Thursday, November 17, 2011
From an article co-authored by a Cravath partner and U.S.D.C. (S.D.N.Y.) Judge Richard Sullivan published in the New York Law Journal entitled Opening to Win: Seven Tips for Delivering an Effective Opening Statement. From the introduction:
While the opening statement occupies a small portion of most trials, it is difficult to overstate its importance in a jury trial. Done well, a lawyer's opening statement can shape the way jurors receive the evidence and create a lasting positive impression. Done poorly, an opening statement can put counsel at an early disadvantage from which it may be difficult to recover. Although there is no single formula for every case, this article outlines seven tips for delivering a winning opening statement.
Recognize Its Importance
Crafting a convincing opening statement begins with appreciating its importance. Because the opening statement occupies a small portion of most trials and what counsel says is not evidence, the opening statement can be given short shrift. Some lawyers relegate preparing their opening statement to the nights immediately before trial, in between prepping witnesses and finalizing cross-examination outlines, as exemplified by Vincent Gambini's opening in the movie My Cousin Vinny: "Uh…everything that guy just said is bullsh*t. Thank you."
But at least in a close case, a trial can be won or lost in the opening. Jurors are never as attentive as during opening statements. And research and experience show that jurors dislike remaining neutral.1 They want to find the "good guy" and the "bad guy" rapidly, in the same way they decide almost immediately which movie character or sports team to root for. Once jurors reach a preliminary conclusion about which side they support, it can be difficult for them to change their preference, even in the face of contradictory evidence. A good opening statement can serve as the lens through which jurors see the evidence as it comes in over the course of the trial. As such, it is critical to communicate to the jury your story of the case and the most persuasive evidence that supports it as quickly as possible.
Hat tip to the ABA Journal blog.