By Dr. Ken Broda Bahm:
I have heard from many attorneys who believe that there is a correct amount of time for an opening statement, and that time is about twenty minutes. “If it’s much longer than that, you’ve lost the jury’s attention,” some will add. At times, that limit is imposed or “preferred” by a judge, but more often, I believe that a short opening is self-imposed by lawyers who believe that an opening needs to be brief in order to adapt to the jury’s short attention span. In a way the notion that it needs to be pretty quick has become an article of faith for some. A “Practice Points” article ABA Journal’s notes that opening should be “10 to 30 minutes.”
Sometimes, that is the right advice. When a case is very simple, it might even be shorter. But in a setting of complex civil litigation, that twenty-minute target is quite often only enough time to skim the surface. My own belief is that the right size for your opening depends on the case and your own assessment of what needs to be done before jurors are ready to start hearing evidence. Not only is there a lack of support for a hard stop on attention after twenty minutes, but there are also some serious practical disadvantages that can come from an overly short opening, particularly when one side holds themselves to just an overview while the other side is more willing to get into the details. In this post, I’ll share a few reasons why trial lawyers shouldn’t artificially hold themselves to a twenty minute limit in opening statement.
There’s No Hard Stop on Human Attention (at Least Not If You’re Doing It Right)
It’s important to remember that the same attorneys who say an opening ought to stick to twenty minutes (because “anything more than that is a waste”) will then put on a witness for four hours (because “it needs to be done”). So how long is the human attention span? Perceptions about goldfish aside, the answer is that it depends on what you mean by “attention span.” If you mean the period of time before the mind will jump to another thought, then attention span is measured in seconds, not minutes (8 and a quarter seconds seems to be the best current estimate). But if you’re talking about the ability to maintain a sustained working focus on a given topic or speaker, it’s going to depend on a great many factors. Experience says that after about an hour and a half to two hours, most of us at least need a break. And yes, there is a point where you will lose an audience if you are tedious, repetitive, or simply not dynamic or interesting (and that can happen well before twenty minutes). The reality is that if you’ve made it past the first minute and you still have an audience with you, then you’ve done that by engaging and re-engaging their attention as you go.
How do you maintain and re-engage attention? The best three ways are,
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- Explicit structure (highlighting a new point is the best way to re-establish attention).
- Variety in tone, pace, and emphasis (anything that fights monotony is good).
- Adapting your appeals to your audience’s own thoughts and beliefs (wrap your ideas around what they’re likely to already be thinking).
There’s a Big Advantage to at Least a Somewhat Comprehensive Opening
While a judge might tend to downplay the importance of opening, since it’s neither evidence nor argument, experienced trial lawyers and social scientists know that the story at the beginning serves a vital function. Only when the jurors actually understand the issues at the start will they be able to grasp the meaning of testimony as it comes in. No, you don’t want to get into the minutiae, but if there is an issue — any issue — that could ultimately matter to jurors’ ultimate verdict, then they should hear about that issue in opening statement.
In practice, if only one side previews an issue, and the other side doesn’t, then the side that does has what I call the power of being “first to frame.” Sure, jurors can learn and change their minds as the evidence comes in, but that first impression will exert a power over how they attend to, understand, remember, and use that evidence. If it is going to come up, then your best and perhaps your only opportunity to provide a clear explanation directly to the jury is going to be in opening statement.
So when attorneys ask me how long an opening ought to be, my response is typically, “Well, let’s talk about what you need to accomplish first, then let’s talk about how long that should take…”
Recently, I was in court watching opening after having helped with the jury selection. The Plaintiff in that case stuck to the strict twenty minute limit, and told a clear story, but one lacking in detail. The Defense, having been given leave to choose their own time by the judge, spoke for an hour — three times as long as the Plaintiff. They were also clear and told a good story, but they introduced a lot of factors and issues that the Plaintiff simply had not mentioned. For a jury thirsty for information at the start, it may seem like one side is more comfortable telling them the whole story. Now, that may not matter once we get to the end of the trial, but then again, it might. Think of an opening as a “how to guide” for the jurors in letting them know how they will work their way through the evidence, and don’t underestimate the power of a good guide.
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Other Posts on Opening Statement:
- Persuade Through Process
- Opening: Build Your House First, Then Take Aim at Their House
- Defense Opening: Give Jurors a Reason for an Open Mind, Not Just a Request for One
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