Telling a Winning Story at Trial
By Gerald A. Klein, P.C.
Everyone loves a good story – especially juries. A good story transcends age, race, economic condition, and gender. If you think your jury trial is just about the facts or the law, then you will probably lose. A winning case is always about a winning story. It is your job as a trial attorney to find the story of your case and bring it to life in a way ordinary people will understand.
THE IMPORTANCE OF FINDING YOUR STORY
From the first day you open your file, you should be thinking about the story you want to tell. A winning case is not about the theft of trade secrets. Your case will never be about a breach of contract, a securities violation, or an overburdened easement. Your jurors do not care whether the pork bellies arrived in Chicago on time. Instead, the story may be about trusted employees who cheated and took shortcuts by stealing business their former employer spent millions of dollars building over many years. You must find the story that keeps jurors interested in your case and motivated to give your client a verdict.
FINDING YOUR THEME
Your story should include a compelling theme. A theme is the simple “hook” that people will hopefully remember during the case presentation and throughout deliberations. A good theme is your story distilled down to a single sentence and, sometimes, a single word. In a trade secrets case, the theme might be “cheaters should never prosper.” In personal injury cases, the theme may be “Acme Corporation valued corporate profits more than the lives of families who bought Acme’s products.”
The importance of a winning case theme is almost as important as a winning story. Many years ago, I was involved in a dispute over how to calculate “gross sales” for a celebrity pitch man who was offered three percent of “gross sales.” The contract was convoluted and the circumstances surrounding his compensation made the term “gross sales” far from clear – at least to lawyers. The plaintiff’s theme throughout the case was “gross means gross.” Although the defense attorney did a fantastic job explaining the convoluted nature of the contract and that the reference to “gross sales” was not really “gross sales,” none of the mock trial panels in four different presentations were persuaded. Instead, juror after juror parroted back plaintiff’s themes “gross means gross.” This anecdote explains how powerful an effective theme can be.
CONSTRUCTING A STORY PEOPLE WANT TO BELIEVE
Stories cannot be constructed in a vacuum. Clients are horrified when I tell them that truth alone is not enough to win a case. More important than truth itself is making sure the story you tell is a story ordinary people are likely to believe. By way of example, Anna Nicole Smith, a beautiful young woman, married a 90 year old billionaire. Supposedly, she married him because “he was the only real man she ever met.” That may have been true. But no juror would ever believe this story.
A lawyer who sets out to prove Anna Nicole Smith married a 90 year old billionaire for true love rather than money is doomed to fail. Accordingly, the first step in finding your story is to find a story people are going to believe . If you do not understand this critical distinction, then you will lose cases you should win.
The next step is to find a story with universal appeal that people want to believe . In conceiving this story, you should recognize that most jurors do not think like attorneys. They do not have your education. They do not have your life experience. They do not live your lifestyle. In short, they probably do not think like you. Equally important, there will be broad diversity among your jurors in terms of age, ethnicity, education, and points of view. A “Rush Limbaugh Republican” is not going to view a set of facts the same way as a “George Clooney Democrat.” Yet there are certain universal themes and generally accepted truths each of these potential jurors could embrace. For example, most people believe that hard work should be rewarded. Most people believe it is wrong to steal property belonging to others. In developing your story, you need to find some of these unifying principles which most people hold dear. These principles must be tied to your theme and built into your story.
KEEP YOUR STORY SIMPLE AND FOCUSED
It seems like every business litigator specializes in “handling complex business litigation.” What separates the business trial lawyer from the “complex business litigator” is taking complex cases and turning them into simple stories which ordinary people can understand.
An effective trial presentation consists of a story people want to believe, with a compelling theme that people naturally embrace, seasoned with interesting characters your jurors care about. These simple ingredients are all you need to win your case. Focus on these ingredients, rather than “complex” things that will only be distractions to the story you want to tell.
Unfortunately, most lawyers cannot resist responding to every argument opposing counsel makes and answering every conceivable question a jury might have, even if presenting these details detracts from the main story. There is no need to fight fire with fire. Just because your adversary brings up 50 issues does not mean you need to respond to every allegation, accusation, or footnote. Stay focused on your own compelling story and do not get sidetracked by opposing counsel’s tactics. It will only interfere with the story you want to tell. By responding to your adversary’s points, you risk telling your adversary’s story rather than your own story. If you have a great story to tell, and you are telling it properly, the jury is probably not listening to opposing counsel anyway.
MAKE THE STORY ABOUT THE ADVERSE PARTY
For many years, I typically made my case about my client – who was the hero of my story (even when my client was less than heroic). But that changed at an ABTL seminar I attended where actors gave a presentation on how to tell a trial story in the new millennium. I was fascinated by what I heard and it created a paradigm shift for me in how I view case presentations.
