In a recent article, we explored how long closing arguments should be (hint: the shorter the better). Yet almost just as often as we are asked how long a closing should be, we are asked how long an opening statement should last. This answer is a little different. First, though, let’s take a look at the true purpose of an opening statement.
The Purpose of the Opening Statement – It’s More Than a Road Map
“Tell ‘em what you’re going to tell ‘em.”
“The opening is a ‘road map’ of what is going to be presented in the case.”
So goes conventional wisdom, which says that the opening isn’t intended to persuade, but rather just to foreshadow – a preview, as it were. Like a trailer to a movie.
Have you ever noticed how we often (read: almost always) determine whether we’re going to like a movie based on viewing the trailer? If the trailer is bland, or evokes no emotion within us, do we want to see the movie? If it’s loaded with action and humor and characters we can already tell we’re going to like, don’t we want to see the movie? How often in a theatre have you turned to a friend after viewing a trailer and whispered, “I want to see that,” or, “I think I’ll pass.” Pretty much every time, right?
Just as we behave in a darkened movie theatre, so do jurors behave in court by the light of day. Opening statements are more than a trailer; when combined with jury psychology, they help develop a story of the case and persuade jurors’ framing of the case. That is, social science research has shown that jurors do not – no matter what you tell them and no matter what the judge tells them – keep an open mind (“Remember to keep an open mind until you’ve heard all the evidence.”). They start judging your case right from the jump and developing opinions as they hear the trial presentations. You do the same.
When one of your partners tells you about a case he has, do you listen and develop no opinion whatsoever until he has told you the entire story? Or do you immediately start comparing the case story to other cases you’ve had and developing your own impressions of the merits of the case?
Research also shows that jurors typically develop a leaning about the case after hearing openings and that it is difficult – not impossible, but darn hard – to move them off that leaning as a trial progresses.
Making Opening Statements a Persuasive Story of What’s to Come
The most important objective of a persuasive opening statement is to establish the framework of your case: narrative, evidentiary and emotional.
The framework is just that – the frame through which you want the jurors to look at the case as the evidence comes in.
How do you establish this framework? Tell a better story than the other side. Persuasion begins as soon as trial begins. After voir dire, opening statements are the beginning of the trial. Therefore, the ultimate goal of opening is to persuade. Persuasion isn’t based in facts; it isn’t based in evidence. Persuasion is based in emotion, and emotion comes from images and from stories.
How Long Should My Opening Statement Last?
Ultimately, the answer is, “as long as it takes.” If you can tell your story and establish an evidentiary/emotional framework in 20 minutes, great. If it’s going to take two hours, and the judge is willing to give you two hours, take two hours. Just like a good movie, if you’re telling a compelling and persuasive story, you should be able to keep jurors’ attention for as long as the story lasts.
By: Robert Gerchen – Senior Consultant
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