Sari Swears Podcast: All Great Openings Have This in Common

Here’s what I see all the time in trial openings:

😴 Same tone
😴 Same pace
😴 Same energy

The WHOLE way through…

And THAT’S the problem.

In trial, you’re always doing one of three things:

👉🏽 Teaching
👉🏽 Storytelling
👉🏽 Dealing with resistance

Each one needs a different energy.

Teaching should FEEL electric.

Storytelling should FEEL like a movie.

Dealing with resistance requires calm & confident leadership.

When all three sound the same, jurors don’t feel anything.

Great openings manage energy on purpose.

They let jurors learn, feel, and engage — moment by moment.

Tune in NOW! 🎧

Love,
Sari

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“Most openings are boring and unmemorable because the energy never changes. It’s the same energy the entire time — and that’s mindless and boring for jurors. Great openings work because they manage energy from section to section, letting jurors learn something, feel something, and stay engaged.”
sari de la motte

Transcription

Sari de la Motte:

But most of the time, you guys are doing your storytelling and you're looking at the audience. The actors in a movie don't look at the audience when they're acting. They're actually in the scene. That's what it should look like. So you're bringing your energy up, then you're bringing it down. And then you're bringing it up again until whammo, we get to the injury or the death. The energy is all over the place and it's exciting and sad and enraging and scary. It's like watching a movie.

You're listening to Sari Swears on the Sari Swears Podcast.

Hello, hello, hello. Welcome to another episode of Sari Swears. And today we're talking about the thing that all great openings have in common. So last fall I did an opening Command the Courtroom... And by the way, y'all need to come out. I think we're only doing five this year and we've already sold out one and we've sold several seats in the other one. So make sure that you go over to SariSwears.com and just check them out because we're doing these two-day in person seminars and they have been a hit. They're so much fun. Anyway, so I was doing the opening one and I realized as we were doing this that this is the one thing that really takes an opening from good to great, the thing I'm going to talk about today.

So before we go into what that thing is, I want to remind you, or if you're new, I want to let you know that there are three things and three things only that you are doing in trial. You are either teaching, storytelling, or dealing with resistance. So for example, where do you teach in voir dire? In the funnels. In fact, the jurors are teaching you. They're telling you how to avoid scenarios, maybe scenarios that might have happened in this case. By the way that we set up the funnel, they're telling us, but that's where a lot of teaching is happening in the funnels. They're saying things out loud that they already know, but it's in the air now. And now they're saying, "Yeah, I would expect a company to train their drivers, of course."

Where are you teaching in opening? Well, the teaching section, for one. Some in the cause and effect section. How about over trial? Who's teaching in trial? Your experts, they're teaching. They're the ones that are the authority telling the jury about the medical things or whatever it may be. Closing, where are you teaching? Jury instructions, where you're defining terms, talking about what this means, how it can be used, all of that.

How about storytelling? So where or who is telling stories in voir dire? Yeah, your jurors hopefully are telling stories in voir dire. In opening, you're doing storytelling in the defendant's story, some in the cause and effects section, which is our causation section, and in the plaintiff's story. Over trial, who tells stories? Think about that for a minute. I'll let you think about it as you're driving or walking. Well, look at you. You're right. The lay witnesses, they're telling stories about the plaintiff, most likely. And in closing, as we talked about in the last podcast, you're telling two future stories, right? And you're also telling what we call the damages story, which is the one story that really pulls it all together.

How about dealing with resistance? So anytime you're talking about defense points or money, basically you're dealing with resistance. Why? Because the resistance obviously is just there between... There's a fight going on, right? You say one thing, they say another. There's that resistance. So that's why defense points. But why money? Because ain't nobody want to talk about money. We do not talk about money in polite society. So those two things are a flashing deal with resistance pieces for me.

So where do we do that in voir dire? Well, in voir dire, we have the devil's advocate question, that's where we deal with defense points, and we deal with money and price versus value. My way of talking about non-economic damages. In opening, we obviously deal with it in the challenges section where we undermine the defenses and in the what can money do section, which is a new name. Instead of how money can help, it's now called what money can do. Over trial, we deal with resistance where? Cross exam. That's where we're dealing with resistance. And in closing, we mainly deal with resistance when we're talking about money again. We do that a lot in closing. So that's really where the money meets the road. I was going to say rubber meets the road.

So why is it important that you understand that there are three different things that you're doing in trial? Because each of these three things are different energetically and must be presented differently. In fact, in our opening seminar, we don't go in order. I don't start with part one of my opening template, and then on day two, we end on part nine. We teach them in the order of these three things because they are so different. So we do all of our teachy stuff, then we do all our storytelling, and then we end with dealing with resistance or maybe we end with sort of... I can't remember which order those three things go in, but we don't go from the beginning of opening to end of opening. And when I was talking to this last crew, I was like, "Is that confusing?" And they're like, "No, it makes so much sense," which I was glad to hear.

