THE APPROACH—THE CRITICAL CHALLENGE. If we walk into a I car lot and before we’ve taken two steps from our car door we’re met by a waiting salesperson whose approach is akin to the hungry piranha, we know exactly how we do not wish to approach this jury, this board, this boss. We have something to sell, all right, because every successful presentation grows out of the skill of selling, but it isn’t a used car. It’s justice, it’s the right thing. The war—and it still is a war—is with the other side that wants to sell its cause, its ideas, which are, as we see it, unjust and wrong.
Let’s suppose that we have a prospect, a juror, a customer, a board member who, somehow, has maintained a blank mind, one without overriding prejudices. How would we approach that person to make the sale? In the simple paradigm of the salesman, we would tell the prospect what a fine product we represent, why it is better than all the other products on the market, and why the customer will be happy if he buys our product. This said, the salesman will present the product itself—the proof—with a demonstration. In the same way in a jury trial, after the voir dire, the next step will be the opening statement that sets out our case, that is intended to demonstrate that the case we are about to show the jury will fulfill the jurors’ expectation of justice.
But there is competition—always another side, another viewpoint. Our competitors say they have a different but better product. Both sides will attempt to show that the claims of their competitors are overstated, or not complete, or defective in some way, or that although the competitor may have a good product, it is not as sterling as our own. If we are proposing a change in an administrative process, our competitor may be stodgy precedent, the eternal retort, “This is the way we’ve always done it.” The competitor may be the silent fear of the decision maker to take the risk of change. The competitor may be money, the reluctance of business to spend it, even for the safety of its workers or the health of its customers. Evidence will be presented. But the time arrives when the sale must be made or lost. This is the final pitch—the final argument, we call it in the courtroom. Considering these typical elements in any sale, be it of a product, an idea, or justice, which of these all-important steps is the most critical?
I say it is the opening statement. If we have no product to sell in the first place, obviously no sale can be made. If we have nothing to offer we should stay home and paint the backyard fence. If the decision maker has no reason to embrace what we want to sell, nothing will happen except a wasteful expenditure of our time and theirs. But once the idea is implanted that what we are selling is worthwhile, the customer (let us always include the juror as customer) will be automatically moved to the next step, which is our proof that what we have said is true. We say we have this new, wonderful product?”Prove it to me,” they will say, either aloud or to themselves. We have this concept of what is profoundly just—show me the facts that support it, the jurors say.
I have often said that if I am given the opportunity to engage in an effective voir dire, that is, if I can open up the jurors to the issues in my case and create a trusting relationship with them, and if thereafter I can make an effective opening statement, the case is mostly won. First impressions of a case are hard to overcome. If our opening story is sound and honest and reveals the injustice for which we seek retribution, the picture it creates in the minds of the decision maker will be hard to erase. Indeed, research reveals that something like eighty-five percent of jurors make up their minds in the case by the end of the opening statement.
The danger of deceit, the power of honesty. But for the salesman who wants us to believe that his product is the best, it is imperative that he has told us the full truth about it. If it does not meet our expectation as he set it in our minds during the opening pitch, the sale will surely be doomed. Trust is the foundation of every sale. Once betrayed all will be lost.
I am talking about credibility again. It is the most important word in this book. Credibility. At last, credibility is all the lawyer or the salesman or any of us has to sell. Without credibility we become isolated from the human community. Consider two lovers who have vowed their love for each other. One fully believed the declaration while the other was less than sincere. When the cheat is later exposed, the deceived will come down on him (or her) with a horrible vengeance born of hurt. Nothing is more painful and more detested than the cheating heart. So too in the courtroom, the boardroom, or any other room: When we’ve gained the trust of the customer, the juror, yes, our partner in love or business, and thereafter betray that trust, no matter how we try, the stain of deceit can never be fully bleached.
The opening statement must always be a true statement. If we make an opening statement and the jury accepts us, and the jurors decide that this is the person we want to follow through this forest called a trial, and then along the trail the jurors find out that we have been untrustworthy, the case will be lost at that moment.
I’ve seen it many times in the courtroom—the overly ambitious opening statement, the assurance of counsel that his proof will establish a certain truth. We often endure wall-to-wall ballyhoo, the lawyer hoping that somehow the jury will go on to believe him, despite the fact that in his opening statement he misled the jury. But the lawyer’s case will be lost when the first credible witness takes the stand and contradicts him. In the courtroom the contest is often simply over the credibility of the lawyers. Has either lawyer lied to us or misled us? Who has been fully open and candid with us? I am careful to the extreme not to say anything in my opening that I cannot prove. I have my opponent’s opening taken by the court reporter and I refer to it repeatedly during the rest of the trial, reminding the witnesses (sometimes obliquely) what my opponent said in his opening when I know the witness will take issue with it.
If there is a set of facts that is hurtful or embarrassing to my case I hasten to present it in my opening. I want the jury to know the facts against me. I want to expose what lurks beneath in order that the jurors will trust what lies on top. I never want the underside of my case revealed by my opponent. When that happens the jury’s trust vanishes like dew on a hot griddle.
