Episode #280 – Frequency and Dilution Errors in Opening Statements

In this episode of the Litigation Psychology Podcast, Bill Kanasky, Jr., Ph.D. breaks down two critical mistakes attorneys make in opening statements: dilution of their message and their communication frequency. Frequency refers to the attorney’s delivery dynamics – energy level, confidence, rhythm, and emotional tone – that either engages jurors or turns them off. Common problems with communication frequency include defensiveness, nervousness, over-talking, and coming across as if trying to sell something to the jury rather than telling them a compelling story.

Dilution occurs when attorneys talk too long, over-explain, or defend unnecessarily, which weakens the message and causes jurors to tune out. Bill explains why less is more and that potency comes from repetition, silence, and reframing the narrative right from the start. He urges attorneys to avoid “dead zones” in the middle of openings, stay high-level (“in the clouds, not the weeds”), and let witnesses handle details later. Finally, Bill highlights the value and importance of testing openings with focus groups to gather feedback from mock jurors to help guide and fine-tune delivery, frequency, and clarity before trial.

Full Episode Transcript

[00:15] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky here. Ah, sucking down the protein shake here early. I was up at 3:30 this morning. I went to bed early and got up really early. And um I do that maybe once or twice a week because I mean I could work from 4:00 a.m. till 8 and just get no distractions. And so, I did that this morning and thought, you know what, I’m gonna I’m gonna plot out a little podcast action here because there’s some things that have been going on lately that I’d like to share with you.

Um, opening state let’s talk let’s talk more about opening statements. This is a um really important um area that it gets some attention but probably not enough that it deserves. We’ve done a lot of podcasts on this, published a big paper on this, but I think we need to go even deeper on this issue. So, what I have done um particularly in the first half of this year, and this is increasing more and more um with clients is that I’ve done two things. Number one, I am having attorneys send me their opening statement and I am reviewing, analyze, and tweaking the opening and give it back to them to maximize effectiveness. Okay? Doing a lot of that. So, like I’m reading at least one or two openings a week.

Secondly, and this is quite painful, by the way, uh clients are hiring me to review. They’re sending me trial transcripts and telling me to uh break down and fully review opening statements that have been given in cases in which they lost. That’s been very eye opening. So, I’ve been doing all this, right? Um and I’ve been doing this for a long time. Uh, but this year it’s really really picked up because I think we’ve talked about it more and I’ve noticed some trends. I’ve noticed some trends. We’ve talked about some of this, but I’m going to take a kind of a different angle today. All right.

[02:41] Bill There’s really two kind of new concepts I want to bring up um because I’ve seen kind of over and over and this is across, you know, all different causes of actions all across the country kind of see the same mistakes happening, right? But I want to point out some of these things at a much um higher level. And the two concepts we’re going to focus on today. Uh number one is called dilution. Dilution is bad. Dilution is bad. We’re going to talk about that. Another one is frequency. What frequency are you broadcasting on? Are you coming across like a station on AM radio? Or do you sound like Lithium on XM Sirius Radio channel 34 by the way? My favorite favorite. Yeah, got to have some grunge rock, right?

Um, so let’s talk about these two concepts. And so, here’s the issue. Let’s talk about let’s let’s start with frequency. Okay, so you’re getting up in in front of this jury. You’re going to tell your story. And it’s very important that you tell a story. That’s kind of another, you know, issue uh that we’ll we’ll talk about because I’m not I’m not seeing much of that. I’m not seeing cohesive narratives. Okay. I’m seeing things are kind of all over the place. But let’s talk about frequent. So frequency is it’s your vibe. It’s your vibe. So, this is as you’re delivering your opening. This is your as the attorney. This is your internal state. This is your uh energy level. It’s your rhythm. Okay? You don’t just want the jurors to hear you. You want them to feel you. All right? And they’re going to tune in or tune out to your frequency if it sounds appealing.

