The second essential of the opening statement story is that it should be about values and needs. It should be about the values we all share. Values the jurors care about. Those values include such things as family, personal safety and integrity.
All our trial stories are about the deprivation of human needs. Either setting things right because of a deprivation – someone was injured for example or preventing someone from being deprived – for example losing their liberty or being unjustly held liable. Simply put, it’s a story of good versus evil – a David against Goliath story. Typically, your client is David. Your client is the one the jury should root for.
Here is an example of opening during which the trial lawyer recounts the hero’s journey story. In Novell v. Microsoft, the plaintiff’s legal theory was that Microsoft committed anticompetitive acts to undercut Novell’s WordPerfect word processor software and thus gain an unfair advantage for Microsoft’s software. Novell’s lawyer said this in opening statement:
“Novell wanted nothing more than to compete on the merits of its products. Microsoft, however, had other plans. Microsoft, as you were told yesterday, has a monopoly in operating systems. The evidence will show that Microsoft was threatened by Novell’s applications and middleware products and took anticompetitive actions against those products in order to protect its operating systems monopoly. Instead of competing with Novell on the merits, Microsoft engaged in deception, a classic bait and switch where Microsoft offered Novell and other application developers some very exciting and important technology and then pulled the rug out from under them. Microsoft did this in order to tilt from [sic] the playing field in Microsoft’s direction.”
Third, for the story to be compelling, it must be credible. A story is credible if it comports with common experience of the jurors. For instance, jurors can understand the theft of intellectual property if it is a story of theft. The story must also be supported by credible evidence.
The fourth and final component of an opening statement is that it contains a theme. It can be challenging to find the perfect theme for your case. You will know the perfect theme when you find it. A good theme expresses the core idea of your case theory. That theme should be just a few words, ideally one sentence. That theme should be simple, clear and memorable. It should be familiar to the jurors. And it should not be susceptible to backfiring. For example, if you use a baseball theme, it is likely opposing counsel will find a way to say you struck out.
The following are themes that trial lawyers have found tried and true:
• Power and control—for example in a domestic violence case
• Accountability—many applications for this one, such as in a negligence case
• A uniform is only as good as the man or woman who wears it—police corruption
• Innocents don’t conspire—a conspiracy case in which a conspirator testifies
• Trust and betrayal of trust—child abuse
• Fair play—many applications for this one, for instance Novell v. Microsoft
• Having a scapegoat—classic defense theme
• Misplaced blame—product liability case
• Broken promises—for example in a breach of contract case
• Ignoring the consequences—again, product liability
• A deal is a deal—again, a contract case.
In sum, the content of a compelling opening statement is composed of a human story about human values and needs that is credible and all tied together with a theme.