From the standpoint of a sale, nothing is more trust building than a salesman who will tell us about the weaknesses of his product. The other day I was considering the purchase of a new car. I ended up buying one that cost less money and in which the salesman’s commission would be less, simply because he was honest enough to tell me that the more expensive car I was about to buy would give me repair problems—parts were slow to come from the foreign manufacturer. His honesty in putting my interests ahead of his own created a credibility that will serve him well in the future with both my business and the business of my family and friends. So it is in the courtroom and everywhere else.
What about facts that are in dispute? Let’s tell the jury that the facts are in dispute. Let’s tell them our position and our opponent’s and then explain why our position is better. What if there are hurtful facts that cannot be explained away? Let’s tell them that. There may be regrets that need be expressed, apologies made and shared with the jurors. But the overriding justice of the case still rests with our side.
I remember the case of an oil field worker who was killed as a result of a negligently installed blow-out preventer at the well head. The pressure of the well erupted and blew the man into parts. His wife sued the company that installed the preventer for the loss of her husband, his financial support, her loss of his “care, comfort, and society,” as the law refers to the relationship of spouses. But the facts were that they’d been separated at the time of his death and he was not providing support. I told the jury the truth. “You need to know those facts in order to make a just decision in this case. But one cannot make amends in a marriage with a husband blown into bloody bits. Reconciliation? Did they ever try? No. But when the drilling company killed Jim Smith with their negligence it stole from both Jim and his wife, Ann, the chance to make a go of it. They had the right to sew up the wounds of their marriage. The drilling company had no right to deprive Ann of that right. It was a right that did not belong to the company. And Jim Smith had a legal obligation to support her. You cannot enforce legal obligations against a dead man with no estate.”
Later in the final argument I was able to make my case. “But there was a letter, one small note she had written that after his death was found in his billfold, smudged and worn. It was her handwritten note with those few simple words, ‘I need so terribly to love you.’ We struggle in our relationships. Romance is just that—romance. It exists mostly in the thin, swift mist of our memories and dissolves into the sweat of reality. But we reach out for love. We are proud, and we don’t know how to ask for it. We are afraid, and we don’t know how to trust. But it is our right, it is a part of the human condition to seek love and often forgiveness, to forget our pain and to go on—to make our lives. The drilling company deprived a man of his life and a woman of the right to fly back to strong arms that were aching to embrace her.”
The jury found for the widow, and justly so. The award for her was diminished but not denied. The case seemed important to me because all of us thrashing about in this hostile, dangerous world are so poorly equipped to deal with the painful challenges of relationships.
That a negligent drilling company should be able to take advantage of our inborn disability seemed to me to be wrong. The jury agreed. The result would have been otherwise, had I attempted to fiddle with the facts, to deny them, or to present them in any way other than as they were.
Telling the story. Already, as in previous chapters, we have discovered our story and set the theme. Now we will tell this story in the opening statement. I like to think of the story in its simplest form. As children we heard the stories begin, “Once upon a time there was a little girl with beautiful golden hair whose name was Goldilocks. She went for a walk in the forest and before long she came to a house. She decided to see who lived there and knocked on the door. When no one answered, she walked in.”
In all stories, in every novel we’ve read and every movie we’ve seen, the story begins by creating the characters and setting the scene. In every case there are principal characters—our client, his family—and the bad guys, the greedy, negligent corporation on the other side. Good stories have heroes and villains. Indeed, our lives are lived so that from time to time we, too, occupy the role of either hero or villain, depending upon who is telling our story.
In the case of Jim and Ann Smith, the story began with a young couple who had fallen in love, that kind of ecstatic love that leaves us giddy-headed and fluttering in the heart. We learned who Jim was, the strong, tough, physical kind who could never back down, because to survive as a boy without a father, and one of five poor kids born in a tough part of Chicago, he had to be strong to survive. He knew no other way. But if we were able to take out his heart and examine it under a magical microscope that could reveal the capacity of a heart to love, we would find that his heart was soft and spongy, that it could soak up huge quantities of love, and that he was vulnerable there, which made it all the more necessary for him to protect it with his hard outer armor. We would go on to describe how he was honest and hardworking and protective, and how he struggled to better himself by labor and loyalty to the company he worked for.
We previously discovered the story of Jim Smith by having acted out his role as a man at work, one who played hard, as well as who fell hard, like a stricken soldier, when he met this wife-to-be, Ann. By the time we get to court we know his viewpoints, understand his weaknesses, and know where his “tenders” lie. We have consulted with Ann in the workup of the opening. She has played both her role and his in our office where we have unraveled the story of their love and their trouble through the methods described in the chapters on discovering the story. By the time we walk into the courtroom we have become both Jim and Ann Smith. We have also become the foreman of the drilling company who was trying to make a three-thirty flight to Vegas on the day he was installing the blow-out preventer. We have taken on the role of the president and owner of the drilling company, who is now faced with liability for the death of Jim Smith, and who is both angry at the suit and afraid.
After we have set the beginning scene in our opening statement—the first meeting of Jim and Ann—we will go on to the other chapters in this book called the life of Jim and Ann Smith, the other scenes, the time of their marriage, the thrill of their honeymoon and their first years together. We will see the scenes where they had problems and how they dealt with them—not always appropriately. Finally there will come a time when we tell the jury, flatly, about how they separated.
