Trial Magazine

I always tell young lawyers to remember that everything they do is an opportunity to impress someone—and with a jury, that first opportunity is the opening statement. Every step taken in a case impacts this, from the initial client interview (are you an active listener searching for your client’s hidden story?); to drafting the complaint (are you reciting legalese or are you telling the compelling story you want the jury to hear in your opening statement?); to the way you present yourself at depositions and court appearances (do you have a solid command of the facts and the law that will give your client the best chance to succeed?).

Sometimes trial lawyers miss chances to develop and maximize their injured client’s damages as they prepare to tell their client’s story to a jury for the first time. Here are some lessons I’ve learned over the years to help rethink how you work up damages before you reach the courtroom and how to incorporate them at the start of the trial.

The audience for your client’s damages changes as the case progresses. Each time that happens, you have a dress rehearsal for your opening.

1  Know Your Audience and Test Your Opening Story

The audience for your client’s damages changes as the case progresses. Each time that happens, you have a dress rehearsal for your opening statement. The first audience is the defendant who will be served with the complaint. Next is the risk manager or insurance claims adjuster who is assigned the case. That person could be the most important one because he or she may be required to assign a reserve value (insurance adjuster) or a contingent liability (risk manager) for the case. If you don’t impress this person right out of the gate, the value assigned to the case at the beginning could be artificially low and complicate any effort to settle later because it has been undervalued for so long.

The next audience for your rehearsal are the defense attorneys. Learn as much as you can about them, including their general approach to defending cases, how they present their opening statements, and what they are likely to tell the jury about your client’s case in their opening.

Focus groups are another critical audience you will ask to evaluate your case and give you feedback relevant to damages. Focus groups let you test your facts and how you frame them so you can organize the most compelling story to present in your opening.

Mediators are another crucial audience for a dress rehearsal, but remember that they turn over cases every day and will not have the time to appreciate every nuance of your damages presentation—focus on the things that will matter the most in the short time you have their attention. This is enormously helpful to hone your presentation to the most salient points as you get ready to share your case with the audience that counts—your trial judge and your jury.

2  Focus on What Will Make Jurors Angry

What about the facts of your case will make people seriously angry? This is my cardinal rule for screening cases, working up damages, preparing my opening and closing, and presenting evidence at trial. Ask yourself this question at every stage of preparing to present your client’s damages at trial.

Anger is a strong motivator for jurors to find for your client—often more so than fear or sadness for what the plaintiff has gone through. Activating jurors’ sense of anger at how the defendant’s bad choices and actions led to your client’s injuries will motivate them to find the defendant liable and award the damages you ask for. At every stage, look for facts that will make the jurors angry—that a defendant acted in bad faith, was deceptive or reckless, or placed profits above safety—so they will be motivated to hold the defendant accountable.

3  Thorough Intake and Investigation Are Key

No matter who conducts the intake (you or a nonlawyer staff member), identify the basic elements of the damages likely to arise from the injuries, including any statutory limitations, that could affect your overall presentation strategy. Think about how you’re going to tell your client’s story, and then talk to your client about preserving and delivering all relevant photos, video, social media posts, and more so that you can tell that story. Don’t wait until one week before the trial management order is due before thinking about this.

Most initial client interviews are conducted like an episode of “Dragnet”: “Just the facts, ma’am.” While identifying the critical facts needed to file the lawsuit is key, truly listening to your client’s story is more important. Not just “what happened to you after your injury,” but also “who are you and what is your life story?” Too often, good trial lawyers don’t take the time to really hear that story at the beginning of a case, and it can get lost in the shuffle of trial prep.

I have interviewed thousands of people in my life, and the most crucial lesson in learning someone’s life story is to get out of the way and let the person tell it. Short transition questions that begin with “tell me about X” and “what was it like when X” help move the conversation to the nuggets that can make a case. I like to sit down with clients and use my smartphone to record rather than take handwritten notes so we can have an unobtrusive conversation that allows them to feel comfortable and really open up about their lives.

We also must commit the time and resources to do thorough research on our clients to ensure we know everything they have said and posted about their experiences—for example, on social media. The earlier you get a handle on this, the better prepared you will be to deal with it as it comes up during discovery. This allows you to make all-important “defense preempts” during your opening: identifying bad facts and minimizing their significance.

4  Know the Damages Elements for This Case

Every good trial lawyer knows the basic elements of damages for personal injury and wrongful death claims. But every client’s damages claims are unique, so once you have a better understanding of what happened to your client and why, identify the actual jury instructions that are likely to be given on damages.

Then, structure the damages evidence to maximize each element that the jury is likely to consider. For example, you may have a solid claim for mental and physical pain and suffering, but your jurisdiction has a statutory cap on recovery for those types of damages. But other similar damages elements, such as physical impairment and disfigurement, may not be capped. Knowing each element of the different damages available and how those elements will play out at trial helps you simplify your case and focus your opening on the most viable claims.

To tell your client’s story in the most effective and compelling way possible, think like a juror.

5  Tell the Story—but Avoid Common Missteps

Repeat after me: “An opening statement is not closing argument.” The temptation to make a closing argument during your opening is understandable. You’ve been waiting forever to tell your client’s story to the jurors. They’re sitting right in front of you, waiting to hear why you have disrupted their lives, and you can’t wait to make them understand that it’s worth their sacrifice.

Here’s the problem: At this point in the trial, you can’t be certain that the facts you want to share will all be admitted into evidence. You also don’t know (in most cases) what the final instructions on the law will sound like. Before you are introduced to deliver your opening, the judge has probably informed jurors that you are about to tell them what you think the evidence will show. The judge probably will also remind them that what you say during your opening is not evidence.

Against this backdrop, do not begin your opening by reminding the jury “what I say is not evidence.” Why undermine your credibility as a messenger before you even begin?

Likewise, do not repeat over and over, “I believe the evidence will show.” “I believe” or “we believe” can be considered impermissible vouching for the evidence by the lawyer. To avoid this objection and to enhance your credibility with the jury, after your preliminary introductions make the short declarative statement, “The evidence will show X.” Say it once—and only once—and then tell your client’s story.

I learned early in my career that the biggest mistake you can make during your opening statement is thinking like a lawyer. To tell your client’s story in the most effective and compelling way possible, you can’t think like a lawyer. You have to think like a juror. You have to ask yourself what makes this story compelling to someone who never went to law school and who doesn’t eat, drink, and sleep the law every day. You have to tell a story that answers every juror’s natural question: “Why does this case matter to me?”

Like every great story, your opening must create dramatic tension. Tell jurors enough about your case to answer that crucial question, but don’t lay out every fact. Tease the jurors with the evidence they will hear, and tell them a powerful story of how it impacted your client. Alert them to key evidence they will be hearing, and set the stage for why it will be crucial. Ultimately, you need them to find those truths for themselves if they are going to own those truths in the deliberation room.

When crafting an opening, the obstacle we all face is how to take all the testimony and evidence and distill it to its bare essence. The goal is for your opening to be a private conversation with jurors—where you’re the only one talking, but you’re also anticipating their questions and concerns and trying to give them a reason to feel it is their duty to find for your client and award the appropriate damages. Finding this balance is one of the most difficult things to achieve as a trial lawyer, but when it happens, it can make all the difference.

Bruce Braley is a partner at Leventhal Puga Braley in Denver and can be reached at bbraley@leventhal-law.com.