Episode #285 – Fixing Common, Yet Deadly, Opening Statement Mistakes

Bill Kanasky, Jr., Ph.D. talks about several issues he sees with opening statements. Bill highlights the biggest issue the CSI team comes across in opening statements: starting the opening statement in the wrong spot. Bill emphasizes the importance of the first two minutes of the opening and how those first two minutes frame how you want the jury to see your case (i.e., the cognitive lens.) The first thing that the defense attorney has to do in their opening is put someone or something else on trial, state emphatically what the case is about, and not talk about what the case is not about, which only reinforces the plaintiff’s perspective. The goal with the opening statement is to reframe what the plaintiff presents in their opening.

The next issue Bill discusses is how lengthy opening statements that include the attorney thanking the jury for their service, talking about themselves or their client, or sharing a story from their childhood are a waste of those critical first two minutes in front of the jurors. What attorneys have to realize is that jurors don’t remember facts and details; they remember how you made them feel.

Lastly, Bill talks about the importance of testing opening statements with mock jurors. Getting direct feedback from jurors and practicing the delivery and story is a critical, but often skipped, step in the trial preparation process and attorneys who do not test their opening statements with mock jurors in a focus group risk their entire case.

Full Episode Transcript

[00:18] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. I am Dr. Bill Kanasky. How we doing folks? How we doing? Everybody holding it together? You holding it together? Okay. Good, good, good, good. Gotta hold it together. I know. Crazy year. Crazy times. Hold it together, folks. Um, God, what a what a busy year. Busy, busy, busy year. Lots of trials. Want to talk about some opening statement stuff today. I got my notes because I’ve consulted on dozens of opening statements this year. I want to point out a couple things, couple couple uh issues that keep coming up. Easy to fix. However, you know, some updates before we get started with that. Uh number one, do I’m doing everything I can to not let college sports ruin my life. I’m trying to stay aligned with the universe, not get sucked in by the matrix, and sports is when the matrix uh main tolls sucks you in. Don’t lose your mind, folks. I’ve been on the brink, but I’ve been kind of holding in there. So, I’m alive. Everybody, everybody, all of you have keep reaching out about my sports teams. Cubs out of the playoffs. Oh gosh, tough loss there, but great season.

[01:55] Bill Okay, I have got something here. Uh I’m not going to tell you the name of the product, but uh now I’ I’ve I’ve shared because you know I’m a big health nut. Got to take care of yourself, right? And I’ve shared a couple of the products I have uh to stay in shape, to stay loose, to stay uh to stay mobile, right? Particularly, you know, if you’re on airplanes a lot or you’re sitting at your desk, you know, stuff like that. I got it. This thing cost 100 bucks. I have it under my desk right now. It’s a foot massager and I’m talking it’s intense. It’s intense. Highly, highly recommend. Your feet take a beating. I I was on stage two weeks ago giving a speech with plantar fasciitis. I think plantar fasciitis is the most painful thing ever. It’s It’s horrendous. It’s just like someone sticking an ice pick in the bottom of your foot in your heel constantly. See, I got to turn my phone off. See, you forgot to put on vibrate. Sorry, folks. Client can wait. But man, it’s awful. It’s terrible. This horrible pain. So, I got this foot massage. You stick your feet inside. It has these balls that roll on the bottom and you can adjust the intensity. Wow. It’s intense, though. It is intense. If you if you ever like gotten a real good foot massage, like you go to like a reflexology place, I got to tell you right now, number one, it hurts like hell. It absolutely hurts like hell for 30 minutes. I mean, you’re just like grinding your teeth together. But I tell you what, you walk out of there feeling like like you’re walking on air. Okay, this foot massager. Oh, it’s it’s divine. I’m using it three times a day. It’s absolutely fantastic.

