Commentary: Raising the Bar - The five-minute rule

What is the most important part of the opening statement? While the question may be difficult, the answer is simple - and important. After all, lawyers and clients strive to win their cases in the opening. Some say that jurors who form opinions about the case after the opening statement rarely change their minds during the rest of the case.

So what is the answer? Could it be your delivery? The organization of your presentation? Your ethos (the perceived character of the speaker)? Could it be your content, style, the theme of your case, or an impressive conclusion? Or could it be adroitly explaining away weaknesses? While all of these answers are important to the opening, they do not quite strike the mark.

The answer is the first five minutes. Why? Because if you cannot engage the listener immediately and take advantage of the doctrine of primacy (first impression effect), develop your theme and engage the listeners within the first five minutes, you might as well sit down. This five-minute rule holds true whether you represent a plaintiff or defendant-whether you are the first to present the opening or the second or even the third.

When you present the opening for the plaintiff, the jury or judge will be hearing for the first time in most instances 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 the attention of the listener.

Here are four considerations for your next opening:

* Present a strong introduction.

* Create a favorable impression of yourself.

* Present the theory or theme of your case.

* Preview for the listener the main points of your case.

Present a strong introduction

It is essential to engage the attention of the listener from the very beginning to capture the primacy effect. This doctrine holds that we remember better information that we hear initially on a topic and that we tend to give that information more weight. First impressions are usually lasting and certainly will influence the listener's response to what follows.

In the introductory phase of the opening, it is essential to engage the attention of the listener. There are a number of ways to accomplish this. You can begin with the main point of your case without a build up. For example: In this case an innocent man who loved his wife dearly is now falsely accused of hiring someone to kill his wife. Let me tell you about Donald Patapso.

You could also begin by asking a question or by telling a story. The use of humor and the creation of suspense may aid you in captivating your audience.

If you are speaking second, a reference to the previous speaker may be a helpful transition. To break the spell created by the first speaker, you may want to invoke a dramatic statement that shifts attention and interest to your case. For example: Members of the jury, this case will demonstrate that just as it is important to eliminate sexual harassment in the workplace, it is equally important to eliminate false claims of harassment, which is exactly what we have here today.

Other modes of introduction include clearly stating your purpose or asking a compelling question central to the case. You can also begin by paying a compliment to the jury or appealing to the listeners' self interest or sense of importance. For example: In deciding this case, you will be establishing the industry standards for the next 20 years.

Present a favorable impression of yourself

The judge or jury's impression of you as a person directly bears on your persuasiveness. Advocates in ancient times, such as Cicero, believed it was essential for the speaker to ingratiate himself with the listener. A courteous smile and a word of gratitude can go far in establishing a rapport with the listener. Demonstrate sincerity in your cause, compassion for the situation and appreciation for the attention of the listener.

While there are differing views about whether to thank a judge or jury for their time or attention, I believe a thank you is important and, when not out of place, can help humanize you and your side of the case.

Avoid obsequious behavior and body language that contradicts your presentation. For example, when you are introducing your client in a criminal case, do not frown or appear to be distant from him. Also, do not engage in ad hominem arguments or act in a manner that causes the court to criticize you.

Present the theory or theme of the case

Every case should have a theme. Themes appeal to the organizational structure of our interpretation of events, help the listener make sense of all the facts you present and hold the listener's attention. During the first five minutes of the opening, you should introduce the central theme to the listener.

The theme might embrace the facts of the case and reach to a higher or universal level. For example: This case is not only about young Larry Taylor and how he fractured his ankle in the escalator. It is also about the need to instill a sense of responsibility in corporate America for assuring that the products they manufacture are safe and sound for public use.

Another example of introducing the theme: This is the case of the careless landlord. He was careless because he failed to consider the safety of the occupant; 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.

Preview the main points of your case

After you introduce your theme, consider providing an outline of the main points and facts of your case for the listener. This 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.

Consider as an example: 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 after receiving written notice from the neighbor that all the doors in the entire 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 offer great challenges, they also offer opportunity to impress the listener with the power of your conviction, the sincerity of purpose and the persuasiveness of your winning case.

Trial lawyer and author Paul Mark Sandler is a partner with Shapiro Sher Guinot & Sandler in Baltimore. His column appears Fridays in The Daily Record.

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