Often we use the first person in telling the story. A certain power rises up out of a first-person narrative that cannot be duplicated in third-person storytelling. And it is easy to move in and out of the first person. It can happen like this:
“That day they were having breakfast. Jim was feeling hung over. They had a quarrel the night before and he’d stormed out of the house and escaped to the bar where he’d taken on a load. Yet he was up the next morning having his breakfast and headed out for work.” Suddenly we can launch into the first person. “If Jim were here we would hear him say: ‘I didn’t know what to say to her. I felt bad. My head was pounding and my stomach was hollerin’. Then she said, “I suppose you think we can go on like this.” I didn’t know what to say. I knew we couldn’t. But what was I supposed to do? Get down on my hands and knees and beg, or what? Then she said, “Well, aren’t you going to talk to me?” and I still didn’t know what to say. I didn’t say anything. She said, “I don’t think I want to live with a man who won’t talk to me.” I got up and walked out, and I burned about it all day. Hurt me, what she said. And that night when I came home I still didn’t know what to say. She just stared at me with her hands on her hips, and so I packed up my stuff and moved out. We never got back together.’”
Although we obviously can’t offer proof of all this soliloquy, and we may hear objections, nevertheless what is said is a fair inference from the evidence that will be presented, because Ann can testify, and, through our lips in our opening statement she can tell it in the first person as well.
We can move into the first person in our opening statement simply by saying: “My name is Ann Smith.” She might go on to say, we speaking for her, “I loved that man. He was so tough and so tender, and I shouldn’t have spoken to him as I did. Yeah, we had a fight and he went out and got drunk. I knew him. When he got up the next morning to go to work he was feeling bad. You could tell it. His eyes were blurry and he looked pale and he was messing with his eggs and not eating. He wouldn’t speak to me. He was that way when he was off base. I mean, he should have stayed home and we should have worked it out. But he didn’t know how and I didn’t either. Although he was sorry, he never knew how to say it. So I tried to pick things up and I said, ‘I suppose you think we can go on like this?’ And he didn’t answer. When he didn’t know what to say he usually said nothing. Then I pushed it. I said, ‘Well, aren’t you going to talk to me?’ and he just looked down in his plate like he was embarrassed and kept stirring his eggs. Not only had we had this fight, but after that he went to the bar and got drunk. So I pushed it further. I said, ‘I don’t think I want to live with a man who won’t talk to me.’ I shouldn’t have said that. It hurt him, I know, and then he got up and walked out, and that was the last I ever saw of him alive. We never got back together. And it broke my heart, because I didn’t know how to say I was sorry any better than he. Then I wrote him that letter that said that I loved him. And then they killed him.”
It’s immediately apparent that the first person is more effective in showing what was going on between this couple than if the lawyer had said something like, “Well, the next morning Jim and Ann didn’t talk about what happened the night before. Jim walked out and he never came back.”
Again, I insist lawyers must become good storytellers. We should tell stories to our kids every night, and to our wives and friends when we have a chance. If we ask anyone, “Would you like to hear a story?” the answer is almost always yes. We crave good stories—even bad ones—because our genes crave stories. Usually the good storyteller can tell the story better than the witness can on the stand, which is not to say that we are not telling the truth.
Most often I tell the story in exquisite detail, such as my first-person narrative of the Smiths. When Ann takes the stand, despite our preparation of her, she will be nervous. She will undoubtedly hear objections by the opposing counsel and the rulings of the court, and her story will be disrupted and fragmented, and after that twisted and torn when she undergoes cross-examination, all of which argues for the presentation of a thorough and detailed opening statement to support the story she will attempt to give on the witness stand—but only if we can present our story in an interesting, yes, a compelling way. Nothing deadens the bones more than listening to a long, mumbled, boring tale.
Our fear of objections, our intimidation by judges. Lawyers have an indigenous fear of objections like birds fear snakes. Objections will be hurled at this kind of storytelling. But I argue, and I hope I am heard again: If we risk nothing, we gain nothing. Objections do not hurt us. I have never seen an objection kill anyone. I have never seen a judge’s ruling delivered in a shrieking “sustained” do anything more than pierce the eardrums. Judges often holler because they feel so powerless. Judges may snarl like junkyard dogs because they are tied to the bench and cannot physically thrash the lawyer who is boring them to death. Judges may be nasty because they suffer a congenital temperament defect. Judges may be bullies because as little boys their fathers shamed them and called them sissies. Whatever the cause, the foul, nasty, intemperate, uncivilized judge is how he is because of his defects, not ours. We must remember that.
And why are we afraid of objections? The judge is like some bullying father against whom we have no power. We quake inside when the berating begins. And we’re afraid of looking bad in front of the jury. The browbeating judge can humiliate us. But if we do not react to him things usually will change in the courtroom.
“Your Honor, I object to Mr. Spence’s theatrics.” He is referring to my telling the story in the first person.
“Yes, Mr. Spence,” the judge bellows. “You know better than that!” The clear implication is that I have now crossed a well-known line and trespassed into some forbidden place—that a damnable foul has been committed.