Now, you’ve all been there. You’ve been on your radio dial or on your cable TV, I do YouTube TV, and you’re flipping. If something is appealing and on your frequency, you keep listening. If not, you hit the next button or you advance the channel. You look for something else. You tune out. All right. So, what are some of the common frequency problems that we have? Well, number one, if you if you come out and you’re defensive, okay, we said, you know, we talked about kind of like what to do and what not to do in opening statements. Number one, if you come out defending wrong frequency, by the way, this is like probably number one mistake, too. Everybody does it. They come out with the we didn’t do it opening. Doesn’t work. That’s an emotional error by the attorney. Happens all the time. Okay. Not effective. Wrong frequency. Uncertainty. Okay. You got to come out with confidence and certainty. Uncertainty. Wrong frequency. Okay.

[05:59] Bill I see this a lot too. Believe it or not, I see a lot of uh anxiety and nervousness. Right. That’s not going to be the right not going to be the right frequency. So, you you better be practicing this opening and in and multiple ways on your delivery, your speed, right? And the more you do that, that’s going to lower your internal tension, reduce anxiety, reduce nervousness. But I’ve seen many of attorneys get up there and kind of stumble all over the place because of nerves. Not good.

Another frequency issue, and I really want to focus on this one today, is overtalking. To prove something. This is a sin for opening statement. Extraordinarily common. Okay. More is not better. And then we’re going to talk about how that impacts dilution here in a second. Okay. If you have the frequency of overtalking, you’re going to come across like you’re selling something. That’s not ideal. You need to be in storytelling mode, not selling mode. Nobody likes to be sold. Selling situations. It’s it’s it’s awful. You ever walk through the airport and they have the little booth set up and it’s like American or United and they have the the person out front with the pamphlets and you’re walking by and they’re like, “Hey, we’ll give you 30,000 free miles if you buy our credit if you get get our sign up for our credit card, the United or American credit card.” When I see that as I’m walking through the terminal, like I literally just I walk against traffic and go the other way to get as far away from those people. People don’t like that [__] Okay.

So, being defensive, uncertain, nervous, anxiety, overtalking, this kind of tone of I got to prove something or sell something, wrong frequency. And here’s the worst. Here’s the worst. It hap—it happens. These are all emotional errors, by the way. All all these errors stem from you internally in your emotional status. But the worst of the worst of the worst is begging. Begging. Please don’t hurt us. I’ve seen it all, folks. I see it in mock trials and focus groups, too. But frequency is really, really important. Okay? And they’re going to pick up on. See, here’s the problem. When you come across in these ways, that’s what the jury picks up on. Not your story, but these factors.

[09:26] Bill You don’t want these jurors focusing on you and your anxiety or defensiveness or your sales techniques are you—right you want them focused on the story. So, we got to get out of this frequency so that what they’re hearing is more appealable and rather than hear it they’re going to feel it. All right. Now, what’s a metaphor we could use here? As you know, I mean, mass, you know, my two favorite bands, seen them in concert multiple times, the Foo Fighters, Foo Fighters, The Foo Fighters and Metallica. Those are my two favorite bands. Dr. Wood is more of a Pantera type of guy. I’m Foo Fighters, Metallica.

Now, what these guys do before the performance is they tune their instruments because listen, they could come out with untuned instruments, play the song just like they normally would, and it’s going to sound terrible if they’re out of tune. Doesn’t matter what it says on the the music sheet, right? Guitar is not tuned properly, it’s going to sound terrible. All right? So, that’s how you have to look at this. Okay? So, you have to tune your instruments before the performance. Okay? Now, how do we fix this? What do we do this? Okay. Now I know because they openly talk about it and this is a good thing. I always I always tip my hat. Some some of you guys get mad at me when I compliment the plaintiff’s bar because they do a lot of things right. You’re sending me nasty emails. “Stop that.” No. Give credit where credit is due.

They do focus groups, mini focus groups about two hours where they strictly test the opening about a week, one or two weeks before trial. Since they’ve started doing that, I have started doing that and it’s starting to take off. Imagine this. You do like the the Foo Fighters, Metallica, what do they do a sound check before the concert. They do a sound check. You need to do a sound check. Do it virtually, right? So, we get a panel of people, usually around 10, and you deliver your opening and get feedback from the jurors. You’re going to get feedback on your frequency. They will tell you, “Hey, that sounded defensive. You sounded nervous. You were going too fast. I didn’t understand your story. Your timeline was all over the place.”

