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Teaching Liability in Opening

When we present information in trial we need to do so in the most digestible way possible for our jurors. One way for accomplishing this is to establish that there are particular rules which govern a specific actor or entities' conduct. We then demonstrate that the defendant violated all of these rules. This is how we beat the ambiguity which the defense typically hides behind. Words like "reasonable person" or "reasonable" anything have such ambiguous interpretation that they make it easy for the defense to hide behind such an amorphous standard. We need to define what is "reasonable". To do this we use rules. Before trial, we get the defendant to agree to our rules. And then we demonstrate to the jurors that the defense violated all these rules in an effort to establish that the defendant's conduct was not "reasonable". This rules technique, at least as discovered by myself, comes from legendary trial lawyers Rick Friedman and Patrick Malone. These techniques are employed by a lot of the best plaintiff's trial lawyers in the country today. To get a good understanding of how the rules work I recommend you read Rules of the Road by Rick Friedman and Patrick Malone. Of course they have other very powerful books as well. The ideas expressed here are those of Rick Friedman and Pat Malone.

When we conduct our opening statement we will at some point need to speak as to defendant's liability. In the liability section of our opening we can introduce our rules. When we conduct our opening we don't argue, we don't seek to persuade, at this point in trial we as plaintiff's lawyers have zero credibility with the jurors. Thus when you first lay out your facts in opening do so in a very matter of fact way. This is not a time for you do be getting sentimental about your case. After we go over the general facts of the case rick Freedman likes to then discuss the defendant's industry or profession and how it works. This makes good sense as if you are dealing with an industry or profession which is not well known to jurors you need to fill the jurors in. This way your jurors will have context as to why the rules are relevant in the first place. To this end, go on after explain how the industry or profession works by explaining to the jurors the purpose of each rule. Give examples of what can happen if rules are not followed by defendants. Try to make your examples those that could affect ordinary individuals such as your jurors in the present case. This way the jurors understand that the rules are meant to protect people just like themselves and their beloved family members. Legendary trial consultant David Ball calls technique, this "spreading the tentacles of danger".

At this point you are free to go on to speak about how the defendant violated each of the rules which you have just presented to the jury. Here you can loop back through the facts of the case by showing the chronology of the case again and showing the jurors how the defendant violated each rule as the story chronology progresses. In this way you are repeating the facts again, a bit differently, this will help your jurors digest the information. Remember that at this state in your trial you are a teacher, not an advocate. You want to be teaching your jurors about the case. Finally, before you conclude your explanation of the rules, in light of the context of your case, you will go through the defense's you anticipate one by one and undermine them. We call this "drawing the sting". Explain why these defenses are undermined by your rules. When you do this you now have a third chance to go through the facts of the case. This time when you go through the facts you discuss possible defenses the jurors should anticipate and undermine them as you progress. Remember to undermine defenses which you think the jurors may consider on their own, without any mention by the Defense. To get an idea of what the jurors may consider be sure to do focus groups prior to putting on your trial. You want to know the concerns of your jurors ahead of time so that you can undermine those concerns immediately in your opening statement. Now you have taught the rules and taught the facts of the case to the jurors sufficiently. This is your primary goal in opening statement. Try to present you opening statement in such a way that the jurors can't even tell if you are the plaintiff's lawyer or the defense lawyer.

Remember that as you progress through your opening statement of facts that you will need to be telling the story of what the defendant did in this case. Your client, the Plaintiff, is not so important at this stage of the game. The more you talk about your client the more the defense has the opportunity to differentiate your client from the jurors. If jurors can see that they are different from your client they will be reluctant to find a verdict for your client. This is why we don't talk too much about our client until we get to speaking about damages. So at this point stay focused on the defendant's actions in your opening statement. Your client, the plaintiff, is just a regular pedestrian much like anyone else in the jury box. You need to make the case about what the defendant did, not about what the plaintiff did. According to Rick Friedman, the more time spent focusing on the defendant, the greater the likelihood of a strong plaintiff's verdict.

As you progress through your opening statement you will inevitably be hit with objections from the defense. You need to be ready for these objections otherwise your entire strategy could get derailed. Remember that you will have all of your rules written out on one large poster board. Visual aids are powerful teaching tools and highly effective in opening statement. If you get an objection that you are trying to introduce your board as an exhibit and that such exhibit has not been premarked, you need to respond by telling the judge that your poster board is not an exhibit. Explain that you have simply prewritten out what you would ordinarily write out on your easel so as to not waste the courts time writing down each statement and so as to provide a well written clean visual aid. Your poster board is not meant to be turned over to the jury, this is not your intention. Your poster board is simply a visual aid intended to help the jurors digest information that they will see through the course of the trial in an easy and efficient way. This is the purpose of opening statement, to introduce what evidence will in fact be presented at trial. If you get any resistance ask the judge if it would be better if you just wrote down the rules on a poster board or easel as you simultaneously speak introduce them to the jurors. Have an easel on hand in case anything goes awry and you need to make accommodations. Always be prepared to go forward without any visual aids. Assume that your technology and other visual aids will fail.

Another objection you may get as you introduce your rules is an objection stating that you are trying to instruct the jury on the state of the law. To this objection you need to articulate that this is in fact not what you are doing. You are simply explaining to the jurors what the industry standards are which govern the context of defendant's industry or actions. Point out that these standards are well accepted by everyone in the industry as well as the defendants who expressly agree with such standards. If some of your standards are incorporated into the law just tell the judge that you aren't here to speak about those rules or standards which are already incorporated into the law, nor will your witnesses testify to those standards found within the law itself.

Be prepared for an objection that you are being argumentative in opening, a function which is reserved for closing arguments. You need to respond to this by advising the court that you are not making any arguments whatsoever. All that you are doing here is telling the jury what the evidence will show. The evidence will show that the defendant agrees that these are rules and standards applicable to his or her behavior. The evidence will show that defendant violated those rules. Thus, there really is no argument here but simply a foreshadowing of what jurors can anticipate to be presented in trial. This is the function of opening statement after all. If you get resistance from your judge ask the judge if he or she would simply prefer you to write down the statements which you are simultaneously telling the jurors about. Your judge should be fine with this. Remember that if you are writing during trial that you need to make sure that you writing is clear and legible. Practice writing your rules on your boards many times prior to trial so that you have it down if you need to write them in trial. If your judge will not have it, which is unlikely, then simply teach the case without the board in the same manner as you would with the board. Just go through your rules one by one orally. As I said, anticipate the worst and hope for the best. Be prepared to put on your trial without any visual aids in case something goes awry.

Rick Friedman makes an excellent point in that the rules technique allows us to safely present our case in opening without making the mistake of using premature advocacy. Remember that we need to be perceived as almost neutral at this stage in the case. As soon as the jurors see us trying to persuade them at this stage in trial they will begin to mistrust us. If we can simply show the jurors the applicable rules and standards and then during the course of trial let them see how the defendant violated these rules then we take our advocacy out of the equation. We are simply teaching our jurors. Become a teacher not an advocate. If you can, I suggest that you teach your jurors all the way through the trial and avoid the appearance of advocacy altogether or at least until such time as you are certain your jurors trust you and are behind you. Only with jurors who are fully sympathetic to you and your plaintiff should you take on the roll of strong advocacy. Of course, if you can achieve this you can expect your plaintiff's verdicts to go through the roof.

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