The Courtoom is Your Stage
By Lawrence W. Crispo
Issue: WINTER 2003
Thespians on a Different Stage: Conducting dynamite voir dire and opening statement
The Hon. Lawrence W. Crispo is a judge of the Los Angeles Superior Court and former Vice President of the Board of Governors of the State Bar of California. He is a member of the Los Angeles Chapter of the American Board of Trial Advocates. This article appeared in California Litigation, the Journal of the Litigation Section of the State Bar of California, Vol. 16, No. 1, 2003. Reprinted with permission.
Eighteen months ago, a new client walked into your office with what, to the client, appeared to be the most important case of his or her life. You evaluated the facts, reviewed the law and the potential jury instructions, began your course of discovery and began to develop your theme or “plot” of the case. You have reviewed the facts, both good and bad, with your client, your colleagues, perhaps a jury consultant, and have investigated the skills, abilities, idiosyncrasies of the judge and of opposing counsel and are now prepared to try the case.
It’s the Morning of Trial — Show Time!
During the past 18 months, you have, in developing your theme, learned the specific instructions the court would likely give the jury, have made notes from time to time as to important points to make in your opening statement and in your final argument, and have developed confidence in the facts of the case and
self-confidence in your ability to present it effectively to the jury.
From the time you leave for court on the morning of trial, you become a thespian on a different stage.
As you drive to the courthouse, enter the courthouse, walk through the halls, there’s a likelihood that judge, jurors, and witnesses will see you. You enter the courtroom with self-confidence, but with butterflies in your stomach and the nervous energy that every trial lawyer has at the beginning of a trial. Although you are comfortable in the environment of a courtroom, each case is different, and until you begin
addressing the jury in voir dire and develop that “old shoe” feeling of comfortableness, you may experience some apprehension. Every lawyer starting a jury trial must overcome the public image of the lawyer as a mouthpiece, a hired gun, a person who is in court merely to earn a fee — the brunt of many lawyer jokes.
When you enter the courtroom, your responsibility and job as a lawyer is to initially impress upon the judge and the jury that you are in court because of a strong belief and conviction that, if you are plaintiff’s counsel, the defendant has trampled upon plaintiff’s rights and caused plaintiff’s injury, or if you are defense counsel, that plaintiff’s cause is not meritorious and the plaintiff is attempting to inflict damage on the defendant by presenting a non-meritorious claim. The courtroom is a stage and the lawyers actors on that stage. The jurors are the audience observing the action.
The jurors are apprehensive because they are in a strange environment. They have watched courtroom dramas on television, real and dramatized, and have gleaned certain expectations from those observations. Initially, the jurors are unfamiliar with their role and responsibility, and they are taking cues from the participants on this stage. Therefore, it is important, as you enter the courtroom, that you interact pleasantly and professionally with everyone, and that you give the impression of being an
honorable, civil, and caring person. Also, it is very important for you to discuss demeanor with your client and witnesses and how you want them to present themselves.
Body language is very, very important. I suggest you become a student of body language. As jurors are evaluating you, your client, and your witnesses, they will quickly intuit whether or not there is a sincere, positive relationship between you and your client, or whether the relationship is one of feigned interest.
It is important for you, as trial counsel, to impress upon the jury that you are, first and foremost, a person of integrity and credibility and believability, and secondly, that you speak with knowledge and with truth, and you have sincerity and truth on your side. It is also important that the jury believe you are the
most knowledgeable person in the courtroom. Perhaps if you have a weak judge, you’re more knowledgeable than the judge. As a final point, it is important that you come across as a likable person in the eyes of the jury since psychologists have shown people subconsciously want to do things for people whom they like. Therefore, if your facts can carry your burden of proof but are somewhat weak, if the jury has a basis for finding in your favor even with weak facts, if you are a likable person, as is your client,
they will subconsciously want to vote in your favor.
Act 1 Begin
Voir dire means “to speak the truth.”
You will explore with the prospective jurors their true feelings, leanings, and biases.
The jury venire has been sworn. The judge has conducted either limited or extensive voir dire, has read and agreed upon a statement of the case to the jury or perhaps has allowed each side to give a five-minute pre-voir dire opening statement. Many judges, including the author, have found a five- to 10-minute
non-argumentative pre-opening statement before voir dire to be very helpful in allowing counsel to conduct a more incisive, informational, and instructive voir dire. It is also more helpful than having counsel ask, in vague generalities, how the jurors feel about certain things.
In this time of heavy court dockets, most judges, being concerned with time management, will limit the amount of time counsel can spend with jurors on voir dire.
Voir dire is the only opportunity you have during the course of a trial to speak with the jurors on a two-way street, conversational basis. You should utilize voir dire for the purpose for which it was intended — to determine any preconceived notions or ideas that jurors may have, to try to identify and expose any biases, and to discuss them with the jurors so as to attempt to excuse for cause any jurors who, in fact, should be excused. Also try to utilize the time to educate the jury about the importance of the jury system and of their obligation to be fair and impartial to parties (particularly your client).
