Our host Sean Harris talks with Georgia attorney Geoff Pope about his strategies when preparing for and delivering opening statements in trial.
Sean: Hello and welcome to Civilly Speaking. OAJ’s monthly podcast on practical and timely legal issues. I am your host Sean Harris. I am very happy to have my good friend Geoff Pope on the line with us. Geoff is a partner in the law firm of Pope & Howard based in Atlanta, GA. Geoff limits his practice to catastrophic personal injury, trucking, medical malpractice, and product liability cases. Geoff is a past president of the Georgia Trial Lawyers Association and we are very pleased to have with us Geoff Pope, welcome.
Geoff: Thank you Sean. It’s quite an honor to be on your podcast.
Sean: Well it is an honor to have you and I just want to clear up right from the beginning is it true or fair to say that merely by having a southern accent you are able to influence jurors into your favor that us yankees are not able to do.
Geoff: I haven’t noticed my southern accent helping very much in influencing any aspect my life.
Sean: Let alone with jurors.
Geoff: Let alone with jurors, that’s right.
Sean: Well our topic today is do’s and don’ts of opening statements. Other than jury selection, opening statement is the most critical part of trial. Tell us, generally, at the outset how you approach opening statements.
Geoff: The way I see it, opening statements, there are as many ways to do an opening statements as you can imagine and so many very successful lawyers have employed different ways. Every body is familiar with David Ball says do this and some body else says do that. All of those probably have practitioners who follow them. I think, when I do it myself, I try not to use any template, but there are certain things that pretty much any method has. I would say that the most important thing to do is to spend a lot of time focusing on your opening statement. I had a very good lawyer tell me the other day “I usually just kind of shoot from the hip in the opening statement.” I thought to myself wow, he may be good enough that he can do it but that can also be a huge wasted opportunity because opening statement is such an important part of the case. You have an opportunity to both influence the jurors and build your own credibility. The most important thing that we do is spend a lot of time carefully crafting the opening statement, distilling down the essence of all of the information that we learned through discovery, and trying to present an opening statement that is compelling, that will allow the jurors to start pulling for us and will allow the jurors to see us as credible lawyers.
Sean: I certainly have heard plenty of lawyers as you described kind of shooting from the hip in opening statements, going in and telling it like it is. You might have been able to get away with that twenty or thirty years ago. I don’t see how that is an effective strategy today.
Geoff: I don’t think it is either. One of the things that we have to recognize, and I think most trial lawyers do recognize this, is that we are the least credible person in the courtroom. We are the person that the jurors are so suspicious of and they should be. We’re there asking for money and they know that we are going to get paid. i would be suspicious if I was a juror too. When we craft our opening statement we have to keep that in mind. One of the things that we try to do and that we found effective is we try not to use value judgements or value words early in our opening statement. For instance, we don’t ever start it by saying “This case is about a negligent driver who ran a stop sign.” Instead we try to give the jurors facts so that they reach the conclusions. We find that if jurors are allowed to reach their own conclusions then they are much more likely to hold to that conclusion. We can talk about confirmation bias and the role that plays in a trial and why opening statement is such a great opportunity to trigger confirmation bias. We think that if you give jurors facts that are undisputed, you build your own credibility and then you allow them to make decisions. We all like to make our own decisions rather than be told what to think.
Sean: I know that is one of the ideas or issues that David Ball preaches, pre-mature argument. If you get in there right from the get go and are perceived as taking a position or making value judgements, whatever credibility that you have is out the window.
Geoff: I think so, I think that is the case. I try to remind myself that jurors are people, jurors are just like us. I try to think of myself giving an opening statement as that insurance salesman that comes into my office and when he gets there I am mad that he is there and I wish I hadn’t made the appointment. He sits down and starts telling me what a great product he has and how I really need to do this if I want to protect my family. Well I am going to tune him out cause every bone in my body is resisting what he has to say. But if he just lays out the facts and I can start to see it myself then I’ll leave the meeting thinking why did I just buy two insurance policies.I think jurors are like that. They are people just like us and if you try to tell them what to think too quickly they are going to push back. They will jump on the defense train and confirmation bias will come into play for the defense.
