You win your case at your opening statement. Sure, you can use your opening statement to introduce the facts — “Tell ‘em what you’re gonna tell ‘em,” as the saying went in law school. But the fact is that if all you do is introduce the facts, you’ve lost an incredible opportunity.
Over the years, my profession has made me a student of communication in most, if not all, of its forms. And whether employed in the service of argument, persuasion, negotiation or something less adversarial, the one thing I learned is that Socrates was right: “The beginning of wisdom is the definition of terms.”
For example, I decided during one trial that that I would refer to what the opposition called a change order as a “change request.” The documents had not been signed and I did not consider them to be “orders.” I believed, however, that if the word “order” became a fixture during the trial, it would become cemented in the jury’s mind, the prevailing thought being a request can be accepted or rejected but an order is something to be followed.
I was the first person to speak and I repeated the phrase “change request” at least seven times before I sat down. When the opposition started using the same phrase in order to make himself understood with a jury already comfortable with the term, I knew I had already won the trial’s crucial battle.
The point is, words have power. Every day I review contracts that clients later tell me do not really depict the reality of the situation. Every day I see clients write letters, confirm statements and make proposals throwing around heavy words like “partnership,” “agreement” and “guarantee.”
When those communications come in to my world, whether they are emails, letters, faxes or actual agreements, they affect everything they touch. They influence the perception of judges and arbitrators, state procurement officers and supervisors. People who intended their communications to be off-the-cuff in order to respond quickly find themselves choking on words written in haste.
As President Obama recently said (and he wasn’t the first), “Words have power.” Too often, I find myself wishing that my clients had not failed to harness it before they hit “Send.”