Opening Statement Content Creation
Opening statements are one of the best opportunities because we (plaintiff lawyers) go first. The question is how can you take advantage of being first?
In today’s episode, we discuss the ways that lawyers can lose the advantage of being first. Many trial lawyers have this tendency to have long, overly-detailed opening statements that can bore the jurors. Therefore, you don’t want to lose their attention, confuse them, or frustrate them.
We also talk about how to craft a great opening statement. An audience will forgive your delivery if your content is good. But they can’t forgive you if both your content and delivery suck. So you want to make sure you’re able to plan out your content really well to make sure you don’t miss anything,
In this episode, you will hear:
- Ways you can lose the advantage of being first
- The importance of writing your opening statement on paper
- The benefits of typing what you’ve handwritten
- Things to add to your content
- The benefits of running a focus group for your opening statement
- Examples of cases that highlight the power of a great opening statement
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Supporting Resources:
Have a topic for a podcast episode? Question for Elizabeth? Email her directly: Elizabeth@larricklawfirm.com
Episode Credits:
If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.
Episode Transcript:
Elizabeth Larrick: Hello and welcome to a new episode of Trial Lawyer Prep with me, your host, Elizabeth Larrick.
Thank you so much for joining us. We are working through a series about trial through the month of February and we had an interview last episode with my good friend Jason and we [00:01:00] talked about direct exam of a client. You may wonder to yourself, Elizabeth, are you going to go in a specific order for your trial episodes?
I’m not. Just so you know, I’m not, but today we are going to talk about opening statements. Just to give you a preview of some of the other episodes that are coming up. We are going to be talking about a template for preparation of a before and after witness. We’re going to talk about cross exam. We’re going to look at trial continuance fatigue.
And I know a lot of folks have been facing that. We’ve got a lot of the people that I work with have cases that are five, four, sometimes even six years old and just having multiple continuances. It’s very frustrating. So I’ve got a good friend, Bijan Darvish, who’s going to come and talk to us about a trial that he had many continuances and just came right up to the edge.
Of starting trial and so how do you keep that energy going? In here, we have a couple of these things coming [00:02:00] up. We’re also going to have a closing and probably just an overall episode about maybe trial management as well. I’ve talked about that in the past. But there are so many detailed things that we could talk about when it comes to trial management, the day to day things.
So we’ll probably do that as well. I think a lot of folks are gearing up, a lot of folks that I know here in my community are gearing up to go. Judges in this community are gearing up and ready to go. Good example of that is we are sitting here right now, it’s February, we had a little bit of an ice storm here in Austin and yesterday the duty judge said, you know what, we’re still going to have that docket call to get ready for those trials that are going on Monday.
So people are ready, judges are ready. That’s why we’re going to kind of talk about trial. So, let’s get to today’s episode about opening statement. I think opening statement is one of the coolest things that we have and mainly because it’s a plaintiff we [00:03:00] go first procedurally. And so I want to talk about how can we take advantage of being first.
I’m not going to talk specifically about a template. I’m going to assume you have a template that you like. If you don’t, there are lots of great templates out there and I’m happy to do an episode reviewing some of those. But today is really just about how do I sit down and take advantage of being first, meaning being the first person to get up and talk, jurors hear from about the facts and circumstances of the case.
And there are lots of ways we can lose our advantage. And what I mean by is we have a tendency as trial lawyers to have long opening statements. And that means you’ve got lots of details that we are giving to those jurors. We’re trying to cover everything in that opening statement. Which can lead to losing their attention, confusing them, frustrating them.
And one of the main parts about an [00:04:00] opening statement is that we don’t want it to be boring. That’s another way to lose our advantage. And I don’t mean boring in the sense of delivery. I mean, boring in the sense of. We are not providing visuals or not providing a change in the way that they’re learning the information.
I mean, it’s really hard to learn information completely verbally. We lose it. So if we have someone who’s standing in front of us, we are trying to learn not only what they’re saying, but trying to gather from them who are from the white language as well. So we don’t want to bore them, right? We’re going to keep their attention.
Another way to lose your advantage. It’s to miss out on addressing what the defense will say. This is one of the critical points. I feel like sometimes we get kind of wrapped up in what our case is and we forget to put some of that information in there. And then that gives a beautiful place for the defense to stand up and say, let me tell you the rest of the [00:05:00] story.
Oh, that plea of hiding things from you and not telling you everything. You knew that they were pulling one over on you. It’s one of the easiest things we can prevent. So let’s talk a little bit about how to prepare your opening statement. And this is a little bit time intensive, but there’s a good reason, a couple of good reasons why I suggest doing it this way.
So there’s a couple of steps, really three steps that I suggest you can go to four or five. But really our first step is just taking out a piece of paper and hand writing it out. And I know you’re thinking that is crazy and it’s going to take me a really long time, a time I don’t have. I understand, but here’s why handwriting is best when it comes to this.
