A pastor once solved a creative gap by going to a library, standing in front of the periodical rack and choosing to read the first magazine he saw, but to which he would never subscribe. With discipline, he sat and digested a heady computer publication for an hour. He was shocked that he pulled from this experience some excellent sermon illustrations.
After hearing this story, I decided to give his system a whirl. Over lunch, I swung by the library near a favorite Thai restaurant. I dutifully stood in front of an unfortunately small periodical rack and immediately saw a magazine that would never hit my mailbox… Seventeen magazine. Anticipating the inescapable judgmental looks that I would draw by choosing it, I broke the rules and continued looking across the angled periodical display. Ultimately, I carried Writer’s Digest to a hard, wooden chair at a four-seat library table and began quietly devouring several articles that surprisingly engaged me.
The old pastor had a convert to his method of bridging a creativity gap, and Writers Digest still hits my mailbox.
The January 2018 issue contained an excerpt from Rebecca McClanahan, “The Power of Purposeful Details”. As I read her tips on effective descriptive writing, I realized that her tips can be implemented to develop engaging opening statements. This article lays out some key tips and provides some applications for a trial lawyer. While every application has logical limits, I found myself making a chart from her tips that I can walk myself through when drafting an opening statement for trials or important hearings.
Organize the Descriptions
McClanahan starts by discussing three primary ways to organize a description: spatially, temporally, and using innate qualities. Spatial descriptions use the proximity of each object to describe its importance. Temporal descriptions relate to timing of events. Innate qualities are traits that make the object unique.
For an example of how organizing the description can aid in persuasion, consider a spatial description in a products liability case relating to a machine guard. First, determine the direction from which to describe the machine. In some instances, the description might be most engaging from the point of hazard back to the operator station, while in others it might be most gripping to describe how an ordinary worker approaches the machine to begin his shift. An example of describing the machine from the source of the hazard to the plaintiff is:
If we were looking at this automated punch press in action, our eyes would immediately be drawn to a perfect circle left in a two-inch steel plate that is quickly swept out of the way and replaced by another plate. Our eyes would have only a few seconds to see the edges of the hard steel punch that created the hole. In that short time, we would notice that the edges of it are not razor sharp. While we wonder how such a perfect circle could be left in thick steel by such a rather dull object, we would hear a powerful “thwoop” of compressed air as we suddenly see another perfect circle in the next plate. We would promptly conclude that the high-powered air compressor shot the punch so fast that the intense collision pierced steel that no human could break. You’ll hear that this is the process Mr. Smith witnessed five days a week, fifty weeks a year, for three years before he removed the guard that prevented his human fingers from getting in between the punch and its next plate.
Simply showing and discussing a picture or video can communicate a hazard to the jury, but vividly describing the space that was observed every day can effectively tack a visual onto the walls of a juror’s brain.
Even a seemingly boring contract case can be described by discussing its innate qualities.
This is a piece of paper. It is 8 ½ inches by 11 inches. We all know that. It can tear easily [ripping the page]. If I hold a match to it, it will go up in flames and turn into ashes that would blow away with the slightest wind. [is it legal to use an open flame in a court room?] But, when we put words on the page, it comes alive. In fact, people and companies can create an entire world out of this piece of paper. The inhabitants of that world can negotiate and agree upon how they act toward one another, what they do for one another, and how they pay one another. They even agree about whether they will sue each other or arbitrate a dispute when it arises. In this way, this simple piece of paper that we all take for granted every day becomes a living world. When the inhabitants of that living world choose to ignore the very rules they implemented, this thing, this paper, returns to nothing more than its prior state: a tear-able, flammable piece of ash that floats in the wind.
List the Critical Details
An effective first step in setting the scene of an accident involves inventorying every object on site. Even meaningless objects should be listed in the inventory because sometimes an object that seems benign can become a critical or supportive detail when listed among other items. After envisioning every possible item in the scene, list them as they flow from one to the other. After going through the inventory several times, critically evaluate whether the object could be important before crossing it off the final inventory list. With the remaining important items, consider whether to describe them temporally, as in when they first appeared; spatially, as in where they are located in relation to each other; or by their innate qualities, or ranking them in importance to the case.
Describe the Scene
When describing the scene, focus on the tangible qualities of the key items that remain on the inventory list. Use words that will allow the jurors to vividly visualize the picture, hear the sounds, and feel the weight or levity of the situation. However, instead of focusing energy on conclusory adverbs, focus on stronger stand-alone verbs that elicit concrete and sensory emotions. For example, instead of forcing jurors to conclude that “the Plaintiff recklessly ignored the warning labels”, consider leading them to their own conclusion, “yelling out at eye level was a sticker as large as a paperback book. It had a loud red box and a contrasting white capitalized word, ‘DANGER’.” In doing this, the audience does not feel like it has been force fed its conclusions, but rather is comfortably led to the right decisions.
This tip is also valuable in written briefs and motions.
Assignment
Instead of ending this article with a forced conclusion, let’s end with an assignment. Think about an upcoming case that involves several disputed facts. Make an inventory, describing the key objects in each of the three primary organizational strategies above. Consider whether one elicits a more logical and sensory conclusion than others.
Then, perhaps you will be led to the nearest library and discover a helpful subscription that you can share with your colleagues.
(Chris has experience as first chair counsel trying high exposure cases to verdict in various hotbed jurisdictions. He has strategically managed mass tort litigation and his passion is litigating scientific and medical issues in product liability, medical liability and professional liability litigation. As a trained mediator, he appreciates the art and value of negotiating in every phase of litigation.)
Disclaimer: While every effort has been made to ensure the accuracy of this blog, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.