At trial you want to take hold of your jurors’ attention and keep it. You want jurors to feel what you want them to feel - empowered to right a wrong - inspired to reach a just verdict a case like yours requires. To do that your trial must be based on facts (See JHPII Talks re “Facts”). Not conclusions. To help jurors relive those facts, you must retell those facts using the 5 senses - what you can see, hear, smell, taste and touch, stripping away all the oft-times intertwined opinions, interpretations, and judgments. Retelling your facts based on the 5 senses enables jurors to relive the facts of your case as if they were there. It is the most powerful tool you have as a trial lawyer to help jurors experience first-hand the facts of your case, and inspire them to act.

Trying your case is like recreating scenes that show, rather than tell, your story. Think of your trial as a series of sequential story boards. Pictures on those boards created with words and witnesses and voicemails and emails and papers and ledgers and medical appliances and policies and procedures and demonstratives discovered to recreate your client’s story and get your jurors excited about helping you right a wrong. 

Good trial lawyers sound like people. Not like lawyers. At trial you want to be calm, relaxed and in complete control. To be calm, relaxed and in complete control you must be confident in what you are about to do. To be confident in what you are about to do, you must practice. While all hell may break loose at trial, have at least 80% down cold before your trial begins. Practice what you’re going to say and how you’re going to say it. Since you’ll use words to try your case, today’s talk is about a couple of word basics. After choosing your words and putting in the work, trying your case will feel as natural to you as walking down a path. A path that, for now at least, you’ve chosen.  

Facts are much more than “the placenta tore away from the uterine wall,” or “this ambulance company overcharged the government by over $8,000,000,” or “the light was red.” Systemic and systems-based issues – why this happened – and the pain that what happened here caused - are oft-times more subtle.

General to specific. For instance, you may want to begin your opening something like this. “I’d like to take you back to January 3, 2018. Wednesday. 3 that afternoon. Here in New York. E Harlem. Metropolitan Hospital Center. Labor and delivery Dept. A patient . . .” General to Specific. Or this, “Today I’m going to tell you the story of a 13-year-old girl . . .” “. . . Do you know who she is?” General to specific.

Setting out on a journey without knowing where you’re going creates fear, uncertainty, and increased risk. As a trial lawyer when you take a case, you must begin with your end in mind. You must decide at the outset what you want to see happen - how you want your case to end. To begin with your end in mind. Once you do that, the path you’ll take to get there will come into focus. Your steps along that path will be well defined. You’ll be calm, relaxed and in complete control of yourself and your case.

You’re standing in the middle of the courtroom. It’s hot. You feel the perspiration start to bead a little on your temples. Your collar is starting to feel a bit damp too. You just spent the last 3 days picking a jury. You had to fight through countless objections and a judge that firmly believes jury selection should never take more than 3 hours no matter what the case. As deferential as you know you must be, you know too there is far too much at stake here for that.

As a trial lawyer you’re first, the storyteller. You tell your story in your initial complaint, in every deposition you take, in every pleading you file. You tell your story at trial, in your opening, with every cross, and when closing. You tell your story every time you file a motion or response. Whatever you file is about whatever you want it to be about – your story. It matters little what your opposition wants to waste time about, oft times to distract jurors and the court form the real story. Spend your time on your story. What your story is really about.

Ever heard the phrase, “a $1,000 saddle on a $10 horse?” While a $1,000 saddle on a $10 horse may look good (at least the saddle will), it’s not likely to win a horserace. If I want to win a horserace, I’d rather have a $10 saddle on a $1,000 horse. Wouldn’t you?

Following the rules broken by the Defendants, is the story portion of your opening. I begin my stories with something akin to, “Now let me tell you the story of what happened in this case. “Please come back with me if you will to . . .” Then I tell the story of what happened in our case. I tell the story as if I’m there. In the present tense. Describing what you can see and hear. What you can touch. What people are saying and doing, thinking and feeling. What the Defendant’s do and do not do.