What is the value of an opening statement to a trial judge who has lived with your case, and knows the issues and facts before the trial begins?
The value lies in giving the judge an overview of the case from a thematic perspective so that the judge can understand the evidence through that lens.
Typically, the judge knows your case from facts randomly presented throughout the case. A properly done opening statement gives the judge a new perspective, one that allows him/her to consider the issues on a macro level rather than the micro-level observed throughout the case.
And why is this helpful for the judge? It is helpful because seeing the case both through a microscope and a telescope allows the judge a more complete perspective in which to adjudicate the contested issues.
The Structure of an Effective Opening Statement
With that in mind, how do you structure an effective opening statement? First in order to define what it should be, let’s describe what it should not be: long, rambly, argumentative and unfocused. This format provides no help to the court and in fact, distracts from the persuasiveness of your case. A confusing recitation of unconnected evidence or a closing argument costumed as an opening statement does not persuade. What does persuade is a concise thematic presentation of the nature of the case.
“The Gettysburg Address” was just 271 words and delivered in less than three minutes. Think about that for a second. Lincoln the trial lawyer packaged his entire message, which encompassed what it means to be an American and the meaning he ascribed to the civil war, in less than three minutes! If he could define the soul of our nation in less than three minutes, you can summarize your case in that window of time as well.
Here’s how to do it.
The Three Minute Opening
1.) Boil it Down. Distill your message down to its essence. Keep it simple and compact. What is this case really about? Is it about the bad motives of a parent seeking custody? Is it about one of the parties being scrupulous with money contrasted against the other parties profligate spending? Is it about a parent’s desire to relocate to be with a new spouse? Think through the heart and soul of the argument and the best way to convey that.
2.) Avoid the throat clearing and get to the point. There is no time for niceties. Be direct, concise and convey the message or theme at the beginning of your presentation. Avoid the rambly preamble and get to the heart of the case right out of the blocks. Get your main point across in the first 20 seconds.
3.) Make your message sticky. Develop a memorable phrase that will make your message stick in the judge’s head. Read Chip and Dan Heath’s, ”Made to Stick: Why Some Ideas Survive and Others Die.” Sticky ideas are simple, unexpected, concrete and emotional. Describe an event that represents the core message. Or borrow language from the expert’s report that does the same. Or capture the case in a memorable phrase. Again examine Lincoln’s rhetoric in his Gettysburg address: “That government of the people, by the people, for the people, shall not perish from the earth.” Make your message sing with word choice, concrete images, and poetry.
And because of the length, there is no reason you can’t present the opening from memory. Also, consider using demonstrative aids or other props to help cement the message.
Just three minutes, Judge…
So when your trial judge turns his or her nose up when you ask to do an opening statement, tell that Judge that you are just seeking three minutes to describe the present contest. Few judges, no matter how impatient or imperious, will deny you three minutes. Make them count!
An opening statement will set the tone for the entire trial and give the judge a lens not just to understand the evidence, but to understand what it means in the context of your theory of the case. Be clear, concise and memorable. Open your case with a bang, not a whimper and do it in just three minutes.