Lesson from Dale Carnegie for Trial Lawyers (Part III)

The classic book, How to Win Friends & Influence People by Dale Carnegie has stood the test of time because its insights have been proven to be true and very helpful. Whether you are preparing for an oral argument, a hearing, or a trial, you can benefit from Carnegie’s analysis of how you can persuade others. His tips are also applicable for dealing with clients.

Principle 1: Become genuinely interested in other people
Dale Carnegie, Referring to his childhood dog Tippy who was killed by lightning, Carnegie says Tippy taught him that you can make more friends in two months by becoming genuinely interested in other people than you can in two years by trying to get other people interested in you. (52)

Principle 2: Smile
The expression you wear on your face is far more important than the clothes on your back. (63)
“You must have a good time meeting people if you expect them to have a good time meeting you.” (65).

Principle 3: Remember that a person’s name is to that person the sweetest and most important sound in any language.
One of the first lessons a politician learns is: To recall a voter’s name is statesmanship. To forget it is oblivion (77).

Napoleon the Third, nephew of the great Napoleon, had this technique. If he did not hear the name distinctly, he would ask that it be repeated. If he still had trouble, he asked that it be spelled. During conversations, he would repeat name. Sometimes he would write name down so he could visually remember it (78).

Principle 4: Be a good listener. Encourage others to talk about themselves.
Remember that the people you are talking to are “a hundred times more interested in themselves and their wants and problems than they are in your problems.” Someone’s toothache is more important than starving people around the globe.

Principle 5: Talk in terms of the other person’s interest.
Teddy Roosevelt knew that the “royal road to a person’s heart is to talk about the things
he or she treasures most.”

In business dealings and interviews, don’t start the conversation by asking for what you want. Instead, talk about what interests the other person. When you do this, your life enlarges. You often will wind up getting what you want.

Principle 6: Make the other person feel important–and do it sincerely.
An important principle is: Always make the other person feel important. Give compliments even when you are not looking for anything to gain. As Jesus said, “Do unto others as you would have others do unto you.”

The key for trial lawyers is to remember that it is not about yourself when you are in the courtroom, but the judge or the jury, depending on who you need to persuade. Always be focused on the needs and wants of the decision-maker, not what you think is important. Talk about what the judge or jury wants to hear, not what you think is important. Good luck in your next trial.

What Trial Lawyers Can Learn From Dale Carnegie (Part II)

The biggest secret of dealing with people is revealed by Dale Carnegie in his classic book, How to Win Friends and Influence People. He relates that the only way to get people to do something is to make them want to do it. Dr. John Dewey, a famous American philosopher said that the deepest urge in human nature is “the desire to be important.” Freud calls it “the desire to be great.” (18) William James said the deepest principle in human nature was a craving to be appreciated. It is as important as food, health, sleep, money and sexual gratification. (18) Carnegie says that “If you tell me how you get your feeling of importance, I’ll tell you what you are.”

Famous people struggle with this. George Washington wanted to be called, “His Mightiness, the President of the United States.” Columbus: “Admiral of the Ocean and Viceroy of India.”

Charles Schwab, president of U.S. Steel, “I consider my ability to arouse enthusiasm among my people to be the greatest asset I possess, and the way to develop the best that is in a person is by appreciation and encouragement. . . . I am anxious to praise and loath to find fault.” (23)

We need to nourish the self-esteem of family members and co-workers. Flattery is insincere. Appreciation comes from the heart.

Carnegie has this old saying posted on his bathroom mirror:

“I shall not pass this way but once; any good, therefore, that I can do or any kindness that I can show to any human being, let me do it now. Let me not defer nor neglect it, for I shall not pass this way again.” (28)

Emerson said, “Every man I meet is my superior in some way. In that, I learn of him.”

The trial lawyers' takeaway is to be humble in the courtroom. Arrogance has no place in it and will never be rewarded. In order to win in the courtroom, you must speak from the heart to persuade.

