The Function of an Opening Statement
The opening statement in a mock trial is a critical component. It sets the stage for your argument and allows you to frame the issues from the beginning of the trial. It provides a brief summary of your case and serves as a means of communicating with the jury about what you’re going to prove when it’s time to call witnesses. At the same time, an opening statement is not the time to give your evidence or to make every argument you will make over the course of the trial. Rather, the purpose of the opening statement is to give the jury a road map and help them understand what’s important and what’s not as they hear from witnesses . You may have heard this analogy before about the need to give a jury an overview at the beginning of a trial so they can recall the salient points later. It likens your case to a tube of toothpaste. When you squeeze the tube, there’s only a certain amount of toothpaste that comes out. If you’ve emptied out all the toothpaste at the beginning of a mock trial, there isn’t any left when you get to the end. While the opening statement is your opportunity to issue a short summary of your case, how persuasive your message will be will depend on how clearly you outline the issues and how forcefully you advocate for your side.
The Components of a Compelling Opening
There are a number of key elements that make up a persuasive opening statement. You will need to make sure that each of them are present in yours.
Clarity. One of the most important keys to a successful opening statement is being clear on your case theory. For example, if there are several different theories of liability in a case, and you plan to argue one of them at a time, it is important to clearly lay those out for the jurors. If they are confused from the outset as to what your theory is, that will certainly make the rest of the case harder to put before them later in the trial. Likewise, if there are any other areas of confusion that could arise with the factual basis of the case, those should be addressed as well so that everyone is on the same page.
Storytelling. A good opening statement will tell a story. The very best speakers, every time, rely on storytelling to get their message across. The jurors want to know the dramatic details behind what they are hearing. After all, it was the dramatic details that attracted 12 random people from all parts of town in the first place. They want to know how this story will end, and the ending that they should give to it. You come right out of the gate by talking about the defendant, what they did wrong, and the damage that they caused. Make sure that they know exactly what the plaintiff is claiming, and how your client’s actions resulted in that.
Emotional appeal. Most of the time, jurors are purely logical. However, they do make decisions based on emotion at times as well. It is very important that you know your audience. Once you have a feel for how the jury is going to decide the case, you can play into that emotion. It is also important to realize when logic is going to be used instead. Logic is the cornerstone of any strong defense, and if you let them know what they are defending against ahead of time, then your factual findings will be that much easier.
Outlining the facts. It is nearly impossible to paint a picture in a person’s mind without knowing what the picture should look like. While most of the time you will not know how the facts are going to play out, nor the order that they are going to be told, you may have some idea. Tell them beforehand what to expect.
Research and Preparation Techniques
Research and preparation are crucial components of crafting a successful mock trial opening statement. To master the art of persuasion, you need to have a comprehensive understanding of the case facts and the credibility of your evidence. This means researching case law, reviewing the Evidence Code, and knowing how to research prior testimony and evaluate those witnesses.
Once you have a solid grasp on the facts, you can then anticipate how to persuade the judge or jury. You will need to figure out not only how to address the jurors as a collective unit but also what arguments the defense is likely to make against each specific element of your case. You will need to prepare for each specific witness and how they are going to bolster your arguments.
Show the jurors the evidence, tell them the law, and emphasize how the facts apply to the law in order to prove your case beyond a reasonable doubt!
Developing the Story
Much like the attorney gives the jury the first taste of that appetizer, the opening statement or speech is designed to be a very busy item. With careful pre-thought and deliberation, the introductory narration many times can create a pre-disposition which may carry over during the trial and greatly assist in creating a favorable impression with the jury. The introduction, in a "storytelling" format, is what the trial lawyer will be attempting to convey during his entire presentation. The psychologically correct verbiage is very important and should be focused on the absolute essence of the case. Unlike the "entertainment media," the best rule is to "tell your own story," not one derived from the soap operas, movies, etc. Do not attempt to ‘candy coat’ or embellish your story or testimony. Do not try to "embark on rabbit trails or attach yourself to someone else’s theory or enthusiasm or viewpoint." If the jury is bored or disinterested within the first few minutes, you may have lost "them completely." Once you have lost them, you’ll, unfortunately, never get them back. A "snooze" factor of 15 to 20 minutes is sometimes all that you can expect from the jury. If they are not "fully engaged" by that time, you the attorney have failed in your connection with the jury. "Pay close attention to what your case is about," advises the Board of Jury Consultants. "Do not overdo or spend too much time trying to convince the prospective jury members that your client is a good person—or the reverse. At the commencement of trial, that is all speculation." The examination of witnesses involves theory and style. According to board members, the opening of a case must be followed by expert trial preparation as set forth in our "Try this Layer." Be sure to watch for the interested looks, the nods, the looks of anxiety and you’ll know you are holding their attention.
