June 21, 2024 • 26 mins
On today's episode of the Justice Team Podcast, Bob is joined by Henry Peacor to discuss the most important first impressions in the courtroom: opening statements. Is it true that jurors make up their minds after the opening statements? They visit effective opening strategies,, how to beat your opponents to the punch, and the famous Pulp Fiction opening.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:00):
Bob:
(00:01):
Welcome to this episode of the Justice Team Podcast on the Justice Team Network. Practical how-to for lawyers and today we're doing something that you could actually use when you get in the courtroom and especially before the courtroom where you have today. Henry Peacor, who is a trial lawyer with Trial Lawyers for Justice, and we're going to talk about opening statements, the Trial by Human method. So what you got to know about Henry is he's also part of ABOTA, the American Board of Trial Advocates. Congratulations to that, Henry, first of all.
Henry:
Thank you.
Bob:
So I think he and I are both in the same chapter, the Los Angeles chapter, and it's a very hard organization to get into. You have to have so many trials as lead. They check every single trial that you've done. They call the other lawyers to make sure that you were civil and you're doing what you're supposed to do. So it's hard to get in and it is a badge of honor. They literally give you a shield. You have a shield.
Henry:
I have a shield hanging on my wall.
Bob:
And he's also an instructor with Trial by Human, which I have been to and I think it is revolutionary to give lawyers actually the ability to workshop their trials, make them better at not just their general lawyering, but that specific case that they're working on bringing up for trial.
Henry:
That's right. Yeah. Get them more in touch with who they are also in their own personal life.
Bob:
He also has like 0% body fat. So I just am pretty envious of this guy. If you're watching the video, it's kind of silly and stupid. But yeah, the guy does, what do you call those, Ironman competitions? You do those still?
Henry:
I haven't done one in a while, but I have done them in the past and I know we're both, I think doing resilience code. You're looking good too, man, these days.
Bob:
I was just talking to Boone Heart Clinic and we actually one of the other episodes we did was talking about we're big on preventative health and there's a good facility out of right outside of Denver, Edgewood, Colorado, Boone Heart Clinic in resilience code to do a lot of cutting edge stuff to make us live not forever but live excellent.
Henry:
That's right, that's right. I learned I have a higher level of plastic in my blood. I learned, I have this thing called factor five, which makes me prone to blood clotting. So we're knocking those things out to help me live a longer, better life.
Bob:
When they did my blood panels, they said that I have something called alcoholism. No, actually they told me it was cool. They said I could drink at least two or three a day. Okay, so we're going to break this down. For those watching or listening, we're going to get right into opening statements, how we agree or disagree on how they should be structured and just practical use tips for everybody there. So Henry, why don't you walk us through, first of all, what is an opening statement? When is it given? If someone's never been there before, what are you looking to achieve?
(00:22):
Henry:
Sure, sure. So opening statement is your first opportunity to speak at the jurors and tell them what happened. And I say speak at because voir dire is your opportunity to speak with the jurors and you're listening and you should be listening. In fact, you should be speaking very little, practice active listening in voir dire, and that's a whole nother topic.
But now it's your turn to get up and really seize the moment and be on stage and tell the jury why we're here, what happened, what's going on. A roadmap of the evidence is the classic example that's given, but it's really a chance for us to get up and frame the case for the jurors to take it in. And we want to be able to sit down and not just feel like we've won the case at that moment, but even after the defense gives their opening. So you want to give an opening that addresses defense arguments, addresses weaknesses, addresses the things that come up in the case. They should hear it from you first so that when you sit down you know that they can get up and say all that. And you explained it already.
Bob:
And are you of the belief, and we've heard this many times, that jurors make up their mind after opening statement. How do you feel about that?
Henry:
I don't know if I feel one way or the other about it. I choose to feel that everything matters in trial, and so I try to bring my utmost to every moment. But I do think that there is that primary judgment, that initial judgment, we all can't help but have subconsciously of any situation. And so it is just like us as attorneys.
Bob:
First impressions.
Henry:
Yeah, first impressions, exactly.
Bob:
Yeah. And for those of you that don't know Henry, when you look him up, he's been part of trials across the country, 7, 8, 9 figures. Have you guys hit a 10 figure one yet?
Henry:
I have not personally, I've hit, so I'm up for trial lawyer of the year up in Ventura actually for my last case.
Bob:
Nice.
Henry:
But yeah, licensed in California, Iowa, Washington state and trying cases pro hoc viche in any number of different states.
Bob:
I love it. Whenever you get up to give opening statement, you've already done jury selection, you've done pretrial motions, the jury knows a little bit about you. You've even talked with the jury once with jury selection at that point. I know that could be a whole nother episode, but if people have watched other ones. We're usually identifying the bad jurors, talking about her bad facts and jury selection. So they already have a preview of what's going to happen in the opening statement, right?
(00:43):
Henry:
That's right.
Bob:
Okay. So you mentioned something about the stuff the defense is going to say you want to say it before they do with your spin. So give us an example of some of the bad facts in a case, because all of us try cases with warts or there's a one book called Don't Eat the Bruises. There's these things that we're taught. What are some things? Give us an example of a bad fact that you knew the defense was going to harp on and how you addressed it in your opening statement.
Henry:
Sure. So I do my openings in chapters and we can talk about that. And one of my chapters are defense arguments. And we can make this list and I can make it for you right now on probably 90% of your cases. It's preexisting degenerative disc disease, it's gaps in treatment, it's treatment on a lien. It's any number of these things that we often see, not a lot of visible property damage, whatever it might be. And so I know that those are going to be the defense arguments. So it's generally my last chapter because I like for the defense to see my opening and feel like, "Oh, he hasn't mentioned any of these things. I'm just going to get up and just"-
Bob:
Roast them.