What Trial Lawyers Can Learn From Dale Carnegie (Part I)

The classic book, How to Win Friends & Influence People by Dale Carnegie has stood the test of time because its insights have been proven to be true and very helpful. Whether you are preparing for an oral argument, a hearing, or a trial, you can benefit from Carnegie’s analysis of how you can persuade others. His tips are also applicable for dealing with clients.

Carnegie presents the fundamental techniques in dealing with people. At the outset of the book, he emphasizes that you should change yourself before trying to change others. He summarizes this lesson into Principle 1: Don’t criticize, condemn, or complain about others. Although you might badly want to change others, “start with yourself. It is more profitable and less dangerous. When dealing with people, remember we are not dealing with creatures of logic, but emotions. People are full of prejudice and motivated by pride and vanity.” Carnegie then quotes Dr. Johnson who said, “God himself does not propose to judge man until the end of his days” and adds, “Why should you and I?”

Carnegie then relates two anecdotes to support his principle. The first story involved an extremely ruthless and remorseless criminal named “Two Gun” Crowley. The police had surrounded this cop killer in his girlfriend’s apartment and Two Gun Crowley fired his gun as he was surrounded by 150 police who fired at him. As he was being fired upon, he wrote a note that said, “Under my coat is a weary heart, but a kind one¬–one that would do nobody any harm.” (p. 2) A few hours earlier he had killed an officer at a traffic stop without provocation.

The warden at Sing Sing said that few of the prisoners see themselves as bad me. Carnegie’s point is that “ninety-nine times out of a hundred, people don’t criticize themselves for anything, no matter how wrong it may be.” Consequently, “criticism is futile because it puts a person on the defensive and usually makes him strive to justify himself. Criticism is dangerous, because it wounds a person’s precious pride, hurts his sense of importance, and arouses resentment.” (5) The person you criticize will justify himself and condemn you in return. (8)

One of Lincoln’s favorite quotes was, “Judge not, that ye be not judged.” (9). The Battle of Gettysburg took place in early July 1963. After the battle, Lee’s retreat was impeded by the Potomac River which was swollen with rain. Lincoln ordered General Meade to attack. But Meade refused. The delay allowed for the river to subside and Lee to escape.

Lincoln wrote a letter to Meade. In part, it said that if he had attacked, it would have ended the war: “Your golden opportunity is gone.” (10). But Lincoln never sent the letter. Carnegie believes Lincoln thought better of it after he wrote it and did not want to second guess Meade.

Do you know someone you would like to change and regulate and improve? Good. But why not start with yourself. It is more profitable and less dangerous. When dealing with people, remember we are not dealing with creatures of logic, but emotions. People are full of prejudice and motivated by pride and vanity. (13)

Instead of condemning people, try and figure out why they do what they do. It is a lot more useful and intriguing. Dr. Johnson said, “God himself, sir, does not propose to judge man until the end of his days.’ Why should you and I?”

The point for trial lawyers is that the key to persuasion is to begin by not trying to change others but change yourself. Once you do that, you will be able to connect with others better. Once you are connected with them you can then try to persuade them.

Insights for Trial Lawyers from the book Pre-Suasion

Below is a summary of a few of the main points for trial lawyers from a great book on persuasion, Pre-Suasion, by Robert Cialdini.