[03:47] Bill All right, so now on to opening opening statement issues. See, no, I didn’t even have a rant. See, I’m trying to be positive. Didn’t have my rant. I may end with one, but I didn’t start with one. See, I’m making progress, folks. Making making progress. Okay. So, let me tell you what I’ve learned here from consulting on all these openings. And how this works is you have a trial coming up. We have a what we I’d call uh we actually formally call this the trial readiness package. Okay? We’re extraordinarily busy. Okay? We we can’t we can’t show up to every jury selection, right? And again, I’ve told you I know it sounds like blasphemy. Having a jury consultant sit with you at trial is really overrated. The only time that works is if like if you’ve done the focus group and mock trial research, you’ve developed a pro-plaintiff high damages juror profile and now you want that person to sit with you. Okay, fine. But just to call a jury consultant, hey, show—I had to call last week. We’re going to trial in two weeks. Can you show up and help pick the jury? I’m like, no. A, I’m too busy. B, the whole staff is too busy on two weeks notice. But C, like what do you want me to do? I’ve got no jury research. Okay. You gonna send a uh surgeon into the OR without an MRI, without a CT scan, just hand them a scalpel and go, “Go ahead.” It doesn’t work like that. Okay.

[05:23] Bill So, I think that’s overrated. Okay, where here here’s how to take care of this yourself. If you have the right voir dire script to tap into the right constructs that you need to and you have the right opening statement outline, 10 times more valuable and effective. 10 times, okay? Regardless of of of all, you know, all other things being equal. Okay. So, trial readiness package. You have a trial coming up and we help you with the uh disruptive voir dire script. That’s what we call it. Disruptive voir dire. Did a four-podcast series on that. Okay? And then also say, hey, send me your opening statement outline, your slides, and let’s take a look at this. Let’s kind of break this down, see how we can improve it. I look for—Okay? So, I’ve I’ve done this dozens of times uh throughout the year, particularly with the openings. Okay. The top mistake, well, there’s there’s several top mistakes, and we’ve covered many of these mistakes on the podcast, but I have to keep bringing this up because it keeps happening, but um there’s there’s one I really want to focus on uh on this episode. Okay? It’s starting the opening statement in the wrong spot. Okay? It’s all about the start. That first two minutes, one to three minutes. Okay, remember that’s your cognitive lens. That’s going to frame everything.

[06:59] Bill Okay, here’s a bad habit I’ve seen across multiple attorneys is they send me the opening and they start out by saying the following. This case is not about A, B, and C, this is what the case is really about. Okay? Horrible, horrible, terrible, terrible way to start an opening. Okay? Because what you are doing is you are inadvertently reinforcing the plaintiff’s case. Okay? Now, you may think, see, you’re getting clever. Like, I’m going to tell I’m going to come out and tell the jury what the case is not about. Well, neurosychologically speaking, you’re just reinforcing what the case is really about. For example, here we go. Here’s what here’s what I want you to do. Do not think about a pink elephant. Do not think about a pink elephant. Do not under any circumstance think about a pink elephant. What are you all thinking about right now? You’re thinking about a pink elephant. And when you use this technique, that’s what you’re doing. This case is not about A, B, and C. Well, when you’re repeating A, B, and C, you’re telling the jury subconsciously, this is what the case is about. Plaintiff’s council just talked about A, B, and C for the last 20 or 30 minutes. You come out and what do you do? You start talking about A, B, and C. and you think you’re clever because you’re saying, “Well, hey, this is not what the case is about.” Well, yeah, it is. If you’re talking about it, attention is the currency. Attention is the currency. An opening statement. I’ll say it for a third freaking time. Attention is the currency. And you’re bringing attention to their case. Okay.

[09:02] Bill Now, in your closing argument, you can tell them what the case is not about. That’s fine. Different phase. They’ve already made all most of their decisions. At that point, oh my gosh, you cannot start out your opening like that. So, remember, here’s how we’re going to start the opening cognitive lens. The first thing out of your mouth is you got to put something or someone else on trial. And you do that with two opening sentences. Your first sentence has to define what the case is about. And it has to be big picture. It could be one to three things depending on your case, right? Now in business cases, right, commercial litigation, oftentimes it’s this is a case about greed and deception, ladies and gentlemen. Greed and deception. Now, notice I said it twice. Notice I changed my volume and my tone the second time around. Remember, we have to tie all these things in together. Okay, that’s what the case is about. Then the next sentence is you put somebody you you you put whatever target you want on trial at that very point. And in one sentence you tell them here’s what happened and here’s why we’re here. That’s how you start the opening every single time.

