The law allows counsel on the other side to deliver their opening statement first, so they get the early opportunity to tell you their story. But, there are two sides to every story. And, despite all you have heard, I encourage you to keep an open mind…

That is a common sort of thing for defendants to say in the beginning of their opening statement to the jury, but does it actually work? In my experience, it might help a little to beg jurors to keep an open mind. But, mostly, I think it is a ritual that makes defense attorneys and their clients feel a little better.

In reality, it is safe to assume that, once your adversary has had the chance to fully lay out their story, the jurors’ minds are no longer “open,” if they ever were. Better than asking or pleading with jurors to keep an open mind is showing them why it is premature to reach a conclusion. That is why I believe that one component of any good introduction to a defense opening statement should include a version of, “Here is what you haven’t heard yet…” By giving early and prominent emphasis to facts that the other side either did not mention or downplayed, you are undercutting the reliability that the jurors are placing in the narrative they just heard and giving them a good reason to believe that there is more to the story, and for that reason, they need to give it a fresh look. That said, the items you prioritize for this emphasis need to be chosen and framed with care. In this post, I’ll share some thoughts on building this element into the defense introduction.

The Problem: The Hollow Appeal for an Open Mind

The problem in simply asking jurors to keep an open mind is that they feel they already have one. People tend to have a blind spot, and few believe that they are biased. Even if they are already leaning, and they likely are, they’ll tell you that they still have an open mind. But that is a formal commitment, strongly influenced by the social desirability bias that says that their job at this point is to be open-minded. The leaning itself is a normal by-product of having heard part of the story. In mock trials, for example, even before mock jurors have heard from both sides, they will generally have a leaning, and often it is a strong leaning in favor of what they have already heard. True “undecideds” are very rare. In that context, simply asking people to keep an open mind is just offering a platitude that they already accept, but not addressing the leaning that they, in all likelihood, already have.

The Solution: Here’s What You Haven’t Heard

The solution is to actually give jurors a reason why they should distrust any leaning that they have already formed. It is a powerful and assertive approach that tells jurors why they should move toward an open mind and give you a fair hearing.

It starts with creating a list of your best facts — the ones for which the plaintiffs lack a good, simple, or pithy response, and the ones that you can explain quickly. Any preview of your good reasons will lack punch if it takes 15 minutes of explanation before you get to the punchline. Ideally, the “You haven’t heard yet” points should be ones you can boil down in one to three sentences in the introduction of your opening statement.

Naturally, you don’t have an advance copy of the transcript of the plaintiff’s opening, so you don’t know with a certainty what the plaintiff is going to leave out. You can make some reasonable predictions based on the ways they’ve been arguing the case so far, but you won’t know for sure until they conclude their opening statement. For that reason, it is a good idea to come up with more candidate issues than you need — e.g., a list of six or seven key facts that you boil down to two or three just before opening statement. And of course, you cannot lie to jurors, so if you say “They didn’t tell you…” make sure they truly didn’t. When it is unclear, consider saying, “You didn’t hear much about…” instead of “You didn’t hear…”

In any case, the goal is to leverage credibility and to encourage a fresh look at the case by spotlighting a few facts or issues that may not be on jurors’ radars at this stage. I think it is a key step in any defense opening statement introduction, and is surely better than simply asking for jurors to keep an open mind.