  1. Pre-suasion is the key to Persuasion “The best persuaders become the best through pre-suasion—the process of arranging for recipients to be receptive to a message before they encounter it . . . . The answer lies partly in a poorly appreciated tenet of all communication: “What we present first changes the way people experience what we present to them next.”(Cialdini at 4) Cialdini quotes the Chinese military strategist, Sun Tzu, who declared. “Every battle is won before it is fought.”
  2. Elevated Attention to an Idea (The Privileged Moment) The major thesis of book: Frequently the factor that is most likely to determine a person’s choice in a situation is not the one that counsels most wisely there; it is one that has been elevated in attention (and, thereby, in privilege) at the time of the decision. (Cialdini at 25.) Cialdini challenges the dominant belief of persuasion. He explains that the dominant belief—that is supported by evidence—is that “if you wish to change another’s behavior, you must first change some existing feature of that person so that it fits with the behavior. . . . An alternate model is that to get the desired action it’s not necessary to alter a person’s beliefs or attitudes or experiences . . .” Instead the guiding factor is not an even handed analysis of facts but it’s the idea that has been elevated in the privileged moment by the persuader. “But why? The answer has to do with the ruthlessness of channeled attention, which not only promotes the now-focal aspect of the situation but also suppresses all competing aspects of it—even critically important ones.” (Cialdini at 26-28)
  3. The Fallacy of Multi-Tasking Research shows that when we pay attention to something, the cost is that we don’t pay attention to something else. Multi-tasking simply doesn’t work. Multi-tasking is like trying to listen to more than one track of a CD at the same time. Even though there are multiple “tracks” (like a CD) of information available, we consciously select only the one we want to register at that moment. For example, multi-tasking gives you the apparent ability to focus on several activities in the same time frame—perhaps talking on the phone while reading an email message. Although it might seem that we are concentrating on more than one thing simultaneously, that’s an illusion. We are just rapidly alternating our focus. However, just as there is a price for paying attention, there is a charge for switching it. For about a half second during a shift of focus, we experience a mental dead spot, called an attentional blink, when we can’t register the newly highlight information consciously.ch is an illusion because if it is thinking of something else, the audience is no longer processing what you are saying. For example, whenever you lose eye contact with a judge at a hearing or a jury during trial because you are looking at notes, you have given them the perfect excuse to no longer look at you and start thinking of something else. When you reestablish eye contact, they may be looking at you but odds are they are still thinking about whatever was pressing on their mind when you lost their attention.

In short, the key is to put your best point first, build on it, and never bore your audience so that there is no chance for multi-tasking. It sounds simple, but it takes a lot of effort. Great trial lawyers know that the effort is worth it.


Jury Selection: New Insights

Jason Bloom, a nationally known jury consultant who was the consultant for Roger Clemons' acquittal in his perjury trial, recently spoke at a CLE presentation. Here are some of the ideas he shared about how to pick a jury and how to present your case to them.

Are jurors smarter than you?
Not quite, but they are getting there. The modern jury is more educated than in years past. There is an old adage that you should try your case as if you are speaking to eighth graders. I never agreed with that adage but the current statistics prove it to be wrong. Bloom relates that 40% of jurors have a college education and 23% have a post-graduate degree.

Do stereotypes still work?
Bloom points out that you should not pick jurors based on demographics such as gender, ethnicity, or age. Those stereotypes are not reliable indicators. Instead, find out about the jurors’ life experiences. For example, does a juror see the world as just or unjust. This outlook could help you decide whether the juror would be good or bad for you depending on your case.

Relax! It's your house 
During voir dire, embody reflective listening. That is, show compassion with whatever the witness is talking about. Show respect and build rapport. Be comfortable. Pretend that you are in your living room. If you are nervous, jurors may mistake that emotion for a lack of confidence in your case.

You will need to cross the Atlantic or Pacific Ocean
I could not agree more with Bloom’s view that “there is a gap the size of the ocean between what lawyers want to say and what jurors want to hear.” Lawyers believe explanations are the key to persuasion. Instead, lawyers need to find the human emotion tied to their case that will persuade the jury.

I believe that you should fit the bottom line message of what your case is all about on the inside flap of a match book. Bloom gives you a little more room. He advises that you should take out a 3x5 index card and write on it the answer to these four questions: 1) Why are we hear? 2) What is the point? 3) Why is this important? and 4) What is the significance?

Reading is boring! 
Not surprisingly, jurors learn by watching, not reading. I could not agree more. Your trial needs to use visual aids constantly to inform and keep the jury entertained.

