WHAT CAN OLD TIME RADIO ADVENTURES TEACH US ABOUT PRESENTING OUR CASES?

Have you ever asked someone “What is your case about?” and they respond: “My client was  driving his pickup truck on I-5 near Federal Way in the middle  lane going between 60 and 65 mph when traffic ahead  slowed…” and so on. That’s how we present our cases to the jury – a narrative or chronology instead of a story. A story begins with a descriptive characterization about the essence of the case. For example, a response to this question of “It’s about a driver who was following too close and not paying attention that caused a collision with my client’s car” communicates a story in summary form that tells us everything we need to know.

What does this have to do with old time radio? When I was a youngster in grade school we didn’t have television. Radio and movies were the popular medium for entertainment. Saturday matinees at the movies were a double feature film, a continuing action serial and a cartoon. Weekdays after school there were radio adventure series on the radio. Two of my favorites were  The Adventures of Superman and The Lone Ranger.

The Adventures of Superman was first broadcast on radio in 1940, after appearing in comics in 1938. Monday through Friday every week on the Mutual Broadcasting Company the program would begin with the announcer saying:

“Faster than a speeding bullet! More powerful than a locomotive! Able to leap tall buildings at a single bound!”

“Look! Up in the sky!”
“It’s a bird!”
“It’s a plane!”
“It’s Superman!”

The radio serial The Lone Ranger was first broadcast on radio in 1933 on a Detroit station and was picked up by the Mutual Broadcasting Company. The program featured the music from Rossini’s William Tell Overture. It would begin with the announcer saying:

“A fiery horse with the speed of light, a cloud of dust and a hearty  ‘Hi-Yo Silver’…The Lone Ranger! With his faithful Indian companion, Tonto, the daring and resourceful masked rider of the plains led the fight for law and order in the early Western United States.  Nowhere in the pages of history can one find a greater champion of justice. Return with us now to those thrilling days of yesteryear. From out of the past come the thundering hoof-beats of the great horse Silver. The Lone Ranger rides again!”

Singer writer Jim Croce immortalized both program with his lyrics from his song You don’t Mess Around with Jim”

You don’t tug on Superman’s cape
you don’t spit into the wind
you don’t pull the mask off that old Lone Ranger
and you don’t mess around with Jim

So, what’s the connection between these radio dramas and trials? Well, to start with, the typical old time radio play had an air time of slightly less than thirty minutes. They were often adopted from books, movies or theater and then adapted into a thirty minute broadcast which had to hold the interest of the listener. This required the writer to eliminate all the non-essential from the basic story line and focus the story. It had to keep interest and develop a sense of right from wrong in the listener. That all had to fit a program of thirty minutes which illustrates how much can be accomplished in a short period of time. This lesson of communication becomes  more important as people want  the quick answer, the short story and the headlines rather than a long narrative.

More importantly, these radio scripts employed the best of  the basic outline for story telling. Great radio scripts generally followed Joseph Campbell’s outline for a story with his  format of “the hero’s journey” For a complete explanation, my friend, Carl Bettinger, has written an excellent book on the subject of story and trial in Twelve Heroes, One Voice.  Bettinger points out that the lawyers are the mentors or guides for the heroes who are the jurors. We guide the jurors and provide them with the tools they need to confront the villain (defendant) and save the day with the right outcome for the plaintiff. This outline for story telling generally looks like this:

  1. THE HERO IN THE ORDINARY WORLD.  The hero, uneasy, uncomfortable or unaware, is introduced sympathetically so the audience can identify with the situation or dilemma.
  2. THE CALL FOR HELP. A crisis occurs which requires action from the hero to go on a journey.
  3. RELUCTANCE TO THE CALL.  The hero feels the fear of the unknown and tries to turn away from the challenge, even if briefly.
  4. ASSISTANCE OF A MENTOR.  The hero comes across a wise person who gives advice and guidance for the journey.
  5. THE JOURNEY STARTS. The hero commits to leaving the ordinary world to begin a journey with unfamiliar territory and rules.
  6. THE HERO IS TESTED. The hero is tested and deals with challenges successfully instead of giving up.
  7. THE ORDEAL. The hero faces their greatest fear and challenge, but out of the confrontation comes a new courage and life.
  8. THE REWARD. The hero takes possession of the needed solution after overcoming the danger
  9. THE RESURRECTION. On the way back home, the hero is severely tested once more on the threshold of home. Overcoming this challenge his  or her conflicts  are finally resolved.
  10. THE RETURN HOME  The hero returns home with the prize where there is celebration for his or  her achievements.

