I edit a lot of opening statements. A lot. And one of the most common mistakes I see is inserting negatives into the story structure. For example, stating that the defendant did NOT check the pressure in his tires or the defendant did NOT take the patient’s blood pressure. There are a few reasons why putting negatives in your opening story hurts you:
Time Stops.One of the rules of good storytelling (see David Ball’s book on Damages 3) is that every sentence must move the story forward in time. When you state that a defendant did not do something, you don’t move the story forward. Time stands still. Unconsciously, you lose some ground with your jurors whenever you stray from good storytelling techniques.
The Unconscious Can’t Tell a Positive from a Negative. When you say the doctor did not check the blood pressure, all the unconscious hears is that the doctor checked the blood pressure. You’re working against yourself when you do this.
It’s too Adversarial. As a plaintiff’s attorney, you do not want to be adversarial early on. Jurors do not trust you. To say that a defendant did not do something sounds adversarial even though saying the same thing with positives would sound neutral.
So, what do you do when you have a negative to insert into the story? You need to show by implication what the defendant did not do without saying so. This is laid out in more detail in David Ball’s Damages 3 book.
Example 1: If, for example, you need to show that the defendant did not check the patient’s blood pressure and that is a crucial part of your liability story, then start with a rule stating that “When a patient exhibits X, Y, or Z signs, a doctor or nurse must check the patient’s blood pressure every 2 hours to ensure the safety of the patient.” Then when you get to that point in the story, you say:
“11am. Nurse Judy comes into the room. She checks the patient’s pulse and notes it in the file. She checks the patient’s pupils and notes it in the file. She changes the patient’s wound. She leaves the room.”
Example 2: Let’s take another example. Say you have a case where a car malfunctions due to repairs made at by a mechanic. Orient jurors in the beginning toward the rule the mechanic broke, for example, “a mechanic must make sure to check the X valve whenever they change the oil. Expert Mechanic will tell us that this is important because the car can blow up if the valve is not checked.” Then start your story and when you get to the point where the mechanic skips that step, you say,
“Roger changes the oil. He screws on the cap. He lowers the hoist. He calls the customer to say the car is ready for pickup.” Jurors know by implication that he did not check the valve.
If you have oriented jurors toward the rule ahead of time, they will be on the lookout for the point where it was broken. When you allow jurors to infer the action themselves, they become much more trusting of the conclusions they draw than if you had told them outright.