Get an A on your report card
Bloom pointed out that when jurors evaluate attorneys after a trial, there are three things that matter most. Was the attorney organized, prepared, and did he or she have passion?

Finally, when evaluating witnesses, jurors care whether the witness was responsive to the question, were his answers to the point, and was he composed.

Lessons for Trial Lawyers from Nudge, a book on Persuasion

Nudge is a New York Times bestselling book written by Nobel Prize winner Richard H. Thaler and Harvard Law School professor Cass R. Sunstein. The book draws and a wealth of research from behavioral science that shows why people make bad choices and how they can make better ones. The authors believe that choices are never presented in a neutral way and that bias, whether intended or not, can lead people to make bad decisions. By recognizing that such a bias is present, we can make better decision. For trial lawyers, the revelations in this book can have a profound impact at trials and depositions. When we present information to judges and juries, we are choice architects and can nudge jurors toward a particular decision if we present the choice in the right way.

Below is a summary of the insights from Nudge that can be used by criminal and civil trial lawyers.


In one of the first studies analyzed in the book, the authors relate that schools were able to increase the consumption of healthy items or decrease the consumption of unhealthy food items by as much as 25 percent simply by arranging them at eye level or the changing the position in the order in the line or putting them in a separate line. “There is no such thing as a neutral design.” We are all choice architects. “A choice architect has the responsibility for organizing the context in which people make decisions” (p.3.) “A good rule of thumb is to assume that everything matters.”

“A nudge as we will use the term, is any aspect of the choice architecture that alters people’s behavior in a predictable way without forbidding any options or significantly changing their economic incentives. To count as a mere nudge, the intervention must be easy and cheap to avoid. Nudges are not mandates. Putting the fruit at eye level counts as a nudge. Banning junk food does not” (p.6.)

The authors ask us to assume there are two imaginary species. Econs are what economic textbooks assume man is: someone who unfailingly chooses well. The second is the real human with all his flaws: Humans.

Unlike Econs, Humans predictably err. “Take for example the ‘planning fallacy’–the systematic tendency toward unrealistic optimism about the time it takes to complete projects. It will come as no surprise to anyone who has ever hired a contractor to learn that everything takes longer than you think, even if you know about the planning fallacy” (p.7.)

Top Ten Trial Lawyer Takeaways

1. One rule of thumb is that everything matters in how you present information to a decision-maker. Nothing is neutral! Just like the study mentioned above about how the placement of healthy food in a line cafeteria line affects its popularity, give a lot of thought to your order of witnesses, the number and priority of exhibits, and what you will emphasize in your opening statement.

2. Be aware of the planning fallacy: the systematic tendency toward unrealistic optimism about the time it takes to complete projects. Allow extra time for everything in your deposition and trial preparations.

3. The importance of visual aids at trial is shown by the Shepard’s table illusion. Watch the short video to see how important visual aids can be. The charts, diagrams and timelines you use have dramatic consequences on outcomes. Give a lot of thought to how your visual aids look and their persuasive value.

4. Anchoring is a rule of thumb that civil lawyers need to be aware of in settlement negotiations and prosecutors and criminal defense attorneys need to be aware of at sentencing hearings. The authors relate this study to show anchoring bias. Take the last three digits of your phone number and add 200. Now, guess when Attila the Hun invaded Europe. One hint: it was after Jesus was born. The authors found that people with high numbers unconsciously guessed 300 years later than those with low numbers. This is called anchoring and adjustment. People were doing this even though rationally, we know that our phone numbers have nothing to do with European history.

5. In settlement negotiations, an unrealistic high demand can serve as an anchor that helps the plaintiff’s attorney by infecting reasonable negotiations. But if you are a defense attorney, instead of responding to an unrealistic demand, tell the plaintiff’s attorney that you are not responding until he withdraws the unrealistic demand and starts with a reasonable one. That way, your anchor for negotiations will be normal.