Structuring Rhetorical Strategy
In addition to storytelling and emotion, you can also use rhetorical devices to help make your point. Rhetorical devices are a basic component of persuasion, with some of the most common being: metaphors, analogies, and repetition. Metaphors help the jury visualize what you are trying to prove and can also make complex concepts more easily understood. For instance, if you are a defendant in a negligence case, a jury may have trouble wrapping their head around an abstract, scientific explanation of the injury you allegedly caused. By using metaphors or other concrete examples that explain the injury in terms the jurors can relate to, you will be far more likely to convince them that you did not cause the injury . Similarly, analogies help simplify complex concepts by highlighting similarities between something they know and something they don’t. Analogies can also be used as a powerful tool for comparing the actions or behavior of the opposing party to an abstract, generally accepted set of standards. Finally, repetition, like parallel or parallelism, can help reinforce certain points by making them so memorable that the jury cannot help but think of them whenever they consider the case. Repetition also helps make potentially vague or abstract ideas more concrete, as well as reminding the jury of the key points as the trial progresses. As with all persuasive techniques, these rhetorical devices should be used thoughtfully so as not to distract the jury or detract from your core message.
Common Pitfalls
The opening statement is an important part of any mock trial or debate. While it has a singular goal which is to persuade your audience to rule in your favor, there are a number of common mistakes that mock trial participants make that are the death knell for an otherwise strong orator.
Being Too Argumentative
An opening statement is not your time to argue your case or to make your critical legal arguments. It’s your time to educate your listeners about the facts and create a roadmap for where your case will go. You need to leave the aggressive stances to your arguments and make sure that you maintain your credibility with a neutral presentation of the evidence during your opening statement.
Overly Long or Short
Almost all students are tempted to prepare an opening statement that is either too long or too short. Keep in mind that time estimations are just what they sound like: estimates. Your opening statement should be around six to eight minutes but really, there is no precise number to give.
If you’re under time then you probably haven’t put anything of substance into your opening to begin with and there won’t be enough in it for the judge or jury to latch onto. On the other hand, if you have too long a statement, the judge and jury may start losing interest.
Too Many Objections
A good mock trial opening statement should be fairly objection free and the only ones you should be worrying about are the ones involving your case. Otherwise, your judge may get frustrated that he or she can’t hear the opening statement without interruption every two seconds. At this moment, your opening statement becomes worse than unpersuasive – it’s annoying.
Practice Exercises and Mock Trial
There’s no substitute for practice when it comes to delivering a powerful opening statement. But practice doesn’t mean you should wait until the last minute to break out your notes and prepare to deliver. Instead, practicing well in advance of any important trial is essential to successful performance, and there’s no need to wait until the day before your federal court hearing or jury trial to do so. In fact, you can practice every day. How? Work with a mirror and practice "emote in" – this is a technique I had learned from LSI’s advocate Bill Forsyth. After you’ve created a "master copy" of your opening statement, speak to yourself in the mirror and then take a break, have lunch, a coffee, whatever works for you. About 45 minutes to an hour later, looking at the mirror again, try to speak your opening from the beginning to the end without looking. Record yourself and listen to yourself practice and emote the opening statement. This way you will get feedback of how you sound and how you look. Obvious? Yes, but it’s amazing how few people do this, especially in LSI trainings.
If you live in a large metropolitan area, mock trials abound. There’s almost nothing glib about them; you will be put through your paces and on the spot. And it’s not just fun to watch – it’s also a learning experience that pays lots of dividends. At least once before a big trial, you should put yourself in front of an audience and deliver your opening. One way to get that experience is to participate in a mock trial; if your city has a chapter of the American College of Trial Lawyers, you can join their mock trial program.
Finally, another way you can fine-tune your opening statement is simply to critique others’ openings. Watch videos of mock trials, even those outside your own practice area. You can also get great insight on effective openings by watching television dramas where there are scenes of opening statements (although, just as a reminder, what we see on TV isn’t exactly always what happens in real life). Also, most universities have paralegal or trial skills programs where you can hear law students’ openings. Just keep an open mind and take note of approaches that resonate with you. You want your own courtroom opening statement to be powerful, persuasive and effective.
Final Thoughts on Delivery
Delivery is the final stage of Section 5 in preparing your persuasive opening statement. This is where all your hard work pays off as you complete the big picture that is your presentation! The delivery is used to communicate all the hard work you have put into research, preparation and practice. In this portion of our post we will examine techniques to help improve delivery, build confidence and engage the jury with eye contact and body language.
One easy way to improve your delivery is to practice out loud! This goes for either scripted or student-written cases. Here’s an easy tip, as well-when you practice out loud , doing so from standing position in front of a mirror will help reinforce good eye contact and body language). Additionally, practice in front of another person will likely help build your confidence. When practicing, create a clear beginning, middle and end to your presentation. It should be able to stand alone by being easily understood and emotionally persuasive. Again, do this while standing and imagining the jury in front of you to really drive it home.
The best tip for the eve of the competition is to relax! Remember, you are going to be in front of the judges and the other competitors, all of whom are rooting for you to do well. Keep it simple, be yourself and do your best.