LEARNING HOW TO TELL OUR TRIAL STORY FROM TELEVISION

Those who read my blog know I am a huge fan of the website The Jury Expert: www.thejuryexpert.com  This month one of the articles is “What Television Can Teach us about Trial Narrative” by Richard Gabriel. The author points to research about how trial lawyers organize their cases in storytelling model and how this facilitates the juror’s verdict.  He points out that it is well-established that “stories are neurologically wired explanatory systems that serve to stabilize our world by labeling and orienting new, threatening, or uncertain information in our environment.” As Gerry Spence says “we  are hardwired for stories.” You know your case from voir dire to argument, including  cross examination should be your client’s story told in story telling format.

Gabriel correctly observes that trial lawyers are generally poor storytellers because we take too long, repeat too much, remove the drama from interesting parts of our cases and generally bore as well as confuse the jury. The author says that by focusing on five main components we can improve our storytelling ability: theme, character, action\structure, environment and tone.

Theme

One of the important observations he makes is that evidence, by itself, is not a story. To become a story it must be organized into a story format. A story requires a theme. A theme is a controlling idea. Robert McKee is a recognized authority regarding screenwriting for movies and television. He calls a theme a “a controlling idea” and says that “a controlling idea may be expressed in a single sentence describing how and why life undergoes change. The author recommends that we think about a central theme as what you want to hear as the first sentence out of your jurors mouth in jury deliberations when they summarize the trial and say, “this case is about…” Have you ever  asked a lawyer what their case is about and had them deliver a long narrative? Until you can answer the question in a few sentences you don’t understand your case and you don’t have a central theme for your story.

Character

The author says we make the mistake of focusing upon conduct and the actions of the people but not their character. He  points out that jurors want to know who the people really are in order to judge why they acted the way they did. When we say that a defendant is “greedy” or that  companies are “uncaring” these generalizations ring false for jurors because  it is one-dimensional without  revealing character. A trial is a contest of right and wrong for jurors and knowing the character of  those involved is an essential part of  the evaluation.

He quotes Robert McKee who says that “true character is revealed in the choices a human being makes under pressure.” Therefore jurors  in a medical malpractice case don’t accept the fact that a doctor was board-certified as a reason why they should conclude he or she complied with the standard of care. They want to know the character behind the action. The reason that reveals character. The difference between a mistake and a breach of duty or trust reveals character.  Character is demonstrated through action. Jurors want to know the full dimension of the person being evaluated.

Action/Structure

One of the mistakes lawyers make is in  presenting their case is to do so chronologically as a narrative.  However, that is not very  often the best way to do so when we want to put things in context or to emphasize the best  part of the story. The author says we should think about this issue this way: Where do we want jurors to spend most of their time in a case? In a products case, we may want to most  of the time at  the manufacturing plant. Remember that discovery volume doesn’t always indicate the best place for your story. Where you start your story is important and it should always be with the defendant not the plaintiff as explained in previous posts. But, you can start a story at the beginning, middle, end or wherever else is best.

He says “plotting” is the selection of the right series of events to reveal the story.  Instead, he points out, we make the mistake of tending to structure trials around witness availability. What we want is for  the  sequence to lead to the crises, the climax and the inevitable conclusion.

He notes that screenwriters will often write a brief description of each scene they want to show on 4 x 6 cards and then by shuffling the cards  or adding or subtracting scenes they create their plot. Not a bad idea for us  to consider in our planning.

Environment

The author notes that it’s important where we place our story. The setting for the case can actually become another character in the story, whether it’s a road, a hospital or a workplace. He also notes that in that regard there needs to be a perceived consistency in the world we are creating by our story. By that he means it must be a story which connects and doesn’t have unexplained gaps.  Even small inconsistencies in our environment can cost credibility points.

Tone

The author notes that a trial is always a reenactment of the events, but there are two different versions of the events: one by the plaintiff and one by the defendant. He correctly notes that jurors expect both parties to “put on their best show” to persuade them of their position, so they are on guard and skeptical.  They reject the idea that we only want to “get at the truth.” The jurors also know that each side is selectively presenting evidence to create the result they want.

Therefore, they are skeptical and resistant to being sold a particular position and that’s why they engage in their own construction of what they think “really happened.”  They create their own story and they will fill in gaps in the case story we present. They will use their own interpretation, experiences and beliefs. They want to make sense out of the case story and will use their own interpretation to do so. Their stories become their personal mental television show played out in their mind each day of trial. They will filter, screen and even ignore evidence by using their story as the true one in the case.

