IV. PREPARING THE OPENING AND CLOSING WITH A VIEW TO JURY BIASES
Empirical testing by social scientists confirms what trial lawyers intuitively know. Jurors come to court with built in biases which play a significant role in their decision making process. Biases are like software silently running in the background of the juror’s mind, providing a framework to analyze the evidence. The trial lawyer should structure the presentation with these biases in mind.
(i) Personal Responsibility Bias-Talk About Choices
Jurors today demand that individuals take personal responsibility for their actions. Jurors have little patience for plaintiffs or defendants who are perceived to be evading the consequences of their choices.
When structuring your opening and closing statement, the plaintiff can incorporate the personal responsibility bias by highlighting the good choices the plaintiff made and contrasting plaintiff’s choices with the poor choices the defendant made. The operative concept is the “choice,” the affirmative act vs. the more passive omission. Thus, the defendant did not fail to “stop at a stop sign,” but “chose to go through the stop sign.” The defendant did not “fail to maintain the apartment steps,” but “chose not to make the necessary repairs.” Choice implies intentionality and a greater level of personal responsibility.
The defendant also focuses the jury on choices–the poor choices the plaintiff made. Defendants argue the plaintiff is avoiding personal responsibility for his or her actions.
When the defendant cannot focus the jury on the plaintiff’s poor choices, the defendant most effectively absolves himself from liability by blaming the situation. There was “black ice” on the roadway which even the best driver could not negotiate. The snow was not removed sooner because it was the “worst snow storm of the season.” It is unfair to second-guess the doctor because he was confronted with a life threatening emergency. In short, when the defendant cannot win the case by pointing to the plaintiff’s poor choices, the defendant argues he was faced with a situation that was not of his own making, and it would be unfair to fault him for doing the best anyone could have done under the circumstances.
(ii) The Norm Bias
As jurors hear the unfolding story during the trial, they subconsciously go through the process of comparing what happened in the case to what they would routinely expect to happen in the same circumstances. For jurors evaluating evidence, they can most easily make sense of what happened if they can subconsciously conclude, “I have seen this before.” Social scientists identify this process as the norm bias. It is the process of comparing what actually happened to what should normally happen.
In presentation and throughout the trial, plaintiffs want to emphasize how the defendant’s conduct deviated from the norm. For example, “thousands of motorists drive around that curve every day without incident. It was defendant’s unsafe speed which caused the crash.” In contrast, defendants employ the norm bias by framing the plaintiff’s conduct as deviating from the norm. For example, defendants might argue that hundreds of people walk over the step every day, but no one ever fell except the plaintiff.
Moe Levine, one of the great trial lawyers of the last century employed the norm bias in jury selection in a child dart out case. First, he asked the jurors to raise their hands if, as drivers, they had ever been faced with a situation where a child ran out into the street in front of their car. After most jurors raised their hand, he next asked them how many of them had actually hit the child with their car. No hands were raised. Intuitively, Levine used the norm bias to demonstrate the defendant had deviated from the norm.
V. THE STRUCTURE AND BODY OF THE OPENING FORMATS
The structure of the opening is as varied as the styles of lawyers who try cases. There is no one right way. Nonetheless, there are some general principles to keep in mind.
A. Great Beginnings
Whenever possible grab the attention of the jury right from the outset with a powerful beginning. Think about forcefully telling the essence of the story in the first few lines.
On December 12, 2011, 9 year old Tommy Tyler was placed in an MRI so the doctors could obtain images of his knee. Fifteen minutes later he came out of the MRI brain dead.
Alternatively, use the first few lines to frame the basic rule or principle which the defendant violated. That is, start with the standard of care.
When performing surgery, a surgeon should never cut any internal structure without first identifying what it is.
or
We all know this basic rule of safe driving: A driver making a left hand turn onto a roadway must be aware of other drivers on the roadway and yield the right of way to drivers travelling straight.
A great beginning can be as simple as setting the scene in a way which emotionally draws the jury into the case.
This example comes from the prosecutor’s opening statement in the Oklahoma City bombing case:
Ladies and gentlemen of the jury, April 19, 1995, was a beautiful day in Oklahoma City, at least it started out a beautiful day. The sun was shining, flowers were blooming, it was spring time in Oklahoma City. Sometime after 6 o’clock that morning, Kevin Garret’s mother woke him up to get him ready for the day. He was only 16 months old. He was a toddler. He had a keen eye for mischief. He would often pull the cord of a curling iron when she got dressed in the morning, pulling it off the counter until it fell down. That morning, she picked him up and wrestled with him on her bed before she got dressed. She remembered that morning because that was the last morning of his life.
In short, avoid introductory pablum and hit the ground running with an attention grabbing beginning. A great beginning earns the right to tell the whole story.
B. Structuring the Body of the Opening
After a strong beginning, the remainder of the opening must have a defined structure. Remember, you are telling a story! Unfold the opening as a human drama with good and bad actors.
1. Options for Organizing the Body of an Opening:
a. The Chronological Structure — describe the events which constitute the case in a chronological fashion. It is easy to comprehend and is self organizing. Be advised, however, that a pure chronological opening may focus the jury first on the conduct of your client. Even in a chronological opening, focus the jury first on your adversary’s choices and conduct.
b. The Immediate Concerns Structure — this approach tells the jury what they want to hear first. It is organized as follows:
i. Identify the rules that should have been followed
ii. Inform the jury what the opposing party did (the story of what happened)
iii. Tell the jury what the injury was in summary fashion
iv. State how the rules were broken
v. Explain away the defense arguments
vi. Relate the extended consequences (injury details) of the defendant’s conduct
vii. Conclude with the remedy: How the jury can fix or make up for the wrong
C. Concluding the Opening
Conclude the opening by returning to your theme, re-telling in summary fashion what you will prove and what you want them to do. Next week we’ll take a quick look at twelve blunders to avoid in an opening statement, and finish our look at opening statements in general. From there we’ll move on to summations. Hope to see you there.
Click here to read Part 4: Twelve Blunders to Avoid in Opening Statements