Ed. Note: This is the second, and final, installment of Judge Bennett’s The Art of Opening Statements. The first installment can be found here.
RULE NUMBER FIVE: Lawyers tell stories like lawyers, not storytellers. The “thinking like a lawyer “training in law school harms lawyers in learning how to become spellbinding raconteurs. As Gerry Spence wrote*:
Lawyers are not trained as dramatists or storytellers, nor are they encouraged to become candid, caring and compassionate human beings. Most could not tell the story of Goldilocks and the Three Bears in a compelling way. We would be fast asleep by the time they got to the first bowl of porridge.
Another classic example of lawyers trying to spin a story is the lawyer version of the “Three Little Pigs,” A/K/A The Trio of Diminutive Piglets:
Whereas these said piglets reached the age of majority;
Whereas the sow desired the piglets to become self-sufficient;
It was therefore resolved that this said trio of piglets should go forth into the world for the purpose of establishing their own domiciles.
The initial piglet that went forth into the world met a homo sapien of the muscular gender who possessed a bundle of straw. The piglet inquired, “Would you be so kind as to bestow, devise and bequeath upon me that straw so I may forthwith construct a dwelling?” The straw was bestowed upon him and he constructed a dwelling.
Presently along came a carnivorous lupine (hereafter referred to as the “Wolf”), and commenced to rap upon the portal and said, “Diminutive Porcine, Diminutive Porcine, grant me entry to thy abode.” After due consideration, the Piglet responded, “Not by the follicular outgrowth on my lower jaw.
“Then I’ll inhale and exhale large quantities of air and cause your dwelling to implode!” said the Wolf.
RULE NUMBER SIX: Nashville trial lawyer, Phillip H. Miller, has written “A story is not a collection of facts interspersed with proverbs, analogies, metaphors, biblical references, song titles, and anecdotes.” No truer statement has ever been made about storytelling by lawyers.
RULE NUMBER SEVEN: A good story can be short. Our local rule allows only 15 minutes for opening statements. I waive it at the lawyer’s request, and always regret it. After 30 or so minutes, the jurors have that glazed look in their eyes. Lawyers have a burning desire to spew forth everything they know about the case but forget the jurors have no frame of reference to assimilate the mountain of information.
RULE NUMBER EIGHT: A mediocre opening statement with PowerPoint is still a mediocre opening statement. One or two great graphics can help, but an endless list of bullet points does not.
RULE NUMBER NINE: Never actually use the word “story.” For many jurors, and for me, too, it has a connotation of fiction.
RULE NUMBER TEN: Practice, practice, practice, your storytelling abilities. While taking a shower, tell a story about the bar of soap. While driving, tell a story about a person you just saw walk out of a store. Watch TED videos and model the best storytellers. One of my favorites is Joshua Prager’s “In Search of the Man Who Broke My Neck.” It also reinforces the wisdom of our local rule. He is a great storyteller but it goes downhill, at least for me, after the 15 minute mark.
RULE NUMBER ELEVEN**: I saved the most important, and the least understood and utilized rule for last. Speak in the active voice and tell the story as your key witnesses experienced the events. Instead of telling the jurors that dreaded phrase, “what the evidence will show,” which marks your opening DOA, explain what actually happened. This forces the jurors to place themselves in the events, as observers, as the events unfold in the story.
*Footnotes from quotes are omitted, but can be found in my law review article, Mark W. Bennett, Eight Traits of Great Trial Lawyers: A Federal Judge’s View of How to Shed the Moniker “I am a Litigator,” 33 The Rev. of Litig. 1 (2014).
**Ed. Note: Don’t be a slave to lists of round numbers. Sometimes, it’s necessary to go to eleven.