So why are most openings boring and unmemorable? Well, outside of the fact that most openings are too damn long, remember an H2H opening is under 30 minutes or 30 minutes or under, I should say. It's because there is no change in energy. It's the same energy the entire time, which is mindless and boring. Now, you might say, "What do you mean by energy?" Energy is how what's happening is feeling to your audience, right? I could say it's the same tone the whole time, but that's not exactly what I mean because you can have the same tone, but with different energies, for example. So communicating different energies takes both varying mindsets and nonverbal patterns. So let's look at teaching, for example.

So the best teachers are the teachers who are passionate, both about their subject and their students. You may have cared less about, I don't know, Greek civilization before hearing your favorite teacher talk about it, but once they did, you became enraptured. Passion is infectious. Are you passionate for your case, for your jurors? Because if not, you're going to be in trouble. To get jurors invested in your case and wanting to learn, you have to believe that what you're teaching them is the most amazing that they will ever hear in their lives. And yes, that might be about learning about the knee or the meniscus or whatever, but you've got to get excited about it or they're never going to get excited about it. And that's where a lot of this energy stuff comes in because when you use different energies, suddenly it is exciting to talk about the things that you maybe thought weren't that exciting once you start playing with the different energies.

Now teaching, or opening in general, I should say, is not a presentation. I want to be really clear. Nobody wants to listen to a speech. When you are passionate about your subject and your students, the energy in your teaching section is electric. It's exciting. Your pace is a bit faster. You're using flip charts to illustrate. You're teaching the mad teacher and it's a bit messy and it's a bit fun. That's what we're talking about with the energy of teaching. You got to love what you're talking about. "Now here's this thing and here's what the disks look like. And they have this little spongy stuff on the inside," right? That's very different from, "And we all have discs in our spine in between each of the..." No.

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Kent:

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Sari de la Motte:

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Take storytelling. So let's talk about a different energy. So storytelling, you've heard me say it before, but if I were to watch your opening on video without sound and I could not tell which part was the story parts, you would be doing it wrong. Storytelling should look very different from teaching, which looks very different from dealing with resistance. So for example, in the defendant's story part of our template, which is the third part, we use props. We use different voices. We use different body language. We use different locations. Maybe we might be crawling on the ground. Maybe we're pretending we're on an escalator. Maybe we're pretending that scaffolding has fallen. We're doing things and we're not breaking the fourth wall, right? Unless you're narrating like Kevin Spacey and House of Cards, which it goes without saying. I hope that Kevin Spacey very unfortunately has become a garbage person. I guess he always was, we just didn't know. But God.

Anyways, you know how he turns to the camera and then he talks? There's a time for that in storytelling when you're playing narrator. But most of the time you guys are doing your storytelling and you're looking at the audience. The actors in a movie don't look at the audience when they're acting. They're actually in the scene. That's what it should look like. So you're bringing your energy up, then you're bringing it down, and then you're bringing it up again until whammo, we get to the injury or the death. The energy is all over the place and it's exciting and sad and enraging and scary. It's like watching a movie. At least that's how we put our defendant's story together. And people are always like, "Oh, I'm worried about being too dramatic." It is in service to the story. Listen, we have to activate jurors. We have to activate their feelings. I don't mean play on their feelings. I mean, we're in this sterile environment talking about very human things.

One of the things that I have seen get jurors out of their sterile, we're in court, there's a person in a black robe and actually being like, "Oh my gosh, I wonder what that would have been like," is storytelling. And you shortchanged them. You wonder why you're getting lower verdicts? It's because you're not going all in on storytelling. I'll just say that much right now. Now, I know a month or two ago I had some podcasts on storytelling, like the Seven Rules or Fire Rules or something. I don't know. Go check it out because I talk about this a lot more there. But the point is that it's a different energy. Instead of being like a passionate teacher who loves to talk about this thing, now we're showing the movie and we're playing all the parts.

Now, in the cause and effects section, here's where we pick up the story from the plaintiff's point of view and now the energy changes to something very visceral. We can feel what the plaintiff went through and we shudder. When you talk about things like the bones shattering or the vocal cord being cut by the surgeon, we're right there, if you allow yourself to go there. Many of you don't. And we talked about that in the secondary trauma podcast that Coach K and I did. Go back and listen to that one.

But we talked in the opening... Or maybe it was in the damages in the courtroom, I can't remember. About how so many of you are not willing to go here. It's happened so often that I'm like, "Okay, something's going on." Nobody's going all the way there. When the bone snapped, it poked through the skin and you're like, "Oh, why would I go there?" Because that's what happened to your plaintiff and it's awful and horrible. And your jurors need to feel that to give you big damages. They do. In the plaintiff's story, we're telling stories like we're at a bar talking about a friend to illustrate who this person was. We're not using props and things, but it's like the, "Let me tell you about Jim. Oh my gosh, one time, somebody dared Jim to do this thing." So it's like the stories at the bar to talk about the past. And when you talk about what Jim's like now, it's the story of the struggle of someone who was, yeah, dealt this terrible hand, but is doing everything possible to try to get back on their feet and not let this awful, horrible thing that happened to them keep them down.

