I’ll have grounds
More relative than this — the play’s the thing
Wherein I’ll catch the conscience of the King.

Hamlet, Act 2, Scene 2

 

In Hamlet, the prince writes several lines about murder and adds them to the script of a play to “catch the conscience” of his Uncle, the King. Hamlet believes that Claudius will flinch when watching the play, a tell-tale sign that Claudius murdered Hamlet’s father.

A dramatic play seeks to capture the audience, either with virtuous deeds or all-too recognizable human folly. The audience is drawn into the story because it identifies with the characters and the injustices foisted upon them. The playwright plots the arc of the play to best secure the audience’s immediate and sustained interest and participation in the story. Think of your opening statement as “a play within a play,” with the jury as your audience. Script your opening to capture the jurors’ conscience and make them care about the trial and the result.

The opening statement is your first and perhaps best opportunity to convince the jury that your client should win. The jurors know very little about the case, are anxious to get started, and give you their full attention. Their impression of you will probably be set by the time you finish your opening. Opening is the time to establish the jurors’ expectations and begin to develop a bond with them.

Script an opening statement to take advantage of the drama of this moment. Develop a theme that the jurors will care about. Start with a dramatic flourish, organize your points for maximum interest and persuasive effect, and focus on the facts that establish the human conflict and unfairness of the situation. Other than accounting for “bad facts,” jettison discussion of evidence that does not directly support your theme or advance the conflict. Talk to the jury — do not diminish this critical opportunity with slavish use of notes or PowerPoint. And trust your own personal “performance” style. At the end of the trial, jurors will recall only a portion of what you seek to teach them. However, if your opening statement provides them with a clear theme and a compelling reason why your client should win — and teaches them that they can trust you to provide them with the most important facts — you will be well on your way to a successful result.

Develop Your Theme

Every play, and every case, requires a theme. In a trial, the theme synthesizes why the jury should care and why your client should win. The theme needs to be simple and involve fundamental human emotions, failings or rights, like the disloyalty and treachery in Macbeth and the hubris and human frailty of King Lear. In a trade secret case, the theme will likely be theft and disloyalty; in a patent case, respecting one’s property rights; and in a complex commercial dispute, the greed of an over-reaching plaintiff. Your theme should be the lens through which you view every fact and theory. It will be raised in your voir dire, the center piece of the opening statement, and built fact-by-fact during testimony.

In crafting your opening, keep your theme close at hand. Each fact and legal theory should be measured by and further that theme. If a fact amounts to detailed background or does not directly advance the theme, do not mention it. By necessity, there will be background and surplus evidence presented during the trial. Such evidence is not needed — and distracts — in the opening statement.

Once you have selected your theme, revisit and refine it frequently. Motions in limine may affect key evidence and jurors’ interests and experiences will be explored in voir dire. Review and revise your theme to appeal to the jurors’ experiences and the evidence.

Plotting the Arc

The author of a great play plots the presentation of the story to capture the audience and provoke emotion and reaction. Starting with a powerful and foreshadowing scene, the play immediately entangles the protagonist in a deep but personally-identifiable conflict, and then introduces complications and obstacles to resolution as he or she struggles to escape. The climax of the play captures the audience’s full attention before a speedy resolution. Strive for this same dramatic arc in your opening statement.

Most trial lawyers agree that an opening statement should not exceed 45 minutes even in the most complicated cases. Lawyers who do not distill the key facts and themes deliver long openings. It takes work and attention to structure the opening. You have a good chance to keep the jury attentive and receptive during a crisp, well-organized 45-minute opening. If your opening is much longer or if each part is not closely honed, you will likely lose the jury’s attention.

Outline the points you want to cover in the opening, and then take a critical look at them. If you figure five minutes for your introduction, and five minutes for the ending, you have 35 minutes left. Divide this time into distinct sections of no more than seven to eight minutes each, or four to six segments. Rather than presenting a straight chronology, consider organizing the presentation by key facets of the case, for example, three “scenes” of key facts, two critical witnesses, and the legal claims. Provide topic sentences as you move from one segment to the other. By making each of these sections short and distinct, you have a chance to refocus the jury on your developing theme every seven to eight minutes.

The Dramatic Prologue

Like any powerful play, an opening statement must start strong. Think how Macbeth opens with the foreboding “toil and trouble” of the Weird Sisters, or how the cast of The Tempest is literally blown away during the opening shipwreck scene. The audience is fully engaged — every eye is on the performers. Yet 95% of opening statements start with the lawyer identifying him or herself, providing some background on the client, thanking the jury for their service, and other small talk. Jettison the clutter and unnecessary introductions. The first two minutes of the opening may be the most important moment of the trial. Why waste that opportunity — this singular moment of high drama — on introductions and thank-yous?

Walk to the front of the jury box, set your feet, and make eye contact with each juror. Take at least 5 to 10 seconds. Command center stage. THEN speak. Don’t introduce yourself or say hello. Have a two minute soliloquy memorized and ready to go. No notes, no documents, just you and the jury. Distil the most important facts, the theme of your case, and why your client should win. Make the moment weighty and solemn — two minutes of high drama. Then pause, relax a bit, and offer whatever brief introductions and thank-yous may still be necessary. You have already presented the foundation of your case, connecting with the jurors when they are most attentive and impressionable.

Conflict

Make the jurors care about your case. Give them a wrong they can right. The conflict of trial presents a signal opportunity to capture the emotions and interest of the jury. Humans cannot help but react to and invest themselves in conflict, especially when they must ultimately resolve it. Macbeth’s killings arouse the audience’s horror and fascination, especially because they result from his petty, human failings. The play’s conflict captures the audience.