[10:46] Bill Now, the other thing that’s happening which is making me absolutely crazy. I’ve been giving speeches on openings for years. I’ve done countless podcasts on this. Stop opening with the hi, how you doing? Here’s who I am. I’m so happy to be here. Like to introduce my client. I so appreciate you doing your civic duty today. Then you go and you’re starting to quote the Bill of Rights and the Constitution. Or again, the worst part, you start telling some dumbass story about you and your uncle fishing and the lessons that you learned as a child. Stop. Stop. There’s no, no, no, no, no, no, no, no, no. Any warm-up that you need to do needs to be done in voir dire. Okay? You come out firing in opening. You reset the stage. You reframe everything rather than responding to everything. I can’t tell you how many opening statement outlines I get where the first three pages are responding to the plaintiff’s case. What are you doing? You’re not reframing anything. You’re responding. My cat’s looking at me like I’m nuts because I get intense in the podcast. Hey, girl. Hey, it’s okay. She’s like, “Calm down, Dad. Calm down.”

[12:22] Bill All right. How you open this thing is so critical. Do all your warm-up in voir dire. And it’s got to be the same thing every time. You tell them big picture 30,000 foot view. This case is about medical adherence. Doing what your doctor tells you to do. And in this case, the plaintiff sitting right over there, Mrs. Smith, didn’t do that. The evidence is going to show she ignored all her doctor’s recommendations. And that’s why we’re here today, ladies and gentlemen. That’s got to be the start. But what I’m saying is, you know, of course, these stupid warm-up techniques and then seven minutes into the opening, oh, this is what the case is not about. It’s not it’s not about uh the doctor. It’s not about the nurses. It’s not about ordering the wrong thing. It’s not about all that, ladies and gentlemen. And you’re reinforcing the plaintiff’s name for them. Stop it. Okay? Think about our storytelling model. It works, but you’ve got to be very precise on how you’re going to open this thing. Okay? So, you got to open the right way. Two statements, one general. Okay? Big picture what the case is about and then follow it up with something specific where you’re going to put something else or someone else on trial. Plaintiff, empty chair defendant, codefendant, causation, act of God, whatever. First thing out of your mouth and you’re going to hammer it home.

[14:21] Bill And now we’re going to tie in all these other skills, right? You’re going to modulate your volume. You’re going to pause and use silence to let it sink in your eye contact, your movement, and you’re going to repeat certain things over and over and over again. That’s how you get into the juror brain. That’s playing 4D chess instead of 3D checkers. Now, let’s move into something deeper, okay? Because another, you know, issue that keeps coming up. I’ve got a very bold statement here that I’m going to make. Everybody listen up. This is for the opening statement. You ready? Jurors don’t remember facts and details. They remember how you made them feel. Let’s say that one more time. Jurors don’t remember facts and details. They remember how you made them feel. Openings go well beyond the words. Well beyond the words. I am making you feel a certain way right now. And that’s why you listen to this podcast. And that’s what you have to do. This is an energy transfer. The words only get you halfway there. For the words to stick, it’s got to be how you make them feel. And that’s going to be your delivery.

[16:20] Bill Okay? Your movement in the courtroom, how you modulate your volume. I’ve been doing that the last 10 minutes here. How you pause and let something sink in. Your eye contact and your use of repetition. You have to connect with a jury with your energy, not just your words. Because your words could be perfect, but they don’t land. It’s 4D. 4D chess, 4D anything is energy transference. 3D you’re playing checkers. Okay. This is why putting in the work, practicing your open, excuse me, practicing your opening and something that we’re doing a lot. By the way, uh, Linda Khzam, my colleague, we’re doing a podcast uh, very shortly here on a new program we have where we’re doing virtual focus groups, strictly testing your opening statement with mock jurors before trial. You’ve got to practice this stuff. You’ve got to practice it. You’ve got to practice your pace. You’ve got to practice this energy transference and get feedback on whether it’s sticking, whether it’s effective. Okay, that is ultra important.

[18:10] Bill Now, let’s talk about the words and your visuals because that’s important, too. Another mistake we’re seeing is, man, your sli—your slides are too busy, folks. I say this over and over and over. You’re sending me slides that have 12 bullet points on one slide when the max is three, maybe four if you’re pushing it. I’m seeing slides with full sentences and then you’re just reading the sentence to the jury. No, less bullet points, couple words. You don’t want them reading a lot. Remember the currency in opening is attention. And you want them to be paying attention to you. The slides are the road map. You’re the star of the show, not your slides. Okay. and for you to do the proper the proper remember I’m going to say for the third time jurors don’t remember facts and details they remember how you made them feel they remember how you made them feel and we want that to be wow. Okay.

