General Practice, Solo & Small Firm DivisionMagazine

Trial Practice

The Trial Lawyer as Storyteller: Reviving an Ancient Art

By Benjamine Reid

A successful trial is identical to a successful story. The exercise in which the successful trial lawyer engages is, first and foremost, that of a master storyteller. Therefore, before even thinking about a trial, consider the elements of a good story: (1) discover the right story to tell; (2) create a story from the world around you and your community; (3) tell the story in the manner which works best for you; (4) use your voice naturally along with effective timing, pauses and gestures; (5) be brave enough to be silent; (6) adapt the story to the needs, education, background and interests of your listeners; (7) tell your story into your listeners’ eyes; (8) involve your listeners in the story; and (9) listen to stories told by others.

Consider voir dire. During this phase lawyers want the jury to like them; begin the process of educating the jurors about the case they will hear and conditioning them to reach the desired result; and develop information to assist the lawyer in selecting the best jury for the case. Information gathering is the most important task of voir dire.

Storytelling in voir dire is done in reverse. It is not the storytelling of the lawyers that is important; it is the story of each prospective juror. Consider, for example, the issue in many trials of the conflict between corporations and individuals. Lawyers for a corporation seek to assure themselves that the jury can treat the parties equally. After a discourse on the reasons for treating a corporation the same as an individual, only one question typically will be asked: "Do you have any problem with following the judge’s instruction that you should treat my corporate client the same as the individual plaintiff?" It is the rare juror who would decline to follow the judge’s instruction. Little, if anything, has been learned about the jurors.

Imagine the difference if the lawyer first tells the juror simply that the law requires that corporations and individuals be treated alike and then asks the juror whether he or she believes that to be a good rule. Regardless of whether the answer is yes or no, the next question should be: "Why?" By asking open-ended questions and talking less than the prospective juror, the lawyer learns a great deal about the juror’s thought process and receives more information about how the juror thinks.

Opening and closing represent storytelling in its purest form. Develop a credible story and tell it convincingly in both opening and closing. The story told during opening defines the way the jury processes all of the evidence to come, and establishes the frame of reference for the trial that follows. Avoid advancing every argument. Enhance your theory of the case, and render the opponent’s theory of the case implausible. Your story must be believable and take into account the evidence. If a piece of evidence does not fit, do not try to force it. Try to create a list of ideas that the jury must accept in order to believe your story.

Your credibility is as important as that of any witness. Develop ideas which are comfortably acceptable to the jury. Be aware of the jury demographics. In speaking with the jury, strive for analogies which make sense in their world. Use plain language, but do not talk down to the jury. Learn the subject matter of the case and be conversant with all of the technical aspects of the issues involved, but do not misstate facts. If you have any doubt about whether a fact will be in evidence, omit it from opening. Communicate intimately with the jury; talk to your jury directly. In both opening and closing, each juror should feel that you are talking only to him or her. As the trial progresses, you will no doubt develop relationships with various jurors and learn which jurors may be more or less susceptible to believing various parts of your story. Take advantage of this knowledge in telling the story. Direct certain arguments to certain jurors.

During direct examination the jury hears your story through your witnesses. The credibility of these witnesses is crucial. An important part of direct examination is the witness’ response to cross. In preparing your witness to suffer cross-examination, plan to have your story reiterated. Your witness should be trained to deal with tough questions without appearing to be struggling. Develop a "safe harbor" for your witnesses, a phrase or concept which summarizes your story, so that when all else fails the witness can recite that idea.

In cross-examination of opposing witnesses you are doing two things at the same time: trying to continue to tell your story; and trying to repudiate the story the jury just heard from your opponent during direct examination. Plan it carefully within the context of the story you are telling. Cross-examination should be proactive, not reactive. The ultimate goal is to replace the opponent’s story with yours.

The ideal cross-examination occurs when you are telling your story so effectively that the opposing witness becomes superfluous and the jury is left only with your story. For example, consider the testimony of a plaintiff’s engineering expert in a case criticizing a product. At the conclusion of direct examination, the jury has heard a story which consists of four parts: (1) the expert has excellent credentials; (2) the expert has completed a thorough review of all relevant data; (3) all of the evidence is aligned with the plaintiff’s case; and (4) the expert is authoritative.

The story which you would like to tell during your cross-examination also consists of four parts: (1) the expert’s after-the-fact opinion is unwarranted revisionism; (2) the expert has been selective in the use of the evidence; (3) the evidence must be realigned to suit your story; and (4) the expert’s Teflon coating must have some chinks.

Consider each of the components of the story that you want to leave with the jury. During cross-examination, compare the expert’s theoretical alternative design with the actual design. Compare the design of the plaintiff’s expert with the design of the manufacturer, who was required to take into account many varied accident possibilities. Remind the jury of the luxury of designing a product after knowing how an accident occurred. Compare the expert who gives opinions about virtually any product to the actual designer who has spent an entire life working with the same product. Note the lack of any testing of the hypothetical design and, if applicable, the expert’s lack of experience in the field in question.

Most experts only rely on evidence that supports the conclusions they were asked to draw. Ask about the evidence the expert did not consider. This approach is especially effective when the "unconsidered" material is actually in the expert’s file. Highlight the fact that the expert received both the assignment and the data from the plaintiff’s attorney. Thus, the expert’s failure to consider evidence can be made to look like it was orchestrated entirely by the attorney. The expert looks less like a scientist and more like an advocate.

The evidence must be realigned with your story and against that of your opponent. When possible, catalogue for the jury the manner in which the evidence supporting your story is consistent with the fact witnesses. Get the expert to agree that the eyewitnesses did not volunteer to be witnesses, but simply happened to be where they were when the event occurred. While this is considered blasphemy in the academy, fact witnesses are better than science with most juries.

Do not risk your story on the ability to destroy the expert. The key is to make sure that your story survives the opposing expert’s appearance. Above all, do not permit the jury to perceive that anything the expert says is harmful.

Benjamine Reid is with the Miami office of Carlton Fields.

 

- This article is an abridged and edited version of one that originally appeared on page 8 in Litigation, Spring 1998 (24:3).

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