These radio dramas followed good story writing essentials  like those above. These essentials also apply to how we present our cases as well. Our stories should generally include at least these elements

  1. A central premise
  2. A strong characters
  3. A “confined space” that is, within a well-established time and place
  4. A protagonist who is on some sort of quest
  5. An antagonist who is bent on stopping him or her
  6. An arch, that is everything is continually getting better or worse
  7. Conflict

When you are deciding how to structure your case presentation avoid a narrative or a chronology. Instead, follow the advice in Carl Bettinger’s book and make it a compelling story with the components needed to make it great.

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THE IMPORTANCE OF FIRST WORDS IN COMMUNICATION

Lawyers in general talk too much without focusing their ideas and as a result bore jurors. In trial this can be fatal to your case. Too often we underestimate the power of the words we use to start our communication to the jury whether it is in jury selection or opening statement. When you first stand up to speak to the jury, it is a magic moment in which you have everyone’s full attention for a short time; probably no more than thirty seconds. Too many of us waste that magic moment by what we first say. This is the moment when the jury makes an immediate first impression about you and what you say. So, don’t waste this opportunity with empty  phrases like:

  • “This is what we lawyers call an opening statement…”
  • “I appreciate the time and the attention that I know you will devote to this case today…”
  • “Opening statement is our chance to tell you what the evidence will show…”
  • “My name is James Minster, and it’s my privilege to represent Kyle Lauten…”
  • “An opening statement is like…
    —- a road map…”
    —- a recipe…”
    —- the table of contents to a book…”
    —- the cover of a jigsaw puzzle box…”

 Never underestimate the power of  an intriguing start. Our objective should be to begin strong.  Think about newspaper headlines that capture our interest first and when poorly thought out can have unintended meaning. For example here are some actual newspaper headlines that did not communicate what was intended:

  • “Police begin campaign to run down jaywalkers”
  • “Typhoon rips through cemetery; hundreds dead.”
  • “Something went wrong in plane crash, expert says”

The literary greats like Charles Dickens  began their novels with a strong  and tantalizing opening sentence because they knew the power of first words. Dickens began his novel A Tale of Two Cities with “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness…” And, the wonderful, captivating,  way in which he started  A Christmas Carol “Morley was dead: to begin with.” J. M. Berrie  began Peter Pan With “all children, except one, grow up.” Then there is the great opening line from Gabriel Garcia Marquez’s 100 Years of Solitude: “Many years later, as he faced his firing squad, Colonel Aureliano Buendia was to remember that distant afternoon when his father took him to discover ice.” From the book Swimming Lessons “Gil Coleman looked down from the first floor window of the bookshop and saw his dead wife standing on the pavement below.” These brief opening sentences capture our immediate interest and make us keep listening for an explanation. Our opening statements should have the same compelling opening words that attract attention and keep interest to learn more. In a criminal  case against Sean Combs, the defense attorney for Combs began his opening statement  like this:

“Ladies and gentlemen, this is Sean “Puff Daddy.” You can call him Sean, you can call him Mr. Combs, you can call him Puff Daddy, or even just plain call him Puffy, but what you cannot do in this case, you cannot call him guilty, because from the facts, from the evidence, from the law, you will conclude that he is not guilty. It’s that simple.”

The idea of an opening theme is consistent with this same principle. Think of opening phrases like following which are from  Trial Preparation Tools by Beth D. Osowski

  1. This is a case about..
  2. The surgery was supposed to be routine.
  3. The plaintiff had a very unlucky day
  4. The corporation said “trust me” when it invited Mary into its doors.
  5. The fewer the years remaining, the more precious each one is.
  6. Napoleon Bonaparte was reported to have said, “If you wish to be a success in the world, promise everything, deliver nothing.”

