Opening Statements In the Courtroom
David Adams, 2009
As a litigation consultant in practice since 1986, I have developed a very simple approach to assisting litigators with their cases: I always begin by developing an exhibit board or two for opening statements. Samples of my designs can be seen in the portfolio. I’ve also developed multimedia and PowerPoint presentations for opening statements.
Begin with the End in Mind – After studying the case pleadings and the most significant expert reports, I discuss with my client what the anticipated jury charge will ask of the jurors. The key language from the charge is then incorporated into the titles and text of the opening statement visuals. For instance, in a medical malpractice defense case, I might title a board, The Nurses at Mercy Hospital Kept the Doctors Fully Informed. Or, in a contract case, The Defendants Kept up Their End of the Bargain. In either case, the chart would go on to elaborate these key case themes.
About Psychological Anchors
During my tenure at Litigation Science, Inc, once the largest litigation consulting firm in the nation, I learned vital information about how juror perception is shaped during opening statements. Of primary importance, was the empirical fact—, demonstrated through numerous pre-trial “mock trials”–, was that jurors form a “story of the case” during opening statement which highly correlates to the eventual verdict rendered. Obviously, juror perceptions of any opening statement is filtered by both the juror’s comprehension level of the fact situation and their personal life experiences.
During large pre-trial tests involving as many as 160 surrogate jurors and sometimes lasting for several days, the following protocol was employed:
- After the plaintiff’s opening, surrogate jurors were given questions which included the open-ended question, “In your own words, what is this case about?”
- The same procedure was followed immediately after the defense opening.
- Over several days, the evidence was presented.
- More questionnaires were filled out at the conclusion of the evidence. Often the total number of questions asked of EACH surrogate juror exceeded 600.
- In the final questions the jurors were asked to render a verdict and assess damages, if any.
- Finally, the several panels of twelve were selected and sequestered in private rooms to deliberate just as an actual like a real jury would. These sessions were video taped to capture the heuristics, the language used by the jurors to convince each other.
These juror tests were for very high-risk cases and due to their scope were very expensive to conduct. Additionally, these tests were conducted by doctorate- level behavioral scientists. Lastly, the following conclusions were proven out over time in 100’s hundreds of test cases and actual trials.
Regardless of the complexity of a case’s complexity, jurors base their final conclusion on a handful of psychological anchors. ; three to five perceptions of the case. Due to the human mind’s natural tendency to classify and simplify complex situations, this is seen by experts in human perception as a completely natural, and universal phenomenon. Some Typical psychological anchors might be include:
- The defendants were just trying to wiggle out of their responsibilities under the contract.
- The plaintiffs are just after money and will say anything to get it.
- I didn’t believe the plaintiff’s expert witnesses: They were evasive and tried to twist their answers.
- The defendant just didn’t treat the plaintiff right.
- The doctors did the best they could; why wouldn’t they?
- The doctors should have done more.
During these exercises, surrogate jurors were always able to create a “story of the case” in their minds. What was discovered in the research was that these case stories often distorted how jurors later interpreted the facts of the case. Just as in an actual trial, the surrogate jurors were admonished to “keep and open mind” and told that opening statements were “not evidence.”
In fact, a jurors “story of the case”, created unconsciously, has the effect of distorting their perception of evidence throughout the trial. Evidence that fits their story becomes amplified in importance, while evidence to the contrary is explained away through unconscious filtering, or simply not remembered at all! This filtering effect is so powerful that the correlation between the “story of the case” formed after opening statements correlates highly (sometimes as much as 90 percent) with the verdict rendered. That is how important opening statements are!