[13:03] Bill Here’s the biggest one that we get from these focus groups. Now, again, these are strictly on openings. I’m kind of lost. You lost me in your opening. You got into the weeds. Okay. Well, be nice to know that before you get in front of the real jury, wouldn’t it? Okay. Do the sound check before the concert. That’s the whole purpose of these focus groups. They’re cheap. They’re two hours. It’s it’s like it’s it’s a tool. Like you’re insane if you don’t do it.

By the way, giving your opening to family members or your paralegals and legal secretaries is not a focus group. Oh my god. Talk about a talk about a bias group. No, you—No, no, no, no, no. You don’t give your opening to your colleagues. Okay? If your kid is in a beauty contest, you cannot be a judge. It’s you can’t do it. You need objective feedback. So, you need 10 strangers from the venue and they’ll give you the feedback. Okay? Really, really, really important. Test this stuff so you figure out, am I on the right frequency? Okay. Are are jurors are jurors feeling what I’m saying or are they just hearing it? Is my story cohesive? Are jurors comprehending the story? Is it too complex? Absolutely testable. And then you take that feedback and then you make your adjustments. That’s gold. That’s gold. This is—This is how you win cases. This is how you win cases. Plaintiff’s bar does a lot of this. Sometimes they do multiple till they get it right. Smart, smart, smart, smart.

So, frequency matters, okay? Otherwise, they’re going to tune out. They’re going to get lost. You’re going to lose jurors. We don’t want that frequency. Okay? It’s concept number one. Concept number two, dilution. Okay? So, you’re broadcasting right this signal. We talked about frequency. Now we’re talking about the strength of the signal. Very important there. Okay. And what most of you are doing, I think this is completely inadvertent, but you’re on this whole again, this is a psychology problem. It’s an emotional problem. We’re all on this like more is better principle. No, no, no. You’ve heard less is more. Less is more. The problem is the human brain is completely incapable of this cuz you feel bad. Keeping it simple works, but it feels terrible.

[16:07] Bill Oh, by the way, I was doing some research. you know, I’m a workout freak and one of my hobbies in the little spare time that I have, I love reading exercise um research literature, watching interviews with some of the top trainers and exercise physiologists and scientists. And one of the big questions like how many sets of each muscle group do I got to do per week to get strong and build muscle? Lot of disagreements on this, right? So, they did a bunch of studies on this. There’s a meta analysis, too. And the results came back pretty clearly. Like, if you’re doing 8 to 12 sets, like that’s like like that’s your sweet spot. And anything over that, they call it junk volume. It’s junk. And you end up, ready for this? Diluting your gains and increasing your chance of injury.

Now, you have some crazy guys out there doing like 25 sets per body, right? I was not doing that, but like I was in the 15ish. And so, I read this research and I read other I’m like, “Wow, okay, this is this is making sense to me. I’m a scientist. I follow science.” So then recently I start I go in the gym I start cutting back on my sets to land in the 8 to 12 window. I felt terrible. I’m still struggling with it. I started this like two months ago. I’m str—like I get to set 11 and 12 and I’m so accustomed to well I got to get to 15 or 18 like more is better. No, not for—No, it’s not. More is not better. And so me like getting me to stop at the 12th set and then move to a different muscle group. I felt terrible off. I felt cognitive dissonance. I felt guilty. I felt bad like I’m not doing enough. I’m not pushing it hard enough. It was a struggle. It’s still still a struggle. I’m working on it.

Same kind of principle here. More is not better. If you are saying too much, you are overexplaining. And importantly, you’re defending points that don’t need to be defended. You are diluting your signal. Dilution is bad. Go get your favorite beverage. Coffee, soda, you’re a wine per—whatever. Go get your favorite beverage. Okay, take a sip of it. Your favorite beverage. You take a sip. You go, “Wow, that tastes good.” It tastes good for a reason. It’s not diluted. Now, after you’ve taken a couple sips and enjoyed it, I want you to go get one cup. Get a measuring cup of water and dump it into whatever your favorite drink is and then take a couple more sips. How’s it going to taste now? It’s going to taste awful. Awful. Imagine getting your favorite cup of black coffee. You—and you dilute it with a full cup of water and then try to finish the rest of it. It’s going to taste terrible. Dilution is not good.

