In The Rhetoric, we read of Aristotle’s rules of persuasion, in which he says: “Persuasion is achieved by the speaker’s personal character. We believe good men more fully and more readily than others. There are three things which inspire confidence in the orator’s own character: Good sense, good moral character, and good will.”
This is part two of our series on opening statements in the courtroom, which rely on the case of State of Florida v. George Zimmerman as an example. Read the first part here: Understanding How Trials Work—What is an Opening Statement?
The First Rule of Persuasion, Ethos
When referring to Aristotle’s rules of persuasion, the character of the speaker is known as ethos. Tone is central to achieving good ethos. In the heat of the battle of a trial, lawyers sometimes will adopt an aggressive, sarcastic tone. This is a mistake, particularly during the opening statement. Again, the jury doesn’t know you yet. You have to earn their trust, and a tone of conviction and credibility is more likely to gain trust than an overheated one.
Learn more: Aristotle on Life—The Big Picture
ETHOS, n. The distinguishing character, sentiment, moral nature, or guiding beliefs of a person, group, or institution. – Meriam Webster
A wise lawyer will practice his opening statement, including how he will interact with any visual aids he might use, so that he can project self-assurance.
At the same time, you also don’t want to go too far in the other direction. While you don’t want to be a bully, you also don’t want to seem like a pushover. If you are apologetic or excessively polite or if you mumble, hesitate, fumble with visual aids, and use passive body language, the jury will believe you lack confidence in your case and yourself. A wise lawyer will practice his opening statement, including how he will interact with any visual aids he might use, so that he can project self-assurance. And by the way, those tips are actually useful to any public speaker, not just lawyers.
Another key to establishing ethos: you cannot exaggerate. It can be tempting during the opening statement to puff a little, to stretch facts or leave out bad facts entirely. But that, too, is a mistake.
It can be tempting during the opening statement to puff a little, to stretch facts or leave out bad facts entirely. But that, too, is a mistake.
It’s too easy to disprove an inflated claim, especially one that’s offered in an overheated way. If you say that your client is an exemplary person, for example, but the other side’s attorneys have witnesses who will testify that the guy cheated on his wife, dodged his creditors, and abused his pets, then you can be sure that opposing counsel will point out the discrepancy. If the jury realizes you were misleading them about evidence, your credibility will suffer, and so will your client’s.
In fact, Mr. Guy’s use of profanity in his opening statement turned out to be an exaggeration. Mr. Zimmerman didn’t say exactly what Mr. Guy said he said—Mr. Guy was quoting two separate parts of George Zimmerman’s conversation with a 911 dispatcher. At one point Mr. Zimmerman talks about punks; at another, he complains about them getting away. Moreover, his tone on the tape is more frightened than aggressive. So, of course, Mr. Zimmerman’s lawyers played that tape for the jury and made the point that the prosecutor exaggerated about them in his opening. That became an ethos problem for the prosecutor.
Learn more: Aristotle—The Highest Good
Good or Bad, Identify All the Facts
It is a good practice to identify any facts that are bad for your case. If you know that opposing counsel is aware of them and is likely to mention them, you can draw the sting or lessen their impact by mentioning them first. Make sure you spend most of your time in your opening statement emphasizing the good facts that help you. If you do, mentioning a bad fact as part of the story rather than leaving it out altogether will actually help you stay credible. That’s much better than omitting the bad fact and giving opposing counsel the opportunity to say, “Here’s what that lawyer didn’t tell you.”
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In spite of the issue with profanity, Mr. Guy’s opening statement was really quite good. It was so good, in fact, that it seems to have caused Mr. Zimmerman’s lawyers to feel like they needed to do something to break the spell the prosecutor had cast. And so Don West, one of the defendant’s attorneys, opened in very strange way—with a knock-knock joke. See what you think of this excerpt from his moment of primacy:
“I think the evidence will show that this is a sad case, that there are no monsters here. Sometimes you have to laugh to keep from crying. So let me, at considerable risk, let me say, I’d like to tell you a little joke. I know how that may sound a bit weird, in this context under these circumstances. But I think you’re the perfect audience for it. As long as you don’t—if you don’t like it or you don’t think it’s funny or inappropriate, that you don’t hold it against Mr. Zimmerman. You can hold it against me if you want, but not Mr. Zimmerman. I have your assurance you won’t. Here’s how it goes:
Knock knock. Who’s there? George Zimmerman. George Zimmerman who? All right, good, you’re on the jury.”
Whatever your reaction to West’s joke, the jury’s response was dead silence. What was he trying to do? He was trying to get the jury to like him by getting them to laugh at a joke—it’s an attempt to use a positive emotion to connect. But it badly misfired.
Nobody laughed. The joke wasn’t appropriate—after all, a murder is no laughing matter—and in fact, the joke was at the expense of the jury. It implied that the only qualification to be on that jury was to be so clueless that you didn’t know who George Zimmerman was. A good rule of thumb: If you find yourself preemptively apologizing for a joke, or worrying aloud that it could be used against your client, it’s probably not a good idea.
Learn more: Aristotle—The Happy Life
The Second Rule of Persuasion, Pathos
That impulse to connect with the jury by engaging them is a good one, though, even though West’s execution was clumsy. To be persuasive, you must figure out how to get the jury emotionally invested in your client and your case. This is Aristotle’s second rule of persuasion. He said, not only do you have to exhibit ethos, or credibility, you also need to use pathos—that is, you need to engage the emotions of your audience effectively.
PATHOS, n. The quality or power in an actual life experience or in literature, music, speech, or other forms of expression, of evoking a feeling of pity, or of sympathetic and kindly sorrow or compassion. – Merriam Webster
As a lawyer, you need to figure out how to explain your client’s view of events through a believable and compelling story that jurors can identify with. In other words, you don’t only need to present your theory of the case, you need to get the jurors to relate to your client’s point of view.
So, as you can see, the opening statement is a really critical part of the trial. It’s a moment of primacy, where you want to take advantage of the fact that they jury is really paying attention, and where you want to make a good impression. You want to persuade by showing good character, emotional engagement, and making your logic clear.
But it’s also a tricky exercise because of its limitations. You have to be careful not to argue, not to wander into subjects that you won’t actually be able to introduce into evidence, and not to make a mistake that allows opposing counsel to delve into topics that otherwise would be off the table. One can look at an opening statement as a terrific laboratory for studying persuasive rhetoric. At its best, an opening statement is clear, engaging, memorable, and leaves the jury eager to hear the testimony to come.