A smile for his honor. Not a smirk. A kindly smile, and in a quiet voice, “I didn’t know until you told me. Thank you, Your Honor.” But within minutes we will be back in the first person again.
The judge interrupts: “What did I tell you, Mr. Spence?”
“Yes, Your Honor?”
“You are doing that again.”
“What is that, Your Honor?”
“You know what you are doing.”
“Yes, of course, Your Honor, I am telling the jury what our evidence will be from the standpoint of the principal witness in our case.”
“Well, tell it then.”
“Thank you, sir.” And in a few minutes we again launch into the first person, which is not improper in the slightest. The impropriety is being foisted on us by the judge. But a polite, gentle, smiling response is so disarming. It is difficult for a judge to be too violent with a peaceful person in front of him. If we show no anger in return, none, the way is often easily cleared. In fact, a little good humor, nothing smart, will often work wonders. The lawyer who fights with the court is going to lose in this power struggle. Nothing is more intimidating to a judge than a lawyer who contests the judge’s power, and the judge will come down with all of his power to keep it.
The fear (loss of power), the pain (the pain of fear), and the anger (anger that replaces pain), a progression that is so prevalent in all of us, is also at work in judges. We do not wish to frighten our judge, nor put him in pain, nor call forth his anger in response to his pain.
Of course, some judges are not so easily frightened, and therefore are not likely to be so easily converted into tyrants. I have seen many a good judge simply overrule the objections of the opponent, which leaves him caught in a malignant paradox. By not objecting, our opponent permits us to tell our story in the most effective way. By objecting, he may well incur an unfavorable ruling by the court, which only adds power to the story we’re telling.
When the opposing lawyer has joined in the melee against us and piles on with more objections, the resulting match-up—the opposing lawyer and the judge against us—does not display a fair fight. Imagine the referee during a boxing match smacking one of the fighters in the back of the head when the fighter is fully engaged with the other combatant. Jurors possess a critical, instinctive awareness when a fight is not fair, and will readily react against what appears to be a judge-opponent conspiracy.
Moreover, jurors have an insatiable desire to hear a well-told story. So, probably, does the judge. The story will get out. And when all fails, nothing has failed. The judge has shown himself to be unreasonable. He has not laid us bare. He has run naked before the jury, showing what no one wanted to see—his most ugly parts. We should not be afraid of objections. Our overriding fear should be that we are not doing our job as fully and fearlessly as we should.
As we know, the opening statement has for its avowed purpose outlining what our proof will be—to inform the jury what our case is about, to create a road map, as many lawyers like to say, so that as the evidence is submitted, as the witnesses take the stand, the jury can understand where each piece of evidence fits. I know no rule of law that says the opening statement must be brief, although it should fairly state what the intended proof will be. In one of my cases my opening took five hours. If the story is complicated, there is no better place to explain it and to make it understandable than in the opening statement. We have to understand that when judges want us to be brief, their demand is more for the benefit of their calendars and the comfort of their beleaguered rear ends than for justice, because justice cannot be rendered to either side if the jury does not have an in-depth understanding of the facts of the case. When a judge limits an opening statement he is saying that his time is more valuable than justice.
On the other hand, a shorter opening is sometimes more effective, depending on the facts and issues that require understanding. Imaging, my wife, tells me that I am at my best when I’m forced to make a shorter opening. There is a power in the short, but well-conceived opening. Remember Lincoln’s Gettysburg Address took less than two minutes and became immortal, while the words of those who spoke from the same podium for hours were soon forgotten. When a long, detailed opening is given, the risk is that we’ll make representations that we’ll fail to prove during the trial, so that during final argument our opponent will take our overstatements and shove them up into dark and painful places. Still, in balance, I favor the longer, detailed story. The jury is still relatively fresh. They are eager to hear our side of the case, and we must remember that the opening is our first opportunity to establish the justice of our case in the minds of the jury. It is the most important single address we will make in the case.
The opening in the criminal case. How well I remember the advice we used to glean from the old heads as we struggled to find some way to win a criminal case. The state was so powerful. The rights of the accused seemed substantially nonexistent. The prevailing wisdom then was that the defense should reserve its opening until after the state rested its case—the theory being that, since the defendant didn’t know what the evidence against him would be and how it would play out to the jury, the defense should wait until the state’s case was in, analyze it, and then prepare a response that would fit the situation.
This approach, like so many strategies that trial lawyers hold dear to their breasts and smother with the reverence (and ignorance) of habit, is almost always wrong, and for several powerful reasons.
There may be other strategic reasons why the opening should be made at the outset in the criminal case, but here are five very good ones:
Reason 1. Sending the wrong messages to the jury. The judge now turns to the defense lawyer after the state has completed its powerful opening that has left the jury gasping at the heinous crime our client has been accused of.
“You may make your opening statement, Mr. Spence,” the judge says to us.
We rise, the heat of the prosecution’s vile story still steaming in the courtroom, the jury stealing hateful glances at our client with a loathing that only the executioner’s needle can cure. The prosecutor has told us how the hapless victim, Too Big Smith, was stabbed forty-three times, his throat cut, and his heart punctured three times, not to mention that he was stabbed in the right eye and that his left ear was cut off and shoved into his dying lips. We now rise up with all our towering magnificence and mumble, “The defense reserves its opening statement.”
