roman M. Silberfeld (pdf link). Although the articles focuses on California law, most of the suggestions are applicable to any jurisdiction. Link from MyTrialBlog.com.

Phil Beck's Trial Style on Display at New Orleans Vioxx Trial

In the Vioxx trial that began last week in New Orleans, it was Chicago defense lawyer Phil Beck who presented Merck's opening statement. Here's how a reporter for the Chicago Tribune described his style:

Beck comes across in the courtroom as careful and calming in his approach, giving explanations of complex drug industry research in words a sixth grade science class would understand. He also played to the all-male eight-member jury, countering the plaintiff counsel's depiction of Barnett as a physically fit 62-year-old who worked out regularly. Beck said all men have higher risks for heart attacks. And although he talked about what a nice couple Barnett and his wife were for being married for more than three decades, he pointed to Barnett's wife's smoking habit as a risk factor for her husband.

Here's part of Beck's opening, as reported by the Tribune:

[Barnett attorney Mark] Robinson talked to you for about 90 minutes and during that 90 minutes 200 people in the United States had heart attacks . . . most of them had heart attacks that were much more serious than the one that Mr. Barnett had.

Over 1.2 million people a year have heart attacks in America and that was true before Vioxx ever came on the market and it's true now that Vioxx has not been on the market for a couple of years.

This is Beck's second Vioxx trial. He won the first. You can read more about him in the Chicago Tribune profile, "Marchin' for Merck in New Orleans," by Bruce Japsen.

Do You Believe in Your Case?

At DennisKennedy.blog, a post by Dennis Kennedy titled "Great Advice on Public Speaking" suggests that a speaker's performance improves in proportion to how passionate he or she is about the topic.

It's definitely true. A little passion goes a long way towards ensuring an audience will listen to a message. Throw in some enthusiasm and they may even embrace it.

That these principles apply to a lawyer's performance at trial or motion hearings is obvious. How can you expect a judge or jury to believe in your cause unless you believe in it first?

Admittedly, not every lawyer has the luxury of working exclusively on causes in which they believe. If you happen to lack enthusiasm for your cause, what can you do about it? First, try to make sure it's not too obvious. Second, think about how it affects the settlement equation. Your own lack of enthusiasm often says a great deal about the merits of a case. 

Law Journals Online

At Washington & Lee School of Law, John Doyle is helping to make law journals more accessible online. First, Doyle has made it possible to search the table of contents of many law journals at "Current Law Journal Content." Not only will you find article titles; sometimes, there's a link to the full contents of the article. For example, I searched "opening statement" and found a free article called "Opening Statement: Raise the Bar" from Litigation magazine, one of my favorites (pdf).

Second, Doyle has created Law Journal Feeds, which lists RSS feeds from over a hundred law journals. Since it's possible to pick and choose the journals that interest you, Law Journal Feeds is a powerful tool for keeping up with developments in your area of the law.

Trying Civil Cases by Giving Them a Criminal Theme, with a Focus, Once Again, on Vioxx

Trial lawyers are familiar with the idea that their case should have a theme. In my recent CSI post, I presented some anecdotal evidence that jurors are influenced by TV shows like CSI. If that's true, is it possible for a plaintiff's lawyer to give their civil case a criminal theme?

In fact, that's just what Mark Lanier did at his Texas Vioxx trial. Although I didn't read his opening, I heard through the grapevine that Lanier presented it like a criminal lawyer. It was a way to deal with the problems presented to the plaintiff by a Republican, tort-reform-minded jury: even if they were skeptical of civil plaintiffs, they were certain to be tough on crime. So the opening was organized based on the analogy of a murder trial: Lanier said he would show that Merck had the motive, big profits, and the means, Vioxx, to cause the decedent's death. In the motive section, he talked about Merck's rush to get Vioxx on the market no matter what the cost; in the means section, he talked about the science of Cox-II inhibitors; and in the "cause" section, he talked about the scientific evidence of case-specific causation.

The things I've heard about Lanier's opening are confirmed by an NPR report. The criminal theme certainly wouldn't work in every case, but it might in a case in which the evidence supporting punitive damages is particularly strong. Whether Lanier's strategy was the key to his success in Texas is open to debate. It seems that Merck's lawyers might have thought so, however, given that they borrowed the criminal theme themselves in the second New Jersey trial, as explained in my earlier CSI post.

A Fantastic Article about Opening Statement

In "The Opening Statement: Coming Soon to a Theatre Near You," the distinguished lawyer Michael Jones emphasizes the importance of telling a story. Jones's article, which itself tells a story, focuses on a trial in New Orleans:

Though not familiar with opening statements, these jurors’ everyday lives fully acquainted them with stories of all kinds, soap operas, comedies, movies, and dramas. Despite being new to an opening statement, they were fully familiar with other types of speeches, most especially sermons and political speeches.

To begin with, every movie they had ever seen had a title, which to a greater or lesser degree signaled to them something about its content, whether “Waiting To Exhale,” “Jurassic Park,” “The Exorcist,” “Lord of the Rings,” and so on. Every soap opera that they had ever seen had a title: “The Young and the Restless,” “Days of our Lives,” “As the World Turns.” And, in black churches in particular, every sermon they had heard had a title. Such sermon titles often were memorable and creative, such as those of the Reverend Leo Daniels, “What in Hell Do You Want;” the Reverend Samuel Wright of Monroe, Louisiana, “Pass the Peas;” and the Reverend Hersy Jones, Jr. of Shreveport, Louisiana, “The Next Family Reunion.”

Like the rest of us, since childhood, they knew about, could identify with, and are moved by stories.

In the article, Jones related how he gives his opening a title--his was "The FulFillment of a Medical Prophecy"--and how he tells a different, but consistent, story during closing. It's a short article that packs a punch, and one that's worth placing into your research folder about opening statement.

Help With Organizing Openings and Closings

Even if you don't use Powerpoint to present your case to a jury, take a look at Dennis Kennedy's review of Cliff Atkinson's new book Beyond Bullet Points. Since the success of your openings and closing depends upon effective communication, I think the Atkinson book would be an interesting addition to the more traditional trial-practice books on your shelf.

Cliff Atkinson, by the way, is the author of the Beyond Bullets weblog.