Picture yourself sitting on the couch, flipping through channels on the television. How long do you stay at any particular channel? If you are like most people, it is not very long. Each show has a very limited amount of time to get your attention, or you are ready to explore other options. My recent LCA Commentary articles have outlined the reason storytelling works (March 2009), factors that make a story compelling (May 2009), how to select a main character for the story (June 2009), and an effective way to structure the opening statement (July 2009). The purpose of this article is to address the importance of delivering a parsimonious opening statement in order to maintain juror attention and prevent them from being distracted by irrelevant aspects of the case.

A trial is like a circus – the more “side shows” put in front of the audience the more likely they will be distracted from the main event. Ideally jurors will focus primarily on the aspects of the case that benefit your client. To make that happen, the opening statement cannot include any unnecessary information. That is, there must be a reason for every piece of information that is included in the story. If the story will make just as much sense without a certain piece of information, then leave it out. Irrelevant information wears on juror attention span and increases the likelihood that they will take an interest in immaterial aspects of the case. Once that happens it becomes very difficult to predict the direction they will go with that information.

The first step in constructing a parsimonious opening statement is to accept the fact that it is not necessary to explain the entire case to the jury in the opening statement. Jurors are rarely as interested in the case as the attorneys presenting it and perception of relevance varies accordingly. Therefore, every piece of information that is included in the story should add something to the overall picture. You cannot afford to waste time (and attention span) on insignificant details. Focus exclusively on information that is critical to understanding the bigger picture and be very descriptive with that information. Being descriptive about the relevant information means there will not be enough time to provide unnecessary information.  

The misconception is that jurors need all the little details to understand the story – but they do not. To illustrate this point, pick up any book on the Best Sellers List, go to any random chapter, and read only the first and last sentence of each paragraph. You will miss some of the details but you will still understand the story – and in a fraction of the time. Jurors will get the little details when the evidence is presented. The purpose of the opening statement is to shape the way they view that evidence. Therefore, it is fine if jurors do not know all the details of the story, as long as the underlying message stays with them.

We all understand the concept of stealing thunder but when cutting material to keep the story parsimonious the natural tendency is to leave out the bad facts. When this happens it is usually because the attorney is underestimating the weight or significance of those bad facts. By including the bad facts in your opening statement you gain credibility with the jury and they are more likely to believe your interpretation of the good facts. When the story does not include the bad facts, jurors wonder what else you are not telling them. It is far better for the jury to hear the bad news from your perspective than to find out later that you were not completely forthright in your opening statement. Also, by presenting the bad facts yourself you can embed them in the larger story, thereby reducing the amount of weight the bad facts carry. Just because the bad facts are a relevant part of the story that does not mean they have to be the main focus of the story. Presenting your interpretation of those bad facts within your own story will help you maintain control over the context of the information.

The other tendency is to forget that common knowledge to an attorney might be like a foreign language to the jury. This is especially true for industry terms (e.g., a Delaware Corporation). Just because something is obvious to the attorneys does not mean it will be obvious to the jurors. To that end, the general community’s understanding of the subject matter is an important consideration when deciding what information can be cut. If you were to tell somebody about your day at work, the description would vary depending on the listener. For a colleague you could probably skip most of the background information but if you were talking to someone who works in a completely unrelated field you would need to include some background information for the person to understand. Opening statements are no different. The point is, the way a story is told, and the information that is included or excluded, should be based on the knowledge of the audience, not the knowledge of the speaker. Presenting the opening statement to a group of mock jurors, and then asking what questions they have, is a good way to help bridge that gap.

Gregory (Brad) Bradshaw, Ph.D. is a litigation consultant based in Nashville, Tennessee. Dr. Bradshaw helps attorneys prepare for arbitration and trial, anywhere in the country. For more information please visit www.bradshawlitigation.com or call (615) 739-6553.