Questions to Ask When Fine-Tuning Your Opening Statement
Creating opening statements is one of the common problems we see as trial lawyers. Opening statements are the first look that the jurors have at the case. Naturally, you would talk to them about principles, circumstances, and maybe some rules in jury selection. But a lot of times, once we get to the opening statement, it can get long and drawn out.
In this episode, I will talk about some questions you can ask yourself as you’re fine-tuning your opening statement to ensure you get your message across to the jurors without leaving them confused and frustrated.
In this episode, you will hear:
- The “mousetrap” opening statement
- Understanding the depth of information, knowledge, or experience of the jurors with the facts and circumstances of the case
- Checking how many times you’re repeating things
- The importance of identifying your strongest points
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Supporting Resources:
For a more detailed analysis of the Mouse Trap opening Statement check out this blog.
Episode Credits:
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Episode Transcript:
Elizabeth Larrick: Hello and welcome back to the podcast. I’m your host, Elizabeth Larrick, and we are going to be talking all things trial preparation on this podcast.
I wanted to spend just a little bit of time talking about a common problem that we have or that I see, I’ve also fallen [00:01:00] into when it comes to creating opening statements. Now, opening statements are the first look that we have or the jurors have at the case. Now, naturally you’ll have talked about principles and circumstances and maybe some rules and jury selection.
But a lot of times when we get the opening statement, it can become long, drawn out and So, I’m not going to go into that right now. I’m going to confusing. And I like to call this the mousetrap opening statement. Now, I don’t know if you remember the game mousetrap. Apparently it’s been around for a very long time.
I say very long time, right back in the seventies. And it’s been re released multiple times. And as a kid, when I saw this game on TV commercials, I just was absolutely amazed. I have to have this. It looks super cool. You play this game. It’s got all these moving parts. And of course I never got the game, but I did eventually get to play at a friend’s house.
And it was quite the endeavor. You have to spend all this time putting together the board [00:02:00] and the little plastic contraptions just right. And then once you get that set up, you have to then roll the dice and take your little mouse around the whole board until finally somebody can set off the mouse trap and trap somebody.
The ball rolls, that goes in the basket, lowers the trap and boom, game over. Now that is the best part of the whole game, but it takes you. A whole lot of playing to get there. And that’s why when I, long, boring, drawn out opening statements can do the same thing. And I’ve written a blog, much more detailed blog than I’ll get into today on the episode, but just to give an overview.
And sometimes we don’t realize that we’re doing, we’re creating this really long, elaborate setup that can lose people, it can be confusing. And then we don’t put the gotcha. The good stuff really up front, we’d save it for BASTA because we’ve got to set all this stuff up and they have to understand all these things.
And sometimes we actually take it for granted. And so it ends up being this kind of long, [00:03:00] frustrating dialogue that you’re having in the opening statement. And I find that most of the time, it ends up frustrating our jurors and leading them to ignore us, especially when you contrast that with when the defense gets up behind you and gives this like super simplistic view of everything and includes more context that they really wanted, then it looks really bad on your part.
So a couple of things that I’ve just got laid out, which would be when we’re setting up what we need in our opening statement, what background do they really need? What’s the context that they need? I always try to ask myself, what? depth of information or knowledge or experience are people going to have, are jurors going to have with my facts and circumstances of the case.
Now, for example, if you got a car wreck case, lots of people have that experience, right? Riding in cars, driving cars. Do you really need a lot of setup on that? No, you don’t. But you might have other things that are trademark or [00:04:00] patents that could be a little bit more confusing or need a setup. Or sometimes I find even lawyers take for granted that people They don’t know the rules necessarily about commercial drivers or the companies or the things that the companies are required to do.