When I was growing up, politicians, sports figures, and television characters were heroes to admire. We cared about what John F. Kennedy did in the Oval Office, not in the Lincoln Bedroom. We cared about Mickey Mantle’s exploits on the field, not in the Manhattan bars. The heroes on television made the right decisions, did the right thing, and they always won. Nowadays, one politician or another is on the defensive, explaining some indiscretion; our sports heroes are on steroids; and the general public is consumed in watching Mad Men and The Real Housewives of Orange County. Today’s “heroes” are hopelessly flawed. Even if we root for them, we are cynical about their motives and actions.
The actors giving the seminar explained to a surprised audience of lawyers that if your case is about your client, you are more likely to lose. The actors explained that today’s jurors are looking for the defects and failures of the main character. The lesson learned – tell a story about the bad decisions the opposing party made, instead of focusing on your own client.
TELLING YOUR STORY EFFECTIVELY IN OPENING STATEMENT
Few things are as tedious as listening to a boring teacher, clergyman, or a lawyer droning on and on and on. Most trial lawyers believe they are much more interesting than they really are. Only a few extraordinarily gifted lawyers can hold people spellbound while they chatter for an hour or more.
Jurors want to hear the case, decide it, and go home. You may have a great story, but if no one is listening, it will not matter. In presenting an opening statement, your job is to hook people into listening to your story. From the moment you rise to give your opening statement, launch into your story. Do not waste time gushing with thankfulness about jury service, introducing yourself, etc. The jurors will never have their attention as focused upon you as closely as when you step up for the first time to tell your story. Do not waste that opportunity.
Make opening statement dramatic. Set the stage. It could be at a desk where one of the key characters is formulating a decision that will ruin the lives of good people. It may be in a board room where the board is about to make a decision that they know will kill children. Tell your story as chronologically as possible, with dramatic effect, so jurors can watch events unfold. More than any other point in the case, this is your opportunity to tell the story of your case and get jurors thinking about your key themes. It is the rare opening statement that requires more than one and one-half hours of time – even in the most complicated cases. Many effective opening statements can be presented in a half hour or less. Opening statement is not the time to go into every detail about the case.
FINISHING THE STORY AT FINAL ARGUMENT
Unlike opening statement, which is pure storytelling, closing argument is a mixture of storytelling and teaching about the law. Your job in closing argument is not to retell the story jurors have already heard, but to explain why your story (and not the other side’s) is the one jurors should believe and why the facts you proved require a jury to find in your client’s favor. Wherever possible, you must let jurors know their decision is not only important to the parties, but that an incorrect verdict ( i.e., a verdict for your adversary) would undermine the moral fabric of everything we hold dear.
Use props. It is inconceivable to me that someone would present final argument without heavy reliance upon video, computer graphics, and/or animations. While your spouse and children may hang on your every word, most people do not find you nearly as interesting. Multimedia trial presentations help jurors focus on something other than you. If done properly, multimedia trial presentations help jurors remember themes and key story points. Find dramatic video deposition clips where someone makes a devastating admission or the adverse party looks as guilty as can be. Introduce these clips with style and dramatic flair. Often jurors stare at these videos and are more influenced by how a witness testifies than by what the witness said. When presented properly, much of the story can be told through playing an adverse party’s video clips in final argument. When depositions are taken properly and presented in final argument, the adverse party will admit everything you need to win your case.
For those of us not as gifted as some of the great story tellers we have in Orange County, multimedia presentations are the great equalizer. Computer graphics, including simple animations, PowerPoints, and video usually perk jurors up. Face it, we are all big kids who still like a cartoon or a movie now and then. Animations can now be created at very low cost. Consider preparing an animation to help illustrate concepts. Twenty years ago, I handled a sophisticated fraud and accounting case which would put most accountants to sleep. Rather than go through the various convoluted transactions, I played a simple animation showing two balance sheets. A block of assets (depicted as a rectangle) moved from the plaintiff’s balance sheet to the defendant’s. That was the easiest way to show the theft of assets. No one would have stayed awake to follow the accounting had I not used pictures.
While a final argument will have to address key exhibits, contract provisions, jury instructions, etc., never forget that your case is about the story, not individual pieces of evidence or jury instructions. Tie the evidence and the instructions into the story you are telling.
Winning trials comes down to telling winning stories. You can have the facts. You can have the law. But if you do not have a winning story, you will probably lose. Find a winning story and everything else will fall into place.
This article first appeared in the ABTL Report, Fall 2013.