Article ABA Automobile Law Committee Newsletter

The Opening Statement: Coming Soon to a Theatre Near You

“Mr. Jones, you may begin,” said the courtly trial judge, presiding over an automotive products liability case in Orleans Parish Civil District Court. With this, the jury of 12 New Orleans citizens looked at me, waiting to see what I had to say in response to the plaintiff’s opening statement. Plaintiff’s powerful opening statement depicted an elderly woman severely injured due to the negligence of an automobile dealership in failing to repair her brakes, despite the fact that she had taken it in for repairs on two occasions. One of the plaintiff’s best points was that the investigating police officer concluded that defective brakes, indeed, caused the accident.

Now though, the jury waited to see what the words "Mr. Jones, you may begin” would bring. Few of them had been on juries before and had no real idea of what an opening statement was supposed to be like. Some may have had an intuitive feeling that it was supposed to rebut the plaintiff’s lawyer’s statement. Eventually, I would stand before them for over an hour, delivering this speech and monologue that lawyers and judges call the opening statement, which the judge had instructed them “was not evidence” but was what the lawyers expected the evidence to be.

Though not familiar with opening statements, these jurors’ everyday lives fully acquainted them with stories of all kinds, soap operas, comedies, movies, and dramas. Despite being new to an opening statement, they were fully familiar with other types of speeches, most especially sermons and political speeches.

To begin with, every movie they had ever seen had a title, which to a greater or lesser degree signaled to them something about its content, whether “Waiting To Exhale,” “Jurassic Park,” “The Exorcist,” “Lord of the Rings,” and so on. Every soap opera that they had ever seen had a title: “The Young and the Restless,” “Days of our Lives,” “As the World Turns.” And, in black churches in particular, every sermon they had heard had a title. Such sermon titles often were memorable and creative, such as those of the Reverend Leo Daniels, “What in Hell Do You Want;” the Reverend Samuel Wright of Monroe, Louisiana, “Pass the Peas;” and the Reverend Hersy Jones, Jr. of Shreveport, Louisiana, “The Next Family Reunion.”

Like the rest of us, since childhood, they knew about, could identify with, and are moved by stories. As those 12 jurors waited to hear from me, I saw them not so much as one trained in trial advocacy, but as one who has been trained, since the age of about 6 years old, in the art of getting “Amens,” and shouts of “Speak Son, Speak” from southern church audiences. The concept is the same, with nods and knowing looks substituting for the “Amens.”

Since those days I have known that Job One is getting and keeping the audience’s attention. A jury is nothing more than an audience, assembled to vote on a case, guided by a jumble of complex rules that, when they consider the instructions in their essence, boils down to this: You, the jury, decide what’s important. You, the jury, decide whom to believe or not to believe. These instructions are no different than what people do everyday; making up their own minds, bringing to bear their own set of values and preconceived ideas to form opinions, from whether “OJ Did It,” to whether President Clinton should have been impeached for his testimony in the Paula Jones case deposition. The only difference between jurors and any 12 citizens sitting around a table is the requirement that they reach a decision, if they can, and those with the most preconceived ideas or bias are eliminated through voir dire. When you boil it down, at bottom though, they are another audience. And that is how I approached them.

My audience was waiting. To ensure that they would be interested in listening to me for an hour, I had to get their attention, which is where the title of my opening statement came in. But before I could stand before them and deliver the title, I had to physically move from the counsel’s table to the well of the court, in front of the jury rail. I did this purposefully and with deliberateness, much like James Earl Jones moves from downstage to upstage to deliver his lines. Then, in the manner that has become my custom, and with a volume that draws its own attention, I began: “May it please the Court, Counsel, Ladies and Gentlemen of the jury - this is a case about  The Fulfillment of a Medical Prophecy.”

I explained that many, many years ago, one of plaintiff’s doctors told her that her medical condition, a degenerative arthritic condition in her knees and elsewhere, would worsen as time went on. And this “Medical Prophecy” came true to such an extent that her arthritis caused the accident that brought us to court and caused plaintiff’s current catastrophic medical condition. For over an hour, using large poster boards, I traced the story from this prophecy forward, using a chronology that charted every increase in plaintiff’s pain medication, every new pain medication, every new surgery, every deterioration depicted on an x-ray, every new complaint, stopping from time to time to point out to the jury that indeed the “Medical Prophecy” was coming true.

