Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
The cliché words, “It was a dark and stormy night,” come from the opening sentence of the novel Paul Clifford by Edward George Bulwer-Lytton. And when you read the full sentence it comes from, you get a better idea of why it has come to be the quintessential example of a bad opening: “It was a dark and stormy night; the rain fell in torrents — except at occasional intervals, when it was checked by a violent gust of wind which swept up the streets (for it is in London that our scene lies), rattling along the housetops, and fiercely agitating the scanty flame of the lamps that struggled against the darkness.” So, it’s the kind of first line that says to the reader, “Stop now,” so much so that it inspired a yearly contest for worst opening lines, “The Bulwer-Lytton Fiction Contest,” and if you ever have a few minutes to spare, it has produced some hilarious winners and honorable mentions.
In trial, you’re also telling a story, and you also need an opening line. In oral argument or in front of a jury, those critical first impressions are formed quickly. A recent article draws the connection between trials and literature. The article is by Cathren Page, Associate Professor of Law at Barry University in Florida, and to draw a contrast to the Bulwer-Lytton style beginnings, it is entitled, “Not So Very Bad Beginnings: What Fiction Can Teach Lawyers About Beginning a Persuasive Legal Narrative Before a Court.” Specifically, Page argues that the introductions are critical in both settings in framing the story and setting expectations. Looking at opening lines from the novels Mists of Avelon, Catcher in the Rye, Peter Pan, and Middlesex, she uses them to analyze and critique opening lines from the death penalty case Brumfield v. Cain, the marriage equality case of Obergefell v. Hodges, as well as the criminal trials of Martha Stewart and Michael Jackson’s doctor, Conrad Murray.
“These beginnings,” Professor Page writes, “form the first impression in the audience’s mind and is one of the most important opportunities to persuade.” To maximize that primacy effect and to control the filter through which subsequent information will be viewed, Page argues that there are four functions served by the opening lines in either literature or in trial. In this post, I will take a look at each.
So here are the four things a good beginning, in a book or in legal persuasion, should do.
Set the Tone
The introduction “reflects a writer’s attitude toward readers,”Page writes, “establishes credibility and creates a professional rapport.” In Obergefell v. Hodges, for example, the presenter started with, “Petitioners married seeking a cherished status that protects families throughout life, from cradle to grave. But Ohio refuses to respect the dignity and status conferred on Petitioners’ marriages by other states.” That establishes that the tone for the case is about dignity, a word that is particularly important to the anticipated swing voter, Justice Kennedy.
In a more conventional civil case, one can imagine that if we are a construction company coming to court in order to get paid. In that case, we might use the simple opening line, “The case is simple. It’s the excuses that are complicated.” That sets the tone that our own approach is no-nonsense and straightforward, and we are going to do our best to demystify what is coming from the other side.
Intrigue the Audience
The first words should also raise questions and pique the curiosity of the audience. That is often done through an unexpected contrast. In the capital case appeal of Brumfield v. Cain, for example, the advocate began by noting, “This case presents the extraordinary circumstance in which Petitioner faces imminent execution, despite the fact that the sole court to conduct a hearing on his Atkins claim concluded that he is in fact mentally retarded.” On face, that seems to contradict existing law, and prompts the question, “How?”
In the case of the construction opening statement lines, “The case is simple. It’s the excuses that are complicated,” intrigues the listeners by focusing on the question of what those excuses could possibly be.
Allude to the Story’s Theme
The theme identifies the key concepts in your case distilled down to its essence. Page calls the theme an “implied worldview,” as in both literature and litigation it suggests a frame of reference for assigning meaning to events. In the trial of Michael Jackson’s doctor, Conrad Murray, the prosecution gave this introduction: “The evidence in this case will show that Michael Jackson literally put his life in the hands of Conrad Murray. The evidence in this case will show that Michael Jackson trusted his life to the medical skills of Conrad Murray.” The theme in this case being one of trust, with the doctor’s expertise creating a willingness for the patient to put his life in that expert’s hands.
The opening line in the construction case,”The case is simple. It’s the excuses that are complicated,” also offers a theme, contrasting simplicity and complexity, and leveraging the fact that we tend to trust simplicity and distrust complexity.
Prime the Audience for What’s to Come
The final function of the opening line is to set an expectation for the material to follow, as Page writes, “planting seeds in the audience’s mind to condition them to accept what comes later.” The first lines answer the questions, “What kind of story is this, and what can I expect to see. In the trial of Martha Stewart and her broker for perjury and obstruction, the prosecution identified all the plot points in the first lines: “This is a case about obstruction. It is about lying to federal agents. It is about perjury. It is about fabricating evidence, and it’s about cheating investors in the stock market. These crimes were part of a cover-up, a cover-up by the Defendants Martha Stewart and Peter Bacanovic, about something that happened on December 27, 2001.”
The opening lines of the construction case,”The case is simple. It’s the excuses that are complicated,” also sets expectations for the listeners, noting that the case is going to be simple in one way (our case), but also complicated in another (their case). In the event that it is a longer trial, it also carries the implication, ‘blame them for that, not us.’
Other Posts on Introductions:
- Right Out of the Blocks: Make the First Few Minutes Count
- Stop Introducing Your Defense Case By Asking Jurors to Set Aside Sympathy
- Make Your Trial Theme Cinematic…Or At Least Memorable
Image credit: 123rf.com, used under license