By Dr. Ken Broda-Bahm:
It is easy to imagine what you are likely to hear in the first few moments of the defense opening when the case involves a serious injury or death:
Ladies and gentlemen of the jury, everyone here knows the pain and loss that Ms. Smith has experienced. It is a tragedy and it is only human for us to feel some sympathy when we hear her story. But your decision in this case needs to be based on the evidence and the law, not on emotion. So I need to ask you to set aside any feelings of sympathy you may have for Ms. Smith as you hear our side of the case.
That is a cliché, but the general request is a pretty common way for defendants to begin. Even as it feels a little trite, defense attorneys usually believe they need to do it. On the heels of the plaintiff's emotional opening, it is understandable that defense attorneys would try to clear the decks of that emotion and get the spotlight to focus on the facts and the law instead. But even as the attorney's motivation makes sense, the standard admonition has a very low likelihood of being effective, and a very high likelihood of preventing a better introductory message. In this post, I will share some reasons why "Set aside sympathy," isn't the best way to begin, and share some ideas for changing that message.