Episode #295 – Defining and Managing the Dead Zone in Opening Statements

Bill Kanasky, Jr., Ph.D. describes what he calls the dead zone in opening statements. The dead zone is the middle part of the opening where juror attention is at its lowest. Bill lays out a 3 x 3 framework for the dead zone in the opening: 3 core issues supported by 3 high impact facts. He talks about how the opening statement should be focused on teasing and framing your case, not getting into the weeds, and letting your witnesses handle the details later. Lastly, Bill describes the concepts of dilution and repetition in opening statements.

Full Episode Transcript

[00:15] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. A very cold Dr. Bill Kanasky coming at you now. Everybody’s going to laugh at me. Everybody’s going to yell at me. I’m going to get the hate mail. It’s cold for Florida. It’s like 49 degrees this morning. I got the hoodie on. Heavy blankets out. Everybody in the Northeast and the Midwest laughing at me right now. You guys wear shorts in 49. In Florida, it’s different. It’s freezing. So, I got a hoodie, plenty of hot coffee for this edition of the Litigation Psychology Podcast. There’s nothing worse than like taking a shower and it’s it’s it’s cold getting out of that shower. Man, that evaporation of the water off your skin. Remember, evaporation is a cooling process. So, you’re just adding insult to injury at this point. Although, I did add that I got a heat lamp in my shower. Yeah, that’s a good one. That was a good good purchase right there by the Kanasky family. God, it’s cold. I just took the dog out. Dog went out and came back in like it’s too cold. Yeah.

All right. Um, we’re going to talk more about opening statement today because there’s a part. So, let’s let’s just kind of back up. Opening statement. We have talked over and over and over and over. Is how you start the opening statement is so critical and everybody starts in the wrong spot. We this, we that, or you tell them about the purpose of an opening statement. You start talking about burden of proof. You tell the corny story about you and your uncle fishing and all the lesson life lessons he’s—Yeah. All that stuff we’ve talked about. Just the worst way to start off an opening statement cuz that first, you know, couple minutes that’s your golden time and you’re wasting it. We have talked about this over and over and over.

[02:43] Bill Now, what we haven’t talked about as much and where these things get bogged down, right? We have a lot of dilution going on. We’re going to talk about that is the middle of your opening statement. So, we call this the dead zone. That’s the dead zone. Okay? So, the beginning of your opening statement is the most valuable. Why? Because the juror brain automatically values that information the most. And that’s why what comes out of your mouth in that first like two to five minutes is the most valuable information because the juror’s brain the default system will value that stuff the most. So, when you’re telling that ridiculous story about you and your uncle fishing and all the life lessons he taught you, you’re wasting the golden time. Okay.

Now, at the end of your opening, how you finish, you’re essentially going to re-word and re-emphasize and reinforce what you did at the beginning. We call that the cognitive lens. Let’s kind of do a little refresher. Okay. And I’m doing a speech on this in two hours for a law firm. So, I figured, hey, I’m going to go do a podcast, get warmed up, right? Get on the field a couple hours early, start running some routes, throwing some passes around. Okay. So, and I’ve also broken down the cognitive lens. Um, I’ve kind of dissected that a little bit. Okay. So cognitive lens, I’ve redefined this a little bit because there’s actually two things going on with the cognitive lens. Okay. So, think about the cognitive lens as the first 15 seconds of your opening.

[04:47] Bill Okay. Now again, this is where all you this is where everybody screws this up. You’re introducing yourself. You’re introducing your client. No, no, no, no, no, no. Do that in jury selection. Okay, first 10 to 15 seconds, be bold. Be declarative. I’m going right off the slides here, by the way. Be immediate. Okay, I want you to think of this as a movie trailer that you see on TV or online. These are shorter. There’s two types of movie trailers. We’re going to talk about this, okay? But what movie trailers do is they punch you right in the face and go, “Hey, wake up.” Boom, boom, boom. And you’re like, “Wow, I want to go see this. This looks good. I can’t wait to see this movie. Holy [__].” That’s what you want coming out of the gate, not fishing stories with your uncle.

