Connecting with The Jury: Delivering Powerful Opening & Closing Statements
“Are the jurors getting it?”
“Was the jury with me?”
“Did I connect with the jury?”
At DecisionQuest (a U.S. Legal Support company), we are frequently asked some version of these questions by our clients after opening and closing statements. And there is good reason for these questions – many attorneys have experienced the thinking that a juror will be “good” for them based on what seemed to be positive nonverbal feedback, only to find out later that the juror was completely oriented against his or her case.
Let’s consider what it means to “get through to” or “connect” with the jury. Basically, this means the extent to which jurors understand and adopt the story you are delivering. Connection is especially important in helping jurors to become advocates for your client in deliberations – something that requires some additional effort and key strategies.
So, how do you deliver your opening and closing statements in such a way that you get jurors to listen to your story, retain your themes, and then use what you have presented to advocate for your client in deliberations? Here, I present four overarching strategies to help with this endeavor.
#1 – Provide Commonsense Reasons Why Your Client Should Win
When jurors are asked post-trial about what they most wanted to hear from trial counsel during opening and closing statements, the answer is nearly always some variant of “show me why I should find in your favor.” Think about what you’d like your friends on the panel to conclude about your case, then guide jurors right into that language.
One way to do this is to reduce your case down to a few sentences that explain why jurors should find in your client’s favor. For example, in a bad faith case in which a plaintiff is claiming that the insurance company intentionally avoided paying a claim following an accident, the defense might lay out the following points:
Argument: “The company did not act in bad faith.”
- The company thoroughly investigated Ms. Smith’s claim in a timely manner.
- Legitimate questions came up during the investigation.
- It became clear that Ms. Smith’s health problems were not caused by the accident.
- It was the correct decision to deny Ms. Smith’s claim.
- It is not bad faith to investigate a claim.
This summary gives jurors a way to organize the evidence and a commonsense rationale for why the company should win. Be sure to share this summary visually with jurors, to make it memorable and easily accessible for them.
#2 – Provide Messages First, Then Supporting Details
The order of information is important. When we tell stories in casual conversation, we lay out the details while building up to a dramatic conclusion. But when persuading jurors, the take-away message must come first, with more detailed points supporting the overall message afterward, as in our bad faith insurance example above.
The reality is that jurors will not reference every piece of evidence that they see during a trial. Jurors are more likely to remember a few key take-aways, and that there was a lot of evidence to support each of them. Plus, if you do not give jurors the key take-aways first, you run the risk that jurors will put the details together in a way that is adverse to your client.
#3 – Think Like a Novice
It can be difficult to put yourself in the position of a beginner when it comes to a case that you know well. But to be an effective communicator, that’s exactly what you must do.
Terms that we in the legal industry use frequently may be unfamiliar to jurors. At a research exercise, a defense presenter made a big point about how one of the plaintiff’s arguments was a “red herring.” Later, it became clear that many of the jurors did not know what it meant for something to be a red herring. It would have been more effective to simply tell jurors that the plaintiff’s argument was a distraction and irrelevant to the issues in the case.
Once you know the concepts that jurors have trouble with, you can weave in simple definitions of these concepts into opening and closing statements. Going back to our insurance example, for some jurors “bad faith” is any conduct they do not like. It is critical in these cases to not only define this term frequently, but to demonstrate how the behavior in question does not rise to the level of bad faith.
#4 – Show Jurors How to Advocate for Your Client
Sometimes, jurors will privately support your client, but in deliberations they fail to actively advocate in your client’s favor. It is important to give these jurors some guidance on how to deal with jurors who may oppose them in deliberations.
First, think through exactly what you want your champions on the panel to argue in response to each verdict question. A simple and effective strategy for closing statements is to walk jurors through the verdict form and tell them why you think they should find in favor of your client on each question. It is also useful to suggest ways for jurors to fight back against opposing arguments on each question.
Taking our insurance example again, you might tell jurors that if they encounter anyone else on the jury who argues the company has acted in bad faith because it simply denied the claim, then it is important for them to speak up and say that it is not bad faith simply to deny a claim and that there is a specific legal definition of bad faith.
In conclusion, connecting with jurors during opening and closing statements requires planning and careful consideration of your audience. It helps to have a good sense of how regular people (i.e., non-lawyers) will think through your case and approach your case material. We must remember that we are the ones who must accommodate jurors’ needs, otherwise we run the risk of having jurors miss crucial concepts and points to the detriment of our case.