Rehearse Opening Statements Early and in Front of Others (and yes . . . it sucks to do)
By Chad Colton, Markowitz Herbold PC
Most litigators hate to rehearse their opening statements for trial in front of other people. And for good reason—it is truly painful. But when you need to win, make sure that you or your outside counsel prepares an opening statement early and rehearses it for you.
Trial lawyers are perfectionists by nature, and they want to make their courtroom presentations just right before anyone sees them. Preparing a good opening statement is extremely time-consuming and draining. It requires big chunks of time, deep thinking, and focus to do it right. So, what happens? Litigators tend to procrastinate and don’t begin putting their opening statements together until they absolutely have to—right before trial. The result? They’re underprepared, and the message lands flat. Or they deliver a message that is inconsistent with their client’s overall brand.
But it’s also a missed opportunity to focus the litigation team on what really matters in the case. By preparing an opening statement well before trial, the litigation team can see where to focus the rest of their discovery efforts, case development, and trial preparation. This will save money and better position the case for resolution.
Clients and in-house counsel can help this process along. Litigators respond well to deadlines. So, put a little time pressure on your outside counsel to prepare an opening statement well before trial. And then have them rehearse it for you and other stakeholders. This will give them a deadline to solidify their thinking about the key issues to present in the case. And it will help you course-correct messaging and narrow everyone’s focus to what really matters in the case.
Benefits of Early Preparation and Rehearsal
Enhanced Focus on Key Issues: Early preparation of the opening statement helps the litigation team identify and focus on the most critical aspects of the case. This focus guides the direction of discovery efforts, motion practice, and overall case strategy, ensuring that resources are used efficiently and effectively.
Consistency with Brand Messaging: Rehearsing the opening statement with in-house counsel and other stakeholders allows for feedback and alignment with the company’s overall messaging. This ensures that the trial presentation reflects the company’s values and brand identity, making a stronger impact on the jury.
Improved Team Coordination: When the litigation team has a clear understanding of the case’s key issues early on, it fosters better coordination and communication among team members. This unity can enhance the overall effectiveness of the case strategy.
Cost Savings: Focusing on what really matters in the case from the outset can lead to significant cost savings. By directing efforts toward the most relevant issues, unnecessary discovery and motion practice can be minimized.
Confidence and Preparedness: A well-prepared opening statement boosts the confidence of the trial lawyer and the entire litigation team. Knowing that the opening has been thoroughly rehearsed and refined can provide a psychological edge in the courtroom.
Practical Steps for In-House Counsel and Clients
Set Clear Deadlines: Establish firm deadlines for the preparation and rehearsal of the opening statement. Communicate these deadlines to your outside counsel and emphasize their importance.
Organize Rehearsal Sessions: Schedule sessions where outside counsel can rehearse the opening statement in front of you and other key stakeholders. Provide constructive feedback to help refine the presentation.
Facilitate Early Discussions: Encourage early discussions about the key issues in the case. This can help guide the development of the opening statement and ensure that it aligns with the overall case strategy.
Monitor Progress: Regularly check in with outside counsel to monitor the progress of the opening statement preparation. Offer support and resources as needed to keep the process on track.
By ensuring that your outside counsel prepares and rehearses their opening statement well in advance of the trial, you can significantly enhance the effectiveness of your litigation strategy. Early preparation allows for better focus, alignment with brand messaging, improved team coordination, cost savings, and increased confidence.
For more tips and insights on navigating high-stakes commercial disputes, stay tuned to my WYNTW videos or follow me on LinkedIn.
Chad Colton helps companies and business owners navigate high-stakes commercial litigation—when businesses, reputations and livelihoods are on the line. He often serves as parachute trial counsel, joining cases at the mid-point or on the eve of trial (sometimes literally) to develop a hard-hitting trial package. He has taken nearly 30 cases to trial across the country and served as lead counsel on some of the most high-profile commercial jury trials in the Pacific Northwest.