The same anchoring bias plays out at sentencings for criminal defendants. If you are in federal court, the U.S. Sentencing Guidelines play a huge anchoring role that there is very little you can do about. The punishment the Guidelines recommend is something that you cannot prevent as a starting point for discussions. The important point is to realize how this anchors a judge to a certain outcome. Once you recognize this anchor and depending on your goal, find your best argument to highlight for the judge why this anchor is right or wrong.

In state courts where the judge happens to be the decision-maker, use the same strategies discussed above for civil attorneys. Start with a very high or low number to anchor the discussions.

BEWARE: One thing that Nudge does not take into account is that you need to maintain credibility with the judge. So, when making a high or low suggestion to start the discussion, keep in mind that your recommendation cannot look so outlandish that the judge deems you untrustworthy and then tunes you out for the rest of the hearing

6. We are all too overconfident. If you disagree, you confirm this proposition that studies have proven. The optimism and overconfidence problem is a significant one for trial lawyers to overcome. Here is an easy way to do it. For every hour spent putting your case together, you need to spend 20 minutes tearing it apart.

7.  Avoid the status quo bias. Humans are passive. Our brains prefer inertia to change. The authors point out the examples where students tend to sit in the same seat even without a seating chart. Another example is that the default options set by employers and products are always more popular because they take no effort to choose. Don't be trapped by this situation. Do something different from the way you have always done it.

8. Framing is similar to anchoring. Be aware that jurors are passive decision makers. How you frame your questions and themes is important. The authors point to many studies that show how framing a question can influence outcomes. “Research shows that subtle influences can increase the ease with which certain information comes to mind” (p. 70.) For example, if people are asked the day before an election if they intend to vote, there is a 25% increase in voting." Consequently, make the information easy for the jurors to understand by the themes you use. Put positive information first so that jurors will put emphasis on it and discount the negative information that you present later.

9. Recognize what your temptations are when you are in a hot state. A hot state is an emotional state which we often find ourselves in without realizing it. When you travel for depositions or trial, do you eat bigger meals and forget to exercise? When you are in a cold state before your trip, look for a hotel that has a good gym and plan a daily workout into your schedule. It is just as important as setting time aside for witness preparation etc.

As for mindless choosing, think about decisions you make without any thought. Are you using the same court reporter for depositions because it is easy to do so despite a slow turnaround for transcripts or inaccurate transcriptions? Does your website need updating to increase the likelihood of getting clients but you haven’t taken the time to do it because you are too busy? Become a Planner and think creatively how to do things differently.

10. Do jurors follow the herd? Yes. The authors point to several studies that show we are influenced by those around us. Three of those studies found: 1) teenage girls who are around other teenagers who are pregnant are more likely to get pregnant; 2) Obesity is contagious. If your close friends gain weight, you are more likely to gain weight; and 3) The academic success of college students are affected by those close to them at college–particularly roommates.

The social nudges of information and peer pressure influence verdicts. Try to determine who the leaders are on your jury. They are usually the ones that are paying the most attention and sometimes the ones who are taking the most notes. If their occupation is one of leadership, that is certainly a clue. The point is that you need to keep in mind the importance of convincing the leaders on your jury in order to help persuade all the jurors.

If you want to learn more about how Nudge can help trial lawyers, join my discussion of this book at my book club for trial lawyers which can be found at goodreads.com.

Do You Know Your Client's Name?

This may seem like a really obvious maxim, but I just saw it violated in the worst way. I was summoned for jury service and sitting in the voir dire panel in court when the judge asked the lawyers to introduce themselves and their clients. What did the plaintiff’s lawyer do? He made great eye contact and introduced himself to the jury in a confident voice and then . . . looked at his notes to read the name of his client. What’s even worse, he had trouble reading his own writing and stumbled when he tried to pronounce his client’s name. I’m not even sure he ever got it right because he did not say the name very clearly or loudly. All the jurors in my panel noticed the lawyer’s mistake.