The Origins of the Title

Deciding on the title of the opening statement was every bit as important as deciding on the title of a movie, or book.  Some titles, very nearly tell the whole story, such as “Predator,” or “The Devil’s Advocate.” That is what I always look for. This title, "The Fulfillment of a Medical Prophecy,” came from a notation in the plaintiff’s medical records. Like every case, this one was not a prepackaged story, but a collection of documents--voluminous medical records, repair records, brake design drawings, customer complaints, service records, the police report and assorted other decidedly uninteresting documents, the review of which is tedious, much like mining for gold. But within each category of documents was a story of one kind or another, of either a good or not so good design, of few or many customer complaints, a good or bad service record, of pre-existing medical conditions. The story I settled upon, because it seemed the truest and most emotionally satisfying, was the statement from a doctor made many years earlier that plaintiff’s degenerative arthritic condition would “worsen as time goes by.” As a trial  theme, this would both explain the accident (driver error as opposed to a brake failure--notwithstanding the police report), and explain the severity of plaintiff’s current condition.

Settling on the medical record as the starting point for the story was an important first step. The next step was the title of the story. If this case had been a movie or a sermon, it surely would have been entitled something like “The Fulfillment of a Medical Prophecy,” rather than a snoozer like, “Pre-existing Medical Condition” or “Driver Error.” None of those evoke images of a compelling story, of the kind that the jury might have seen on television or at the movies, or might have heard from the pulpit on Sunday morning. Other potential titles that might have focused on plaintiff’s driving record and other accidents ran the risk of violating the judge’s pretrial rulings, and if not that, insulting the jury by seemingly conducting an aggressive attack on a very sympathetic senior citizen.  The Medical Prophecy title was very safe, as the medical records were definitely coming into evidence, there was no issue of the impartiality of the doctor, and the story we were able to create with the chronology indeed made it seem prophetic. After the opening statement, with its memorable title, the next step was to keep this story in the jury’s mind from time to time, and in closing argument, tell a consistent story, but with different perspective.

Keeping the Opening Theme Alive Throughout the Trial

The large boards, which evidenced the Medical Prophecy, were a handy tool to have as a constant reminder to the jury. In cross-examining plaintiff’s principal medical expert, a neurosurgeon, I began with the statement from the doctor that plaintiff’s condition would  worsen, and then walked him through the increases in medication and complaints, etc. This line of questioning was so detailed and painstaking that he agreed with me that the Medical Prophecy was coming true. Further, after initially claiming ignorance as to what a Medical Prophecy was, the doctor ultimately agreed that, “Yes, you could call that statement a Medical Prophecy” and “Yes, it certainly seemed to be coming true.”

Of course I only confirmed the prophecy on direct examination of our medical expert.

Closing Argument--A Story Consistent With the Opening, But From a Different Perspective

An effective opening statement is one that the opposition attacks in their closing argument, which happened here. Accordingly, the closing argument should be a different, but consistent story. It should shore up the opening but with a somewhat different storyline. Here, I gave an impassioned defense of the poor brake mechanic who was being blamed for negligent repairs, complete with quotes from Shakespeare, and the book of Proverbs.  All the while reminding the jury of the effects on him and his family. I reminded the jury that what made this case so tragic was, in fact, the truth was that the case was not about negligence, but the Medical Prophecy. It was then that I collected all of the supporting cross-examination points from plaintiff’s experts, including the concession that the Medical Prophecy indeed was coming true.

Summary: Keys to an Effective Opening Statement

As with any story, whether a movie, sermon, or opening statement, the keys are: the title, the viewpoint from which the story is told (i.e., who is the main character), and how the story is told. It must be told with deliberateness of purpose, as if it in fact was a story, rather than a sales pitch, or an argument. Of all the strategic decisions in a case, none is more important than deciding upon the viewpoint. And of all the times that a lawyer opens his or her mouth in court, none is more important than the opening statement.  

Michael Jones has a national trial practice that has ranged from New York to Hawaii. He has tried cases in Baltimore, Maryland; New Orleans, Louisiana; Bisbee, Arizona; Queens, New  York; Muskogee, Oklahoma;  Blackburne  County, Indiana; and Washington, DC. He has conducted arbitrations in Orlando, Florida, and Washington, DC, and has won numerous cases on dispositive motions  in  a  variety  of  jurisdictions, including  Mississippi, Maryland, Virginia, Indiana, and Washington, DC. Mr. Jones has been featured in The National Law Journal's Defense Verdicts of the Year, The American  Lawyer's Big Suits section and  Lawyers Weekly USA for his successful defense of NL Industries in the first lead paint case to go to trial. His winning record with dispositive motions has been noted by Corporate Counsel magazine, and his experience in defending against punitive damages has been noted by The National Law Journal.  Mr. Jones was selected as one of the top 10 trial attorneys in the nation by The National Law Journal in their feature, “Winning: Successful Strategies From 10 of the Nation’s Leading Litigators.” He was also chosen as one of the 75 Best  Lawyers in  Washington  by  Washingtonian magazine. Additionally, in 2003 Mr. Jones was recognized as one of America’s Top Black Litigators by Black Enterprise.

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