By Dr. Ken Broda-Bahm: 
In an era of increased juror skepticism and perceived “Nuclear Verdicts,” there has been a call for new thinking on defense side. The need is for fresh approaches to cut against the factors motivating jurors toward extreme verdicts. The approach outlined in the book Nuclear Verdicts by Tyson & Mendes partner Robert Tyson emphasizes building defense-side credibility in order to undercut the levels of anger that can lead to an outlier damages award. That justifies some fresh attention to the first impressions defendants create in opening statement.
Defendants generally understand the need to portray a credible image in their initial story to jurors in opening statement. But in effect, defendants often act as though they are painting on a fresh canvas. In reality, we should assume jurors already have strong first impressions formed during voir dire and, especially, the plaintiff’s opening. Ignoring those impressions can set the stage for an angry jury. Think about it: they’ve just heard a parade of horrors about the effects of your negligence, and then instead of first addressing any of that, you’re talking about your client’s history and commitment to principles. When the bad facts are still ringing in their ears, jurors are ready to hear none of that, and a generic ‘good guy story’ can seem disingenuous. That’s a bad way to start. A better way is to recognize where jurors are at, and to prioritize the need to repair that credibility first. In this post, I’ll share one formula that can be applied to that end.
One good general approach includes four steps for a defendant to follow at the start of opening.
1. Acknowledge Where Jurors Probably Are at This Point
You don’t want to boost or amplify the other side. At the same time, it doesn’t work to ignore the likelihood that they have created an effective first impression. Based on a mock trial, you might have some reasonable insight into what the average person will think after hearing just the plaintiff’s side of the story. If you acknowledge that, you’re likely to win some credibility and to give jurors a reason to listen:
After what you’ve heard so far, I’m not surprised if you believe the product and the company that makes it are both unsafe — a company that ignored danger and created an accident waiting to happen. If that’s what you think right now, I understand, and based on what you’ve heard, I don’t blame you.
2. Accept Responsibility (Not Blame)
A central point in the Nuclear Verdicts approach is to offer the jury an acceptance of responsibility. That doesn’t necessarily mean accepting liability or blame for what went wrong, but it does mean more broadly accepting a responsibility for upholding the social good that a jury would expect you to uphold. Instead of just saying “no” to the accusations, you’re also saying “yes” to a positive and pro-social role.
We know we have a clear responsibility — both legally and ethically — for the safe design and manufacture of this product. We embrace that, and it’s a responsibility we take seriously. You will hear about the comprehensive steps the company takes to make sure we keep that a reality.
3. Reveal Something They Haven’t Heard
Instead of just asking jurors to have an open mind, show them the reason why they need to have one. One of the best ways to do that is with a “Here’s something you haven’t heard...” appeal, or, failing that, “Here’s something the other side didn’t emphasize very much...” This may need to be a game-time decision (because you won’t know what plaintiff covers in opening until you hear it), but it can be roughly predictable that plaintiff might omit or play down a fact or two that helps you. Front loading those facts can help you shift some of the credibility toward you and away from the party that didn’t tell them the full story.
In the opening you just heard, you did not hear much at all about how Mr. Johnson was using the product. You didn’t hear that, by his own testimony, he didn’t read or even see the manual. They didn’t emphasize that Mr. Johnson’s way of using this product was specifically warned against in the manual.
4. Reframe Around What This Case is Really About
A central part of defense opening should be a proactive theme: a short distillation of your case that tells jurors what kind of story they’re going to hear. If the plaintiff has framed their story around a senseless tragedy brought on by inattention, then a defendant will need to recast the narrative as being about something else — something that directs jurors toward the responsibility you’ve accepted and the facts that favor you.
Ultimately, this case is about using the information you have. The company uses all of the information it has when it designs, manufactures, tests, and warns about the product. Customers also need to use all of the information they have when they decide how they will use the product.
The main point is that you want an aggressive message, but one that is also sensitive to the fact that you are being attacked by the other side. Certainly there are other steps you could add to an introduction, and other ways you can customize to the unique issues of your case and venue. But this sequence — acknowledge, accept, reveal and reframe (two A’s and two R’s, for mnemonics) — is a simple and broadly applicable start.
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Other Posts on Credibility in Opening:
- Credibility: Don’t Add the Halo Before You’ve Removed the Horns
- Meet Your Skeptics Where They Live
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Opening: Build Your House First, Then Take Aim at Their House
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