Okay. Immediately, you’re going to tell this jury what the case is about. For example, and again, it doesn’t take long. You come right out. You just like stuff like good morning or good afternoon. No, no. We’re going to come out firing. You get in front of that jury. Here’s an example: “Ladies and gentlemen, this case is about choices. The case is about choices. and the plaintiff made dangerous choices.” Okay, that’s an example. The cognitive lens, okay, Plaintiff’s Counsel has just got on before you, okay, has set up their game board. You’re going to walk up to the game board and you’re going to flip it over and the parts are gonna go flying everywhere and we’re starting a new game. That’s what we’re going to do. Okay? We’re gonna reframe the case versus respond to the case.

[06:54] Bill Because here’s the other thing that you guys screw up. You come out of the gate going, “The case is not about this and it’s not about this.” And what are you doing? You’re validating the plaintiff’s case unknowingly. It’s not your fault. You just don’t know. Okay? You end up here’s the here’s you end up becoming the villain of your own movie. Now think about that. This is what happens when you start these openings the wrong way. You end up becoming the villain in your movie. Not good. So, somebody else, something else has to be put in the forefront immediately. Not you. Do not talk about you or your client. Okay? Talk about the plaintiff. Talk about third party. Talk about alternative causation right out of the gate.

[08:03] Bill Okay? Now here’s the other part of the cognitive lens. Okay, we’re going to call this the narrative setup. Okay, so this whole cognitive lens plus the narrative setup. That’s like the first, you know, two to five minutes of your opening, maybe even two to four. All right. Now, right after that, boom, right in your face. Bold declarative. It’s one, maybe two sentences right out of the gate. Remember, you’re you’re flipping over the game board. Now, we’re going to move into the narrative setup. This is step two. I’m just going to walk you through how to do this whole process, right? But I’m really going to focus on that dead zone in a second. Okay? Step two, the narrative setup. This is your theatrical movie trailer.

Now, let’s talk about this. If you see a movie trailer on an ad for YouTube or on TV, they’re short. Now, if you go to the movie theater, so you’re going to see a movie, and it starts at 7:00 p.m. Well, you know as well as I do that movie ain’t starting till 7:20, 7:30 because what are they going to play before this real start of the movie? They’re going to play trailers. Those trailers are are two to three, sometimes even four minutes long. They’re extended. They’re not the ones you see on TV. You ever notice that? They take a much deeper dive, but with the same—It’s meant to stir excitement and curiosity to get you excited about the movie, but they’re longer. And that’s what you’re going to do right after the cognitive lens. We call this the narrative setup. Okay.

[09:53] Bill Now we are going to flash forward. Martin Scorsese. Scorsese is the best at this. All of his movies start off flash forward. You’re going to go right to the critical event. You’re going to give the who, what, where, when, why, how. Okay? And you are going to give this two to three minute. Here’s what happen—It’s your extended movie trailer. Go watch extended. You just go on YouTube right now. Just type in extended movie trailer or, no, theatrical movie trailers and you can watch them. They have them on Netflix, too. Okay. They’re not the ones you see online. They’re not the ones you see on TV. They’re longer. Ones you see online, TV are 30 seconds to a minute. These are two to three minutes. Okay? That’s what you’re doing immediately after the cognitive lens. Okay? You’re doing your movie trailer. And I want you to I want you to watch like 50 movie trailers because you’re going to come out of that going, “Aha, that’s what I need to do.”

They don’t get into the weeds in movie trailers. You’re setting up the narrative. You’re creating excitement. All right. So now we’re like three, three and a half, four tops into your opening. So, you’ve established by definition the cognitive lens. During this time, you’re just focused on the cognitive lens, the narrative setup. You’re really not talking about your client. You’re reframing the trial. You’re setting up the pieces on the board. You’re identifying the antagonist, the protagonist. You’re putting someone or something else in the spotlight of blame. Mhm.