What message have we conveyed to the jury? (And, of course, everything we do or say is a message to the jury.) First, the message is that we have no ready, honest answer to the charges, to the whole truckload of horrors the state has just dumped on the jury. Second, the message is that we are games-men. We are going to play a sort of waiting game that keeps the jury in the dark as to what our defense will be. This is not the way supposedly trustworthy lawyers gain the trust of the jury.
Reason 2. Leaving the jury with a one-sided story. But the worst of it is that as the state lays out its case, witness by witness, exhibit by exhibit, the jury has no theory of the defense by which to test the evidence as it comes in.
A simple example: The state’s star witness says, “I saw Billy Ray (our client) about eleven-thirty that evening (the night of the murder) and he left the bar just ahead of me.” The state is establishing the fact that Billy Ray was up and about and near the vicinity of the killing on the night in question. The circumstantial evidence is piling in. But our defense is that Billy Ray got in his car and drove home that night. His family will vouch for the fact that he arrived home a few minutes later and remained home the rest of the night. And his employer at the garage will say he came to work as usual the next morning.
We can already see the error of a reserved opening statement. If the jury had heard us say that Billy went home that evening and that his family would be here to testify to that fact, along with his employer who would say he was at work the next morning, the jury would be alerted to the possibility that the state is mistaken in its accusations. On cross-examination of the state’s witnesses, our questions and the answers might sound like this:
Q: After you saw Billy Ray leave the bar, did you follow him?
A: No.
Q: When you came out of the bar to go home, did you see him on the street?
A: No.
Q: So you don’t know where he went?
A: No.
Q: You say you saw Billy Ray follow Too Big out of the bar that night?
A: Yes.
Q: You don’t know that Billy Ray was following Too Big, isn’t that true?
A: Well, he was following him all right.
Q: By that you mean that Too Big went out of the bar and that Billy Ray left the bar at about the same time—behind Too Big.
Q: And you left the bar behind Billy Ray yourself.
A: Yes.
Q: Were you following either of them?
A: No.
Q: And no one is accusing you of murdering anyone, simply because you came out the bar door behind both Billy Ray and Too Big, isn’t that true?
If we have reserved our opening, our cross-examination is essentially without roots. The problem the defense attorney faces in the criminal case is that every innocent fact will usually be attributed some sinister meaning by the prosecution. The murder took place in the alley behind the bar. That Billy Ray was at the bar establishes his opportunity to commit the murder (along with scores of others who were also there). That Billy Ray had an argument with Too Big is further evidence of motive (but Too Big argued with others and was a known troublemaker and bully). It was well known that Billy Ray often carried a knife, but no knife was ever found, which suggested that he threw the knife away (whereas he may not have taken a knife that evening). Besides, it was a short-bladed knife, while the coroner’s report showed that the puncture wounds were five inches long. These facts will come out during the cross-examination of the state’s witnesses, but they will have little meaning unless the defense made a complete opening following the prosecution’s story of horrors that introduced the jury to these facts.
Reason 3. The jury’s early decision making. Still, a better reason exists for the defense to make its opening immediately following the state’s. We’ve already seen that jurors often make up their minds after having heard the opening statements. If we make none, the jurors have the state’s case in mind and only their case. Their minds are pretty well set in concrete at the moment we say, “The defense reserves its opening.” In fact, in the minds of the jurors, the burden of proof has shifted from the state to the defense. Believing the state’s case, and despite the judge’s instructions to the contrary, it now becomes the burden of the defense to dislodge the inculpatory facts from the minds of the jurors—to provide reasonable doubt, rather than enjoying the protection of the constitution that requires the state to prove its case beyond a reasonable doubt. Not only that, the judge himself needs to know where we are going in our defense, so that his rulings can be fairly made from a complete understanding of the issues in the case.
Reason 4. Relinquishing control of our case to the state. I have never wanted to put the state in control of my case. For us to attempt to create a defense that fits the state’s case is to abdicate control of our case to the prosecutor. How much better to lay out the defense in exquisite detail, which will then require the state not only to present its case, but to attack our defense all along the way. We are in control. Reasonable doubt arises out of the courtroom clashes, out of strident arguments fairly made. Reasonable doubt is the product of cracking open the door of truth so that the jurors can peer in and see enough to wonder what they might see if the door were flung wide open? It’s the state’s duty to slam the door. When the state fails, when the door is still ajar, the prosecutors must pack up their boxes of evidence, shut their briefcases, and plod on back to construct other cases, we must hope, against guilty defendants.
Reason 5. The silent defendant. But something even more fundamental to the defense in a criminal prosecution is the defendant himself. I most often decline to put my client on the stand. Whether to have his client testify is a decision every criminal defense lawyer must make in every case. Lawyers usually put their clients on the stand because of two compelling motivations. First, the client himself wants to take the stand and protest his innocence. For an innocent man, nothing flogs at the soul more than to sit silently by while the prosecution impales him with lying witnesses, witnesses who tell only half truths, with cops who have forgotten the facts that would acquit him, with prosecutors who point their long, accusatory fingers at him and claim they have brought before the court the most heinous monster in the history of the human race.