Now that does need a little bit of setup. Now people may have a little bit of information on it, but they need to have more concrete, Hey, this is the law. This is the rule that’s in place. And of course you can understand and test what people have, their knowledge and experience through focus groups. You can also just walk around and ask people just generally about that.
but the The other question that I always ask about context and setup is the knowledge and the experience of normal folks. Is that going to be strong enough to find the defendant responsible? So in the contrast here would be medical malpractice, right? People have experience going to doctors, but is it the type of experience that you [00:05:00] need Do you need to add more information to that, which most of the time you do, because as we know, medical malpractice cases are extremely difficult, and so you may have to add more context, more setup, in order to help them find the defendant responsible.
And sometimes, like I said, sometimes lawyers don’t give any setup. But most of the time we’re known for giving way too much background and background that doesn’t necessarily help jurors either or they don’t know where to put it. And sometimes that happens too where we think we have all this juicy details, but we don’t give them the frame of reference to understand why it’s juicy.
And in keeping with my mouse trap opening is making the jurors play the whole game. Which can be frustrating, right? So you’re listening to lots of information. You’re waiting for the okay. What’s the point here? And so the questions that I have to help look at your opening statement would number one Are you repeating things and how often are you repeating them?
So occasionally people will again you think you got a juicy fact [00:06:00] you repeat it several times And that doesn’t necessarily amplify it for jurors. It just You’re just hitting them over the head with it. Like, okay, great. How does this fit in? Or why are you repeating this? Or I don’t think that’s as strong as you think it is.
Just delete that. We want to use brevity. We want to be clear. That’s one of the easiest way to edit is to go through and say, okay, how many times am I repeating this? And is there any way to either Put it in there once strongly, or if it needs to be repeated, where? And then of course, there are always times where we look at our opening statement and say, Are these details that can be saved for trial?
Is this necessary for the jury to know in this moment right now? Is there anything that can wait? And then of course, is there any way to simplify and clear up the story in the opening statement? And that’s just to get to the point as quickly as you can, so they know where you’re going. There’s no confusion.
They’re not waiting for anything. You get right to it. And the other part of the other questions, which would be getting to it. What’s the juice? Where is it [00:07:00] at? How can we get the excitement front and center and early and often? And we have heard this many times. And I say we as the collective plaintiff’s bar, and it comes from many, many places, but focusing on the.
So, the background, the timeline on the defendant and the defendant’s conduct really puts things first, right? We’re getting right to the point and we’re pointing it out very quickly in our opening statement and how they messed up, right? So those are our mousetraps. So how do we put those early, often, and often.
Also, what’s my strongest? What are my strongest points? Cause sometimes we have so many strong points or so many problems or issues or bad behavior. It’s hard to know which is the strongest thing. What’s that rocket fuel that the jury is going to use against the defendants. And of course using again, focus groups really helps you understand what [00:08:00] Is the strongest one.
And what is not? And my example for that is I was working many years ago on a case when we were in Mr. Keenan’s office, and there were several mistakes that the company had made in hiring a driver. They, one of the things that they had wrong was the application. They were using the wrong application and other things they were doing wrong were training.
And I think there was supervision. And. So, all of these things were included, everything was included in what, what went wrong here. And they finally did a focus group to figure out which of the parts were, and it was, nobody mentioned anything about the application, like that, that’s not the thing that was really the biggest problem.
It was the training, the supervision, when this guy messed up, they were there to catch it and correct the behavior, or trained him correctly in the first place. So, we removed that. Right? We don’t want to have too many things for the jury to [00:09:00] focus on. We really want the strongest. information first. We want the strongest thing on the front of their minds and we don’t really want to muddy it up or gum it up with extra stuff.
It could be distracting or again, it doesn’t directly connect up with what happened in the case of the wrongdoing. It just is just general wrongdoing. There is a bigger blog, longer blog about how to clear up or ask some questions about your opening statement. You may have to try to help get some clarity, simplicity, make sure that you are going for the strongest points right from the start in your opening statement.
I will put a link to that blog in the show notes and thank you so much for listening. I hope that you enjoy this podcast. If you do, please follow. on your favorite podcast app, tell others, and of course, rate and review. And that also helps other people find this podcast as well. Thank you so [00:10:00] much.