Henry:
Yeah, just destroy them. And then I hit him with it right before I sit down and it's like, "Ugh." And then he's going to get up and say the exact same thing I just said. So I generally end my opening with something from Keith Mitnick Don't Eat the Bruises type of thing. It's like in context versus out of context, a major theme that he uses.
Bob:
You know what's funny? We've never had this conversation, but I do the exact same thing with opening statement. And mine is called I do a red herring slide.
Henry:
I love that.
Bob:
Because I do it throughout the trial and then I do do a jury selection. Do you know what a red herring is? It goes to the opening, then the closing. So I do, "Here's some things you might hear from the defense." I'll put up the red herring slide and say, "You get to decide does this have any value or importance whatsoever or is it a red herring? And you get to decide that.'
Henry:
That's right. Yeah, I love that. I love that. I do. Basically I'll get up and I'll say, "Hey, before I sit down, I'm almost done here, but before I sit down and the defense attorney gets up and gives their opening and you've all agreed to listen to them and please do listen to them and reserve judgment and wait to make up your mind until you've heard from them. But before I sit down, I want to address some of the things I believe they're going to say, objection," blah, blah, argumentative, whatever. I just keep going.
"There are certain pieces of evidence that the defense is going to highlight, and it's important we know from our everyday life that it's important to keep things in context. When things are taken out of context, it can be bad. And here in a courtroom during this process, it's absolutely essential to keep things in context. So let's talk about some of the specific pieces of evidence that we want to keep in context of what the rest of the evidence will show. You're going to hear about something called degenerative disc disease and it's going to sound like this big term and this big scary thing.
And so I want to take a moment to put it in context of what the rest of the evidence will be. Degenerative disc disease just means the normal aging process. When you hear that Ms. Smith has degenerative disc disease and that it was preexisting, well, she just has the normal spine of a 48-year-old person. Every person in this room who's over the age of 18 or whatever it might be, has some form of degeneration. It's just part of getting older. It doesn't mean that you have pain, it doesn't mean that you have limitations. It doesn't mean that you have all these things that she now has as a result of this crash. So let's make sure that we keep that in context of what the rest of the evidence will be in this case." Just an example.
Bob:
(01:04):
I love that I, and I think that's important for our listeners when you block it. I always go in with a PowerPoint slide and it's more like cue cards for me. I don't like ones that are very wordy, usually symbolistic or photos of what they've lost, things like that. But I generally do think that you can set the framework to win and don't make promises you can't back up for sure. Because we ram that down the defense's throat. If they make promises in opening and they get slaughtered, you better believe that's part of our close.
Henry:
That's right.
Bob:
Usually at the end of my close, we won't do that because I like to keep the defense on their toes. "Hey, you got to explain yourself, bro. Why did you tell this jury all these things that we're disproven with the first two witnesses?"
Henry:
That's right. That's right. And that's what you want out of your first witness. You either want to prove one of the big promises you've made or you want to undercut a promise made by the defense.
Bob:
I love it. So let's talk. You walk in for an opening statement. We talk about block. This is towards the end when you're Don't Eat the Bruises or red herrings, whatever you want to call it, and we can share if you want to reach out to us. I have many, many PowerPoints in my openings and transcripts. I'm sure Henry does as well. And we can share with you exactly what we say and what we're showing the jury when we do these things. And something else that I learned at your Trial by Human seminar that you did in Santa Barbara, which I thought was amazing that I'm doing in my next trial in a couple of weeks here is how you set the tone for how you're going to ask for the money, the show me the money moment.
Henry:
That's Right. That's right.
Bob:
So tell me, I love it because you guys are getting huge damage awards and I like this.
Henry:
That's right. So our whole thing is don't ask, do tell. So we're not asking for the jury to award anything. We're telling them what justice should be or what justice is in this case. So there's not a lot of things in Trial by Human that we teach by script or anything like that. That's very much against our ethos, which is the persuasive power of spontaneity.
Bob:
Yeah, I agree. I hate scripts. I don't think it works.
Henry:
Exactly. However, the one caveat to that is that we do have a sentence we like to start our openings with that we've been exploring and work-shopping and trying out in the real world and in courtrooms across the country, and it goes something like this, "Good morning when you match up the law with the evidence in this case and you find out what happened to Ms. Smith, a verdict of 15 to 20 million will be justified. Let me tell you what happened."
Bob:
Love it.
(01:25):
Henry:
And then we get right into it.
Bob:
I like how it's front loaded and I like how it sets the stage. And a lot of times jurors come in there, they don't know what the value of anything is. My next two cases are both wrongful death cases and it's like nobody could put a value on that.
Henry:
That's right.
Bob:
You're the specialist, you're the lawyer.
Henry:
You're the expert.
Bob:
You're the expert. Yeah.
Henry:
Totally. You're the expert in the value of the case and the jurors have this job to do and they expect you to know how to do their job and you to be the one to give them that guidance and tell them what it's going to be. You have the experience of having done all these cases. This is their one and only case. So there's this trust that you're going to build throughout the process of the trial where your credibility matters. And so your assessment of the value is something that they will defer to as you build that credibility.
Bob:
Wow. Then we talked off-air before we came on about the Pulp Fiction opening that you do. If Marrow was here, he'd say his favorite movie's, Pulp Friction, so we'll leave that joke for Marrow at a later time. Tell us about the Pulp Fiction opening.
Henry:
Sure. The Pulp Fiction opening, it goes against the general mold of beginning, middle, end. Basically with today's attention spans and social media and all these different distractions, it's so important that we keep our jurors' attention and that we keep them engaged in trial and that we choose our words carefully. To your point about opening, we don't over promise and then get hit with it in closing. We under promise and we over deliver. Less is more, and the less we speak, the more our words mean. But in the Pulp Fiction opening, we start right at the action. So for me, my openings are structured pretty simply. I start with that sentence I just gave you and then I go, "Let me tell you what happened. Let's go back in time to January 15th, 2020." And I go straight to setting the scene of the crash.