But the jury, too, wants to hear from the accused. If a person is innocent, doesn’t he protest? Doesn’t he want to tell his story? Every seated juror knows if he or she were in the shoes of the defendant, and if innocent, it would take a bulldozer to shove him off the witness stand. And when the defendant fails to take the stand, the obvious conclusion is that he must be guilty.
But those who make such judgments have never been an accused in a criminal case, where their lives or their freedom are at stake. Although the accused argues to take the stand—and it’s ultimately his decision—things grow grim when he gets up there and the prosecutor begins his long, laborious, detailed, well-prepared cross-examination that will frighten the accused, then make him angry, or sometimes leave him with a loss of memory and good sense. By the end of the cross he’ll be shown as one who can’t keep his story straight, who is evasive, and who gets hostile too easily, thus confirming the prosecution’s argument that Billy Ray lost his temper and murdered Too Big Jones. When a skillfully prepared cross-examination is complete the prosecutor will often leave the most innocent appearing to be guilty—a murderer, a thief, a two-bit fraud, and a dastardly liar, which, in the hierarchy of all crime, and to many jurors, is the worst crime of all, since we have been taught that only the guilty lie.
The truth is that we can tell Billy Ray’s story better than he. Our lives are not at stake. We haven’t sat in a smelly concrete box suffering a year of nightmares about this moment when we must win on the stand or perish. We’ve not facing a prosecutor with greater communicative skills than our own. As lawyers, our business is to tell true, compelling stories. And the story we tell will likely not be severely interrupted in the opening whereas in his cross-examination the prosecutor will chop up Billy Ray’s story like chicken liver. As skilled storytellers we have prepared the accused’s story, remembering that every story has a beginning, a middle, the climax, and the end. We will be able to tell that story to the jury and support it with evidence during the trial, and put it all together again in the final argument much more effectively than Billy Ray will ever be able to do under fire.
Of course there are cases in which the accused must take the stand. Indeed, the prosecutor will often attempt to inject evidence into the case that only the accused himself can rebut, which always puts the defendant in a dilemma: The defendant must either take the stand and suffer, perhaps fatally, at the hands of the prosecutor; or we must attempt to rebut the evidence, and often can’t, because no witness except the defendant may be available to do so. For example, the prosecutor persuades the judge to permit evidence that Billy Ray was engaged in some sort of barroom scuffle in the past in order to show our client’s propensity toward violence. No one except Billy can explain that he was defending himself against the onslaught of another drunken bully. If he fails to take the stand to rebut this evidence, the jury’s conclusion may be that Billy Ray is a violent thug who hangs out with churlish mobs in slummy saloons, waiting for the chance to do physical damage to any available human being. If he does take the stand to explain the situation, he of course submits himself to a full range of cross-examination by the prosecutor covering his entire life—from his first unfortunate breath in this world to the very moment he is found sitting there on the stand.
Telling a story you do not intend to prove. I remember a murder case in which I told the jury about my client, who’d been in the Royal Canadian Air Force during World War II, flying Spitfires out of Britain. I told the jury he was an ace, flying those flimsy fighter planes into the jaws of the enemy, and he was among those who stood receiving honors from Churchill when the British prime minister made his famous speech, “Never in the field of human conflict was so much owed by so many to so few.” I created the scene for the jury based on my client’s statement to me. I needed to put this good-looking man on the stand to testify to these facts, because what he’d been charged with was a dicey case to defend.
Let me tell you the story: My client, who had been working out of town, drove back unannounced one night and parked his car some distance from his residence where he and his girlfriend had been cohabiting. He went into the house and sat in the living room with his loaded pistol awaiting the return of his girlfriend and her newest lover—a bull rider of some local fame. After a night of conviviality the two of them staggered in. As they entered my client suddenly turned on the light, pistol in hand, but somehow the two men got into a wrestling match from which the bull rider emerged shot through the heart. In my opening statement I had explained all of these facts to the jury, including the heroic history of the defendant as an ace fighter pilot.
Then serendipitously, and before I called my first defense witness, I found out that the prosecutor had a witness from the Canadian Air Force department of records who would testify that during the entire war my client had never left Canada, where he had only been engaged as an aircraft mechanic. When the state rested its case, I hurriedly rested as well. I of course did not call my client to take the stand, since I had discovered that his testimony concerning his life in the Royal Canadian Air Force would have been false. And I rested my case without putting a single witness on the stand. Of course, since I called no witnesses there was no testimony for the state to rebut, and the state’s star witness from Canada’s department of records sat mutely in the courtroom and returned home having never testified.
Had I known that my client’s statement was false—the one I passed on to the jury—I would have been guilty of a serious breach of ethics. Before the trial I had my client examined by a psychiatrist, who also had questioned him carefully on this subject and who came to the conclusion that his entire story was true.
In those days in the still-wild West, there was this somewhat quaint but prevailing notion that any man who would dare trespass into another man’s house and partake of his woman shouldn’t complain if he finds himself dead in the morning. The jury acquitted.
This story, however instructive, not only illustrates the additional risks we face when we put a client on the stand, it admonishes us that if we intend to do so, we have an ethical duty to tell the truth in the opening statement to the best of our ability.