[19:54] Bill And if you’re putting slides up there and just now you’re increasing the cognitive load and cognitive burden on the juror, they have to read your opening statement. That ain’t working. In fact, most again, most of these slide decks I’m getting for opening look like closing argue. That’s all. It’s a closing argument. And the slides are way too busy. Way too much stuff. Simplicity wins. And in the opening, this is the third thing we’re going to cover. And again, we’ve covered this before, but it’s worth repeating because I keep seeing the same thing over and over. It’s this middle dead zone. The dead zone, man. You’re every opening statement has a middle portion that is the dead zone. Okay? They’re not going to remember or retain a whole lot from the dead zone. So, you want to make sure that’s shortened. And the whole key to this is to compress the dead zone and to tease the jury with what your the work that your witnesses are going to do, what your witnesses are going to say, and you keep it big picture. Do not get into the weeds. This is a major major problem.

[21:15] Bill So even if you start out your opening, you got the right cognitive lens, you start exactly how I told you to, if you spend the next 35 minutes going through every single detail of the case, jurors get bored, you lose the currency, which is attention, and you get bogged down, and then they check out. They check out. It’s a boring show. Okay, you got to compress that dead zone. And you got to keep it exciting. You got to tease them. Here’s what you’re going to hear. I hired this expert from wherever. And they’re going to tell you, bam, bam, bam. I’m going to call him right up here to the stand. Boom. Stick and move. Next one. But see what I’m seeing is like you spend five slides on what this expert’s going to say and you get really really into the weeds and you lose your cohesion. Tease them. Here’s what the evidence is going to show and here’s the witnesses that are going to do the heavy lifting. here’s who you’re going to hear from and give them that newspaper headline with maybe a couple bullet points and then stick and move. Stick and move. Stick and move.

[22:49] Bill You get bogged down in that dead zone. People fall asleep. People check out. People get bored. And you lose your currency, which is attention. Then how do they feel? Remember they remember how you made they remember how you made them feel. Do you want that to be bored and overwhelmed with information? No. You want them to be excited, empowered. How exciting. It’s an exciting case. Let me introduce you my batting order of witnesses and what they’re going to say. Let’s go. Okay. It requires a change in philosophy. All right. Requires a change in philosophy and really understanding the neuroscience of juror decision making. These folks have very low attention spans. They get bored quick. They don’t want to be there in the first place. That is why this energy transference and how you make them feel is so important. And that’s going to come out. That’s going to come out.

[24:12] Bill So, practice your openings. Maybe do one of these focus groups where you can practice your delivery and this energy transference. Now, when you’re in a virtual focus group, you can’t move around a lot, so you can’t really do that. But in a courtroom, your movement’s everything. It demand—movement demands attention. By the way, did you know that movement demands attention? Silence lets things set in. Modulating the volume of your voice from up here to down here demands attention. See that? And then repetition. How many how many how many things have I repeated in this 20-minute podcast already? Uh-huh. You see that? So, I’m trying to show you, not just tell you this is how it works. Okay. The problem is your brain. And this is where the confirmation bias sets in. You’re like, I got to tell the jury everything. I’ve got to get into the weeds. I’ve got to win this case by and then then you’re dealing with the 47-minute 58 slide opening and jurors want to stab themselves in the face and you’re not making them feel very good. Okay, we want to inject energy, inject excitement, empower these folks, decrease that dead zone, decrease the cognitive burden, stick to your storytelling model, don’t be reinforcing plaintiff’s case.

[26:04] Bill And when you sit down, when you sit down, the only goal is you want these jurors going, “Hey a number one, wow, and number two, I’m excited. I can’t I can’t wait to hear from these witnesses.” And they’re ready to go. Okay? So, there’s this kind of mental hurdle you got to get over because and the main hurdle by the way is emotional and every single defense attorney tells me this is I’m struggling with this opening because 20 minutes I I don’t I don’t feel like I’m doing enough. More more is better. I’m going to look weak if I put out a short. No, you’re not. We’ve we this is not true. We have the data. We do this every week. Now, here’s the danger. Here’s the danger zone, folks. This applies to any plaintiff attorneys, too. A 52-minute opening is going to make you feel fantastic. It’s going to make your client feel fantastic, but it’s not going to work with the jury. And who’s most important here, your feelings or the jury’s feelings? I would argue the jury’s failings.