Bob:
My next trial was January 31st, 2020. So you're close, man.
Henry:
(01:46):
That's close. There you go. And so I walk through the scene of the crash from the defendant's perspective. That's a David Ball type of thing, starting with the defendant's conduct. And that has to do with psychological disassociation. If we start with the defendant's conduct, then we're going to question what the defendant did, the choices they made. If we start with the plaintiff's conduct and say, "Hey, she woke up, she was feeling good, she started her day." Jurors might be inclined to say, "Well, why didn't she take a left at the intersection before? Or why didn't she take the detour? Why did she take that route to school? If she had taken a different route, then we wouldn't be here." So my first chapter is setting the scene from the defendant's perspective. I go through the crash and then I stop in time and I tell the jurors, "In order to understand what happens next, we need to go further back in time in order to understand the person that was just hurt."
Bob:
What's crazy is I literally blocked out my opening to do my PowerPoint this weekend for my next trial. And this is very similar, eerie.
Henry:
The transit-
Bob:
It's eerie, man. I did the same thing. It's like go right into exactly what we talked about because I learned in Trial by Human and then I go through the crash, what the defendant did wrong, long day, hit this person, thought it was a cone, kept driving, went to Jack in the Box, went out for some fast food instead of taking accountability. Now let's rewind. But I went all the way back to, because whenever the son was born, the only heir so went back the date of his birth, that relationship. Wow, this is good.
Henry:
That's right. That's right. It's in order to understand what happens next, we need to know more about the person that was just hit. And to do that we have to go further back in time to the day they were born is generally where I would go. And now we're telling the human story, which is the second chapter. So the idea is in a Pulp Fiction opening, just like many movies we now see, you start in the middle of the action and you're like, "Whoa, what's happening?" And you're engaged in it, and then the screen goes black and then it goes six months earlier and you learn about what happened to lead up there.
Bob:
[inaudible 00:15:10] literally a black screen that just has a date on it.
Henry:
That's right. That's right. So that's how we're structuring this. And you'll see jurors, you have to trust that they will put these pieces together. You're giving it to them in this quote unquote "disjointed" way because of beginning, middle, end structure. But they will be engaged in it. It's active. It requires piecing things together, figuring it out. And so, wow, this crash happened. Yeah, I want to know what happened to the person that was just hit. But in order to do that, we need to know about what their life was like before. And so we tell that human story, lead up to the moment of the crash, and now it's the crash from the plaintiff's perspective. And so we go through it that way. Where they were coming from, what they were doing at the time, where their life was at, what goals they had, and I'll often say, "Was their life..."
So if we stop in time and we look at the person who's about to be hit by this truck or hit by this car or whatever it might be, life was pretty good for Ms. Smith. Was it perfect? No, far from it. But this was her life. This was her body, this was her family. These were her dreams and aspirations and it was hers, it belonged to her. But all that changed on January 31st, 2020. Let's go back to the scene. She's driving and then boom, right into it, and then the crash happens. And then I say something like, "And so begins her medical treatment journey. She's taken from the scene by ambulance to the hospital." And I don't get bogged down in the day to day or visit to visit medical treatment. I just hit it. We do a medical treatment timeline. I talk about it briefly. I know those experts will carry the day on that. And then I go into damages and with the defense arguments.
Bob:
Yeah. When you do defense arguments, I usually just do like, "Well, why are we here? Here's some things that they're saying. Here's what their experts are saying. Look how crazy and stupid these things are. But you're going to hear it." Sometimes I even front load some impeachment stuff that they know that I have. I'll save some haymakers. But it's like, "I usually save this for cross, but the evidence is going to show that this guy makes over a million dollars a year just to testify for defendants. And you get to weigh that credibility."
Henry:
I love it. I love it because you're big on impeaching these defense experts even before they take the stand, which is great. I love that.
Bob:
I save some stuff, but they know I got it. I'm going to use that weapon before they can eat the bruise, before they get up there and try to soften the blow during direct. So we talk about Pulp Fiction, I almost said friction again, God Marrow, you're still here [inaudible 00:17:46]. We talked about how we ask for the money upfront, and I love going back and forth keeping the jury engaged. So you've tried cases all across the nation. Mostly in California we are allowed use PowerPoints. Sometimes there's evidentiary stuff. Is that the same throughout?
Henry:
(02:07):
No, it's not. I was in South Dakota. I did a whole PowerPoint, invested all this time and effort and energy into it and defense wouldn't agree. And judge was like, "If they won't agree, that's it. You can't do it." So that got thrown out. So you always have to be ready. I'm never relying on it. I always go in understanding and knowing that I need to be prepared to do this on my feet, on my own, set the scene, establish that. I try to go into the first person. I try to make it active, present tense when I'm doing the scene itself in the courtroom without being too dramatic or anything. I do it in a credible way. But preparing the PowerPoint, even if you can't use it, is still a valuable part of the process of preparing for trial.
Bob:
And I tell everybody, you do your PowerPoint way in advance because it helps you get ready for everything. It organizes your evidence, organizes your arguments, knows what's important for you to want to be able to get it into evidence and allows you to set up. If you're going to do a focus group or if you're going to do something like that, you have your PowerPoint ready to go.
Henry:
That's right. That's right. You know what you're missing. And then I'll use scratch paper and write things on the scratch paper that would've been in the PowerPoint.
Bob:
And always practice point, always have what's called butcher paper or paper that's ready in case your PowerPoints gets stripped from you because you could still go up there and draw. You still go up there, write and draw. And believe me, people are paying attention if you're down there ripping off sheets and putting stuff up.
Henry:
There's something engaging about watching someone draw when they're nervous and anxious and up there and doing it and speaking. It's engaging to watch that.
Bob:
And if you're misspelling words and stuff, it actually makes you look more human and call yourself out for it. But that's all good. So what about, how do you handle what your experts are going to say or those types of things?