Attempt to develop rapport with the judge in the presence of the jury. The jurors tend to look to the judge as the authority in the case and for direction in what they should or should not do. It’s common knowledge that some judges have pro-plaintiff or pro-defendant biases. If those biases are apparent to the jury,
they can subconsciously affect their evaluations and deliberations. Counsel must be very sensitive to those prospective biases and attempt to impress upon a jury that they are judges of the facts and that, as judges of the facts, they will be determining what the true facts in the case are. Attempt to get the jurors to agree they will objectively evaluate those facts and not allow any feelings of bias, sympathy, passion, or prejudice for one side or the other to affect their evaluation of the evidence and of the case. Attempt to spend at least a few minutes with each of the prospective jurors to develop rapport with them. It is important that you not be slavish in taking notes, and that you have someone in the courtroom audience to evaluate the jurors’ responses to questions and their body language. When you find you have a prospective juror who may be favorable to you, it’s important you not dwell on that juror too long lest the other counsel perceives your interest. Again, being observant and having someone (perhaps a jury consultant) in the audience observing the proceedings are important.
One of the goals of trial counsel should be to develop a respectful relationship with the jurors. Counsel who lose sight of jurors as people and try to ram their case down the jurors’ throats will not be respected. When respect is established, lawyers are seen as more genuine. Jurors are more likely to trust them and to believe in their case.
As you know, most judges will permit lawyers to ask jurors certain hypothetical questions as to whether they could award substantial damages if certain facts are proven or if, on the other hand, they have any religious or other beliefs which would prevent them from awarding monetary damages.
The defense must acknowledge in a major personal injury case that jurors will feel sympathy for the plaintiff. The defense must attempt to have the jury sincerely agree that they will set aside all sympathy and render a verdict for the defendant if the plaintiff fails to prove plaintiff’s case. Be wary of asking jurors on either side of the issue whether they promise to vote for one side or the other depending upon the evidence. Many courts believe it is improper for jurors to be asked to give a promise to counsel.
The thrust of voir dire is to attempt to gather a panel of jurors who, at worst, will not have any biases or prejudices adverse to your position or your side of the case, and at best would be favorably inclined because of their predispositions to favor your side of the case. This being true on both sides of the case, the result hopefully will be a panel of 12 fair and impartial jurors.
In developing a panel of jurors, it is imperative you make certain that a bad juror does not poison the other prospective jurors with respect to your case. Be alert to such a situation. Ask the court if certain voir dire of the prospective juror may be conducted outside the presence of the other jurors so as not to bias the remaining panel.
As to peremptory challenges, make certain you know the number of peremptories to which you are entitled. Peremptories should be saved, if possible. Being able to control the final panel is a key to picking a favorable jury. Generally, it is not possible to have 12 perfect jurors. You must make certain to de-select those whom you sense are likely to be adverse to your client and who have strong personalities. The most dangerous juror is a person who not only has biases and prejudices against your case, but also has a strong personality and will push hard to impose his or her views on other jurors. This is a person you must identify and keep off the jury. On the other hand, you must not waste precious peremptory challenges on people who may not be very sympathetic, but who do not have the personality to fight about it.
Observe the jurors’ attire. Do they appear conservative or liberal? But keep in mind that jurors may not dress for jury duty as they would in their ordinary workday life.
Sometimes a lot can be gleaned from court venue. Watch for items around the courthouse that may be the source of some initial discussion with the jury. For example, in our courthouse, the words “law and justice” are inscribed at the courthouse entrance. Most courts have juror pamphlets. You should review them to determine what information potential jurors have received as part of their indoctrination. Many courts, such as ours, will also have a judge provide jury orientation and present educational videos to potential jurors. In the Los Angeles courts, a video is presented to potential jurors with remarks made by the Presiding Judge. In addition, many volunteer judges also give jury orientation. Utilize this information in your voir dire and opening statement to enhance your position in advocating the furtherance of justice in this case.If you can agree with opposing counsel on the questions in a jury questionnaire, especially in a long case, attempt to have the court provide that questionnaire to the jury. This will enable you to elicit more honest and deeper insights into any biases or prejudices the jurors may have than by merely asking the questions in open court. Jurors may be more reluctant to express biases in open court.
Once again, you should concentrate on asking the questions. Have a colleague or a jury consultant or an associate make notes on juror reactions so you can evaluate a basis for challenges both for cause and peremptories.
You may want to reveal some of the weaker aspects of your case to the jury, but not in the first round. Introduce your case incrementally and in segments. If you give them too much information in the beginning, you may shock otherwise good jurors into disqualification because of their erroneous belief that
they would be unable to be fair.
Don’t ask yes/no questions of the jurors. Ask open ended questions which encourage the jurors to be candid with whatever insights they have so you’ll be in a better position to evaluate their objectivity or lack of same.
Remember that voir dire is not the time to attempt to sell your case of the jury. They are still on quite unfamiliar ground and are still assessing your credibility and your integrity. If you come on too forcefully on voir dire, they may not be receptive to you and will very possibly turn off to your case.
Now that the jury and alternates have been selected and, hopefully, your theme has been introduced, you have the first opportunity to converse with the jurors about the facts of the case.