[12:04] Bill Now, let’s get into the dead zone. This podcast is about the dead zone. Okay. So, what I just told you about the cognitive lens, you’re essentially just going to reinforce that and kind of redo it on the back end. Okay? So, we got like two to four minutes up front, two to four minutes on the back. We’re talking like five to seven, five to eight minutes. Okay. So, what’s remember the sweet spot for openings is 20 to 30 minutes. So, what do you have left? You have the middle. This is where everybody, this is where the whole process gets bogged down. Everybody gets in the weeds, and you lose jurors by diluting your message. The dead zone is the middle of your opening. And it’s called the dead zone is because this is where your attention is at its lowest. And what you all do is try to give every detail in the dead zone and you expand this and you dilute your message and juries get bored and they check out.

How do we handle the dead zone? Number one, you got to keep it lean and focused. Okay, we do not need detailed, super detailed chronologies, medical and scientific testimony, procedural element. You don’t need to put all that in there. You got to keep it high level. Here’s my phrase. Tease no weeds. Tease no weeds. You’re teasing them. Hey, here’s what’s coming. And boy, is it exciting. That’s all you got to do. But no, that confirmation bias in your brain says, I’ve got to put in everything in my opening because I got to fully defend my client. And that’s the trap.

[14:23] Bill I think the Yeti could be the greatest invention in human history. I got to tell you, this coffee stays hot. Oh, the Yeti. Man, I don’t know if NASA made these or man, these are great. All right, back to the dead zone. So, number one, clean and focused. Number two, you’re going to use the dead zone to support, not persuade. Okay? You’re laying groundwork. You’re going to prime them. Just another word for tease. You’re priming them what to expect. And this is where the disconnect occurs because you want to give them everything. You got to prime them. Tease them. Lay out the foundation.

Then number three, do not go long in the dead zone. Okay? You’re shooting for about 15 minutes, give or take. That’s the max, I mean you really can’t go over that. The juror brain just can’t handle it. I mean you may want to you can’t handle it. And this is what leads to dilution of your message in attention because attention listen up attention juror attention in particular is metabolically expensive. They have this like attention fuel gauge and there’s not a lot of fuel. You got like 15 minutes worth of fuel in this dead zone. You ever do that? You’re driving, your fuel light comes on. Like, hm, it says range 10 miles. And the gas station is 12 miles. I’ll surely make it. Yeah, I’ve I did that once before. It did not work out well. Okay. Attention is metabolically expensive and it must be respected. But y’all forget that. And these dead zones are going for like 30 minutes. Trust me, I’ve seen it. I read openings every week. All I do is delete stuff.

[16:39] Bill Okay. So, what’s the framework we want to use to the dead zone to maximize your attention, not lose them and not dilute? Okay. Now, in most cases, but there’s some nuance here. We’re going to call this the 3×3 framework. Okay. Three core issues all supported by three high impact facts. Now, if you have a complex case, case with a codefendant, right? Okay, you you could theoretically put four or five issues in the dead zone, but you got to stick with the three supporting high impact facts. Okay? So, in most cases, 3×3, you could do you could do 5×3 or 4×3, but on a basic case, straightforward case, 3×3 is all you need.

Okay? The brain loves threes. A lot of science behind that. Okay. And we’re going to take advantage of the neuroscientific concept of chunking information. We’re going to cluster information into groups because that’s how human short-term memory works. And then short-term memory, if it even gets there, gets transferred into long-term memory. There’s a million memory studies out there. You cluster things in groups of three, three by three. Everybody memorizes everything. Think about chunking combination lock codes, social security number, phone numbers. Okay, we chunk everything because that’s what helps us remember.

[18:35] Bill Now the other way to do this is called streaming. And that’s the mistake. Streaming is like a serial number, a string of 11 numbers. It’s impossible. Imagine a phone number and social security number just a string like no dashes, right? Those dashes are what represents the chucking. All right. This is going to keep your story focused. It’s going to keep it clear. very easy for juror note taking. All right. So, how do we do this? Well, number one, identify your three, four, or five pillars for your case. This is where you got to determine what’s most important. Is it plaintiff conduct? Is it defendant conduct? Is it codefendant conduct? Is it third party? Causation, damages, the law. Right? Every case is going to be different.

