Posted on
August 11, 2009 in
Jury consultant Dennis Elias (@JuryVox) twitted:
At opening statement you have no standing with the jury. Don’t tell them what the evidence will show; story them the evidence.
Break that down into a rule (tell the jury the story of the evidence) and a reason (because you have no standing with the jury).
The reason is not necessarily true. If you’re lucky, in any particular case it’ll be dead wrong; by the time of opening statement, you will have standing with the jury because you will have formed a group with them.
But the rule (if you disregard the disturbing verbing of the noun “story”) is still a good one.
The test of a good rule is not whether it is always right (rules seldom are) but whether it is right more often than the alternative—which could be another rule or no rule at all. I hope you’ll read my Simple Rules for Better Jury Selection in that spirit.
Standing is about acquired or assumed credibility. Credibility is the key to persuasion based upon the weight of authority and legitimacy assigned to the speaker by the listerner. Jurors know you are trying to persuade them. They expect lawyers to trick them with fancy footwork and pretzel logic. Jurors by and large are pretty skeptical of trial advocates from the beginning. Most surveys show that venire persons don’t hold the legal profession in very high esteem. Secondly, if one is allowed to conduct voir dire AND one has the comfort and proficiency with the process, it can enhance credibility and percieived competance which is tantamount to standing. Many courts do not allow attorney conducted voir dire, or limit the voir dire severely so gaining rapport is difficult or impossible. The prior statement does not take into effect that some advocates simply are stereotyped or even brittle in their interaction with the venire panel. Thirdly, Eric Oliver, a well respected trial consultant states, “The Evidence Cannot Speak for Itself”. Jurors don’t have the context at opening to understand or even accept the importance of the key facts you’ve hung your hat on nor the instructions of law. The narrative or story creates context, relationship, drama, experiential anchors and in a familiar and distinctly human way or organizing new material without the burden of embracing the the story teller. You might be standing during openings, but assume you have standing at your own peril.
I also believe that courtroom presence – what the jury reads from you bodily language, your tone, etc. is a huge part of getting credibility. Do you believe in your client, and are your mannerisms sending that message to the jury? Or, are you telling the jury that you are just here to do a job – to get this trial done with? I think jurors are very perceptive about what is going on that does not necessarily mean what words they have heard.