Posted On: August 30, 2011 by Paul Mark Sandler

Don't forget the five-minute rule

Trial lawyers be advised: don’t forget the five-minute rule. This rule pertains to the first five minutes of your opening statement. Some say it’s the most important part of the trial because jurors who form opinions about the case after the opening statement rarely change their minds during the rest of the case. And the first five minutes have the strongest impact.

The general rule is that, if you can’t engage your listeners immediately and take full advantage of the doctrine of primacy (also known as the first-impression effect), you might as well stay seated. The five-minute rule holds true whether you represent a plaintiff or a defendant, and whether you are the first to present the opening or the second.

When you present the opening for the plaintiff, the jury or judge will likely be hearing for the first time the nature of your case and what you will attempt to prove. When you represent the defense, you may confront the challenge of breaking the spell cast by the plaintiff’s counsel. In both circumstances, you had better present your side aggressively in the first five minutes or you will lose your listeners’ attention.

Here are four considerations for your next opening statement:

First, present a strong introduction. There are several ways to accomplish this. You might start with a compelling question that is central to the case, or you could start by telling a story. Humor and the creation of suspense are proven methods of captivating a jury. Another way to grab your jury’s attention right away is to begin with the main point of your case – but with no build up. For example: “In this case an innocent woman who dearly loved her husband is now falsely accused of hiring someone to kill him. Let me tell you about Mary Smith.”

Your second consideration should be to how to present a favorable impression of yourself. The judge or jury’s impression of you as a person directly bears on your persuasiveness. Demonstrate sincerity in your cause, compassion for the situation and appreciation for the attention of the listener. A courteous smile and a word of gratitude can go far. Be mindful to avoid obsequious behavior and body language that contradict for presentation. For example, when you introduce your client in a criminal case, keep your expression pleasant and your physical presence close so that the jury sees he is not a dangerous person or someone from whom to keep a distance.

Another thing to consider is the theme of your case. Every case should have a theme and, within the first five minutes of your opening, your judge and jurors should know what it is. Themes appeal to the organizational structure of our interpretation of events, they help listeners make sense of all the facts presented and they help hold listeners’ attention. The theme might embrace the facts of the case and reach to a higher or universal level. Here is an example: “This is the case of the careless landlord. He was careless because he failed to consider the safety of his occupants; he was careless because he failed to repair the screen door on the porch after he received numerous complaints; and he was careless because he could not care less about the children who lived there.”

Finally, once your theme is introduced, consider providing the judge or jury with a verbal outline of the main points and facts of your case. An outline can facilitate the learning process and help the listener focus on your theme as the case progresses. Studies show that we learn best when we are first provided with an outline of the subject matter that will follow.

Take the example mentioned above. If we want to outline the main facts of the case after we present our theme, we might consider something like this: “The landlord’s carelessness will be exposed by the following cold, hard facts: First, he ignored the calls of the child’s mother to repair the screen door; second, he did not repair the door even after receiving written notice from the neighbor that all the doors in the complex were defective and third, the landlord ignored his own contractor, who reported a problem with the defective door.”

While the first five minutes of the opening statement clearly offers challenges to any trial lawyer, these first five minutes also offer tremendous opportunities. They lay the groundwork for a winning case.

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