The Litigation Psychology Podcast - Episode 280 - Frequency and Dilution Errors in Opening Statements

Bill Kanasky, Jr., Ph.D. breaks down two critical mistakes attorneys make in opening statements: dilution of their message and their communication frequency. Frequency refers to the attorney’s delivery dynamics - energy level, confidence, rhythm, and emotional tone - that either engages jurors or turns them off. Common problems with communication frequency include defensiveness, nervousness, over-talking, and coming across as if trying to sell something to the jury rather than telling them a compelling story. Dilution occurs when attorneys talk too long, over-explain, or defend unnecessarily, which weakens the message and causes jurors to tune out. Bill explains why less is more and that potency comes from repetition, silence, and reframing the narrative right from the start. He urges attorneys to avoid “dead zones” in the middle of openings, stay high-level (“in the clouds, not the weeds”), and let witnesses handle details later. Finally, Bill highlights the value and importance of testing openings with focus groups to gather feedback from mock jurors to help guide and fine-tune delivery, frequency, and clarity before trial.