I have worked with more than one defendant who simply could not resist it: Right out of the gate, in opening statement, they come out swinging against the plaintiff. They’re not being honest, they have their own share of wrongdoing, and they’re motivated by greed! It can feel good taking that kind of aggressive tone. But the problem is, the jury is unlikely to be giving those arguments full credibility, or any credibility at all. And why should they? They just spent the last 30 minutes to an hour hearing from the plaintiff the full story on why you are the bad guy. So, when the ‘bad guy’ steps up and immediately starts throwing rocks, that seems like nothing so much as a confirmation of what they just heard.
Instead of attacking at the start, we encourage defendants in opening to first tell a positive story: Here is where our priorities were and are, here is how we acted reasonably and properly, this is what we got right. That is the essential step of building your own house that needs to precede the also essential step of trying to take apart your adversary’s house. Make sure that you have at least a good start on your own construction before you start lobbing rocks at theirs.
The Understandable Motive: Come Out Swinging
So you and your client have just sat through their opening. That can be hard. It is no fun to be pointed at, mischaracterized, and sketched as the villain in the story. Once plaintiff’s counsel sits down and it is your turn to stand up, it is understandable that you want to give them a taste of what you just experienced. Maybe you want to impress your client with your toughness. It has also been a long road to trial and your best nuggets, the ones that get your pulse racing, are probably more in the offense rather than the defense category, and you want to use them right off the bat. But what is a satisfying strategy isn’t necessarily an effective strategy.
The General Rule: You Need Credibility First
The ancient Greeks have noted, and modern research confirms, that source credibility is often a precondition to listening to and accepting a message. We don’t just buy someone as a credible source, particularly when the well has already been poisoned. In that circumstance, aggressive attacks coming from someone who isn’t yet credible sound like a distraction or a deflection. Or they can subconsciously reinforce the characterization that the plaintiff has painstakingly built. For example, imagine the implied message from an employment plaintiff — “I told you they didn’t respect me… now, they’re confirming that with these attacks.” The better course is to be positive where you can, and to build the general message that establishes the correct, legal, reasonable, safe, and proper actions of your client first, before launching the attack boats against your adversary. Defend first, then once you’ve won back some credibility, attack.
The Exception: You Often Need to Raise Doubt to Restore Credibility
One exception to the general rule of defending first is that you will sometimes need to raise some doubts in your fact-finders’ minds just to encourage them to have an open mind and to hear you out. You can’t effectively just ask them to have an open mind, you need to give them a reason why it would be premature to close it now. Use messages like,
Here’s where they haven’t been fully complete with you…
I’m about to tell you something you haven’t heard…
There is one misimpression that I need to correct…
These frames of reference tell jurors that they cannot necessarily trust the first impression they formed during the plaintiff’s opening. It still isn’t an attack on the other side, at least not yet, it is just disturbing the jurors’ assumptions. You will still want to build the house that defends your client, and then set out on the mission to demolish their house.