- February 2011 Issue
- Strong Words: A Sense of Injustice Can Empower a Jury to Undo a Wrong for Your Client
McElhaney on Litigation
Strong Words: A Sense of Injustice Can Empower a Jury to Undo a Wrong for Your Client
Posted Feb 1, 2011 3:26 AM CDT
By Jim McElhaney Columns
It took Mike Reynolds and Sandra Garcia—two bright young lawyers—less than three weeks after starting work at Windstrom & Crusher to decide that the firm was both uncivilized and unprofessional.
They gave notice on Monday that they were leaving, and on Friday morning they were all packed up and walked out the door.
Two weeks later, they were moving into the new offices of their own firm, Reynolds & Garcia. Angus was one of several lawyers in town who offered to lend them a hand getting started.
Sandra and Mike took Angus up on his offer. They had a personal injury case they had been working on since before they started with Windstrom & Crusher. Before long, it would be coming up for trial. Could Angus give them some pointers on how to do an opening statement for the plaintiff?
Mike and Sandy had heard that Angus likes coffee and scones, so the next morning they showed up at our office before 8 o’clock with a thermos of dark mountain roast coffee and a box of blueberry scones from the Brick Oven Bakery.
Angus was delighted. “Let’s go in the library,” he said. “Coffee and scones are expressly permitted there—but not phones.
“Now as I understand it,” he said, “you’re representing the plaintiff in this case, and both of you would like to try doing your plaintiff’s opening statement.
“That’s fine, but I also want you to switch sides and at some point do openings for the defendant. Looking at the case from the other side’s point of view is one of the most valuable things you can do in getting any case ready for trial. It forces you to think about what are the most powerful things your opponent is likely to do and say. Not only that, but it also opens your eyes to some of the weaknesses in your own case that will need work.
“So let’s get started. Sandy, you drew the short straw, so you go first. Mike, start thinking about doing an opening for the defense. I want you to try that after we talk about Sandy’s opening for the plaintiff.
“I’ll play the part of Judge Monroe, who’s scheduled to try this case—I know how he’s likely to act. This table will be his bench. Jimmy will be the clerk of court if you need any exhibits marked for identification. The big table on the right is the jury box. You may not see the jurors, but they hear everything you say. You’re welcome to use the blackboard and to introduce any exhibits for which you lay the proper foundation.”
“Wow!” said Mike. “You don’t waste any time, do you?”
“It’s not in my job description,” said Angus with a smile. “Ms. Garcia, you may proceed with your opening statement.”
“Thank you, your honor,” said Sandy. Then she turned and walked over to the blackboard, where she wrote the numbers one to seven in a big, bold vertical list. Then she turned and said, “Ladies and gentlemen, as his honor, Judge Monroe, told you a few minutes ago, I’m Sandy Garcia. Mike Reynolds and I represent Bill Samuelson, the young man seated over there in the wheelchair. And as you have undoubtedly figured out, there are seven points I would like to make in what we lawyers call the ‘opening statement.’
“One, the evidence will show that Bill was crossing Western Avenue at the corner of Fifth Street—on foot—when he was run down by the defendant’s car as it suddenly turned onto Western Avenue off of Fifth without giving a signal or even slowing down.
“Two, the evidence will show that Bill had the green light when he stepped into the crosswalk. And the evidence will also show that he was entitled to be in the crosswalk and to pick up a silver dollar that was lying there.
“Three, even if Bill temporarily turned back and then continued on his way across the street, the evidence will show he was legally entitled to be in the crosswalk at the time he was struck by the defendant’s car.
“Four, even if the traffic light turned red before Bill continued across Western Avenue, the evidence will show he was legally entitled to be in the crosswalk at the time he was struck by the defendant’s car.
“Five, the evidence will show that the defendant’s car was traveling at an excessive rate of speed at the time it began its right turn onto Western Avenue.
“Six, the evidence will show that, even if the light had turned red for pedestrian traffic before Bill started into the intersection, the defendant’s car was being recklessly driven at an excessive rate of speed.
“Seven, the evidence will show not only that Bill Samuelson will spend the rest of his life in a wheelchair, but that he is no longer able to work as a high school football coach and in fact is not able to find gainful employment of any sort. His life’s work has been taken from him, and he’s only 36 years old.
“And that, ladies and gentlemen, will be the plaintiff’s case.”
“Thank you, counsel,” said Angus. “You may be seated.”
“Thank you, your honor,” said Sandy. “How did I do?”
A BUCKET OF FACTS
“Let’s talk about it,” said Angus. “First, your basic communication skills. You have good eye contact with both the judge and the jury—which some lawyers never achieve. Your notes never got in your way. Second, you have a pleasant, conversational tone. Third, you knew what you wanted to say, and you put it clearly and simply.
“I especially liked the way you very comfortably shifted to calling your client ‘Bill’ instead of ‘my client,’ ‘Mr. Samuelson’ or even ‘Bill Samuelson.’ The result is that the jury is going to think and talk about him as Bill, too.
“But there’s something I don’t understand,” said Angus. “Why did you use the blackboard?”
“Because I wanted to come across like a teacher,” said Sandy. “Someone you can trust who knows the facts and can be counted on to tell the truth.”
“Admirable goals,” said Angus. “And if you had even written down just one or two key words after each number, it would have made every point more memorable.
“But instead, your list turned out to be more like the cluttered cabinet of Dr. Caligari, with a bit of confusion as to what is behind every door. Board work looks easy, but it takes practice to learn how to do it well.
“And please stop saying, ‘The evidence will show ... the evidence will show.’ You don’t want to sound like a stuffy pedant, a lawyer or even, God forbid, a law professor.
“Are you still with me? This next point is absolutely key. Your numbered list of points—with factual concessions and inconsistencies—was difficult to follow. You don’t want to pour a bucket of numbered facts over the jury.
“The secret of a persuasive opening statement is to tell the story of the case. If you really want to grab the judge and jury, take them to the scene. Tell them where they are and what they are seeing. You can even switch to the present tense when you tell about the defendant’s car hitting Bill and throwing him through the air. It really helps your case come alive.
“Next,” said Angus, “the most powerful arguments draw on our sense of justice and fair play—which in reality is our ‘sense of injustice.’ When you show the judge and jury how their verdict can help undo a wrong, you are empowering them to undo an injustice.
“All this means is that a trial is not a legal puzzle—it’s a morality play. It’s not just right versus wrong. The tough cases are also right versus right and wrong versus wrong. Understanding that and bringing the opponent’s misdeeds to the center ring of the trial is the most important part of making your side of the case come alive.
“Next,” said Angus, “one thing that always troubles me is when lawyers explain things that don’t need explaining.
“You said, ‘This is what we lawyers call an opening statement.’ Jurors already know what opening statements are from radio, movies and television. Explaining what doesn’t need to be explained has more than a touch of lawyerly condescension to it. Besides, they already heard ‘Judge Monroe’ tell you it was time to give your opening statement.
“You want to build a bridge between you and the jurors that says, ‘I’m a regular person just like you’—not add bricks to the wall between you and the jury that says, ‘I’m special and you’re not.’ Sounding like a lawyer always adds to the wall between you and the jury.”
Jim McEljaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston.