Litigation attorney Dan Small continues his insightful "Trial Lawyer's Handbook" podcast series with a new episode focused on opening statements. Drawing from his extensive trial experience, Mr. Small offers practical tips for crafting a narrative that draws jurors in and sets the stage for your side's case. From understanding courtroom customs to anticipating opposing arguments to staying authentic, his primer offers practical guidance for effectively introducing a case to jurors.

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Podcast Transcript

The old saying is true you only get one chance to make a first impression. In a trial that chance is usually the opening statement. It is, without a doubt, an extraordinary moment. Your opportunity to stand in front of the jury and speak to them and tell them your case, tell them your story.

The point of an opening statement is the same as the point with the whole trial: to win. The point of an opening is not to show how smart you are, how big your vocabulary is, how thoroughly you can recite the facts. Rather, it's to put the facts and themes together in a clear and compelling story for the jury, a story that provides an introduction to the case and a basis for members of the jury to understand how and why they should listen, how and why they should do the right thing as the evidence comes in. A story that makes you their source for clarity, for credibility and for completeness. An effective opening statement requires an intimate knowledge and understanding, not just of the facts, but of the entire trial environment.

Let's walk through it briefly, piece by piece.

First, know your court. The limits on opening statements are often more a product of local practice and custom, rather than clear written rules. Understand the requirements of your judge and your jurisdiction and work within those limits. Time is the most obvious one, but also where the judge draws a line on argument, on the law and on other boundaries.

Next, know your case. Not in the sense of being able to recite every single detail, but in the sense of understanding the stories and the themes behind it. What happened, who is to blame and how do you make that clear? What does a jury really need to know to do the right thing?

Next, know your jury. The jurors have gone through a selection process that probably was longer than they imagined. In fact, probably longer than they can tolerate. They've been told that they're there to use their common sense and do the right thing, but they're not quite sure what that means. Now they are seated together, waiting for you to show them what that is. Don't disappoint them. Draw them in with a compelling story and make them want to do right or wrong in your client's favor.

Next, know your opponent. Know what your opponent will argue and how. If you go first, try to anticipate it and deflate it. Also, try to take the sting out of any problems you know they're going to pull out of their hat. If you go second. be prepared to counter it. Don't legitimize your opponent's argument by making them your centerpiece, but don't show that you're afraid of them by ignoring them either. Find a middle ground.

Next, and most important, know yourself. In the opening statement, It's particularly important to be the best that you can be, but to be the best you that YOU can be and not somebody else. What are you good at? What's your most comfortable style? Juries may make mistakes, but one thing they're pretty good at is spotting a phony, and they don't like it. Don't try to be someone you're not. You're a trial lawyer. You're a good one. Be proud of that and be yourself.

The goals of an opening statement are to dramatize, humanize and organize. Each one is a difficult challenge. But by knowing your court, your case, your jury, your opponent and yourself, you set yourself up to meet those challenges.

Counsel, you may proceed with your opening statement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.