So notice the different energies, even within the opening. There's different story types of energies. There's one at the bar with the beer, right? There's one with the visceral and the bones are breaking and all that kind of thing. There's the one with the props and the moving around and the crawling on the ground. Just right there, just in storytelling, there's different energies. There's not one storytelling energy. It's all over the place. And that's what's so amazing about it. What about dealing with resistance?

So this is my, I don't know if it's the most fun energy of all, but it's pretty fun because this is where you get to be a little snarky. Like in the challenges section, when you're talking about the defense points, you're going to non-verbally communicate, "Now here's some that you're going to hear from them about this." You don't say that, of course, but that's like... Notice my face right now. And if you're not watching this, you can hear my voice. I look very different right now and I sound very different, like, "Okay, so let's just talk about what they're going to say." Or you state something they're going to say and you make it sound utterly ridiculous. So one of the things you're going to hear is, 'Isn't this his fault? I mean, he did blah, blah, blah." You're going to have this kind of snarky where people are like, "How could that be his fault? That's ridiculous." You need to sound ridiculous if you want them to think it's ridiculous.

People are more in tune with your tone of voice than any other nonverbal. Any other nonverbal. There's research to back that up. In fact, in one of Malcolm Gladwell's books, he talks about how they did a study of doctors and who were more likely to be sued for malpractice and what they found was they went and they recorded these conversations between the doctor and the patient before anything had happened. So I think they were just normal conversations or, I can't remember, maybe it was after the thing happened. I think actually maybe it was after the thing happened and they were recording these conversations and then they garbled them so you couldn't understand what was being said and you only had tone. And I can't remember if they gave it to a focus group or how they determined this, but basically the people were trying to guess, assuming it was a focus group, which doctors got sued more. And every time they would pick the tone that was condescending, that was rude, and guess what? They were right.

Our tone communicates so much. A doctor that says they're sorry... I mean, if the lawyers at the hospital let them, I doubt they would. Oftentimes people will drop those just because they feel heard. So tone conveys a lot when you think, "Well, what's this going to do, to make it sound ridiculous?" It will help make it seem ridiculous because it is ridiculous. Nothing we do here is a gimmick. We're not trying to make something that's not ridiculous sound ridiculous. 99% of the things the defense is coming up with are ridiculous. So we're going to match it with the correct tone of voice.

Now, when you talk about money, money is a little different. So we're not going to be snarky or rude there, even though we're dealing with resistance. Again, here's a different energy. When you're talking about money, there's always resistance, as I said, because we don't talk about money in polite society. So here is a really great opportunity for you to not back away from it. This is where the energy would change to leadership, confident energy, where it's like, "I don't mind talking about this. I'm not afraid to talk about money. It's the best we got. It's incomplete, but it's the best we've got and I'm here and let's talk about money."

So it's very like... Notice my voice has a little bit of defensiveness in it, not like, "And why shouldn't I talk about money?" I don't mean that kind of defense. I mean, I know that they think I'm afraid of talking about it, but I'm not afraid to talk about it because this person was hurt. And under our laws here in the United States, they are allowed to recover and that recovery comes from money. So you have a real opportunity here to change the energy again and just like balls. Yeah, we're going to talk about money because that's the only way we can make this better. And you're going to go on and talk about how to fix, help or make up for. Thank you, David Ball.

So, what do all great openings have in common if you don't already know? It's the ability to communicate and manage energy. It's utterly thrilling to watch an opening where an attorney can manage the energy from section to section. I mean, think about it. If you do this well, and I've seen it done in our seminars, the jury gets to learn something, and then they get to watch a movie, and then they get to see you shred the defense, and then they get to see someone talk confidently about money, and they get to feel the struggle of the plaintiff, and then hear funny stories about what they were like before, and then viscerally feel an injury, and not in that particular order.

But doing this leaves the jury wanting more, and it gives the jury, and this is really important. It gives the jury the space to feel those feelings. When you deliver an opening that has these horrific facts, and you say them in such a way that are like, "And then her leg broke in half, and then he died, and then this, and then that." There's cognitive dissonance, they're like, "Wait, what?" Sometimes jurors, after a particular... This is early in my career, but an attorney would go out there and say, "And then she died." They would say in the feedback portion, "Wait, did the person die?" They didn't even hear it because the energy was off. Nobody says, "And then she died," about anybody they care about. They're like, "And then on the fifth day, the family made the terrible decision to take her off life support." Notice how I'm opening up the ability... Jurors, you can feel sad about this because it is sad.

You have incredible, incredible power to affect the atmosphere, the level three, as we say around here, and allow jurors to feel, and that's where our damages come, and that's how we win cases. Okay. Talk to y'all next week.

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