care. Manufacturers must conform to
government standards and the rules
that are found in engineering and other
industry-related publications.
Follow these steps when you first talk
to the jury about the rules that apply in
your case.
Explain the reason for the rule. Some
people will follow a rule simply because
it is the rule, but most people need to
understand the reason for a rule before
they are willing to follow it—or hold others to it. Jurors are no different. At some
point during the trial, you must explain
to the jury why the rule or standard
makes sense. Opening statement is the
logical place to do that.
Outline how the defendant broke the
rule. At the opening statement stage,
jurors are still trying to decide if they can
trust you. The best way to show them
they can is by coolly focusing on the facts
and evidence—simply explain what the
rules are and how the defendant violated
them. Avoid the temptation to overemphasize the breaches; rather, describe
them with factual precision.
Describe how breaking the rule hurt the
plaintiff. Explain that when the defendant made its product, put its vehicle
on the road, or rendered medical care, it
contracted with the public and the plaintiff to follow the rules. Tell jurors that by
failing to do this, the defendant not only
hurt the plaintiff but endangered society
as a whole.
In organizing your opening, including
your introduction of the rules, take a cue
from playwrights and divide it into three
acts, or chapters. In the first chapter, you
can take one of two approaches. Some
lawyers prefer to begin by talking about
the rules before telling the story of the
case. Others begin their opening with
the narrative—describing the scene,
character, and events—and then explain
that the plaintiff is suing the defendant
for breaking the rules.
In the next chapter, cover the
defenses in detail, and explain why they
are wrong. Show that they don’t fit with
the basic standards and rules.
In the concluding chapter, lay out the
damages, and in clear terms convey to
the jury what will be expected of them
at the conclusion of the trial.
Theme. Much has been written
about the importance of case themes.5
Finding a unifying theme that resonates
with all jurors is complicated by the fact
that the plaintiff lawyer is not dealing
with an audience of 12, but instead must
present the theme to 12 individual audiences. This means that you should use
a broadly accessible and understood
theme in your community. Any theme
that is too narrow, readily embraced by
four audiences but mistook by eight, fails
the predicate test for a theme.
Your theme should be
• easy to understand and remember
• useful for jury deliberations
• consistent with the jurors’ concepts
of fairness and common sense
• consistent with and supported by
the evidence.
A good case theme is a path of truth; it
leads through the evidence to a verdict for
your client that includes fair damages.
Images. Words are important, but the
human brain has a greater capacity for
recalling images and the emotional reaction they incite. For decades, trial lawyers
limited their efforts in framing during the
opening statement to context and themes.
That has changed with the widespread
use of technology in the courtroom.
Scientists tell us that after three days,
we remember only 10 percent of material
that is presented verbally and 20 percent
of what is presented visually. But when
a verbal presentation is combined with
a visual one, we remember 65 percent of
the material. These statistics bring home
the importance of using demonstrative
evidence and visual aids at trial.6
Every case has one or two visual
images that convey its meaning. Once
you determine what those images are,
you can display them to the jury through
digital means such as a PowerPoint
presentation or simply use a document
projector during opening statement. A
memorable image may be a piece of evidence, but it doesn’t have to be; it can
be anything that evokes the important
elements of the case.
It is critical to test-drive your visual
presentations before trial. One good way
to do this is by using a focus group. You
can present time lines, medical illustrations, photographs, highlighted critical
documents, and images to the group
first, as a way of getting a read not only
on the merits of the case but also on the
visuals you plan to use.
We’ve used the following technique
in focus groups with some success. We
place exhibits around a room equipped
with closed-circuit television cameras
(so we can watch the discussion from
another room) and give a demographically balanced group an abbreviated
summary of the case. We then ask the
panelists to deliberate the case, and we
leave the room.
Typically, the panelists complain at
first that they can’t deliberate on the
basis of such limited information, but
before long, they start to examine the
exhibits, and soon they are discussing
and debating the issues. When they are
finished deliberating, we ask them what
they interpreted from the various visual
aids. We then ask which one was most
important and why.
The information you’ll get from a
focus group like this will be priceless.
For example, we once had a medical
negligence case where a nurse had given
Pitocin to a laboring patient without a
doctor’s order, causing the patient to suffer a ruptured uterus, which resulted in
brain damage to her baby. The defense
argued that the dose was small and given
over a brief period of time (less than
three minutes), so the Pitocin could not
