You’re creating the story of your case for opening and trial. You have a situation where a business allowed an unsafe condition to exist on their land and as a result, your client got hurt. You get to the point in opening where you start to tell the story and you say, “the defendant failed to fix the problem. They never put up warning signs…” You may not have realized it, but you have already compromised your story.
There are two principles to keep in mind when telling a story, whether in opening or questioning witnesses or closing:
1. Acts are more powerful than omissions because jurors forgive omissions much easier than conscious acts or choices. In focus groups and juror interviews, you consistently hear jurors say “well, it was just an accident” or “anyone could forget that” and so on. This is because as humans, we understand that no one can think of everything every time, so we let people off the hook for forgetting something. If the same scenario is framed as a conscious choice, however, it is much harder to forgive because it feels deliberate and intentional. So, in the above example, you should tell the story as “the defendant sees the pot hole. He examines it and CHOOSES to walk inside. He DECIDES to start setting up his shop for business. Six hours later, the plaintiff comes to shop at the defendant’s store….” This sets up jurors to see that the defendant knew about the condition and CHOSE to ignore it and do other things that were more profitable instead. This applies to any type of case: “the driver chose to drive through the red light” or “the doctor chose to ignore patient safety rules when he did x, y, z.”
2. The unconscious mind does not know the difference between a positive and a negative and therefore will always interpret something as the positive. For example, if you say “the driver did not stop for the red light,” the unconscious crosses out the negative and only hears “the driver stopped for the red light.” Whenever possible, frame your sentences as positives, such as “the driver saw the red light and kept driving.”
These may seem like small changes, but to the unconscious mind, they make a huge difference.
Time and again, you have probably been told to “tell a story” during opening. People remember things best in story format. But not just any story – it has to be told right. There can’t be too many details or the story structure gets lost. Each sentence has to move the story forward in time; otherwise, you’re telling details, not a story. It must move chronologically (with very few exceptions). Sometimes it is nice to hear proof of what happens when one side tells a coherent story and the other side does not. Below are excerpts from post-verdict juror interviews I have recently done on a case. The plaintiff’s attorney told a story and the defendant did not (or at least not a coherent one that followed the rules of storytelling). I will remove any names or case information to preserve confidentiality.
Question: Tell me about the Plaintiff’s opening
Juror 1: I remember initially it seemed kind of goofy because they had already said these people admitted liability and they painted this dramatic picture, which I’m not saying it wasn’t…I understand now why he did it because he was able to give a picture of all the inter muscular damage that was probably done at that particular moment.
Juror 2: It was long. He went over the details of the case and I was confused because the defendant admitted he was wrong. It was a case about a man whose life was drastically altered.
Question: Tell me about the Defendant’s opening
Juror 1: It kind of felt to me like he just didn’t have a story he wanted to tell. It was more like choppy statements than a story.
Juror 2: I honestly don’t remember specific details of it. He just tried to paint the picture that none of this was connected with [the plaintiff’s] problems now.
Notice how neither juror remembers much about the defendant’s opening. Without a good story, their minds had nothing to grasp hold of. When you write your opening, make sure the story comes through. Follow good rules of storytelling and jurors will remember what you say. They will view the rest of the case through that story lens and shape evidence in their minds to fit with it. If you do not give them a good solid story on which to base the rest of their evaluations of the case, you lose a lot of leverage.