An article written by Mike Rafi entitled “3 Tips to Winning the Jury with Your Opening Statement” was published in The Litigator, which is the official publication of the Atlanta Bar Association Litigation Section. Here is the article:
3 Tips to Winning the Jury with Your Opening Statement
An opening statement is your chance to tilt the playing field in your favor. A well-constructed and persuasive statement can put the jury in your corner from the start, but a poorly planned and executed statement may spell early doom.
Jury research shows as many as 80% of jurors will reach a conclusion about who will win the case after hearing opening statements. Jurors who form a conclusion—whether intentionally or subconsciously—will often have “pre-decisional bias” in how they view future evidence. In other words, jurors who listen to opening statements and believe a certain party will win will interpret evidence to support their initial beliefs. In fact, the more confident jurors are in their initial beliefs, the more biased their interpretations of evidence will be in favor of their beliefs.
There is no one-size fits all to opening statements, but here are 3 tips to help you win the jury from the start.
Use a “win-statement”
You have probably heard to use a “theme” throughout your case. I suggest a related, but distinct technique—a win-statement. A win-statement is a declaration that, if the jury agrees with, should lead to the inevitable conclusion that you win your case. It should be the fundamental truth of your case. It should be simple and concise.
For example, if you represent a business against a client who did not pay for products because the client claimed the product were defective, then your win-statement could be something like: “good products delivered, no payment received.” If the jury believes this statement—believes that the products were good and that the customer did not pay for them—then you win.
Your win-statement should be the first words you speak to the jury. The jury will never be more attentive and interested in what you have to say, so tell them why you win. If the jury adopts your win-statement, then jurors will start interpreting evidence to support it. Following your win-statement, you should briefly explain why it is true and why it means you must win. Then, you should provide a more traditional theme, one which gives your case broader meaning and importance.
Give the good and bad
A well-formed win-statement will also narrow the issues for the jury to consider. The jury will filter the evidence they hear—evidence that is relevant to your win-statement will be
deemed valuable and evidence unrelated to your win-statement will be filtered as unimportant. So, use the majority of your opening statement to preview for the jury the good facts that prove your win-statement. Tell the jury evidence you are confident they will hear and see from testimony and exhibits. It is always better to under-promise and over-deliver; doing the opposite will cause you to lose credibility with the jury.
You should also mention weaknesses in your case. This will prevent the opposing lawyer from gaining points with the jury by introducing a seemingly novel and damaging fact—instead, you will appear honest and open with the jury. What is often forgotten though, is that after you mention weaknesses, tell the jury why your position is better than the alternative. If there are facts that you cannot explain, you should say that too. But, also say why the facts and unknown explanations do not prevent you from winning.
Enthusiasm is the key to selling. An opening statement is similar to a sales pitch. Selling is the transfer of our enthusiasm to another person—giving our passion about something to someone else. Enthusiasm is built on (1) curiosity, (2) interest, (3) knowledge, (4) belief, and (5) purpose. These are the same elements your case is built on. Hopefully you are curious and interested in the subject matter, facts of your case, and people involved. (Curiosity and interest will also make working on the case more enjoyable!) Throughout the case, you gained knowledge, which has formed your belief in the merits and given you a purpose of getting a favorable and just result.
Being enthusiastic yourself is a prerequisite to getting the jury enthusiastic about your case. In your opening, pique the jury’s curiosity and interest—tell them why the case matters to them and why they should care, because doing so will instill a purpose within them. Then, give the jury your knowledge about the case—the good and bad facts. Leave it to closing to show the jury why they should believe your case based on the evidence and fulfill their purpose. The most important thing about enthusiasm is this: genuine enthusiasm cannot be faked, and faking genuine enthusiasm is worse than having none at all.
Michael Rafi is a personal injury lawyer with the Rafi Law Firm, which has offices in Atlanta and College Park. Mike represents injured people in negligent security, trucking, and other significant injury cases. 95% of Mike’s cases are referred to him by other lawyers—he takes a small number of cases and maximizes the recovery of each. A graduate of UGA Law, Mike initially practiced with Troutman Sanders, where he routinely defended Georgia’s largest utility company in personal injury cases.