Focus on facts that present the conflict and advance your theme. Make the jurors see the start of the conflict and how the opposing party escalates and seeks to unfairly turn the conflict to its advantage. Emphasize the alternatives available and the misguided choices by the other side leading to the ultimate dispute. Bring the conflict down to a personal, understandable level with which the jury will identify. Although you must anticipate and account for “bad facts,” try to build them into your conflict scenario as the client’s justifiable reaction to the other side’s deceitful acts. Use the case’s conflict to present segments of facts that capture the jurors’ attention and make them want justice.

Performance

When his horse is slain during the climactic battle and Richard III yells “a horse, a horse, my kingdom for a horse,” the audience knows his denouement is near. Think of the diminished effect if Richard delivered that memorable line from upstage left, behind a post. Or if he read the line from the script or paraphrased it from bullet points on a screen while turning his back to the audience. Yet most lawyers deliver their opening statement while safely hiding behind a podium. Nearly all give the opening with notes or even the entire typed presentation clutched firmly in their hand. And who would dream of delivering an opening statement without a full PowerPoint? In the process, lawyers lose the drama of the opening and their ability to best connect with the jurors.

Unless required by the Court, do not use the podium in opening. Deliver the opening in front of the jury box with a wireless mic, grabbing center stage. Minimize your use of notes. At a minimum, have your opening and closing segments fully memorized and rehearsed. If you need notes for the other 35 minutes, make them bullet points condensed to a few pages which you can glance at while changing topics. Without notes, there is always a risk you might miss a point or two. But that slight downside is greatly outweighed by the persuasive force and trust you will gain by speaking in the moment, without notes, making eye contact with your audience.

Similarly, presenting your opening through a PowerPoint presentation misses the point of persuasive advocacy. Yes, displaying the outline of your argument will free you from notes and make the presentation easier for you. But the jurors’ eyes will be on the screen rather than you; if they do look at you, they may see your back as you reference the screen. You need to command the jury’s attention through your heartfelt words, demeanor, body language and eye contact. Presenting your main points through wordy slides abandons that opportunity. Display the key demonstrative exhibits and charts; walk to the screen and highlight the key provisions; strategically intersperse demonstrative evidence to keep the arc of the opening moving and interesting. But when you are finished demonstrating the significance of an exhibit, turn the projector off. Bring the jurors’ eyes back to you. Tell them why the document matters and why it establishes or resolves the conflict.

No one will ever know your case as well as you. Have the confidence that you will deliver your best opening mostly from memory while standing in front of the jury and commanding their attention.

Style and Language

Richard III may be Shakespeare’s deepest and most complex character. A brutal serial murderer, he also is a contemplative philosopher who understands and is tortured by his own crimes. He rises to great power despite a prominent disability. This complexity leads actors to numerous interpretations and differing methods to develop and play Richard. Each brings his or her own personality and skills to the part, turning a dusty character into a living and conflicted villain.

There are myriad ways to “play” your opening statement and trial persona. Each lawyer should develop and be comfortable with his or her own style. Although we can all learn valuable techniques from experienced and great trial lawyers, it is a mistake to think that we can fundamentally change or mask our natural presentation style. In a situation where we need all our preparation and legal skills simply to mount the best case, attempting to change basic personality and style traits will not work. Artificial or false mannerisms will impede the jurors from getting to know and trust you. Your most effective and powerful style will likely be the one to which you are accustomed.

Relying on your own style does not mean that you should refrain from attempting to raise the level of discourse. A great play has the ability to elevate everyday issues into thought-provoking and memorable moments of discovery. Jurors expect that the opening statement (and closing argument) will challenge them to think and care deeply. Not only should you never talk down to jurors, you should aim to talk “up” to them — dare them to be intellectually curious in solving the meaningful conflict of your case. In preparing your opening, read some of your favorite soliloquies, speeches or short stories. Like a playwright, carefully plan and select the language and imagery you use. Then take the complex ideas of the case and distill them into understandable and memorable themes and facts, structured to make the jurors care about the dispute.

Finish Strong

Finish your opening statement with a bang. Think how A Midsummer Night’s Dream reunites the young couples as Puck weaves his spell of words. Leave one or two of your most important points for last. Consider providing the jurors with three questions to ponder or by which to measure the evidence which you will discuss with them during your closing argument. Energize the jury for the start of testimony. And have your opening’s final “scene” fully rehearsed and memorized so you can talk directly to the jury and be at your most persuasive and heartfelt.

An opening statement offers an opportunity for solemn, high drama. Like a lead actor, make use of this spectacle by taking center stage and commanding the jury’s attention. Script your opening to begin with a dramatic flourish, build your theme through the facts and conflicts, and finish strong. Challenge the jurors to reach beyond their everyday lives to untangle the web of injustice foisted upon your client. Make them care. You are the playwright and lead actor — how the jurors react and invest in your client’s dispute depends on you. Use the drama of your opening statement to “catch their conscience.”

 

 

Benjamin Riley is a principal at Bartko, Zankel, Bunzel & Miller in San Francisco, specializing in Intellectual Property and Complex Business Litigation. He has tried more than 25 cases to verdict, including jury trials, court trials and complex arbitrations. He is a past President of the Northern California Chapter of the Association of Business Trial Lawyers, a 2000-member organization of leading Bay Area judges and litigators and served as a lawyer representative to the Ninth Circuit from the Northern District of California. Mr. Riley is also an expert in commercial arbitrations and frequently handles significant matters before the world’s leading arbitration forums. He received a “California Lawyer of the Year” award, was selected as one of 13 California attorneys for Who’s Who of Commercial Arbitration, and has been named as a Super Lawyer from 2004 to 2016. Mr. Riley is a Fellow of the Litigation Counsel of America. He may be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. or (415) 291-4507.