Sean: Talk to us about how you go about telling your client’s story during opening statement.
Geoff: I think that telling your client’s story is the most important thing in the case. To do that, it certainly doesn’t start with opening statements. You have to know it and it has to be part of who you are when you get up to give the opening statement. By trying to experience the client’s story as much as I can, whether it’s through getting to know the family, getting to know the client, whatever it is it becomes part of who you are. The jurors can pick up on the conviction in your voice that this case means something deeply to you, much more than your professional obligation. I think that is the first component. The second is, really think long and hard about what facts matter to this story, what facts are likely to bring people to your side of the story and to illustrate it. That is a challenge because we learn so much in a case and to distill that down to just a few minutes is awfully hard to do. So we spend a lot of time trying to figure out what is the elevator speech for this case.
Sean: That is a good point when you talk about condensing an simplifying. Do you, and obviously every case is different, but do you have a goal or target in mind as far as the overall length of opening statement and what will be received and what is effective?
Geoff: It certainly depends on each case. If it’s a very complicated med mal case it is going to be longer than if it’s a case that doesn’t involve as many issues. In my experience, if you don’t have the jurors in the first few minutes you are probably not going to get them. On the other hand, if you can, if you are compelling early on than it is more likely that they will want to continue listening to you. In a very complicated med mal case I would say 40 minutes maybe at max. I would certainly try in most med mal cases to make it less than that. If it’s a much more simply case it can be a much shorter opening statement. I say that knowing that some lawyers do a fantastic job and make their opening statements much longer but I don’t find that to be effective for me.
Sean: I’ve seen all kinds of studies on what an average person’s attention span is and we’ve all sat through bad opening statements that went on and on and on. I mean hours when they are allowed. It seems to me at some point you are talking to hear your own voice.
Geoff: What I think has to happen, when you know that you are going to give a longer opening statement you need to make sure that you have a lot of visuals, but you’re not just showing visuals up. But if it just fits seamlessly into your story that gives them a little bit of a break. They aren’t just sitting there looking at you talk. There is a diagram that explains this. If you can do it, break it up with those then you can maintain attention a lot longer than if you just talked.
Sean: I was going to ask you about visuals and whether you use powerpoint, keynote type electronic presentations or physical with blowups or a mixture. What is your approach on the visual end?
Geoff: We use all of the above, electronic plus boards. But we find ourselves using boards more than electronics. It can be a lot easier to carry your electronic presentation but we find that with a board you usually put two or three boards up at a time and as you talk about them the other boards stay up; and they are related. So if we are telling a story and the first board is a diagram of something and the second board is related to it, we think that if the jurors get a little bit lost and they want to go back and look at the first board that I put up so that they can understand whatever issue there was then they can do that. Whereas if it is a power point once you click the button that image is gone and they can’t do that. So we like to have the physical boards. For the most part that is what we use in opening statements.
Sean: There is a lawyer here in Cleveland who is actually a past president of OAJ, Don Iler, who are listeners are no doubt familiar with. I heard him talk one time on opening statements and this issue came up and his response was that I always use physical boards because I want the jury to see me sweat. I want them to see me working and physically moving around; I’m over here and I’m over there and I’m putting in the effort. Literally. That’s a great way to explain it.
Geoff: I think if you move you do become a little more comfortable than if you just sit back by your computer or ask your tech person to go to the next slide.
Sean: When your telling the story, we’ve talked about condensing and simplifying it, do you tell the story in present tense? Is that a strategy that you use?
Geoff: Absolutely. We try to tell every story present tense so that it’s happening in real time in the jurors minds. Instead of something that happened in the past. Ideally that will create a sense of “OMG I can’t believe the defendant just did that.” As opposed to seeing it as something that happened in the past.
Sean: I utilize that as well and I think I look at it as a credibility building tool because if the event, whatever it is, literally just happened in front of their eyeballs then they don’t have to take the lawyer’s word for it about the lawyer telling them what happened in the past. They just saw it happen and so they know it for themselves.
Geoff: Exactly and one way to have it happen in front of them is to do a reenactment in front of them and that can be really effective as well because they actually see it happen.