And then after that, so you want to plot this out on a whiteboard, or it’s the legal pad. You’re going to pick your three anchor facts per issue and you’re going to hammer them once, right? We’re going to prime. We’re going to tease. We’re not getting in the weed. Tease no weeds. Tease no weeds. Because the trap you fall into is you give the presentation that makes you feel better, not the one that’s going to make the jurors feel better. Know your audience. So, this is where you’re going to use documents, fact witness testimony, expert testimony, which we’re going to talk about next, photos, videos, whatever. Okay? But you can’t give them everything. Let your witnesses do the heavy lifting for you. And that’s another disconnect. “I got to tell them now.” No, you don’t. You got to tease them. You got to prime them. And then let the witness do the heavy lifting for you. That’s when you get into the weeds. Witnesses get into the weeds. Attorneys do not get into the weeds in your opening.

[20:53] Bill Now, let’s talk about expert testimony and opening statement. This is probably the top place things get bogged down. Okay, the four Ps. Got the four Ps for expert witness summaries that you’re going to put in your opening. Number one, position. Who is this person? What’s their role? What’s their expertise? They have board certified physician whatever UNC Chapel Hill graduate hopefully. Okay. Position second and you hit that quick. Second P purpose. What is their role in this case? And you tell a jury, here’s why we retained them. Here’s their role. It’s it’s one sentence, maybe two. Third P premise, tease the conclusion without getting into the weeds. They looked at this case and her conclusions were boom boom boom. Number four P preview. She’s going to walk you through how she came to these conclusions. She did boom boom boom tests and you’re going to hear from her in a couple days. Boom. Gone. Done. Over. Move. Get out. You nailed it. Four Ps. Position, purpose, premise, preview. Stick and move. Get. Keep moving. Otherwise, your dead zone grows, dilution goes up, attention goes down.

[23:12] Bill Now, at this point in the talk, every attorney’s like mad at me. “I can’t do that.” Yes, you can. And I’ve seen it done a million times highly effectively. Think about again back to the movie trailer. They don’t put like extended scenes in movie trailers, do they? No, it bogs down the trailer. They’re showing you highlights. Hell, you want to get out of movie trailers? Fine. I did not watch the Monday Night Football game last night. If I go to ESPN, they’re going to give me the movie trailer of what happened. They’re going to show all the big plays. ESPN is not going to show the highlight from second down and seven where the running back rushed for three yards, but there was a flag on the play. It was illegal procedure. Five yards back it up. They’re not showing me that. ESPN’s not showing me that. If they did, I would not be interested. What are they showing me? The big plays, the touchdowns, the turnovers, the fumble, the block kick, the drama. So, if you don’t like the movie trailer analogy, go to the sports highlights analogy. That’s what you’re doing in the dead zone. Giving them the highlights, the big plays, show the touchdowns. Show the pick six. But no, you’re going play by play. It’s third and seven from the 22. That’s a run up the middle. for three yards. I think this is going to be a punting situation. That’s boring as [ __ ]. Good god, don’t do that. Okay, show the highlights.

[25:14] Bill All right, dilution. Dilution. Then we’re going to wrap this up. Okay. So, when you get too much in the weeds, okay, you’re diluting. We I’ve said this before on the podcast, and I encourage you all to try it. Get your favorite drink. I don’t care what it is. Mine is Diet Coke and black coffee. Those are the two things I just have to have every day. So, right now, I have this is this is my Yeti with black coffee. It’s halfway full right now. But you do this with any drink, Diet Coke, whatever. Fill a halfway of your favorite drink. Okay, this I have a half of a Yeti of coffee and every sip is freaking perfect. Now, if I go downstairs and get a bottle of water and dump it into this Yeti so it fills to the top and then I start drinking it, how’s my coffee going to taste? It’s going to taste like [ __ ] because I’ve diluted it.

And that’s what happens to your message. How do we do this? Water was my example here. It’s going to be extra words, too much details, you’re going to lose juror attention. You say too much, you overexplain, you over-defend, dilution, dilution, dilution. Doesn’t work. Now, here’s the danger. It makes you feel good because you think you’re doing a good job. Because you think more is better. Mm-m. You got to understand the neurology behind this.

