Many trial lawyers assume that if they have something important to say, the jury will want to listen. If you’ve tried many cases, you have seen this assumption fail. Jurors sometimes miss, or tune out, what seems critical.
The most fundamental ingredient for influence is being heard. What, then, will cause jurors to want to hear you? Books have been written on this topic; but here’s one simple suggestion:
If you’re tempted to tell the jury everything of importance in your opening statement, consider a different approach: In opening, don’t tell them everything about your case. Instead, give jurors their own opportunities, and your trust, to come up with their own conclusions about what happened.
Let’s say a key issue in your case is the opponent’s conduct, and the motive behind that conduct. Instead of telling the jury in opening, “the evidence will show he did such-and-such,” and then spelling out what his motive was, consider trusting the jury with a question, which you don’t answer for them, like “What do you suppose he did at that point? … (pause) … Watch closely and you will see.”
This accomplishes three things:
One, you create a knowledge gap — “clickbait” in the trial — that the jurors now have an urge to fill.
Two, you are giving your jurors control, or a perception of control — that they are in control of discovering the story and making up their own minds. You’re not force-feeding them, as lawyers are wont to do. Your jurors will cling much more fiercely to their own conclusions than they will to conclusions a lawyer force-feeds them.
Three, you demonstrate confidence in your case. I once heard famed trial lawyer Gerry Spence say, “A trial is a battle for credibility.” Your confidence will inspire credibility.