In my 400 sum criminal and civil jury trials, I have heard a great many very good closing arguments. Not so much with opening statements. Even among very well-prepared and very good trial lawyers, their opening statements are often not as well crafted as the rest of the trial and do not show-case their considerable skills.
I offer the following observations focusing on criminal jury trials.
RULE NUMBER ONE: All great trial lawyers are great story tellers, but not all great storytelling lawyers are great trial lawyers. It takes more than just being a great story teller to be a great trial lawyer but I am convinced you can’t be a great trial lawyer without being a great story teller.
RULE NUMBER TWO: The most common yet worst way to give an opening statement. Several AUSA’s and many defense lawyers fall into this mode: They simply summarize what each witness will tell the jury. “And next, Mr.Jones will tell you he bought meth on one occasion from Mr. Smith, who claimed his source was the defendant, but that Mr. Jones did not know the defendant.” And then does the same thing with the 18 other witnesses not in any chronological, thoughtful, or helpful order. Just a bunch of mish-mash facts, but no story.
The jurors generally have a glazed look on their faces and are very excited – about the lawyer sitting down as soon as possible. I have heard far too many like this and they make my skin crawl. Several years ago, in an effort to prevent a lawyer from continuing to inflict his cruel and usual punishment on the jury, I spontaneously flashed on my big evidence screen at the conclusion of the opening: “Please take a piece of paper out of your notebooks and answer the following question “yes” or “no”: Do you have a basic understanding of the prosecution’s case?” I waited till the end of the trial after the jurors began deliberations and revealed the score to the lawyers: 12 said “no” and only one said “yes.” Lawyer cured.
RULE NUMBER THREE: How to tell a story. Telling a story in opening statements is like weaving a tapestry. You have to weave enough of the tapestry so one can get a strong impression of what it will look like when it is finished, but if you give too much detail upfront, it is too cluttered to visualize the finished tapestry. It’s a fine line, indeed.
RULE NUMBER FOUR: Every opening statement needs a Grabber. I define a Grabber as the first 30-45 seconds of the opening statement that grabs the jurors’ attention and momentarily places them in a state of rapture. How is this possible, you ask?
Here is a simple example by a defense lawyer in a cocaine conspiracy trial:
Pretend for a moment that the 4 kilos of cocaine that this case is about had both eyes and ears. For simplicity, I will call the 4 kilos simply Kilo. There will be no evidence that Kilo ever saw or heard my client in Mexico when Kilo was manufactured, or while Kilo crossed the border into Texas, nor when Kilo traveled by van to Sioux City.
The evidence will conclusively establish that the first time Kilo ever saw or heard my client was in hotel room 237 at the local Holiday Inn when the transaction involving 6 individuals was videotaped by law enforcement officers doing their job. Nothing on the videotape establishes anything more than mere presence. Nothing Kilo saw or heard establishes anything more than mere presence.
It would be a violation of federal law, the U.S. constitution, the judge’s jury instructions and your constitutional oath and role as jurors to convict Mr. Hernandez because he was merely present at the scene of this drug transaction. At the end of the trial, if Kilo could talk he would tell you Mr. Hernandez is not guilty based on the evidence. And I am telling you the same thing.”
Ed. Note: Here’s the second installment of Judge Bennett’s Art of Opening Statements rules.