[27:03] Bill So, let’s end on this. Okay. One of the major tools you have which you can this is the only exception to the more is better rule because it’s not dilution. It actually it increases concentration. Okay. Is the use of repetition. When you repeat the same phrase, the same words, it increases your concentration of your message and amplifies your frequency. Repetition, it’s the number one tool you have in opening statement by far. It’s the most powerful neurocognitive tool available. Not—It’s not even close. If it doesn’t fit, you must acquit. If it doesn’t fit, you must acquit. He said it like 37 times.

All right. What repetition does, this is the key to everything. It adds weight to your message. See, you think adding weight means getting adding more details to the scale, right? Well, I’m going to go over everything this expert said. I’m going to get in the weeds on this witness or that witness or this document and that document. That’s going to add weight. No, that’s going to dilute. See the difference? But repetition of keywords and phrases, that’s what adds weight neurocognitively. And it’s so easy for the juror brain to memorize. Oh my god, it’s so easy. For example, “Ladies and gentlemen, he knew. He knew he was cutting corners. He knew he was creating a dangerous situation. He knew he was taking a risk. And that’s how this injury occurred.” It’s as simple as that. I’m not getting into the weeds. I’m programming the juror brain to get my message. I’m not diluting. I’m increasing the concentration. Use of repetition.

[29:58] Bill All right. So, final thing I’m going to say, this is a great exercise for you. I put this on LinkedIn the other day and I promised I’d give you the formula. Okay. When you create your opening statement and again I can help we we can help you with this. This is what we do but in general okay, when you’re creating your opening statement, everybody does a bottom to top approach and then cut it back. Meaning you put everything out there, right? It’s like you pretty much write an hour and 15 minute opening statement. You put everything out there and then step two is okay. I’m going to cut back to try to get this more manageable. That’s a mistake. Stop doing that. Do the opposite. Do a top down approach. Purposefully write a 15 to 20 minute opening. Keep it as skinny as possible and then back up. and then add meat to the bone where necessary to bump it up a little bit to the sweet spot of where you need to be. Much much much better.

And let me tell you how I learned this. I worked on many of cases and one currently where uh there’s a—of course this dog’s going to go nuts right at the end of my podcast. Hey, stop it. It’s just like the FedEx guy. Okay, the judge—So we go pre-trial conference federal case and the judge is like, “Okay, we’re gonna give you 30 minutes each for voir dire.” It’s like, “Oh, great. Great. That sounds great, right?” And then the judge says, “Both parties are strictly limited to 20 minute opening statements.” And the whole room went silent like, “What?” Now think about that. What does that force both parties to do? Aha. Right. So for any of your cases, put this imaginary parameter on yourself. Okay, you’re in state court. You know, you can go an hour if you want to. Okay, just say, “Hey, I’m I just have to pretend that I’m limited to 15 or 20 minutes.” plot it out that way, top down, and then add meat on the bone, and you’ll land in that kind of 20 to 30 minute sweet spot.

[32:32] Bill So, write out the cognitive lens, right? That first 15 seconds, that the short movie trailer that punches you right in the face, followed by the narrative setup. Plot out your 3×3, 3×4, 3×5. Do this on a whiteboard. Don’t write out a narrative. No, no, no, no. That comes later. Like what you’re going to say, don’t worry about that. We’ve got to make a blueprint, a road map of where we’re going. Okay. Put your three supporting facts for each pillar. Rewrite. We’ll talk I’m going to do another separate podcast on the closing of the opening, which again is kind of a rewarding reinforcing of your cognitive lens that you put up front. Okay, plot that out. Keep it skinny. Okay, and then go back and start adding meat to the bone. So, where you maximize your concentration, you eliminate the concept of dilution.

And then go back and say, okay, what are some repetitive themes? Doesn’t have to be a lot. Could be one thing. Could be two. You don’t really need more than that. Where are some things where I can repeat something over and over again could be one word, accountability, whatever. Okay, that is how you’re going to build a beautiful, effective, and persuasive opening statement which the jurors are going to understand. You’re going to tease, not get into the weeds, and it’s going to give you a wonderful advantage going into the rest of the case where your, listen to me, where your witnesses will do the heavy lifting on the details for you rather than taking all that to dilute your opening. There you go. All right. Now I have to I have to go give this speech in a little bit and and go over all this. But um all right, there you have it. Practice that. Reach out if you have questions. Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky. We’ll see you next time.