You’re going to use a different part of your brain. You’re going to trigger into more critical thinking. When you have to handwrite, your brain slows down. So you’re much more selective about what you’re [00:06:00] writing down. And you also, you’re going to retain the information salvage better. A lot of this three step, and like I said, you could make it four or five steps, is as we are going back through this information again and again and again, we’re committing it to memory.
So by the time you get to. The jury, you don’t feel completely glued to your paper or the podium because you pertain the information so well, just repetition through these couple of steps. So that’s always the goal is to be able to feel really comfortable with the information. And then you’re going to have a little more freedom when you get out in front of the jury.
Because you’ve committed it so well to memories. First step is to handwrite it out. And again, literally just take that yellow legal pad and just start writing it out. Once you finish that step, and again, you may be thinking like, I haven’t handwritten anything in a long time. That’s okay. You can do that in a couple of [00:07:00] different steps, but I think that first one sometimes helps, even if you’re just going to scope out.
An outline, handwritten, you’ll put little notes in there and other little things. And I think the handwriting, it really does help start getting the ideas flowing, get your brain going, get things out on a piece of paper, then take it and move to the keyboard. Just naturally as we type on the keyboard, we just put more information in there because it’s a repetition.
Right versus handwriting is different, right? It’s different part of the brain gotta make our hand and make the movements but with typing, right? It’s repetitive We’re naturally we’re gonna start just adding more information and as we are typing that’s not it’s really a good thing But we want to get everything out Get it all out of our brain, right?
And then we’ll be able to go back in and edit. As we’re typing through and reading through this pass through again, more information is going to come. Things may leave, but you’re moving it to an actual document on your laptop. And then finally, you want to print it. [00:08:00] And you want to read through and end it with a red pen, or even a straight red pen, but you want to make sure that you have that.
Editing on the computer is not the same, because again, you’re probably going to be more verbose. I also really love having the printed pages in front of me. Laying them out all in order and just seeing the organization from a 30, 000 foot view, which you can’t really do well on a computer, not even if you have a giant monitor.
So that’s one of the reasons why you really want to keep bringing back. Okay. Cause this whole time we’re doing through this whole process, it’s really looking at organization, prioritizing what needs to go. Where in your opening, what the jury needs to hear, what can be trimmed out? What can be simplified with that printed out version, right?
And handwriting in your edits and cross something about, then you go back, make those edits and print it again. And I really [00:09:00] encourage you to take time between the steps. Even if you take a week or two weeks in between, your brain’s going to keep working on it. And when you come back to it with fresh eyes, you’re going to see more.
Oh gosh, why did I write it that way? So I always encourage three main steps are one, first hand, write it out. Two, move the keyboard, type it out. And number three is to print and edit it, hand write. And again, you can take time between the subs, I encourage that. And the next thing within is you’re editing it, right?
So the hope is that you don’t have to constantly create content. The hope is that you get all the content there. And it’s just a matter of organizing, Trimming it down, get rid of the stuff, and simplify it. And that way, once you get in and you’ve got your content, then you can really start fine tuning with what needs to go first?
What’s my strongest point? What is it the jury’s most going to want to know at this point in my opening statement? And then you get to do fun [00:10:00] stuff. Once you get that down, then you can start looking at it and say, Hey, where can I add a visual aid? Is there a chart I can add here? Is there a checklist?
Thanks. Is there a timeline, are there photos that would be helpful to show instead of me trying to describe something? We want to make sure we’re not going too long. We want to make sure that we’re visualizing it to keep people’s attention, but also knowing like a visual aid will help people learn fast and retain the information.
We don’t want it to be too long because they’re not going to retain it. We don’t want it to be boring, lost their attention, confused. We want to make sure that it’s very straight and it’s visually you can use it can. And then like we talked about, am I including the defenses, right? What the defense is going to say.
I can’t wait to call it like my counterpunches. I’ve heard it, right? They’re not going to create something new on the eve of trial that I haven’t heard. I know what the evidence is. So am I addressing that? Am I making sure there’s not going to be [00:11:00] any, Magical wall that they get to get up and have and say, Well, you didn’t hear this.
And so I’m putting that in there and am I knocking it out? I know sometimes we put this in here, but I always want to make sure I put it in and I knock it out. Let me give you an example. We’re hearing an opening statement for a suicide case. Well, the defense assumes That’s their defense, that it’s suicide.
Our theory, our liability is that it’s not. It was a total accident. And so to rule out, so to say, this is what the defense is going to say, suicide. And then you gotta counterpunch it, right? You gotta knock that stunt down. You gotta say, here’s why. Here’s what mom’s gonna say. Here’s what we know about this person.
Here’s all the information about who this person was. Right. And in a really succinct way, knock that out, right? Knock that out of the park. And then sometimes we’ll put it in there, but then we forget to basically [00:12:00] show, like, how it’s just not going to hold anymore. And it can be really simple. Even if it’s just, Hey, we’ve got an expert and this is what they did.