For this reason the tone of the case becomes critical. We want their story to be one of favorable impression. As the author says “do we want to communicate caring, outrage, skepticism, surprise or curiosity? We need to consider the tone we want to create. At the core of every case there is an emotional tone that tells the jurors how they should feel about the facts. Attorneys need to understand and communicate the appropriate tone to communicate the emotional message in the case.

The author also reminds us to pay attention to not only what we say in court but how we say it and how we look to the jurors. Too often we forget the significance of nonverbal communication.

Conclusion

I urge you to read the article yourself and I recommend the textbook and writings of Robert McKee for more background regarding screen writing and  story telling.  What you will learn is that telling a story involves focusing on theme, character, action\structure, environment and tone.

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THE PSYCHOLOGY OF TARGETING THE UNCONSCIOUS

Several years ago I came across a book with the unusual title “Unfair Secrets of Winning in the Law with NLP” by Franz Mesmer. As a long time  student of Neuro Linguistic Programming I bought the book and studied it carefully. It was an excellent summary of basic concepts of this approach to communication  with practical advice and suggestions. I learned that Franz Mesmer was merely a name adopted by the author for the book and other books as well. Mark D Swendsen Sr. is the actual name of the author. It turns out Mark is a California trial lawyer in Healdsburg with a background in the areas he has written about.

When the president of the Inner Circle of Advocates Suggested that I might give a talk on this general subject, I recommended that instead she invite Mark to give the talk.She did invite him and he gave an excellent discussion to this group of some of the best plaintiffs lawyers in the country.

Mark and I exchanged communications through email about the subject before he spoke and  it turned out he was writing a new book. I, of course,  was very interested because of his background, knowledge and skills in this general area. He was nice enough to send me a draft of the book he was working on and we communicated about it.  Mark asked me if I would write an introduction to it and I felt privileged to do so because it is an excellent book.

I am pleased to have provided a small contribution to this book which is entitled Target the Unconscious! The Modern Psychology of Rhetoric for the Plaintiff’s Lawyer.” Let me hasten to add that I have no financial interest in this book whatsoever which is available from Amazon. I recommend it to you only because the content is an excellent collection of an important aspect of communication. Perhaps the best way of explaining why I think this is an important book for plaintiff lawyers is to refer to what I said about the book:

“The information in this book about Neuro Linguistic Programming will benefit plaintiff trial lawyers in representing their clients, but will also provide concrete lessons and improving ourselves… You’ll be told how to trigger the primitive brain’s unconscious will to survive in order to motivate a verdict in your clients favor…This book explains patterns for influencing the unconscious mind, concepts of hypnotic oratory and waking trance suggestions, and patterns of persuasion addressed to the unconscious mind. This and much more are reasons why this book should be required reading for every plaintiff lawyer who wants to be the best he or she can be as an advocate.”

If you have any interest in this area of communication, this paperback book is a virtual encyclopedia of information.

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TEN RULES FOR IMPROVING JURY VERDICT OUTCOMES

 