Henry:
Sure. So we've been trying to do less and less with explaining the medicine. For example, my last case about a traumatic brain injury, I wanted to get up and explain the brain and make the courtroom the brain and the judge is the frontal lobe and the court reporter's the temporal lobe taking down everything that's said. And we have the occipital lobe in the back, which is the gallery, and that's vision. And they can see and the public can see what's happening in the courtroom. And Nick was like, "You're not doing any of that." He's like, "We're just going to cut that right out of your opening." And he said, "Just hit the main points and let the experts be the ones to carry that torch for you. They're the ones who have that credibility in that area and you don't have that yet." And so we're constantly mixing in where is that line of over-explaining and giving the jurors enough to see it coming too?
Bob:
Love it. And then we talked, I am way more a fan of visual stuff or maybe photographs that you're actually going to use in trial practice point. Don't use evidence in your PowerPoint that you don't get into trial later, could be part of a mistrial. So if you're going to use something that's actual evidence, it's got to be part of it. You usually can use the defendant's deposition for any purpose. So if you recorded it, you can use those points. So I'm going to have in my next case, have the defendant actually tell you what he did wrong.
Henry:
Yeah, I love that.
Bob:
To show the jury and say, "I'm not making this up. This is evidence. This is what you're going to hear and see during the trial." I do not like those words or lists or those types of things because what ends up happening, because the defense does it every time, it's just black and white or blue and white. They seem to like blue. And they're just telling all of their arguments. So I know their arguments for all of trial. They literally wrote it down for me. And then I just copy those same arguments and I put it in my closing and I just show the jury how they lied about that. They lied about this.
Henry:
That's right.
(02:28):
Bob:
Oh, God.
Henry:
That's right. You hold them to account for that because that was their promise that they made. I love the idea of playing video snippets, and I know you have a great template for noticing those depos and making sure that you're able to set that up for trial because it starts way before trial.
Bob:
Yeah. Well, Henry, any other practice pointers for opening statements or opening arguments? I like to argue a little bit until the judge tells me no once or twice.
Henry:
That's right. If you're not getting objected to, are you even really trying the case?
Bob:
Really trying.
Henry:
I would say one of the big things that we focus on at Trial by Human, and you saw this firsthand, is slowing down, breathing, taking the time to connect with each juror. So when I get up and I say that first sentence, I am choosing a juror or two, probably the person who I think is going to be the leader and I am delivering it to them, and I'm trying not to shotgun my eye contact, meaning I'm not jumping around. And you realize how many people do that just out of habit. And so you have to take the time to actually look at each juror and give them a piece of information and they will receive it and it's a gift. And having real true eye contact from someone who's doing a presentation or public performance is meaningful. And they will feel seen and they will want to listen more. And trust me, the defense attorney ain't doing it. So take the time to deliver to each juror different facts or different arguments in your opening, whatever it might be.
Bob:
And I think that's very important at Trial by Humor, when I was there, they made it slow down so much that you had to explain. A lot of lawyers you can ask them, "What's your trial about?" And they can't even tell you. It's crazy. But they make you do it in a couple words or one sentence.
Henry:
Yeah, we do a two-minute drill, then you get one minute, then you get 30 seconds, and then you get one sentence and then you get one word. What's the essence of your case?
Bob:
I love it. That's why I love works-hopping things. That's why we're filming just HQ here in Torrance and we workshop stuff every Friday and we're going to start working with Trial by Human team to work-shopping a lot more people's trials because you can observe other people's stuff. You can go these seminars, but unless they're actually picking apart your cases and making you better with your specific case, I think that's the solve you're looking for.
Henry:
That's right. That's right. Absolutely. Yeah. It's practical. It's practical, the application, and it's constant growth.
Bob:
(02:49):
And you guys do these all across the nation?
Henry:
Yeah. We're in Iowa later this month. We were in New Mexico, we were up in Santa Barbara, we were in Atlanta. We're just everywhere. There was a Boston Trial by Human that had to be rescheduled because Nick was in trial, but we're everywhere.
Bob:
I love it. And those are the things you can do when you have your own private planes at Trial Lawyers for Justice when you're hitting 7, 8, 9 figure verdicts on the reg. Thank you, Henry. So I hope this was very helpful. For everybody that's listening, anybody should reach out to Henry specifically if you want to have him workshop your stuff. They're very open with their time, but I think it all makes each other better. The rising tides lift all boats if I said that correctly is absolutely true. Henry, how do listeners find you?
Henry:
Yeah, you can find me, you can text me is the best way on my cell phone, my number's 310-994-1882. If you call me, I'll call you back. It just might take some time. I'm not the best at that. And then also on social media, Henry Peacor Esquire for Instagram. Email is henry@tlforj.com. And please do reach out. I have just an extensive library of resources. If I don't know the answer, I'll know where to find it and I can get you transcripts and examples and templates and things like that so that you're not starting from scratch. There's no reason to start from scratch in most things that we do.
Bob:
I love it. And we're trying this year at Law-Di-Gras, our annual conference that I participate in is having Trial Lawyers for Justice Workshop. Some of the people that are coming there, we want to start doing a conference where instead of talking at you, talking with you, type deal like that. So yeah, it's just doing stuff a little bit differently. So Henry, thank you for coming on to this episode of The Justice Team podcast on the Justice Team Network, Practical How-To's for Lawyers. And ladies and gentlemen, if you'd learned anything, today is a better lawyer for you because you can really crush your opening statements. And believe it or not, a lot of times the defense is so scared after opening statements that they finally pay you the money. That's actually true.
Henry:
That's right. That's right.
Bob:
A lot of times. So go there, win your cases, be prepared, reach out. Thank you for listening or watching.