Preparing the jury for a defendant who fails to take the stand. I have never seen a jury that doesn’t expect to see the defendant take the stand to defend himself. His taking the stand is something the jurors look forward to—the climax, as it were, in the trial. We have been trained as voyeurs. If it were otherwise, the television and movie industries would be out of business and the sports stadiums would be vacant. Jurors anticipate with a sort of voyeuristic glee the moment the poor wretch, the defendant, takes the stand to try to save his neck.
After all, we as jurors are supposed to be able to tell who is lying and who is not. That notion is at the heart of this business called the jury system. We will hone in on every question the accused must answer. We will watch his every move, how he grips the arms of the witness chair, how he blinks at a hard question, how he hesitates—thinking of new lies—before he answers. Does he get angry when he is cornered? Aha! You see? He is lying! He has his arms tightly folded across his chest and his ankles are crossed and he is all hunched up and red-faced—the body language, you know. We have always wanted to see what a murderer looked like. Look at his eyes. Are they cold and calculating? How would you like to meet that devil in an alley someplace? I’ll bet he could stab you in the belly and never blink an eye, just wipe the dripping blood from his knife, put it back in his pocket, and go whistling on down the street. And if we the jury are deprived of the right to make our judgments of the accused as he wrestles for his life on the stand we will be sorely disappointed.
In the opening I will tell the jury that there’s a reason why the defendant is not required to take the stand. It’s his constitutional right—our founders understanding that we can never prove our innocence. We can only give the prosecutor the opportunity to prove an innocent man guilty. I might say, “You expect Billy Ray to take the stand and tell you what happened that night. You want to know. Yet if he takes the stand you’ll wonder if he isn’t just lying to save his hide. On the other hand, if Billy Ray does not take the stand and testify, you’ll wonder why an innocent man didn’t want to tell his story—any innocent man would. So you can see, either way we go we’re in trouble. I cannot tell you at this moment what our decision will be. If Billy Ray does not testify here, the court will instruct you that you are not to consider his failure to testify as evidence of his guilt. That is as much protection as we can get as we face this dilemma.”
For the nonlawyer—the opening in the boardroom, the council room, the boss’s office. We have already learned that the opening is the most important of the several important elements in presenting our case. First impressions stick like a catsup stain on a white shirt. The first pitch—the salesman’s story of his car, the art dealer’s story behind the painting he wants to sell—is the first and best chance the seller has to close the sale. I wager that few would be as enthralled by Van Gogh’s wild, childlike attacks of the brush on canvass without also knowing something of his struggle as a person. Every good salesman has a story about his product.
The opening tells the decision maker what to watch for, what the issue is. It tells the story before proof is offered—such as testimonials, the actual calling of colleagues who will make brief statements (also in story form), and the handing over of written documents, brochures, and the like.
Before the school board, say, the opening is not laid out in the abstract, about how we do not have enough qualified teachers to fulfill our obligations to our children because of teachers’ paltry pay. Instead, our story begins with a real person, a woman who has devoted her life to teaching.
Standing before the board, we may begin our presentation in the first person. “I want to tell you the story of Molly Carpenter. I am fifty-eight years old and have spent thirty years teaching the fourth grade at Hot Springs Grade School. I love my job. My children beam when I walk into the classroom. You can see it in their eyes, a sort of love that children have for those who care about them. My class has had the highest evaluations of any fourth grade in the city since I have taught there. My kids have gone on to become doctors and engineers and lawyers. Dr. Mary Littlefield, the famous neurologist, was my student. So was William Sloan, who has been a key scientist in our space program. You all know Robert Hardesty, the lawyer, who is well known for his fight against the pollution of our streams and rivers. Each of these former students will tell you that Molly Carpenter introduced them to themselves. She taught them that they were special, as each of us is different and perfect, and she encouraged each of them to follow their passion.
Now the presenter, as Molly Carpenter, says, “I have had to leave my beloved work. I just cannot make ends meet. I couldn’t pay my electric bill, and the power company was threatening to turn off my power. I had to take a job as a waitress in the Broadway Cafe, where I make more on tips in a day—by nearly twice—than my teaching salary provided. It breaks my heart that I had to leave my children behind. But I have my own family to feed. We have lost over two hundred highly qualified teachers this year because we are not paying them a living wage. The damage to our children is nearly incalculable. We will show you how our classrooms are so crowded that children can do little more than occupy their space and hope to survive the day.”
Nowadays even journalists avoid the old, mechanistic approach of reporting, and often begin their articles by telling the story through the life of a living person. Abstractions do not best inform us, move us to action, or cause change or reform. We care little about an epidemic of SARS, with an equally abstract name, Severe Acute Respiratory Syndrome, the dangerous new respiratory disease caused by a heretofore unknown virus, until, of course, we see some person who is suffering from it—say, a child. A little girl name Jenny Ann Wilson, age five, is at Disneyland with her parents. She has been coughing a little, and has not wanted to go on any of the rides. Her parents begin to worry when the little girl becomes confused as to where she is. Her eyes are becoming glassy and she seems feverish.