  1. Screen all new cases objectively and not emotionally. There are cases where the inherent issues are so negatively compelling and your odds of prevailing so slight it is a disservice to the client and the system to accept the case. Your decision of whether to carry the case forward should be objective and not emotional based upon evaluation of the liability, the extent of damages and the ability to collect damages.
  1. Identify the controlling issues. You must objectively identify all of the strong issues in the case, good and bad. Your role is to initially analyze the affirmative and negative issues objectively, not subjectively. The benefit of an issue focus study is this identification. The most accurate identification of significant case issues is done by focus studies, but only when done correctly. They must be issue conducted focus studies and rather than a form of mock trial studies. On major damage cases more than one study may be necessary.
  1. Determine the priority of importance of the issues. You arrange the issues by priority of significance. Once the issues are arranged by importance, the next step is to decide the best way of framing the issues for trial. Framing these issues is critical to determine if the negative issues can be overcome and how difficult they will be in trial with a jury. This is a critical step – to identify all issues that have significance with people and what framing is best. Focus studies are helpful in this regard.
  1. Objectively analyze your client impression. In many cases client impression with the jury will determine the outcome of the case. Your gut reaction to client impression at the initial meeting is probably accurate. Over time you are more accepting of bad traits and finally you lose sight of the accurate impression your client makes with others. Most client impressions can be improved by spending quality time with them over issues in the case but this requires dedicated work. Accept that there are some people whose impression is so unfavorable you should decline the case no matter how compelling the case.
  1. Control the complexity & length of trial. Cases with difficult issues call for shorter trials with a short simple one theme approach. The longer you take to try a case with negative issues, the more obvious the problems in the case become. Cases with difficult issues are not helped by adding layers of evidence and lengthening the trial. The longer you take, the more you add, the more complex you make it, the worse your case. Simplify the case into a strong affirmative issue and make the trial short. Your goal should be to shorten the trial. There are good reasons why we should be making every effort to shorten our jury trials. First, people today want sound bites and headlines rather than the story. That’s how they get the news and use their digital devices. They get bored easily and a bored jury is not a generous jury. Second, the more days your trial will take the less the quality of available jurors. Jurors are not willing to serve in trials last two or more weeks because they have their own lives and most lose salary. The ones who are willing are not jurors you want. Unhappy jurors are angry people who are not likely to help others. If you have jurors who do not want to be there because of the length of the trial you can be sure they are defense jurors.  The longer your trial the more unwilling and unqualified juror you end up with. Third, the longer the trial the greater the chance something bad will happen to your case: a witness becomes unavailable, damaging unexpected evidence etc. Since impressions are formed early, you should strive for shorter trials. Eliminate the unnecessary expert and the unnecessary evidence, shorten your direct and be relentless in making your cross on really big issues only.
  1. Be the first lawyer to talk to the jury about difficult issues. There are two fundamental reasons for this. The first is that it inoculates the jury for the issue so when the defense brings it up, the impact is greatly reduced. The more they hear about negative issues, the less significant they become. This also gives you the opportunity to frame the issue in the best possible light. The second reason is that it gives you credibility for being honest about negative issues. Our credibility is increased by acknowledging problems in our case. It is not enough to bring it up once in voir dire and never mention it again. I am talking about facing the negative issues in jury selection and carrying it forward throughout the trial.
  1. Jury selection should be an open discussion and not an interrogation you don’t have time for both demographic questions and open discussion. You are after significant values and past life experiences that relate to the key issues you have identified. Jury selection must be an open discussion and not a closed question inquiry. Talk about the issues openly and really listen to the answers. Let other jurors respond to the negative juror responses, not you.
  1. Recognize the trial is about jury impression of the case and not primarily about you. Jury impressions are made early and are lasting. Once made all evidence is filtered through the existing impression unless something very dramatic occurs to change impression. Trials are not about the skill of the lawyer. They are about the overall impressions the jurors form. They do not weigh evidence logically. They decide largely on an emotional, unconscious level and use rational reasons they make up to justify decisions. Therefore, at all times during trial, the lawyer’s focus must not be on himself or herself – “how am I doing?” – But rather on the jury, “what is the jury thinking right now?” Focus on the jury not on yourself. Continually look at the trial as if you were an observer. You aren’t there to perform for the jury. They are forming broad impressions of who should win based upon the big picture and the issues. They aren’t there to admire the lawyers. That’s why “bad” trial lawyers win cases against “good” trial lawyers.
  1. Be an authentic person. While the trial is not about jurors evaluating the trial skills of lawyers, they form impressions about lawyer’s honesty, credibility and trustworthiness. Being real and being truthful results in the jury being willing to rely upon your representations and recommendations. Jurors trust you not to mislead them if their impression is you are truthful and trustworthy. This impression has very little to do with lawyer skills and techniques but everything to do with deciding the lawyer is not pretending to be someone they aren’t. Good looks, trial skills and oratory aren’t nearly as significant as someone who is seen as truthful and trustworthy. Don’t pretend to be someone you aren’t or act like someone else.
  1. Involve the jury. From voir dire on, the lawyer must involve the jury continuously. Too many lawyers, from opening statement to argument, ignore the jury. Great ones continually throughout the trial involve the jury. They maintain eye contact from time to time with all of the jurors but not in an uncomfortable way. During questioning of witnesses they take the time to take a look at the jury. They use “we” and not “I.” They find reasons to talk about the jurors “I think the jury would like to know…” and they let the jury know they are trying the case to them and not as spectators at the lawyer’s big performance.
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