In state court, both sides are allowed to address the jurors before any testimony is offered. Legally we are supposed to merely lay out the facts of the case, telling the jurors who they will hear from and what they will hear.
Though it is sometimes called Opening Argument, lawyers are not allowed to argue for their position during the statement, only to give a “roadmap” of what they think the evidence will show.
Because they are so worried about being accused of “argument” during this phase of the trial, many lawyers err on the side of boring and simply list who they are calling to the stand and what those people will say.
Roadmaps vs. Stories
I cringe every time I hear an attorney say, “I’m now going to give you a roadmap of what this case is all about.” Just because a textbook in law school (and this article) define it as a roadmap, doesn’t mean we have to bore the jurors with this detail.
Can you imagine asking your friend what the latest blockbuster movie was about only to have him tell you, “Well, let me give you a roadmap of the plot. First you will meet Batman. He is not in his costume in the opening scene, but the evidence will show his costume is at the ready in his secret basement.” Boring.
For some reason, lawyers often forget they are human when they address jurors.
The Power of Story
So what is the alternative? This is our first chance to talk to jurors. We need to be dynamic and engaging. People want to hear stories not lists. Any fact pattern can be woven into a compelling story if the teller takes the time to form it.
And yes, in those stories we want to sneak as much argument as we can. A colleague of mine refers to it as the Opening Indoctrination. All lawyers are on a stealth mission to tell jurors how to view what they are about to hear from the perspective that most benefits the lawyer’s case.
A good opening statement stays with the jurors as each witness testifies. You want the jurors to be thinking, “Oh yes, I remember the attorney said we would hear that from him”
All stories have different interpretations, and who emerges as the hero has everything to do with who is doing the telling.
We know this in the real world and sometimes we even go out of our way to not be tainted by other people’s views. Have you ever anticipated going to a movie and made a point NOT to talk to your friends who have already seen it because you don’t be swayed?
There is something “sticky” about a friend’s opinion and even though you can overcome it and make up your own mind, it’s difficult to be completely free of that influence.
That is what the lawyers are trying to do in opening statement, spoil the movie. Get you to see it how we see it. Like it if we liked it and pan it if we gave it a thumbs down.