Take A Page From Oscar Winning Actors: Read Your Openings/Closings Out Loud Before The Trial!

Your opening may read brilliantly on paper, but here’s the thing: the jurors won’t be reading your opening, they’ll be listening to it. Listening involves different pathways in our brains. What may make a great deal of sense when read, can come across as just so much nonsense when heard.

The best example I know of is the classic “Eats, shoots and leaves.” A comma is all that distinguishes a murderer from a friendly Koala bear (“Eats shoots and leaves”)! Yet when spoken, the listener has little way of knowing which is which, unless of course, they are attending to the context.

If you want to make sure your opening will be heard as you want to be, read it out loud.

Step one is to read your opening out loud to yourself, because I guarantee you will pick up all sorts of issues with your written version that need to be addressed. You may even wish to record yourself speaking your opening, since it can be difficult to spot problems at the same time as you are speaking. Things to watch out for, for example; run-on sentences. Or the use of “they” “he” “she” or “it” without a referencing noun close enough to the pronoun. Or sentences that have so many conditional clauses, the meaning is lost long before the end of the sentence.

Step two is to read it out loud to a friend or family member who is NOT intimately acquainted with the material, and from whom you are willing to hear constructive criticism. In addition to whatever comments your friend makes, ask: “Is there enough emotion in this to grab your attention? Is my language clear enough so you never went “huh?” as you listened? Are my sentences short enough? Am I using repetition in a way that helps or hurts? Does the way my opening unfolded appeal to your common sense, or is it too complex?” and so on.

Do the same with your closing argument. Any actor worth his/her salt always rehearses out loud. A courtroom is, in many ways, a theatre.

The small amount of extra effort required to speak your words out loud may make all the difference between convincing the jurors of your case, or watching their eyes glaze over as your case peters out.

Jurors Live By “What You See Is What You Believe:” Ignore It At Your Peril

“What you see is what you believe” – is true not just of how jurors gauge the veracity of your witness’s testimony, but also of how jurors assess you when you sit at counsel table.

Jurors assess your demeanor according to stereotypical interpretations; they have no personal knowledge of you that would allow them to determine otherwise.

For example: are you sitting hunched forward, leaning heavily on your forearms or elbows? Jurors may conclude that you are worried, defeated by that last response your witness made. Are you sitting straight, but with your arms crossed in front of your body? Jurors may take that as meaning you are angry with your witness, or upset by whatever just transpired. Are you fidgeting with your pen? Your glasses? Jurors can readily interpret such mannerisms as indications of your anxiety.

The nonverbal messages you express – consciously or otherwise – are as important to juror impression as are the words you speak.

You must exude self-confidence (not arrogance!) in body as well as voice, for the jurors to be willing to be led to the conclusions you want them to make. They will be reluctant to be led by an attorney who appears anxious, worried, or defeated.

“Grace under pressure” is not a cute aphorism. It is a truth that successful attorneys embody in every aspect of their demeanor.  

Neglect Jurors’ Need for “What Happened?” at Your Peril

Your primary focus in preparing for trial is inevitably the issues in the case. You may not focus much on “What will the jurors want to know about this case?” because you figure they’ll want to know about--the issues. Of course they will! But they’ll want a lot more than that.

Jurors want enough information to be able to construct a coherent story of what happened. This is true regardless of the type of case, and whether you’re defense or plaintiff. If you don’t give that information to them, they’ll make it up for themselves. That fact alone should be enough to give you nightmares.

For example, in an accident case involving any kind of vehicle, jurors want to know the speed of the vehicle/s, whether the driver/s, pedestrian or whoever else was involved had been drinking or taking drugs, and the driving records of the parties involved.

Jurors want to know these factors regardless of whether speed, drugs or driving records have anything to do with the case. It’s as if the jurors' common sense demands that these facts be known before they can look at other factors. Don’t for a moment assume that if alcohol, for example, is not at issue, that simply not mentioning it is sufficient for the jurors. Hardly! To the degree that the law allows, these factors and other "common sense" issues should be made known.

From business cases to medical malpractice and everything in between, jurors want information that allows them to reconstruct “what happened,” even if liability is already stipulated. And in the absence of having evidence of “what happened,” which occurs frequently, at the very least your expert should have a strong opinion as to the most likely “what happened.”