You must lay the groundwork for the entire trial. The primary purpose of the opening statement is to acquaint the jury with the facts of the case, introduce your theme, and the theory of recovery or defense in an appropriate tone and demeanor. Many trial judges take detailed notes during the opening statements of the facts presented and indications of how each side will attempt to prove his or her case — sort of a road map for the judge and jury to follow. Jurors are very receptive at the time of opening
statements because they have not yet formulated opinions about the contentions on each side to the case.
Part of your theme should be that this trial will concern issues such as righting a wrong, breach of trust, corporate responsibility, failure to keep a promise.
By the time of opening statement, if you’ve done your job, the jury will have a comfort level with you and with your integrity, sense of fairness, knowledge and ability. You’ll be perceived as a trustworthy, credible, truth-telling, and knowledgeable individual.
You must judge how far to push the envelope in opening statement. An argumentative opening statement, even if not objected to, can be a negative in the eyes of the jury. Try to get a sense of whether or not the trial judge will permit argument in opening statement and, indeed, whether it’s appropriate to present argument in opening statement. Try to get a sense of your opponent and whether or not counsel will object to your statement as being argumentative and therefore potentially impair your credibility with the jury as well as impede the flow of your presentation.
Certainly you should present the reasons for being there, show your righteous indignation at having to bring this lawsuit to obtain the just compensation to which your client is entitled, or if you’re on the defense, the righteous indignation of having had this lawsuit of little or no merit brought against your client.
Organize your opening statement. Then, practice your opening statement before friends, colleagues, spouse, or a mock jury and have it critiqued. Tell a story. Develop a theme or plot. Do not overload the jury with insignificant details at this time. This is your first opportunity to present your case in a convincing,
cohesive, thoughtful, and uninterrupted way. In the first and second day of the trial, you will hopefully have the jurors’ undivided attention. Throughout the remaining days or weeks, some jurors may or may not become sidetracked in their thinking; they may or may not become bored with some of the testimony, and except for the potential drama of incisive cross-examination, you may not again have the same, full, undivided attention as you have at this moment in the course of the trial. Don’t misuse or lose this opportunity to have the jury want to decide the case in your favor by the close of opening statement. Voir dire and opening statement are the two most important components of a trial, and by the time of the
conclusion of opening statements, the case has probably been decided by 80 percent of the jurors.
Once a theory or fact is related to jurors during the opening statement, it tends to become entrenched in their minds. Psychologists say that when a person first learns about a subject, it is believed most deeply and is unlikely to be changed. Psychologists call this primacy.
Make your opening statement passionate and persuasive. Put yourself in the right psychological frame of mind. Impress upon yourself and hopefully the jury the fact that during this trial, nothing else in life is important except to insure that justice is accomplished for your client.
Find out from the judge what his or her requirements are, whether he or she will allow you to leave the lectern to address the jury, witnesses, etc., and where you would like to position yourself during opening statement and during the various phases of the trial. Never stand too close to the jury box. You don’t want to invade the jury’s zone of privacy. Remember, you are a thespian on a different stage.
Tell your story, build to a climax, try to grab the attention of the jurors, use descriptive words, graphic concepts, timelines, charts, photographs, diagrams and other exhibits to visualize the events you are describing. Tell the story of this case in living color, but don’t overwhelm the jury. Always discuss this with the judge before beginning your opening statement. Show any props to counsel and court. If certain testimony may be used by deposition, read selected portions during the opening statement so you can build on the fact that witnesses testified previously to these facts in deposition.
Build your opening statement to prepare yourself for final argument. At that time, you will, for the first time, be able to demonstrate that the evidence and law have shown what you stated in opening statement, and therefore, you may properly ask the jury as judges of the facts to give a verdict to your client.
A certain amount of repetition is appropriate in opening statement for reinforcement, but not to the point of excessiveness. Statistics have shown that jurors forget about 40 percent of what is said to them at this time.
The late, great Irving Younger, in his lectures, stated that if a juror hears a fact once, he or she believes it is possibly true; if twice, he or she figures it’s probably true; if for a third time, then God almighty cannot dislodge it from his or her mind.
Be a credible source. You are the most important witness in the case. What you say is not technically testimony. You will talk to the jury four times: voir dire, opening statement, cross-examination, and final argument. All are times when the jury learns about the case from you.
Your goal is to anchor your theme, your action of the play, your “cast” of characters in the minds of the jurors so that your play comes alive in the minds of the jurors, and they are walking with you side by side throughout the drama of the trial.
Use the golden opportunity of your opening statement wisely. As Hamlet told the players: “Let your own discretion be your tutor. Suit the action to the word, the word to the action; with this special observance, that you o’erstep not the modesty of nature: for anything so overdone is from the purpose of playing.”
And from “As You Like It”: “All the world’s a stage, and all the men and women merely players; they have their exits and their entrances; and one man in his time plays many parts,…full of wise saws and modern instances; and so he plays his part.”
The courtroom is your stage. Tread its boards carefully. Enjoy the life of a trial lawyer. You are a thespian on a different stage.
VOIR DIRE ©2003