Whenever I prepare for giving an opening statement, as I am today, my head is filled with more advice that I have heard or read over the years than expletives Bill Belichick threw out last night. I am writing today about two issues: what you should wear to trial and how you begin your opening.
The conventional advice from noted trial advocacy authors I have read and respect, such as Thomas Mauet and David Ball, is to leave the Rolex at home. This literal advice includes its corollaries of dressing conservatively with a blue or black suit that you did not buy in Italy, no necklaces or bracelets, etc.
This is the conventional wisdom, and I buy into a part of the premise. Generally speaking, jurors are going to prefer trial lawyers they can related to, and many of us do not relate to the guy with the Craig Sager suit jacket. But I think what really creates a disconnect between a trial lawyer and a jury is when the lawyer is not perceived as authentic. Any time you are stepping out of your box, you are going to be less comfortable in your own skin. Juries are people: they sense this like a shark senses blood.
My style is conservative in that I wear “please don’t notice my clothes one way or the other” attire. I would feel uncomfortable with a diamond hoop earring and a gold bracelet. But some lawyers with traditional clothes look like your Uncle Bill at a wedding: miserably out of their element. If that is who you are, be who you are. Juries are going to say, “Hey, he/she is not like me, but this is a real person.” (For Maryland lawyers, see Snyder, Steve for the epitome of this concept.)
A related issue is the first words that come out of your mouth in an opening. Many lawyers, including fellow blogger Mitch Jackson who wrote about this recently, and the late Fred Warren Bennett, a criminal defense giant (as the Daily Record called him) who I was blessed to have had as a trial advocacy professor and adviser when I began trying cases, argue that introductions of counsel and client should come later because you have to seize the opening while you have the jury’s complete attention.
I never saw Professor Bennett try a case. But from class and from everything that I’ve read, he was naturally florid and dramatic. So it probably came easy for him to make a dramatic opening and then introduce himself later. But Professor Bennett told me something else that resonated with me: an opening statement should be a kitchen table conversation where one person is telling another person (each of the six jurors being a person) a story over coffee.
Personally, I can’t have a conversation over coffee without first introducing myself. So for what I lose in the “maximum paying attention” window, I think I gain back by being authentically me.
This commentary underscores how difficult it is for trial lawyers to steal styles, or even tactics, from other lawyers on certain issues of style. Because only you can try a case in your body.
- What to Wear at Trial (advice for defendants and parties)
- What to Wear for a Month In Court
- Quad Cities Injury Lawyers Blog (more on what to wear at trial)