Published at Law.Com on November 11, 2020
In a trial as in life, “you never get a second chance to make a fist impression.” Opening statement is the jury’s first impression of the case, the first time the hard structure of the case’s framework is built. If it is not done correctly in opening, it is not likely to be corrected through the trial.
A couple years ago, while I was teaching a seminar, I sat down to eat breakfast with my co-teacher and co-author for this article, Charles “Chuck” Bennett. He’s a 6-foot-8 former basketball player and was eating off the largest pile of food I’d ever seen on a single plate. After I reminded him it was a buffet and he didn’t have to put everything on one plate, we started talking about opening statement. He asked, “What would you tell your younger self is the most important lesson for being a great trial lawyer?”
I told him about my first trial, just out of law school, when my client had been exposed to toxic chemicals and had permanent symptoms like he constantly had a cold. In getting ready for that trial, I felt I was too busy preparing to allow for time spent with my client. Besides, I knew what having a cold was like. I’d had a cold before. What’s so hard about telling a jury that my client has trouble breathing, is always coughing, and can’t sleep? I thought it was a no-brainer.
I knew the evidence backward and forward. I went over every exhibit until I had the numbers memorized, I knew what every doctor’s report said, and I nearly memorized my client’s deposition. I thought I knew everything about the case but neglected to know my client. I had no idea what his life was like every day. I hadn’t seen what it was like for him when first thing in the morning he’d gasp for air until he blew his nose and blood came out. I had no idea how difficult it was for him to eat because he could only breathe through his mouth, or how he’d basically lost his sense of smell and taste. I didn’t know what it was really like for him to painstakingly avoid stairs, hills, and almost all physical exertion so he wouldn’t struggle to breath more than he already did. I did not know the effect of a cold Kentucky morning on his ability to breathe, move or live. I knew his case, but I didn’t know him.
Then I told Chuck about another trial I had many years later, in 2008, where I basically lived with my client the week before trial. He had lost one leg above the knee and almost all functionality in the other in a train incident. I watched that once proud railroad worker spend 10 minutes in his own kitchen getting coffee from his wheel chair as he performed a balancing act with the coffee pot. I saw his wife help him put his pants on and help him to the restroom in the morning. And I experienced him struggle to move around his house, with the look of frustration and helplessness on his face.
Because I had lived within his experience, I knew the story. Knowing the story, I could recreate it in living color for the jury.
Kyle Sherman from Louisiana, who also teaches with me and Chuck, tells a story about a machine he thinks someone will eventually invent to try to replace trial lawyers. It’s got handles on either side, and when the injured person grabs the handles on his side, each of the jurors takes turns grabbing the handles on the other side and is able to experience all the pain and suffering, all the mental anguish and hurt from that injured person.
But until that machine is built, trial lawyers have to be the ones to bridge that gap. We have to be the machine that takes our client’s experience and give it to the jurors.
I was able to do that a little bit with my railroad worker client. The jury responded with a substantial verdict that will help that man and his family live with a little bit of respect for the rest of his life. I’ll never forget when he shook my hand from his wheelchair after the trial and said, “Thank you, you get it.”
But the jury in my first trial, when I thought I knew what my client’s cold symptoms were like because I’d had a cold before, they sensed something was off and responded accordingly in their verdict. So, I told Chuck at that breakfast that I still believe to this day if I’d spent the same time with that first client as I did with the railroad worker, maybe things would have been different.
We spend years learning how to be a lawyer. We read case after case in law school, once in practice we attend CLEs and even trial schools that teach us the technical aspects of the law and how to prove what we think are the case essentials: duty, breach, causation, and damages. But the reason I got into teaching other lawyers is because I know there’s much more to it than just the legal technicalities. The most important aspect of the trial, being able to fully and vividly present our client’s story is the most often neglected. Through mentoring others, I routinely remind myself of the importance of eliminating the bad habits accumulated over a lifetime through drills, practice, and brutal video analysis. Once a lawyer becomes a blank canvas, he is then in a position to tell the compelling stories of his/her client, how to deliver real dialogue, and how to experience authentic emotion.
But we still have to know what stories to tell, what dialogues to deliver, and what emotions to experience. And the only way to do that is to know our clients so well that we can bridge the gap, like Kyle Sherman’s machine, so the jury “gets” it.
Charles “Chuck” Bennett is a consultant with Trial Structure. He has tried cases to verdict for personal injury plaintiffs, criminal prosecution, and criminal defense. Bennett played professional basketball in Europe for eight seasons and brings his work ethic, intensity, and competitiveness for winning from the basketball court into the court of law. Along with the other Trial Structure consultants, Bennett has developed the substructures within Trial Structure that simplify the creation and presentation process and increase the jury’s focus on the defense’s betrayal.
Jamie Holland is a consultant with Trial Structure. He has two decades of trial experience in railroad, trucking, and significant injury cases. In spite of a very busy trial schedule, Jamie has dedicated significant time mentoring younger lawyers and helping them learn the techniques and skills to be successful in the courtroom. Jamie can be found coaching trial advocates, teaching CLE’s, and has helped develop the format for the Florida Justice Association’s Al Cone Trial Advocacy College. This work led to him being honored by the Mickey Smiley award from the FJA young lawyers for his mentoring.
Jamie received his Board Certification in Civil Trial Law in 2004 and is a frequent lecturer on trial advocacy. He is actively serving on the Board of Governors for the American Association for Justice (AAJ) and the Florida Justice Association and was the former chair of the AAJ railroad law section. He has also been honored as “Nation’s Top One Percent” by the National Association of Distinguished Counsel. Jamie has also been recognized as a top-rated transportation and maritime attorney, receiving the Super Lawyers award since 2007 and continues to hold this honor currently in 2019.