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.
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.
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.
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.
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.
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.
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.