[27:30] Bill All right. So, we’re going to keep revisiting this on the podcast over and over and over again. And I’ll tell you various stories on what I’m seeing. But I just kind of want to give you a little update on that because I think that’s really really um important because I see as as the opening’s being developed, I see kind of the wrong focus and the wrong and the wrong mindset. So now the good news is you send it to us, I tell you how to reorganize things, where to cut, where to add, okay? To to to get it in much much better shape. Now the problem is and where the push back is is the cutting part because that creates the cognitive dissonance, the mental discomfort of I’m not doing enough. You have to redefine your definition of enough and understand what’s enough for the jurors.

[28:28] Bill Okay, so let’s review. You want to start off the opening the right way, right? Come out guns blazing, high energy. Number two, do not reinforce the plaintiff’s case. Don’t ever ever ever in an opening say this is not what the case is about because you’re telling them that’s exactly what the case is about. You’re reinforcing it inadvertently. Don’t do it. Reframe the case. Do not respond to what to what you just heard in plaintiff’s opening. Reframe. Start a new case. Okay. Dead zone. Every opening has a dead zone. Compress it. Keep it high level. Be excited. Hey, got all these witnesses. Boom, boom, boom, boom, boom. High level. Tease them. Then get out of that dead zone. And then you finish strong.

[29:33] Bill Okay, speaking of excite, this is very exciting. This is good stuff. And here’s the good thing. Getting defense verdicts. It’s working. Okay. I gotta tell you before before I leave the at this point this this new thing we’re doing with the virtual focus group for opening statement. I I like I’m to the point where and my colleague said this so I can’t take credit for it but we think it’s like legal malpractice to not do this before trial because here’s what we’re find—well number one the plaintiff’s bar does this and they do it for a reason and it’s a really really good reason is if you’re going to screw it up screw it up in the virtual focus group. If your slides suck and your timeline is too complex, no one can follow it and your stories, make those mistakes with the virtual focus groups and fix it before you go to the actual courtroom. Monumental advantage. Okay, that’s what we’re doing. And boy, you’d be shocked what we’re finding. You’ve got this. You think your timeline is awesome and it stinks and you don’t know it. Well, they’ll tell you why it stinks and you can fix it. Usually, it’s too it’s too it’s too it’s too busy and too confusing. It’s not simple enough. We can figure that out before you go in the courtroom.

[31:03] Bill Legal malpractice. If you’re not if like if that was the only thing you did, you’d be miles ahead. Now, it’s always nice to focus group your entire case. Get your voir dire in order the right way, right? But say if there’s only one thing you could do. Your client said, “I’m only going to let you do one thing.” Well, test your opening. What juror comprehension? Are they getting it? Is it too complex? Is it too much? Is it too long? How’s your energy transference? You telling the right story? Okay, this is what’s this this stuff kills you at trial kills you unnecessary and preventable. So don’t be worried about this stuff. Be excited. I wrote a paper on this. Read the paper. Bunch of podcasts. If you dig into the podcast history, by the way, we’re approaching 300 episodes really, really fast for our followers and subscribers on YouTube. YouTube channel is off the hook, Spotify, Apple, all that stuff.

[32:29] Bill And hey, if you’re a listener, by the way, we’re going to wrap this up. If you’re a listener, particularly if you’re an attorney and I don’t know you, feel free to shoot me an email or set up a call to introduce. I’d love to I’d like I like I like meeting people. Now, many of you just kind of randomly reach out and say, “Hey, I enjoy the podcast. Thank you so much. I learned so much.” And that’s great. Do not hesitate to reach out. Like to meet new people, tell your friends. Tell your friends about the podcast. All right. All right. It’s uh it’s about that time, folks. All right, everybody. Have a great week. Uh this was fun. We’re going to go back to this. I’m going to tell you more stories about more cases I work on with these openings to where you got to get it right. Okay, it’s absolutely doable, but you got to do things in a certain way, a certain order, and avoid these kind of common landmines that so many people step on. Okay, it’s doable. Be excited, everybody. Be good. Litigation Psychology Pod Podcast. I can’t even talk. Litigation Psychology Podcast brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky. We’ll see you next time.