Bob:
(00:01):
Welcome to this episode of the Justice Team Podcast on the Justice Team Network. Practical how-to for lawyers and today we're doing something that you could actually use when you get in the courtroom and especially before the courtroom where you have today. Henry Peacor, who is a trial lawyer with Trial Lawyers for Justice, and we're going to talk about opening statements, the Trial by Human method. So what you got to know about Henry is he's also part of ABOTA, the American Board of Trial Advocates. Congratulations to that, Henry, first of all.
Henry:
Thank you.
Bob:
So I think he and I are both in the same chapter, the Los Angeles chapter, and it's a very hard organization to get into. You have to have so many trials as lead. They check every single trial that you've done. They call the other lawyers to make sure that you were civil and you're doing what you're supposed to do. So it's hard to get in and it is a badge of honor. They literally give you a shield. You have a shield.
Henry:
I have a shield hanging on my wall.
Bob:
And he's also an instructor with Trial by Human, which I have been to and I think it is revolutionary to give lawyers actually the ability to workshop their trials, make them better at not just their general lawyering, but that specific case that they're working on bringing up for trial.
Henry:
That's right. Yeah. Get them more in touch with who they are also in their own personal life.
Bob:
He also has like 0% body fat. So I just am pretty envious of this guy. If you're watching the video, it's kind of silly and stupid. But yeah, the guy does, what do you call those, Ironman competitions? You do those still?
Henry:
I haven't done one in a while, but I have done them in the past and I know we're both, I think doing resilience code. You're looking good too, man, these days.
Bob:
I was just talking to Boone Heart Clinic and we actually one of the other episodes we did was talking about we're big on preventative health and there's a good facility out of right outside of Denver, Edgewood, Colorado, Boone Heart Clinic in resilience code to do a lot of cutting edge stuff to make us live not forever but live excellent.
Henry:
That's right, that's right. I learned I have a higher level of plastic in my blood. I learned, I have this thing called factor five, which makes me prone to blood clotting. So we're knocking those things out to help me live a longer, better life.
Bob:
When they did my blood panels, they said that I have something called alcoholism. No, actually they told me it was cool. They said I could drink at least two or three a day. Okay, so we're going to break this down. For those watching or listening, we're going to get right into opening statements, how we agree or disagree on how they should be structured and just practical use tips for everybody there. So Henry, why don't you walk us through, first of all, what is an opening statement? When is it given? If someone's never been there before, what are you looking to achieve?
(00:22):
Henry:
Sure, sure. So opening statement is your first opportunity to speak at the jurors and tell them what happened. And I say speak at because voir dire is your opportunity to speak with the jurors and you're listening and you should be listening. In fact, you should be speaking very little, practice active listening in voir dire, and that's a whole nother topic.
But now it's your turn to get up and really seize the moment and be on stage and tell the jury why we're here, what happened, what's going on. A roadmap of the evidence is the classic example that's given, but it's really a chance for us to get up and frame the case for the jurors to take it in. And we want to be able to sit down and not just feel like we've won the case at that moment, but even after the defense gives their opening. So you want to give an opening that addresses defense arguments, addresses weaknesses, addresses the things that come up in the case. They should hear it from you first so that when you sit down you know that they can get up and say all that. And you explained it already.
Bob:
And are you of the belief, and we've heard this many times, that jurors make up their mind after opening statement. How do you feel about that?
Henry:
I don't know if I feel one way or the other about it. I choose to feel that everything matters in trial, and so I try to bring my utmost to every moment. But I do think that there is that primary judgment, that initial judgment, we all can't help but have subconsciously of any situation. And so it is just like us as attorneys.
Bob:
First impressions.
Henry:
Yeah, first impressions, exactly.
Bob:
Yeah. And for those of you that don't know Henry, when you look him up, he's been part of trials across the country, 7, 8, 9 figures. Have you guys hit a 10 figure one yet?
Henry:
I have not personally, I've hit, so I'm up for trial lawyer of the year up in Ventura actually for my last case.
Bob:
Nice.
Henry:
But yeah, licensed in California, Iowa, Washington state and trying cases pro hoc viche in any number of different states.
Bob:
I love it. Whenever you get up to give opening statement, you've already done jury selection, you've done pretrial motions, the jury knows a little bit about you. You've even talked with the jury once with jury selection at that point. I know that could be a whole nother episode, but if people have watched other ones. We're usually identifying the bad jurors, talking about her bad facts and jury selection. So they already have a preview of what's going to happen in the opening statement, right?
(00:43):
Henry:
That's right.
Bob:
Okay. So you mentioned something about the stuff the defense is going to say you want to say it before they do with your spin. So give us an example of some of the bad facts in a case, because all of us try cases with warts or there's a one book called Don't Eat the Bruises. There's these things that we're taught. What are some things? Give us an example of a bad fact that you knew the defense was going to harp on and how you addressed it in your opening statement.
Henry:
Sure. So I do my openings in chapters and we can talk about that. And one of my chapters are defense arguments. And we can make this list and I can make it for you right now on probably 90% of your cases. It's preexisting degenerative disc disease, it's gaps in treatment, it's treatment on a lien. It's any number of these things that we often see, not a lot of visible property damage, whatever it might be. And so I know that those are going to be the defense arguments. So it's generally my last chapter because I like for the defense to see my opening and feel like, "Oh, he hasn't mentioned any of these things. I'm just going to get up and just"-
Bob:
Roast them.
Henry:
Yeah, just destroy them. And then I hit him with it right before I sit down and it's like, "Ugh." And then he's going to get up and say the exact same thing I just said. So I generally end my opening with something from Keith Mitnick Don't Eat the Bruises type of thing. It's like in context versus out of context, a major theme that he uses.
Bob:
You know what's funny? We've never had this conversation, but I do the exact same thing with opening statement. And mine is called I do a red herring slide.
Henry:
I love that.
