What defense lawyers like plaintiff lawyers to do in opening.
Number 1: Ignore the defense.
We set the case up for disaster if we build it way up and ignore what the defense is going to do to it. This would be like a basketball coach only having the team practice offense.
Instead, the coach studies the next opponent. Maybe sends out a scout. Watches film. Devises strategies. Practices then implements them. Because sometimes, the best offense is a good defense.
Opening statement is similar. We don’t want to spend too much time being defensive. That will give too much credence to the other side. But we need to identify and deal with the bad things they will be throwing at the jury.
Number 2: Present the plaintiff as a perfect person.
Every once in awhile there will be a plaintiff who is almost saintly in their wonderful-ness. But by and large most plaintiffs are human beings like the rest of us. Jurors don’t expect our clients to be perfect. When we try to prove them so, we set them up for failure.
We are living in an age where The Kardashians are our favorite TV family. Charlie Sheen has become even more famous as he unrepentantly unravels in the most public way.
It’s okay for our clients to “be real.”
Defense attorneys have amassed an arsenal of information to be used somehow some way against the plaintiff. If we try to present the perfect plaintiff, the jury will be hoping the defense can topple them over.
Number 3: Overly focus on liability.
David Ball’s rule is to spend less time on liability than damages. In fact, he recommends spending as little time on liability as needed to get the job done. His point is that we are not going to trial to simply get a pronouncement of responsibility. The jury needs to assess money damages (there are no other kind in our judicial system) to make things right.
When we focus too much on liability, the jury forms the opinion that determining liability will be their main if not only important job.
Liability issues can also be quite complex. Complexity is a friend of the defense. The more complex, the more confusion. The more confusion the more hesitancy. The more hesitancy the more likely a defense verdict.
Number 4: Use overt persuasion
We have to build trust in order to gain credibility. Jurors assume we have been trained to manipulate and persuade them. They guard themselves against us. By gosh – they aren’t going to fall for those darned lawyer tricks.
I’ve seen a trend recently with certain insurance companies. Their lawyers are not very good. Some are quite awful. We may act smugly. We are obviously the much better skillful lawyer. But jurors may side with the defense lawyer simply because they seem so out-classed. That lawyer is seen as the honest one who doesn’t need to rely upon a silver tongue.
This doesn’t mean we can’t tell a story or be dramatic. There’s nothing wrong with being entertaining as we educate. But unless we present a humble, even handed, concrete, believable account, we lose credibility before we ever get it.
Number 5: Overreach
In general, it is a bad idea to blurt out what sum you will ask the jury for in opening. There may be exceptions. But my opinion is – don’t do it. Your relationship with the jury is just beginning. A strong bond has not yet been forged. The time just isn’t right.
Besides, how often have you put a price tag on a case before trial and ended up with a verdict for that exact amount. It’s happened to me just two times as a plaintiff lawyer.
This isn’t to say a damages number should just pop out of thin air as a pronouncement during closing. Talking about case value often begins in voir dire then winds its way through the case. it is a process. We won’t know how the case is going, until it goes. We won’t get a sense of the jury until we spend time with them. Determining the right amount to request involves a stew of factors. We need to let them simmer before serving.
So don't make the defense lawyers happy. Deal with the bad stuff. Present an imperfect real plaintiff. Spend time on both liability and damages. Build trust. And don't overreach.