Talk about a case being over before it ever began. Unfortunately, this lawyer’s mistake is more common than you would expect. I have seen it happen several times in a courtroom. During a trial, I’ve seen prosecutors forget the first or last name of a victim or pronounce incorrectly the name of a key investigator. This failing not only shows a lack of preparation but also a lack of passion for your case.

In my trial, the mistakes did not end there and only confirmed our initial impression about this lawyer. The plaintiff’s damages in this car wreck case were mostly bills from a chiropractor. One of the panel members asked the plaintiff’s lawyer if he thought chiropractors provided a legitimate service. Instead of immediately saying yes---since his whole case was built on that---he hesitated, then after a pause and a false start, he said that it depends. Some doctors respect chiropractors and some don’t. Again, the panel members saw a lawyer who did not believe in his case.

You would never make these mistakes but the larger point is that your first impression with a jury is very important and that jurors can sense which lawyer believes in his case and is the most prepared.

Deposition Strategy: Order of Witnesses

Before you take the first deposition in your next case, you need to spend time doing something that most lawyers never do. You need to decide what is the best order to take the depositions. Do you want to develop your case from the ground up, or from the top down? Most attorneys start at the bottom and work up but there is no one right way that applies to all cases. For example, if you are a plaintiff in a medical malpractice case, you may start by taking the depositions of the nurses and then work your way up to the doctors. This would give you the chance to build the theory of your case with lower level fact witnesses before you question the doctor.

But such an approach alerts the doctor to the questions to expect, since his counsel will have briefed him not only on the questions you have asked but the answers that have been given. It also gives the doctor time to prepare for the moment of truth. By contrast, if you start with the doctor, you may not know all the details of the case, but you will be able to lock down the doctor’s testimony before he has time to learn from others’ testimony and modify his responses.

There is a definite advantage in taking the deposition of a main witness before that witness has had time to prepare by reviewing documents or learning from other depositions. You can catch the witness off guard because opposing counsel will be hearing the specific areas of your questions for the first time and won’t be able to warn the witness ahead of time.

In contrast, working from the ground up is particularly helpful when you don’t know who the decision-maker is who took the action which hurt your client. You may need to build your case by getting details from witnesses low in the food chain so you will know what questions to ask the decision-maker when you determine who that is.

The key is to be creative and not approach every case the same. While in most cases, you probably will start with low-level witnesses, don’t be afraid to go after the key witness first when you know what questions to ask him.

The Keys to a Successful Voir Dire

Harper Lee wrote in To Kill a Mockingbird, The only place where a man ought to get a square deal is in a courtroom, be he any color of the rainbow, but people have a way of carrying their resentments right into a jury box.

Voir dire is the selection process where potential jurors are asked questions to determine whether they can be fair in a particular trial. The goal is to find their resentments before they get into the jury box. Depending on the court, it can be conducted entirely by the attorneys, entirely by the judge, or by a combination of both.

When courts permit attorneys to ask questions, the scope of what the attorneys can say varies widely. For example, some courts allow attorneys to explain their case in great detail without the necessity of posing a lot of questions to the jurors. Such a scenario offers a unique chance for an attorney to build an emotional bond with the jurors and can be one of the most important parts of a trial.
In most courts, however—even where lawyers are allowed a chance to participate—the court will not permit the attorneys to do anything other than ask questions (the amount of particular facts an attorney can discuss with the jury varies among courts). In addition, there is often a court-imposed time limit that restricts questioning. Moreover, when judges conduct the entire voir dire, the process can be even more perfunctory.