[20:01] Bill Okay. So, the more you talk, the more uncertainty you’re broadcasting in your signal. This is really important. And again, it’s hard to get your head around. It’s like doing it’s like doing curls, right? It’s like, God, right? God, the more curls I do, the bigger my arm is going to get. No, no, no, no, no. There’s a sweet spot. And anything over that actually weakens you. Every extra word weakens the impact of your other words. Let me say that again. Let me let me say that one more time. Every extra word weakens your other words. You want to be impactful, powerful, potent. Well, the more you talk, the more you’re just dumping just dumping water in your coffee. You’re diluting.

When you over defend, you come out defensive. That’s a react. That’s a reactive frequency. We don’t want to be reactive. We want to reframe. We want to go on offense, not defense. We want the ball. Just because you’re the defendant or the defense does not mean you have to come out on defense. And when you just simply respond to the plaintiff’s story that goes right before yours, you’ve already lost frame. Okay? If you talk too much, you’re going to lose the room. And if you dilute your signal, the jury’s going to tune out.

Now, the plaintiff’s bar is well aware of this. I gave a speech, couple speeches at events in which the organization or the company invited a plaintiff attorney. Um it was very eye opening and uh at one of them uh this very very um successful plan of attorney said any opening over 15 minutes is a bad opening because I’m going to lose the jury. I got to win the battle of simplicity. Less is more. And he said, uh, he goes, “It’s so hard because you want to talk for 45 minutes and you want to go on the right. You more is better. That’s what your brain’s telling you.” Mm- doesn’t work. That’s called dilution.

[22:43] Bill Now, here’s a twist. Instead of more words, use use the two most powerful neurocognitive tools you have. So rather than diluting, you’re making it more potent. We want potency. We don’t want dilution. How do we do that? Number one, number one ranking, repetition. repetition and number two, silence. Let it sink in. Two most powerful neurocognitive tools you have because it amplifies your signal and your frequency. It makes it more potent. Okay?

If you come out in your opening and the first thing out of your mouth is, hey, we didn’t do it or we’re a good company gonna humanize this company. No, not gonna work. Or you come out, this case is about the truth. This case is about fairness and justice and doing what’s right. Not going to work. Now, if you come out this way, now watch this opening. Now, remember, we call this the cognitive lens, right? Okay, if you’ve read my paper or listened to other podcasts, it’s that first minute or two minutes of your opening, it sets the tone. It’s the cognitive lens. It’s called a lens, cognitive lens, because this is the lens that the jurors are going to see your case through. It’s epically important and everybody blows it because they they A) they don’t know what it is, and B) they start wrong. You start wrong, you’re going to be in trouble.

So, imagine this start. So, plaintiff’s just given their opening. You’re defense council, you stand up and remember, we’re skipping all the pleasantries, the introductions, talking about the bill of rights or telling that corny horrible story about you and your uncle were fishing when you were eight and he taught you some life lesson. Stupid. Stop. Stop. Stop. Stop. Stop. Makes me crazy. This is your golden time. Imagine coming out like this instead. Ladies and gentlemen of the jury, he knew. He knew. The plaintiff knew he was cutting corners. The plaintiff knew he was creating a dangerous situation. And ladies and gentlemen, he knew he was taking a risk. And that’s why we’re here. And that’s how this injury occurred. Boom. Boom. That’s like reverse slam dunk. Notice the repetition, right? Notice my frequency. Notice my speed. Putting some silence in there. Zero dilution. That’s potent. That’s how you start an opening. You’re going to blame someone or something else immediately versus rambling on about how the company you represent hosts a golf tournament to collect money for cancer research. It just it doesn’t work. Okay? Does not work.