Sean: So we are telling the story of our client and their case. Do we focus on the injuries and what happened to our client? Or do we focus the case through what the defendant did and the defendants bad conduct?
Geoff: What we typically do is focus first on what the defendant did and focus on the defendant’s bad acts, whatever those are, instead of explaining away potentially defenses or focusing too much on what happened to your client. I would do that later in the opening statement because you certainly want to get to it. We all have a judgmental side. Jurors like us want to judge; they want to find fault with someone. There is the blame the victim mentality; this would never happen to me because I wouldn’t have done whatever your client did. There is also the blame the defendant mentality and that’s what we want to trigger. If we focus on the defendant’s bad acts and the defendant’s decisions that led to whatever the problem was, then we can trigger that judgmental side of the jurors in our favor. Hopefully then we will go a long way toward convincing the jurors as the evidence comes along. I would focus on that first instead of how bad the plaintiff is hurt and only get to that later. I think it is much more important to focus on the defendant’s bad acts as opposed to refuting defenses or talking about how horrible the client is hurt.
Sean: On the topic of refuting defenses, I know one of the things that David Ball talks about is not saying or not explaining “the defense is going to say.” But instead being preemptive and at least giving the impression that this was already something that we thought of and considered and rejected. That we went out and looked at X,Y, and Z and we talked to the experts and here is why that is not an issue. Otherwise we couldn’t be coming into court here today.
Geoff: Right and I would take it one step further. In refuting defenses, I would refute as many of them as I could that I thought needed refuting in a proactive positive way in telling my story. So that when the defense makes their point it sounds silly. Some of them you can’t do that and you have to do the David Ball way of saying “Before we came into court, we had to look at” whatever it is. I would try to first refute them through the story and second by doing a direct “we had to consider this and here is why this defense doesn’t work.”
Sean: Speaking of stories and the language that we use to tell the stories I hear, unfortunately, trial lawyers all of the time using legalese, using complicated words. How do you approach the specific language. Sometimes I’ve heard lawyers refer to it as using jury words to talk about your case.
Geoff: That is a big problem because if we do car wreck cases, which most of us do, terms like delta-v or cervical disc herniation that’s just part of our language and when we talk to each other we use it. When we talk to our experts we use it. So it is a big challenge. What we do is we come up with a list of all of terms like that that we might use that somebody who we know who is smart but doesn’t do this kind of work wouldn’t know what they mean. If my wife doesn’t know what a delta-v is then I don’t need to be using it in front of a juror because that juror might not know what delta-v means. So, we come up with a list of all of those terms, and do that well in advance of trial, and come up with how we are going to explain that particular concept so that we are not in the middle of a compelling story and a juror who is hooked all of a sudden thinks “what is a nucleated red blood cell? I don’t have any idea what that is. Why does that matter?” Then all of a sudden they are day dreaming about nucleated red blood cells and whatever else and you’ve lost them. So we come up with a list and I am very bad about it because I love the scientific aspect of a case. But if we didn’t come up with that list I would be using those terms all of the time and loosing the jurors in the process.
Sean: Speaking of terms and framing and how we talk about cases, one of the things that I have started using in my practice is instead of referring to it as a brain injury, everyone gets an injury… a knee injury sounds like a strain. I started referring to it as brain damage because people understand what that is and frankly it sounds worse. I just had an auto case and as soon as I said brain damage they elevated it up to some higher adjuster, I think based on describing it that way.
Geoff: It sounds like you started using that term as early as you could in the process, well before it got to trial. So that becomes your term.
Sean: Geoff tell us about how you approach, aside from the language, but just your style and how you talk to the individual folks on the jury.
Geoff: I think that is the key, to remember that people on the jury on individual folks. I try as hard as I can to remember that. The people on the jury are in my Sunday school class, at the neighborhood cookout. They, like me, want a connection. It’s been the hardest thing for me to do and it was aided initially by some trial lawyers college workshops, but I try to look directly at the jurors as I am talking to them and make a point to one juror and get some kind of a reaction or something that I am not walking away right in the middle of a point and then look at another juror. We did an exercise at a trial lawyers college workshop where we were all jurors and we watched other people do opening statements. The idea was to work on talking to people as people. It was amazing how, even though I knew it was an exercise, when the lawyer would look directly at me it was so much more powerful than when the lawyer spoke to the group. That was so helpful. It makes a difference in the way you come across and in the way other jurors perceive you. You really do feel a sense of connection. So that was a big adjustment for me; to stop talking to the audience and to start talking to the individuals.