Bob:
Because I do it throughout the trial and then I do do a jury selection. Do you know what a red herring is? It goes to the opening, then the closing. So I do, "Here's some things you might hear from the defense." I'll put up the red herring slide and say, "You get to decide does this have any value or importance whatsoever or is it a red herring? And you get to decide that.'
Henry:
That's right. Yeah, I love that. I love that. I do. Basically I'll get up and I'll say, "Hey, before I sit down, I'm almost done here, but before I sit down and the defense attorney gets up and gives their opening and you've all agreed to listen to them and please do listen to them and reserve judgment and wait to make up your mind until you've heard from them. But before I sit down, I want to address some of the things I believe they're going to say, objection," blah, blah, argumentative, whatever. I just keep going.
"There are certain pieces of evidence that the defense is going to highlight, and it's important we know from our everyday life that it's important to keep things in context. When things are taken out of context, it can be bad. And here in a courtroom during this process, it's absolutely essential to keep things in context. So let's talk about some of the specific pieces of evidence that we want to keep in context of what the rest of the evidence will show. You're going to hear about something called degenerative disc disease and it's going to sound like this big term and this big scary thing.
And so I want to take a moment to put it in context of what the rest of the evidence will be. Degenerative disc disease just means the normal aging process. When you hear that Ms. Smith has degenerative disc disease and that it was preexisting, well, she just has the normal spine of a 48-year-old person. Every person in this room who's over the age of 18 or whatever it might be, has some form of degeneration. It's just part of getting older. It doesn't mean that you have pain, it doesn't mean that you have limitations. It doesn't mean that you have all these things that she now has as a result of this crash. So let's make sure that we keep that in context of what the rest of the evidence will be in this case." Just an example.
Bob:
(01:04):
I love that I, and I think that's important for our listeners when you block it. I always go in with a PowerPoint slide and it's more like cue cards for me. I don't like ones that are very wordy, usually symbolistic or photos of what they've lost, things like that. But I generally do think that you can set the framework to win and don't make promises you can't back up for sure. Because we ram that down the defense's throat. If they make promises in opening and they get slaughtered, you better believe that's part of our close.
Henry:
That's right.
Bob:
Usually at the end of my close, we won't do that because I like to keep the defense on their toes. "Hey, you got to explain yourself, bro. Why did you tell this jury all these things that we're disproven with the first two witnesses?"
Henry:
That's right. That's right. And that's what you want out of your first witness. You either want to prove one of the big promises you've made or you want to undercut a promise made by the defense.
Bob:
I love it. So let's talk. You walk in for an opening statement. We talk about block. This is towards the end when you're Don't Eat the Bruises or red herrings, whatever you want to call it, and we can share if you want to reach out to us. I have many, many PowerPoints in my openings and transcripts. I'm sure Henry does as well. And we can share with you exactly what we say and what we're showing the jury when we do these things. And something else that I learned at your Trial by Human seminar that you did in Santa Barbara, which I thought was amazing that I'm doing in my next trial in a couple of weeks here is how you set the tone for how you're going to ask for the money, the show me the money moment.
Henry:
That's Right. That's right.
Bob:
So tell me, I love it because you guys are getting huge damage awards and I like this.
Henry:
That's right. So our whole thing is don't ask, do tell. So we're not asking for the jury to award anything. We're telling them what justice should be or what justice is in this case. So there's not a lot of things in Trial by Human that we teach by script or anything like that. That's very much against our ethos, which is the persuasive power of spontaneity.
Bob:
Yeah, I agree. I hate scripts. I don't think it works.
Henry:
Exactly. However, the one caveat to that is that we do have a sentence we like to start our openings with that we've been exploring and work-shopping and trying out in the real world and in courtrooms across the country, and it goes something like this, "Good morning when you match up the law with the evidence in this case and you find out what happened to Ms. Smith, a verdict of 15 to 20 million will be justified. Let me tell you what happened."
Bob:
Love it.
(01:25):
Henry:
And then we get right into it.
Bob:
I like how it's front loaded and I like how it sets the stage. And a lot of times jurors come in there, they don't know what the value of anything is. My next two cases are both wrongful death cases and it's like nobody could put a value on that.
Henry:
That's right.
Bob:
You're the specialist, you're the lawyer.
Henry:
You're the expert.
Bob:
You're the expert. Yeah.
Henry:
Totally. You're the expert in the value of the case and the jurors have this job to do and they expect you to know how to do their job and you to be the one to give them that guidance and tell them what it's going to be. You have the experience of having done all these cases. This is their one and only case. So there's this trust that you're going to build throughout the process of the trial where your credibility matters. And so your assessment of the value is something that they will defer to as you build that credibility.
Bob:
Wow. Then we talked off-air before we came on about the Pulp Fiction opening that you do. If Marrow was here, he'd say his favorite movie's, Pulp Friction, so we'll leave that joke for Marrow at a later time. Tell us about the Pulp Fiction opening.
Henry:
Sure. The Pulp Fiction opening, it goes against the general mold of beginning, middle, end. Basically with today's attention spans and social media and all these different distractions, it's so important that we keep our jurors' attention and that we keep them engaged in trial and that we choose our words carefully. To your point about opening, we don't over promise and then get hit with it in closing. We under promise and we over deliver. Less is more, and the less we speak, the more our words mean. But in the Pulp Fiction opening, we start right at the action. So for me, my openings are structured pretty simply. I start with that sentence I just gave you and then I go, "Let me tell you what happened. Let's go back in time to January 15th, 2020." And I go straight to setting the scene of the crash.
Bob:
My next trial was January 31st, 2020. So you're close, man.