And so, and so we know it doesn’t apply here. And just know, like, again, this episode is really talking about content. We’re going to spend another episode talking about delivery, because I think An audience will forgive your delivery if your content is good. Okay. But they can’t forgive you if your content sucks and then your delivery stinks.
So today’s about content, but making sure you can come up with a way to really plan out that content really well and make sure you’re not missing anything. So many times when we get up to practice this, and that was going to say next is how I encourage people to test this. Is to run a focus group where it’s an opening statement, a plaintiff opening statement versus a defense opening statement.
One of my favorite focus groups because it plays on our [00:13:00] natural desire to advocate. We have lawyers trying to get us to become neutral and deliver information neutrally and not with a group of individuals or focus groups. It’s very difficult. It’s hard. We’ve been ingrained to be neutral. Advocates, so opening is great, plays on our natural ability.
Also, it helps you test contents. You can also test delivery during this. I encourage you to do both, but again, we’re kind of talking about content here today, but it really forces you to prepare. And what I have found when we put these together, somebody’s preparing for trial is so many times the opening statement.
It’s not very put together and it’s not written out. And so I’m always like, Hey, step one, if you write the thing out, I guarantee you it’s going to be much better because you’re going to have taken the time to write it out and then to [00:14:00] organize it. Right. So let, let me talk about why I think the opening versus opening focus groups are so important.
It’s the only thing you do. So first example, had a somewhat complicated fiduciary duty case and it spanned 20 years. So a very long time to cover. So we could get really buried in the weeds here with lots of detail and it’s finances can get kind of boring and it was also the counter, doing the counter punches, right?
So what happened was this was the only focus groups that were done. Opening versus opening statements, and they spanned over nine months, right? So, and this was, that, that wasn’t a sleep by design, but it kept getting continuance, so I said, okay, let’s run it again, let’s keep fine tuning it. And what happened over those three focus groups, where they were able to keep refining that content, they were able [00:15:00] to refine their visual aid.
And by the time they got to that last one, and tested it, it was like, this is it, we don’t need to tweak it, in our opening statement, this is it. And so we’re able to, again, the other part of that is the defense opening statement, right? And putting in what the defense is going to say and seeing, Hey, is it going to hold water?
And always learning new things. And more importantly, what takes the wind out of your sail? What does the defense say that’s the strongest thing? Like I said, that first example, they learned how to simplify it, how to create a visual aid that took a lot of effort to create, but in doing that simple visual aid, it conveyed a huge timeline that they didn’t have to do detail by detail in that opening statement.
So it definitely took a lot of heavy lifting all the way down. The other example that I have, by the way, first example. They went to trial, got a [00:16:00] verdict, 40 million bucks. And they said, one of the things that was off our shoulders was the opening statement. We hadn’t done. So we really could focus on doing other things because we know that opening statement was rock solid because we tested three times and that’s all they did.
Remember, we just did opening statements. We didn’t do mock trials. We didn’t do these other stuff, just those ones. And. That’s pretty much what a lot of people, I encourage them to do because it’s such a helpful focus script content, and then you can work on delivery, but that content piece is so important.
Another example is one I just did recently, and one of the things I really love doing is writing the defense opening or tweaking it to put in all those little things that we hear that generally jurors hang their head on. And so. That’s what we did. And I had a really fun time doing it because I was able to take [00:17:00] all of their points, a lot of points, depends on a lot of points.
So I took all those points. And then I created a timeline and there wasn’t a timeline on the other side, but that allowed the demonstration to see in listening to the focus group where their minds went with the story. And they weren’t really concerned about what happened before the timeline, the defensive bridge.
And that’s the information that really was needed. So it was helpful just to kind of compare all those things. But I put a lot of time and effort into that defense opening because I really wanted to make sure. We were not only testing brain is, but also what those defenses were with ammo. So get a lot of really good mileage out of those opening versus opening focus groups, and I encourage you to do it enough about that.
Let’s recap. We’re talking about opening statement, talking about content, best ways that you can get what’s in your brain out to those jurors. Step one, write it out. Step two, take what you wrote [00:18:00] out, type it out. Step three, print it and edit. At some point, you’re going to start delivering this thing, right?
Talking it out loud. And I can tell you from having written many opening statements, defense opening statements, when I give it to somebody else to read it or deliver it, they always stumble. Because when I write opening statement, I write a little slang I would be speaking in, but it’s in my voice and in my tone.
So when they get to speaking, they’re like, this doesn’t make any sense. And I’m like, well, I guess it does in my head. Same thing happens when I do plan as opening as well. Once you get the content down and you start to work on your delivery, you’re going to realize like, oh, let me switch these words around.
Let me make this a little easier to say. Let me make it flow across the show. Reading an outline is really helpful for working on content as well. I hope that this episode was helpful. If you liked it, please follow on your favorite podcast application, the plus sign on [00:19:00] Apple or the follow button. on Google or Spotify.
So thank you so much for listening and just know that next week we will be going to trial continuance fatigue. We’ve got before and after witness preparation template coming up, cross exam, closing and trial management. All right. Until next time. Thank you.