James McElhaney is a gifted teacher of trial lawyer skills. Here’s one example he has given for what he calls “inviting the jury to come to the scene” and  note the captivating way he begins:

“I want  you to come with me to Erie, Pa. You are going to visit the Federal Motors Axle Factory on the shore o lake Erie – the oldest axle factory in the United  States. You are going to see them make the key part of an automobile – the defective rear axle that was  installed  in the car that killed Sandra Wilson.”

Or he points out you can also put the jury at the scene like this:

“Ladies and gentlemen, you are standing on the corner of Ninth and Euclid in Cleveland, Ohio. You are about to see a city bus run down a little girl while she is crossing the street with her mother.”

David  Ball’s recommendation for the opening statement format looks substantially like this:

“A driver is required to watch the road and see what is to be seen. If the driver does not, even for an instant, and someone is hurt, the driver is responsible for the harm. Now let me tell you the story of what happened here. Let me take you back to November of 2016 on I-5 freeway at the Federal Way exit where the cars are going South.”

The basics for a good opening statement are (1) start strong with an attention getting opening (2) present it as a story in the present tense and (3) tell the story about the antagonist – defendant’s actions. Trials are morality plays of right and wrong so tell your client’s story with that in mind.

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DAMAGE OPENING STATEMENT OUTLINE

Today I’d like to share with you an actual one  page outline I used in opening statement in  a very major damage case resulting in a record  jury  verdict. The case involved a man who contacted a power line with a metal pole he was using  while installing a bill board  postor sheet. The electrical force knocked him off  the platform where was standing to the ground a long distance below. He was badly burned and had to have three partial limb amputations. The suit was for his injuries and consortium claims for his wife and children. I’m adding very brief notes of explanation about the entries.

   OPENING DAMAGES OUTLINE

A.    INTRODUCTION

1. VERY IMPORTANT CASE
(Jurors want to be part of something important)

2. EXPLAIN ABSENCE OF CLIENT – INTRODUCE WIFE & CHILDREN
(I never have the injured client in the courtroom in major damage cases
except for jury selection & their testimony)

3. INTRODUCE: (1) Lita (2) Mike Dodge
(My wife Lita was a law partner helping me but not at counsel table.
Mike Dodge was our tech running equipment. I didn’t want the jury
Distracted wondering who they were)

B. BURNS – See Burn Injury Checklist

C. OTHER INJURIES See Power Point:
1. Family photo
2. Medical history
3. Injury diagram
4. Amputations
5. Quad injury
6. Treatment to now
7. Impact of massive injuries

D. DAMAGE CONCEPTS See Power Point exhibits

1. Damage appraisal: two time periods, two kinds of damage & seven claims
(I emphasize need to appraise past & future, that economic damages are
very different then non-economic and that there were claims by client,
spouse and each child to appraise.)
2. Elements of appraisal: damage factors
3. Jeff Kuntz non economic damages
4. Jeffs attitude: takes personal responsibility
(The defense alleged contributory negligence. I conceded it, but maintained
It was between 5 and 10% at most. This was based upon focus studies)
5. Jeffs non economic damages: burns, phantom pain, dependency: elements

E. MARITAL PROBLEMS

1. See Marital sheet (They had been having marital problems. I decided
to discuss them openly rather then try to cover it up)

F. MOM & CHILDREN See Power Point Exhibits
1. Jennifer: loss of consortium past and future
2. Children: loss of consortium past and future

G. DAILY ACTIVITY VIDEO 4 minutes long (I never use anything longer than 5 – 10 minutes for this kind of video. I want high impact and high attention from jurors)

H. CONCEPT OF JUSTICE See Power Point exhibits
1. Photos
2. Scale of justice
2. Total verdict all parties (blank)
3. Damage appraisal in dollars
(I use a PowerPoint of a scale to argue the dollars must
Balance the harm done. I explain the jury verdict form and
How to fill it in. I tell the jury I will explain how to appraise
The harm in dollars at the end of the case)

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