The custom in federal courts is that judges conduct the majority of the questioning with some involvement from the attorneys. The judges are strict in prohibiting statements or arguments from counsel and requiring that only questions be asked. There are also time limits set by the individual judge.
The hardest part of voir dire is getting the jurors to talk. It is very difficult because the setting is formal, and you are necessarily asking jurors questions about their own biases. Not many people are willing to talk openly about their prejudices and shortcomings in front of a group of strangers. Plus, everyone likes to think of himself as fair. So, getting jurors to talk about their failings and then to admit that they cannot judge the case fairly because of their biases is a rare event.

In addition, the limited amount of time allowed prevents a thorough voir dire. There is simply not enough time to get adequate information from each juror to make very intelligent decisions. If a lawyer has only twenty minutes to question thirty to forty jurors, that leaves about thirty to forty-five seconds per juror—hardly enough time to get a juror comfortable with revealing long-held biases.

Some lawyers think they can watch jurors' body language during voir dire to gain insight into what type of juror they will be. However, trying to evaluate jurors by dress, mannerisms, and body language is pure speculation. It is naive to think that a lawyer can predict how complete strangers will decide a complex matter by evaluating their body language and mannerisms.

Given the difficulties in getting information from jurors, you must have realistic goals. There are four things you can accomplish in most voir dires: (1) identify the obviously biased jurors who speak out against your position, (2) get the jurors to like you, (3) make the jurors interested in your position, and (4) educate the jury by discussing the critical legal issues that will apply to your case.

First, voir dire is your chance to weed out the obviously biased jurors who can’t wait to tell you their opinions about your case. For example, some people believe that if a defendant is innocent, he ought to testify at trial even if the Constitution gives him the right not to. If you are a defense attorney and you plan to instruct your client not to testify and discover such a juror, you have achieved success.
Second, voir dire is a wonderful opportunity to let the jury get to know you. First impressions are everything. You may be taking written notes on the jurors, but they are making mental notes about you. Are you likable? Do you know the case?

Third, try to create an emotional bond between the jurors and the facts of your case. Make the jurors feel the trial is important for your client so they will want to be on the jury to return a verdict in your favor.
Fourth, since you cannot discuss the details of the law in your opening statement, voir dire affords an excellent opportunity to do so. For example, criminal defense attorneys will often spend significant time emphasizing how high the burden of proof is in a criminal case. Defense attorneys can also explain elements of the crime in a way that shows how difficult it should be for the prosecution to get a conviction.

The Overrated Importance of Closing Argument

One of the greatest mistakes a lawyer can make is to save his best argument for the closing argument. It is too late then because the jurors have almost always already made up their minds. Remember, at least 80 percent of jurors come to a decision “during or immediately after the opening statements.”

Yet it is understandable why so many attorneys do wait until closings to make their best arguments.

First, opening statements are harder to deliver because it takes a certain amount of courage to predict what the evidence will show; a closing simply has to summarize what has already taken place. Second, some lawyers feel that if they put their best argument in their openings, jurors will lose interest in the trial. These lawyers often like to save some surprise facts for the trial and then use them in their closing. Unfortunately for these lawyers, jurors will go ahead and reach conclusions about who should win after opening statements without the benefit of those facts.

Third, some lawyers feel that if they put their best arguments in their openings, it will tip off the other side to their strategy, and thus they will lose the element of surprise at trial. The problem with this thinking is that the trial begins with the opening statement, not with the first witness. Given that jurors are quickly making up their minds during opening statements, this is not the time to be holding back your strong arguments. Certainly, your opening statement need not give away every surprise you might have at trial. Nonetheless, it should contain your best pieces of evidence and your best arguments.

Even though the importance of closings is overrated, it is paramount that you make your closing as good as it can possibly be. Even if the jurors have already made up their minds, you don’t want to give them a reason to change their minds with a subpar performance. Instead, provide jurors with the evidence and arguments to make their deliberations easy. Finally, the importance of opening statements notwithstanding, closings become very important in a close trial. It is then that a trial can be won or lost with closing arguments.

To see examples of such powerful openings and closings, check out my latest book, Turning Points at Trial: Great Lawyers Share Secrets, Strategies and Skills.