[26:32] Bill All right. So, we want to start with fire. Reframe immediately. Reframe. We got to trim these openings down. Now, if you’re on the defense for most of these cases, you can get away with that kind of 20 to 30 minute window. Some of these cases can be easily be 10 to 15 if it’s a very straightforward case, no codefendants, stuff like that. Depends upon the complaint but even the most complex case that 20 and 30 minute window it you’re not—jurors will be lost anything at 31 minutes forget about it okay it’s not going to work so start focusing on that kind of 20 give or take five minutes is a really good rule it’s going to feel terrible it’s like me doing the 12 sets of curls as opposed to the 15 or 18 or 20 sets it’s it’s going to feel awkward like I’m done? That’s it? Yeah. That’s it. Okay.

Don’t talk too much. Stay in the clouds, not the weeds. Now, here’s a big thing. Every opening has what I call the dead the dead zone. That’s like this could be five to 10 minutes right in the middle where you’re kind of going through your timeline, what the witnesses are going to say. We want to short every every opening has you have to shorten this. I read an opening the other day, and it’s like and then and then my expert this expert’s going to go say XYZ blah blah blah blah blah blah and spend seven minutes getting into the weeds on what the expert no here’s my expert here’s the qualifications he or she is going to say boom boom boom next stay in the clouds stay out of the weeds in the opening a lot of openings get bogged down here you get too deep into the evidence it’s not necessary. Hint, tease, keep it high level, less is more. You start getting bogged down, then gets off track. And again, jurors just they tune out. It’s the wrong frequency. It’s the wrong frequency. It’s really hard to listen to AM radio sometimes. Why? Because it sucks. Okay, you want to be XM serious, crystal clear. Let your witnesses do the heavy lifting. Okay, couple key points on what they’re going to say. Boom. Next one.

[29:14] Bill Stay out of the weeds. Okay, remember, come out swinging. You got to reframe. Do not react. Don’t let your adversary define the frame. You reframe immediate. You can’t you can’t be 10 minutes into your opening go, “Oh, by the way, here’s what the case is really about.” You can’t. It’s over. You do so right out of the gate. Okay? Use your silence. Okay? Speed kills. I see a lot of openings that go too fast. And you say like like you you drop a truth bomb. Let it sink in. Let it sink in deep. Take a breath. Move. Walk. Then repeat it. Okay. Speak with gravity. Speak with gravity. Not speed. Gravity. Okay.

This is key. How do you get there? How do you get there? How do you have the right frequency? How do you not dilute your own message? And how do you get comfortable with this process? Testing. You can do a specific opening statement focus group to solely focus on doing this and getting feedback on all these factors to see if you’re hitting the target. You do that to a group of paralegals and legal secretaries at the office, you’re not going to get that feedback. I’m sorry. I’m I’m sorry. What legal secretary is going to raise their hand and that that that opening kind of sucks. You lost me. You’re not going to get that. You need brutal feedback and honesty on how this is going. Then you make your adjustments. And by doing that, okay, you’re going in you’re you’re gonna have a razor-sharp opening.

[31:35] Bill So, let’s wrap this up because I got to take a call. You don’t need to do more. You need to dilute less. Focus on potency. Focus on your frequency. You don’t need more facts. Your witnesses are going to handle all that stuff. Need better frequency. You need that narrative to be cohesive. And the problem is when you violate all these principles and you start talking too much and you get into the weeds and that dead zone gets—your your narrative breaks. It becomes disconnected. Becomes disconnected.

All right, that is that. Um, we’re going to talk more about this because again, this is this is a problem I see, you know, more and more uh with reading all these openings. If you have questions about this, reach out. Reach out people. I got people reaching out to me every week or have me look at your opening. I can tell you what’s wrong with it in about 15 minutes. Okay? But remember, you have to fight off this desire. And boy, it’s a burning desire. I’ve had defense counsel tell me this like, “I’ve got to fully defend my client.” And that leads to a 45 to hour opening statement. It makes you, the attorney, feel emotionally satisfied. That’s the benefit of a 45 to 60 minute opening statement. The problem is it does not work for the jurors. Remember that. All right. Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky. See you next time.