Henry:
(01:46):
That's close. There you go. And so I walk through the scene of the crash from the defendant's perspective. That's a David Ball type of thing, starting with the defendant's conduct. And that has to do with psychological disassociation. If we start with the defendant's conduct, then we're going to question what the defendant did, the choices they made. If we start with the plaintiff's conduct and say, "Hey, she woke up, she was feeling good, she started her day." Jurors might be inclined to say, "Well, why didn't she take a left at the intersection before? Or why didn't she take the detour? Why did she take that route to school? If she had taken a different route, then we wouldn't be here." So my first chapter is setting the scene from the defendant's perspective. I go through the crash and then I stop in time and I tell the jurors, "In order to understand what happens next, we need to go further back in time in order to understand the person that was just hurt."
Bob:
What's crazy is I literally blocked out my opening to do my PowerPoint this weekend for my next trial. And this is very similar, eerie.
Henry:
The transit-
Bob:
It's eerie, man. I did the same thing. It's like go right into exactly what we talked about because I learned in Trial by Human and then I go through the crash, what the defendant did wrong, long day, hit this person, thought it was a cone, kept driving, went to Jack in the Box, went out for some fast food instead of taking accountability. Now let's rewind. But I went all the way back to, because whenever the son was born, the only heir so went back the date of his birth, that relationship. Wow, this is good.
Henry:
That's right. That's right. It's in order to understand what happens next, we need to know more about the person that was just hit. And to do that we have to go further back in time to the day they were born is generally where I would go. And now we're telling the human story, which is the second chapter. So the idea is in a Pulp Fiction opening, just like many movies we now see, you start in the middle of the action and you're like, "Whoa, what's happening?" And you're engaged in it, and then the screen goes black and then it goes six months earlier and you learn about what happened to lead up there.
Bob:
[inaudible 00:15:10] literally a black screen that just has a date on it.
Henry:
That's right. That's right. So that's how we're structuring this. And you'll see jurors, you have to trust that they will put these pieces together. You're giving it to them in this quote unquote "disjointed" way because of beginning, middle, end structure. But they will be engaged in it. It's active. It requires piecing things together, figuring it out. And so, wow, this crash happened. Yeah, I want to know what happened to the person that was just hit. But in order to do that, we need to know about what their life was like before. And so we tell that human story, lead up to the moment of the crash, and now it's the crash from the plaintiff's perspective. And so we go through it that way. Where they were coming from, what they were doing at the time, where their life was at, what goals they had, and I'll often say, "Was their life..."
So if we stop in time and we look at the person who's about to be hit by this truck or hit by this car or whatever it might be, life was pretty good for Ms. Smith. Was it perfect? No, far from it. But this was her life. This was her body, this was her family. These were her dreams and aspirations and it was hers, it belonged to her. But all that changed on January 31st, 2020. Let's go back to the scene. She's driving and then boom, right into it, and then the crash happens. And then I say something like, "And so begins her medical treatment journey. She's taken from the scene by ambulance to the hospital." And I don't get bogged down in the day to day or visit to visit medical treatment. I just hit it. We do a medical treatment timeline. I talk about it briefly. I know those experts will carry the day on that. And then I go into damages and with the defense arguments.
Bob:
Yeah. When you do defense arguments, I usually just do like, "Well, why are we here? Here's some things that they're saying. Here's what their experts are saying. Look how crazy and stupid these things are. But you're going to hear it." Sometimes I even front load some impeachment stuff that they know that I have. I'll save some haymakers. But it's like, "I usually save this for cross, but the evidence is going to show that this guy makes over a million dollars a year just to testify for defendants. And you get to weigh that credibility."
Henry:
I love it. I love it because you're big on impeaching these defense experts even before they take the stand, which is great. I love that.
Bob:
I save some stuff, but they know I got it. I'm going to use that weapon before they can eat the bruise, before they get up there and try to soften the blow during direct. So we talk about Pulp Fiction, I almost said friction again, God Marrow, you're still here [inaudible 00:17:46]. We talked about how we ask for the money upfront, and I love going back and forth keeping the jury engaged. So you've tried cases all across the nation. Mostly in California we are allowed use PowerPoints. Sometimes there's evidentiary stuff. Is that the same throughout?
Henry:
(02:07):
No, it's not. I was in South Dakota. I did a whole PowerPoint, invested all this time and effort and energy into it and defense wouldn't agree. And judge was like, "If they won't agree, that's it. You can't do it." So that got thrown out. So you always have to be ready. I'm never relying on it. I always go in understanding and knowing that I need to be prepared to do this on my feet, on my own, set the scene, establish that. I try to go into the first person. I try to make it active, present tense when I'm doing the scene itself in the courtroom without being too dramatic or anything. I do it in a credible way. But preparing the PowerPoint, even if you can't use it, is still a valuable part of the process of preparing for trial.
Bob:
And I tell everybody, you do your PowerPoint way in advance because it helps you get ready for everything. It organizes your evidence, organizes your arguments, knows what's important for you to want to be able to get it into evidence and allows you to set up. If you're going to do a focus group or if you're going to do something like that, you have your PowerPoint ready to go.
Henry:
That's right. That's right. You know what you're missing. And then I'll use scratch paper and write things on the scratch paper that would've been in the PowerPoint.
Bob:
And always practice point, always have what's called butcher paper or paper that's ready in case your PowerPoints gets stripped from you because you could still go up there and draw. You still go up there, write and draw. And believe me, people are paying attention if you're down there ripping off sheets and putting stuff up.
Henry:
There's something engaging about watching someone draw when they're nervous and anxious and up there and doing it and speaking. It's engaging to watch that.
Bob:
And if you're misspelling words and stuff, it actually makes you look more human and call yourself out for it. But that's all good. So what about, how do you handle what your experts are going to say or those types of things?
Henry:
Sure. So we've been trying to do less and less with explaining the medicine. For example, my last case about a traumatic brain injury, I wanted to get up and explain the brain and make the courtroom the brain and the judge is the frontal lobe and the court reporter's the temporal lobe taking down everything that's said. And we have the occipital lobe in the back, which is the gallery, and that's vision. And they can see and the public can see what's happening in the courtroom. And Nick was like, "You're not doing any of that." He's like, "We're just going to cut that right out of your opening." And he said, "Just hit the main points and let the experts be the ones to carry that torch for you. They're the ones who have that credibility in that area and you don't have that yet." And so we're constantly mixing in where is that line of over-explaining and giving the jurors enough to see it coming too?
