Silence, during opening statements, is not golden, according to a Seattle criminal defense attorney.
Jeffery Robinson of Schroeter Gold-mark & Bender in Seattle has handled more than 200 trials during his time in practice. Robinson drew on his own experience, as well as what he has learned from watching other trial attorneys, when he told defense attorneys that the worst thing they could do is waive or even reserve the right to say something during opening statements.
"Friends dont let friends waive opening statements – not in jury trials, not in judge trials, not ever," Robinson said.
Failing to say something about a clients case during opening statements will only give the prosecution more time to convince a jury of the defendants guilt, he explained. Nothing is gained by waiting and a great deal can be lost if the first time the defense speaks in court is during cross-examination of the prosecutions first witness.
"At the end of the governments opening statement, the district attorney or assistant U.S. attorney has just finished telling the jury that your client is a lying, thieving, murdering, raping pig who deserves to go straight to hell or prison – which ever one is closest – and that the jury will enjoy sending him as soon as they hear the evidence," Robinson said.
At that point, the defense attorney needs to step forward and say something that will let the jury know there is another side to the story, he explained. Defense attorneys must overcome concerns about giving away their secrets or their strategies by saying something during opening statements.
"We cannot afford to wait," Robinson said. "The train of opinion is leaving the station as soon as the government finishes its opening statement. It is time to get up and tell our story, the real story, the story that the government doesnt want the jury to hear."
Making an effective opening statement will lay the groundwork for the rest of the trial to be a true contest. Failing to do that gives the prosecution an edge.
"Once we start to deliver on what we promised in opening statements, weve got ourselves a horse race," Robinson explained. "Now, we have ourselves a trial."
Robinson addressed a group of defense attorneys Thursday during the State Public Defender Annual Criminal Defense Conference in Milwaukee. His presentation entitled, "Openings: Using Storytelling to Define Trials on Your Terms," focused on presenting the elements of an opening statement that can help effectively capture the jurys attention.
"Even in the most difficult of cases where you dont want to give away any fact or theory, you can give an opening statement that at least tells the jury, Hold off a minute. Ive got something to say and its going to be interesting and compelling."
When referring to the elements of good storytelling, Robinson noted that he did not mean an attorney should tell a "Peter and the Wolf" kind of tale. Rather, it meant utilizing the tools of plot, descriptive phrasing, and effective word choice to "relate the human condition in a compelling way."
Robinson related the importance of establishing a solid structure for the opening statement, which included an overture, the story itself and a conclusion.
The overture or introduction could be as short as one sentence or last a couple of minutes. He emphasized the importance of avoiding pat phrases such as: "What I say is not evidence." and, May it please the court."
"The first words out of your mouth when you stand up should be directed to the theme and theory of your case," Robinson said.
That statement should be a distillation of the case, providing the essence of the defense. Perhaps, its laying the foundation for an alibi or preparing the jury for the potential impeachment of a prosecution witness.
Rather than simply telling the jury what happened from a distant, third-person perspective, Robinson urged listeners to draw the jury in with a first-person account of key moment. He provided the example of an attorney relating a phone call establishing an alibi, told from the perspective of the person who received it. The actual recipient, of cou
rse, would be a defense witness later in the case.
The main portion of the opening statement should contain the story that the defense attorney is presenting in all of its fullness. Like all good stories, he said, it should have a solid plot and contain a theme that runs throughout. Base that story on key events in the case, utilizing the most important event first.
"If there is an event in the case, we can describe that event. In the description of that event, we can introduce characters, we can describe scenes or settings, we can begin to tell the important parts of our story."
Most importantly, the story needs to explain why the client should not be found guilty. Remember, he said, that the defense theory must be consistent with the facts of the case.
"The greatest tragedy of criminal defense is the slaying of a beautiful defense by an ugly fact," Robinson said.
An essential tool in the construction of any story is effective word choice. Attorneys need to make deliberate and premeditated choices about the words that they use. Those word choices are powerful tools, he said.
As one example, Robinson pointed to the original draft of President Franklin D. Roosevelts famous speech following the bombing of Pearl Harbor: "Dec. 7, 1941 – a date which will live in world history." The final draft evoked a much more visceral response. "Dec. 7, 1941 – a date which will live in infamy."
Robinson also noted the importance of changing the meaning of a phrase simply by changing the way that you say it. A wide variety of things can be conveyed through the same statement by modifying the inflection and tone.
He further explained the importance of controlled movement – movement with a purpose. Random nervous movement will detract from what every the attorney is trying to present, but intentional movement displayed in a natural fashion can strengthen a point. He gave the example of standing behind a client and touching him on the shoulder while talking about him.
"If you are going to move in the courtroom, make it mean something," he said.
Every story needs a conclusion. An opening statement has a very natural final point, which attorneys need to make.
"Conclude by telling the jury what you want," Robinson said. "Tell them why a not-guilty verdict is the right thing."
Once a defense attorney has overcome any initial concerns and decided to make an opening statement, that address to the jury should end by telling the panel the outcome being sought and why the defendant is entitled to that verdict.
Failing to make an opening statement gives the prosecution a head start and leaves the defense attorney with too much ground to make up.
Tony Anderson can be reached by email.