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Continued... Page 2 > The Visualized Opening Statement

THE TRADITIONAL APPROACH TO OPENING STATEMENT : A WASTED OPPORTUNITY

Consistent with the horse and buggy traditional approach to the trial ritual, the usual opening statement in a case is a throw-back to pre-twentieth century means of communication. It largely consists of a more-or-less dry lawyer talk about what the evidence will show with very little, if any, visual evidence. Trial practice textbooks frequently describe opening statement as exclusively an appeal to the ears of the jurors :

Painting a picture in the mind's eye through the use of words. 3

These ìhow to do itî sections on opening in trial practice textbooks are phrased nearly exclusively in the verbal approach: Tell the jury . . . . It is a statement . . . If [the jury] heard nothing more . . . 4

Any reference to what the jury sees or is shown in opening statement is at best spliced on as an afterthought in most trial practice textbooks and usually receives a lukewarm endorsement at best:

Exhibits in opening statements are a mixed blessing. On the one hand, they can be an effective tool to make key facts clear for the jury. On the other hand, exhibits can also distract the jurors' attention from you and once seen, will no longer be new evidence when reused during the trial. 5

However, using a media based analysis, the traditional opening statement described above is a throw-back to the nostalgia days of radio - all talk, with nothing for the eye to see. This is likely to miss the mark as the jury of the 1990s no longer spends their evenings listening to the thundering hoof beats of the Lone Ranger on the parlor radio. They are watching television and video movie rentals instead. Any lawyer who uses the ìradio daysî approach to opening statement is wasting his/her most significant opportunity to persuade the jury through visual means.

VISUAL EVIDENCE IS THE MOST EFFECTIVE

Twenty-five years ago, Marshall McLuhan offered an analysis of why visual information is much more persuasive. His thoughts still hold true today:

Most people find it difficult to understand purely verbal concepts. They suspect the ear; they don't trust it. In general, we feel more secure when things are visible , when we can ësee for ourselves.' We admonish children, for instance, to ëbelieve only half of what they see , and nothing of what they hear ' . . . We employ visual and spatial metaphors for a great many everyday expressions . . . We are so visually biased that we call our wisest men vision aries or seers! 6

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