Sean: I remember when you and I were at the trial lawyers college together and one of the exercises that we did, may have been more for voir dire, but as far as interacting with the jurors we physically had a ball and not only do you have to look at the person but they have to be ready to talk to you first as if you were going to throw them the ball first before you asked the question.
Geoff: Those kinds of exercises, I’ve had them where you have to shake their hand, finish your point, and then grab somebody else’s hand. Those are great exercises. I’ll tell you how you can do it and how we do it in our practice when we are not at a trial lawyers college event, you can do that with a focus group. You can practice talking to a focus group and doing those exact things. It can make a tremendous different in the way you try a case.
Sean: That’s a great idea. We tend to focus in focus groups on the substance of the case when we know so much of the value and communication is non verbal, it’s visual. Why wouldn’t we take that opportunity to spend time and learn and figure that out in a focus group setting.
Geoff: I’ll tell you one story about that… when I was a law student there was a products liability verdict in Atlanta, I went to school at the University of Georgia Law School, in 1991. 101miillion dollars. That was the biggest verdict in Georgia by a long shot. We were fascinated by it. A guy by the name of Jim Butler, a fantastic lawyer, got the verdict. One of my friends somehow had cable back then and watched it and watched the closing argument on CourtTV and he was shocked. He was like “It was just like he was talking to his neighbor over the fence.” He told me he’s not giving a speech he is talking to a person. It worked for Jim Butler back then and it probably still works for him today. It works for all of us.
Sean: I think that is a good point, to be conversational, to be yourself because nobody likes being lectured to.
Geoff: Yeah, absolutely. Especially my kids and I am probably no better.
Sean: They are at the top of the list of those who don’t appreciate it. How about and I know there are lawyers on both sides of this issue but where do you come down as far as, and I don’t know what the rule is in Georgia, on mentioning a specific amount during opening statement?
Geoff: I don’t do it, typically. I know some lawyers do and David Ball advocates doing that. I can see the arguments for it but I have not typically done it. In Georgia you can mention that. We haven’t but I think it’s an interesting idea. What do most people in Ohio do?
Sean: Well I think you find both schools of thought. I tend to think that I want to get them warmed up to the idea that that is the whole reason we are here is to see how much they are willing to allow in their verdict. My concern is that if they are hearing it for the first time in closing argument it could come as a shock.
Geoff: If you know that you are going to ask for five million dollars, if you ask for it in opening then they will have had a little bit of time to think that through and they will see it as a five million dollar case. So, I can see that.
Sean: That’s kind of been my philosophy and frankly I’ve even gone so far in some cases to bring up a specific amount during jury selection because there are folks who we know who when they hear a high number no set of facts would ever allow them to award that much. Better to hear it then and frankly try to get them for cause while you still have a chance.
Geoff: We try to bring out numbers in jury selection and then some numbers in opening statement. But I haven’t done the, hears what we think and we are going to ask for this amount in closing. That is an interesting debate and an interesting subject.
Sean: As soon as you figure out the right answer will you let us know?
Geoff: It will be the right answer when you see somebody do it and they get a fantastic verdict that you didn’t think they would get.
Sean: Geoff, last question for you here today and it may be toughest. Dawgs have a new coach this year, how’s the team looking?
Geoff: You know, we are an eternally optimistic fan base.
Sean: Browns’ fans in Ohio can relate.
Geoff: Oh yeah, the strength and conditioning program is better than ever, everything is better than ever. So we will see. I am excited and optimistic about the coach. But sometimes in the fall when we have to play Alabama again those dreams get dashed.
Sean: Yeah they tend to show up on the schedule every year. Well Geoff Pope it’s been a lot of fun. We appreciate you joining us hear on Civilly Speaking.
Geoff: Thank you Sean. I sure do appreciate the opportunity.