Bob:
Love it. And then we talked, I am way more a fan of visual stuff or maybe photographs that you're actually going to use in trial practice point. Don't use evidence in your PowerPoint that you don't get into trial later, could be part of a mistrial. So if you're going to use something that's actual evidence, it's got to be part of it. You usually can use the defendant's deposition for any purpose. So if you recorded it, you can use those points. So I'm going to have in my next case, have the defendant actually tell you what he did wrong.
Henry:
Yeah, I love that.
Bob:
To show the jury and say, "I'm not making this up. This is evidence. This is what you're going to hear and see during the trial." I do not like those words or lists or those types of things because what ends up happening, because the defense does it every time, it's just black and white or blue and white. They seem to like blue. And they're just telling all of their arguments. So I know their arguments for all of trial. They literally wrote it down for me. And then I just copy those same arguments and I put it in my closing and I just show the jury how they lied about that. They lied about this.
Henry:
That's right.
(02:28):
Bob:
Oh, God.
Henry:
That's right. You hold them to account for that because that was their promise that they made. I love the idea of playing video snippets, and I know you have a great template for noticing those depos and making sure that you're able to set that up for trial because it starts way before trial.
Bob:
Yeah. Well, Henry, any other practice pointers for opening statements or opening arguments? I like to argue a little bit until the judge tells me no once or twice.
Henry:
That's right. If you're not getting objected to, are you even really trying the case?
Bob:
Really trying.
Henry:
I would say one of the big things that we focus on at Trial by Human, and you saw this firsthand, is slowing down, breathing, taking the time to connect with each juror. So when I get up and I say that first sentence, I am choosing a juror or two, probably the person who I think is going to be the leader and I am delivering it to them, and I'm trying not to shotgun my eye contact, meaning I'm not jumping around. And you realize how many people do that just out of habit. And so you have to take the time to actually look at each juror and give them a piece of information and they will receive it and it's a gift. And having real true eye contact from someone who's doing a presentation or public performance is meaningful. And they will feel seen and they will want to listen more. And trust me, the defense attorney ain't doing it. So take the time to deliver to each juror different facts or different arguments in your opening, whatever it might be.
Bob:
And I think that's very important at Trial by Humor, when I was there, they made it slow down so much that you had to explain. A lot of lawyers you can ask them, "What's your trial about?" And they can't even tell you. It's crazy. But they make you do it in a couple words or one sentence.
Henry:
Yeah, we do a two-minute drill, then you get one minute, then you get 30 seconds, and then you get one sentence and then you get one word. What's the essence of your case?
Bob:
I love it. That's why I love works-hopping things. That's why we're filming just HQ here in Torrance and we workshop stuff every Friday and we're going to start working with Trial by Human team to work-shopping a lot more people's trials because you can observe other people's stuff. You can go these seminars, but unless they're actually picking apart your cases and making you better with your specific case, I think that's the solve you're looking for.
Henry:
That's right. That's right. Absolutely. Yeah. It's practical. It's practical, the application, and it's constant growth.
Bob:
(02:49):
And you guys do these all across the nation?
Henry:
Yeah. We're in Iowa later this month. We were in New Mexico, we were up in Santa Barbara, we were in Atlanta. We're just everywhere. There was a Boston Trial by Human that had to be rescheduled because Nick was in trial, but we're everywhere.
Bob:
I love it. And those are the things you can do when you have your own private planes at Trial Lawyers for Justice when you're hitting 7, 8, 9 figure verdicts on the reg. Thank you, Henry. So I hope this was very helpful. For everybody that's listening, anybody should reach out to Henry specifically if you want to have him workshop your stuff. They're very open with their time, but I think it all makes each other better. The rising tides lift all boats if I said that correctly is absolutely true. Henry, how do listeners find you?
Henry:
Yeah, you can find me, you can text me is the best way on my cell phone, my number's 310-994-1882. If you call me, I'll call you back. It just might take some time. I'm not the best at that. And then also on social media, Henry Peacor Esquire for Instagram. Email is henry@tlforj.com. And please do reach out. I have just an extensive library of resources. If I don't know the answer, I'll know where to find it and I can get you transcripts and examples and templates and things like that so that you're not starting from scratch. There's no reason to start from scratch in most things that we do.
Bob:
I love it. And we're trying this year at Law-Di-Gras, our annual conference that I participate in is having Trial Lawyers for Justice Workshop. Some of the people that are coming there, we want to start doing a conference where instead of talking at you, talking with you, type deal like that. So yeah, it's just doing stuff a little bit differently. So Henry, thank you for coming on to this episode of The Justice Team podcast on the Justice Team Network, Practical How-To's for Lawyers. And ladies and gentlemen, if you'd learned anything, today is a better lawyer for you because you can really crush your opening statements. And believe it or not, a lot of times the defense is so scared after opening statements that they finally pay you the money. That's actually true.
Henry:
That's right. That's right.
Bob:
A lot of times. So go there, win your cases, be prepared, reach out. Thank you for listening or watching.
Popular Podcasts
Bookmarked by Reese's Book Club
Welcome to Bookmarked by Reese’s Book Club — the podcast where great stories, bold women, and irresistible conversations collide! Hosted by award-winning journalist Danielle Robay, each week new episodes balance thoughtful literary insight with the fervor of buzzy book trends, pop culture and more. Bookmarked brings together celebrities, tastemakers, influencers and authors from Reese's Book Club and beyond to share stories that transcend the page. Pull up a chair. You’re not just listening — you’re part of the conversation.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.