Bennett: The Art of Opening Statements, First Installment

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.

11 comments on “Bennett: The Art of Opening Statements, First Installment

  1. REvers

    Many years ago, one of my law school buddies stood up and told the jury, “This case is about a blowjob.”

    It damned sure got their attention. They paid attention to the trial and ultimately walked his client.

    Reply
    1. SHG

      Many years ago, a lawyer in my building, Alton Maddox, told me he would open making wild promises, like witnesses who would never be called to say things they would never say. I asked him, “didn’t that come back to bite you in the ass?” He told me, “Nah, the jury never remembers opening, but you sure get to screw with the prosecutor’s heads when you do that.”

      Reply
  2. Richard Kopf

    SHG,

    In my experience, the jury will remember the opening (primacy) if the closing argument (recency) is nicely tailored to the opening.*

    All the best.

    RGK

    * This does not mean, however, that screwing with the minds of prosecutors during opening is altogether a bad thing. Frequently, that is the only satisfaction that CDLs can reasonably achieve. And that is particularly true if the prosecutor in rebuttal has the defendant’s Mr. Kilo repeat the testimony of the nine snitches, points out the coke residue on the defendant’s credit card, wryly notes the $10,000 in the defendant’s jeans, and wonders about the defendant’s need for the 9 mm semi-auto stuffed in defendant’s belt, just above his ass crack, while watching porn on the motel TV.

    Reply
    1. SHG

      It’s never been clear to me whether primacy and recency works when there’s a few months in between. An hour, maybe. One of the gambits I find particularly useful is taking the prosecution’s “story” and co-opting it to work up my close. If they’re going to hand me their thunder on a silver platter, what kind of a person would I be not to graciously accept their gift?

      Reply
    2. RKW

      I once had a case where the prosecution had 4 1/2 hours of video of my hero committing the crime. There were seven people involved in the meeting: six FBI undercover agents and informants and my guy. Both my opening and closing were understandably quite short. Sometimes the best you can do is shut up and sit down.

      Reply
  3. John A. Bourgeois

    A rather legendary Baltimore lawyer opened a police brutality defense case echoing the plaintiff’s statements to the officers, which allegedly triggered the melee: “Ladies and gentlemen of the jury — and the rest of you m***** f*****s.” Imagine the ensuing uproar. There’s a grabber for you.

    Reply
  4. John Barleycorn

    Who knew?

    *Someone must have slandered Josef K., for one morning, without having done anything truly wrong, he was arrested*

    Kafka mid/early 1920’s.

    P.S. Well Judge someone has to get our esteemed host over his incessant figurative whining about the cortisone shots and step up his game. Because it never ends…

    I don’t think he knows that the coining of the phrase Kafkaesque originated out of the Trial.

    Help the guy out, will ya?!

    Reply
  5. Daniel R. Alonso

    Love the sample opening statement! Very vivid. I will say that I don’t remember hearing the “witness by witness” opening in an actual trial. That’s a sin that I’ve seen a LOT in appellate briefs, though. Very ineffective there as well.

    Reply

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