Her father, Paul Wilson, decides to take her back to the hotel. He says, “I called for a doctor who finally came to the hotel room. By this time Jenny Ann has a fever of 105, and she is coughing so hard I think her lungs are going to come out, and you could see her chest heaving like she was dying from lack of air. The doctor came and we took Jenny Ann to the hospital.” The story can go on with all of the visuals of the doctors trying to save Jenny with every known treatment and device known to medicine. If we read the whole, frightful specter of the child’s fight against SARS and the helplessness of the medical community against it, the disease becomes alive and meaningful to us, where before it was little more than a vague acronym.
The cold, hard, lifeless stone of abstractions. Remember, we think in pictures—not abstractions. We have empty ears for abstractions. Professors spout abstractions like an eternal fountain, and even they have no ears for other people’s abstractions. Why do we take notes? Because of the professor’s affliction—his inability to speak other than in the tongue of abstractions. His inability to tell us a story requires us to remember words instead of word pictures.
Concerning such simple things as gravity, we can proclaim in our deepest authoritative voice, “That, as a consequence of a certain force that has been the source of argument among scientists for centuries, a force between objects that pulls them toward one another, a universal force that affects the largest and smallest objects and all forms of matter and energy, and as a consequence of which the victim descended to the surface of the earth …” or we can simply say he was gazing up at the stars, tripped over an empty whiskey bottle, and fell on his keester. Both describe the forces of gravity. The first is an abstraction, the second a word picture.
When we face a problem, when we worry, we do not think of it in abstract words. I worry about my wife Imaging when she goes out on the highway to drive—not that she isn’t a skilled and careful driver, but because there are more people killed on highways than on battlefields. In my mind I see myself waving good-bye to her and then, hours later I hear in my mind’s ear the telephone ringing. I pick up the telephone and it’s somebody saying, “Your wife has been in an accident, and she didn’t make it.” In just a fleeting part of a second I experience horrible, flashing scenes of the mortuary. I am picking out the casket and then I’m trying to figure out what I’m going to do with the rest of my life without her. These scenes come and go so fast we cannot recognize them as scenes. But our thoughts, all of them, are in pictures.
Invariably, in court, I have experts on the stand who talk in abstractions. Experts are comfortable in the cloistered halls of their intellects, which provides them a wide and easy illusiveness. To such an expert, my standard response is, “Whoa, wait a minute. Give me an example,” which is to say, tell me a story. I cannot follow language adorned with abstractions—no one can, unless those stone-cold words somehow bring up a picture.
Preparing the opening. I begin preparing the opening statement for the trial (along with the closing, which we shall see is a different creature) at the very outset. How do I prepare the opening? I type it word for word into my computer. Am I going to read it? No. Will I memorize it? No. Again, what I’m doing is loading up another computer—the mind. If that old, dry sponge of the mind hasn’t been wetted with our creative juices, our word pictures, the powerful action verbs, then there’s nothing much that can come out. If we’re going to be spontaneous, as I say we must, we cannot find spontaneity floating around in a dry sponge. But if we have soaked the computer brain with creative preparation, our opening will come flooding out whenever we squeeze the sponge. People sometimes ask, “How can you be so spontaneous about this and that?” It’s because I have over fifty years of the stuff I am talking about soaked up in there, together with the fully developed story of the case I’m presenting.
We harbor bits and pieces of trivia in the mind that if extracted and piled up would look like a mammoth junk pile. The contents of the mind aren’t classified, nor are they indexed. To make what we know available for immediate use, we have to fill the computer of the mind with our current story so that it is on top of the pile. We have to provide it with an index, an outline, and a form that will become readily available when we stand to deliver. If we know the story inside and out, if we’ve written and rewritten it, outlined it, and, with heroic tenacity, outlined it again, magically we will become spontaneous. We do not deliver a memorized statement. We do not read from notes. We simply have a loaded mind computer with a narrative that includes an outline, a beginning, a middle, and an end, and—trusting the wonders of the mind to now tell the story in an exciting and compelling way—we will give a winning opening statement. As a side effect of our untiring preparation, we will have shed a good deal of our fear and replaced it with an eagerness to tell our story.
As soon as I take a case I begin to correlate the opening statement with the witnesses that I will be calling to support it. As the witnesses’ anticipated testimony expands, or as new facts are discovered, I go back and work some more on the opening statement. By the time I walk into the courtroom to deliver my opening, I know the story so fully I could deliver it in my sleep. In fact, I have. Winning in the courtroom is not so much a reflection of the genius of the lawyer but of that lawyer’s preparation. Among the comments I have heard about my work in the courtroom, the one I most value is, “I have never seen him come into the courtroom unprepared.”
No story is truly banal. We may have tried a dozen of those all-too-frequent soft-tissue injury cases that arise from a whiplash caused by the common rear-ender. But each case involves different persons with different histories, medical and otherwise, who have reacted in quite different ways to the low-speed, rear-end impact. If the story is trite and worn out it is because we are dull and insensitive to the nuances that surround each individual case.
If we think of the stories we have heard or told around the campfire they will provide us an excellent example of the form and texture of our opening statements, those stories we should tell in the courtroom, the showroom, the boardroom, and every other room where we want to win our case.