Litigation Strategy

What I Learned from Jury Duty About Opening Statements

Here’s part II in a four-part series (part I, part III, part IV) of CEB blog posts written by guest-blogger and attorney Tim Hallahan:

Earlier this year I sat as a juror on a five-week murder trial.  Here are a few lessons I learned from debriefing my fellow jurors and from my own experience as Juror #101.

  • Give an opening statement. Jurors want to know the big picture.  Because we all hate ambiguity, we depend on a narrative into which we can fit everything we hear.  The DA provided that storyline, that cognitive map.  I found myself viewing and interpreting the evidence to match that narrative.  I gave credibility to witnesses whose testimony fit the map.  The defense attorney forfeited that opportunity by giving no opening statement.  Even if he didn’t know whether or not he would put on a defense, or didn’t want to provide the defendant’s version because of ethical concerns, he could have pointed out all of the holes in the DA’s case, e.g., no murder weapon, no eye witness, no gun shot residue, no motive, etc.
  • Use visuals in your opening. The DA’s opening statement was compelling in large part because he used visuals throughout.  As he told the story, he showed diagrams of the scene and photos of the main characters. The large TV screen opposite us was a useful tool, as was his use of PowerPoint and an Elmo on counsel table.  In a case like this, with multiple events and witnesses, a time line would have been a great addition.   During deliberations, we had to create our own time line.
  • Don’t read your opening. We listen more attentively to people when they speak conversationally.  Most of us don’t write conversationally, so if you read your opening word for word, you will sound dull and insincere.  Even worse, depending too much on notes makes you appear unfamiliar with the facts—a blow to your credibility.
  • Use open-ended questions on direct. The DA used leading questions throughout his direct, because he had a lot of young, unsophisticated witnesses and because the defense attorney did not object.  I was dying to hear from the witnesses themselves—it would have been more interesting and more credible—but only one other juror expressed this concern when I asked them all about it later.
  • Avoid repetition. We jurors are all taking notes.  We don’t need to hear the testimony repeated two or three times.  It wastes time, is condescending, and boring.  Because you want to give the impression that everything you say is worth listening to, use repetition lightly and only for the most important information.
  • Ask simple questions. Long words and sentences interfere with the message.  The witnesses won’t understand your questions, and you’ll put your jurors to sleep.
  • Focus on the essence. To paraphrase Strunk and White: Omit needless detail.  We don’t need to hear the color and make of every car and the description of every piece of furniture on the porch when none of that has anything to do with the case.  Assaulted by minutia, we lose focus and attention.  New judges are taught to use the phrase “How will that help me make a decision here?”  Ask yourself the same question about every piece of evidence you’re tempted to elicit whether on direct or cross.

For more on opening statements, see CEB’s book on Persuasive Opening Statements & Closing Arguments. On questioning witnesses, check out Effective Introduction of Evidence in California, chap 1. CEB’s program Effective Opening Statements and Closing Arguments As Taught By California’s Top Trial Attorneys is available On Demand by streaming video and MP3.

Stay tuned for the rest of this series (part III, part IV) on the CEB blog!

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