have caused the uterine rupture.
We presented a large blowup of a
pathologist’s photograph of a ruptured
uterus—along with several other exhibits—to a focus group. After looking at all
the exhibits, the group said it was the
graphic image of the ruptured uterus
that persuaded them the Pitocin had to
be the cause of our client’s injuries.
In a truck wreck case, we had a
fairly rudimentary poster with a black
profile image of an 18-wheeler above a
black profile image of our client’s family sedan. Just simple black images cut
out and pasted to a white board—but we
measured them to perfect scale. The disproportionate size of the tractor-trailer
looming over the almost miniature-looking passenger car led several panelists to remark: “That’s why these trucks
have got to be extra careful out there.”
Tactical Considerations
Once you have the fundamentals of opening statements down, you can strategize
about ways to make them work even better. Over the years we’ve developed some
tactics for doing this.
Hold something back. Because
the opening statement has such signal
importance in the persuasive process, it
must be complete and compelling. But
this does not mean you should disclose
every piece of the narrative. There are
many reasons why you may want to hold
something back for use during the trial.
For example, a piece of evidence may
play more dramatically when you bring
it out during the examination of a witness. Wait until the defense takes its
position, letting the defendant go way
out on a limb before you begin sawing.
In every case, there will be some tidbit of evidence, some document, or some
fact that is best reserved for the evidence
stage. You can then bring up this piece of
evidence later, to expand and dramatize
the story in closing argument.7
Use the present tense. One of the
hardest disciplines a courtroom storyteller must learn is telling a story in the
present tense. But there are psychological and even physiological reasons why
you should learn to do this.
Present-tense storytelling brings
jurors into the story—it connects them
psychologically to your client and what
he or she has suffered. And the brain
processes present-tense stories differently from those delivered in the past
tense. Present-tense stories engage
the emotional part of the brain that is
responsible for 80 percent of a person’s
decisions.8
Flip the roles. In putting together
trial stories, many lawyers follow the
novelists’ and screenwriters’ formula
of protagonist versus antagonist. They
cast the plaintiff as the protagonist,
the character in the story seeking a
goal (justice), and the defendant as
the antagonist, the person who opposes
that goal.
A better approach is to help jurors
view themselves as protagonists and the
risk to themselves (from the defendant’s
behavior) as the antagonist. To succeed
at trial, the plaintiff attorney must convince jurors that their and their families’
future safety depends on a verdict that
holds the defendant accountable and
awards fair damages. In this casting,
the risk to the jurors must be defeated
in order to protect their well-being.9
Cases are not won on the basis of oratory alone. But the right words, delivered with the right measure of passion,
can help guide and educate your jurors.
Like a football coach, you can’t play the
game—no lawyer gets to participate in
deliberations—but with a strong opening
statement, you can prepare your players
to meet the defense head-on and secure
a victory for your client.
Jim M. Perdue Sr. is of counsel at
Perdue & Kidd in Houston. Jim M.
Perdue Jr. is a partner in the firm.
The authors can be reached at
jperduejr@perdueandkidd.com.
Notes
1. J. D. Wright & Son Truck Line v. Chandler, 231
S. W.2d 786, 788 (Tex. App. 1950), writ refused,
no reversible error (Tex. 1950); Standard Fire
Ins. Co. v. Reese, 584 S. W.2d 835, 837 (Tex.
1979); Gorman v. Life Ins. Co. of N. Am., 859
S. W.2d 382, 389 (Tex. App. 1993). For further
discussion and examples, see Jim M. Perdue,
Opening Statement, in Litigating Tort Cases
§37.3 (Roxanne Barton Conlin & Gregory
Cusimano eds., AAJ Press 2009).
2. Robert McKee, Story: Substance, Structure,
Style, and the Principles of Screenwriting 25
(Reagan Books 1997).
3. Rick Friedman & Patrick Malone, Rules of the
Road: A Plaintiff Lawyer’s Guide to Proving
Liability (Trial Guides 2006).
4. David Ball & Don Keenan, Reptile: The 2009
Manual of the Plaintiff’s Revolution 55–58
(Balloon Press 2009). Introduce this rule
early in the opening to take full advantage of
the rule of primacy. Contrary to popular
belief, the rule of primacy does not stand for
the proposition that what jurors hear first
they accept and remember. Rather, it teaches
that what jurors believe first is what they will
use in their decision-making process. Nancy
Pennington & Reid Hastie, Explanation-based
Decision Making: Effects of Memory Structure
on Judgment, 14 J. Experimental Psychol.
521–33 (1988).
5. See Perdue, supra n. 1.
6. Noelle Nelson, Maximing Your Opening
Statement’s Impact, Lawdragon (Apr. 2009),
www.noellenelson.com/docs/lawdragon%
20-%20opening%20statement%204-09.pdf.
7. Jim M. Perdue, Winning with Stories: Using
the Narrative to Persuade in Trials, Speeches,
and Lectures 162–63 (Texas Bar 2006). For an
example of holding back a critical piece of
evidence to great effect, see id. at 478.
8. See Martin Ted Brader, Campaigning for
Hearts and Minds: How Emotional Appeals in
Political Ads Work (U. Chi. Press 2006);
George Lakoff, The Political Mind: Why You
Can’t Understand 21st Century American
Politics with an 18th Century Brain (Viking
2008); Frank Luntz, Words That Work: It’s
Not What You Say, It’s What People Hear
(Hyperion 2007).
9. See Ball & Keenan, supra n. 4. Using
information gleaned from hundreds of focus
groups, Ball and Keenan have concluded that
the key to persuasion at trial is an appeal to
the jurors’ “reptilian” brain, or that part of the
brain that governs survival instincts. See also
David Ball, Damages and the Reptilian Brain,
Trial 24 (Sept. 2009), www.justice.org/cps/
rde/xchg/justice/hs.xsl/ 10329.htm.
