General Practice, Solo & Small Firm DivisionMagazine

 
Volume 17, Number 6
September 2000

TRIAL PRACTICE

HOW ALLIGATORS HIDDEN IN LEASES CAN EAT A CLIENT'S BOTTOM LINE

By G. Marc Whitehead

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y structuring communication, the litigator maximizes the opportunity for the jury to hear, retain, and recall important pieces of information. The structure necessary to present your case is called a story, "case concept," or "theory of the case." If the lawyers do not provide a story that the jurors accept as making sense consistent with their values and attitudes, they will adopt their own hypotheses to test against the facts. The story the lawyer creates should have themes that organize the story and lead to a conclusion. Each theme should contain another step in the storytelling, supplying both context and morality—the right and wrong that lead to the conclusion that the lawyer’s proposed outcome is fair and just. These themes should be no more than one sentence, and there should be no more than five themes per case. They should be included in an outline during opening, referred to throughout the case, and used to tie things together in summation as you lead the jurors along the path of reason to your suggested result.

Conventional wisdom is that jurors adopt a story of the case at the end of opening statements or shortly thereafter. Ultimately, the story enables jurors to determine the fairness of a proposed outcome by using their experience and common sense. Once adopted, a story line will shape what is heard, how it is evaluated, and how factual disputes are resolved. Jurors will fill in gaps with what makes sense to them in the context of the story. Inferences, disputes, and unanswered questions will be resolved by what is consistent with the story line.

If possible, start telling your story at the beginning of the voir dire process to give prospective jurors a better understanding of the dispute. With that understanding, they will be better able to respond to questions from the lawyers and the judge. After the jurors have been selected, pretrial instructions on the pertinent law (if this is allowed) will give them a better sense about where the case is headed and what the rules of the game will be. When you detail your story and its supporting themes in the opening statement, your goal should be to create a scenario in which those rules require that your side win. In terms of oral persuasion, the more you appreciate the personal and cultural setting of each juror, the more you will be able to choose words, concepts, and ideas that will mean something to them. Learn as much as you can about your jurors in voir dire, and then adapt your words accordingly.

There are five steps to persuasion: attention, interest, desire, conviction, and action. The effective litigator can move each juror through the first two or three steps. True conviction, however, will depend on each juror’s personal sense of fairness and how the facts of the case fit in. Taking action on those convictions involves a complex process of interaction with other jurors in a group deliberation. Lawyers need to get inside the heads of the jurors and to appreciate the group dynamic that will influence what takes place in the jury room. That is where jury research comes in.

Well-conducted research helps the lawyer understand how the jury will see the case; it has three parts. The first phase will teach you what jurors will think when they hear about your dispute. The second phase, the so-called mock trial, is where the best plaintiff’s case and the best defendant’s case are presented and the deliberation studied. At the end of the second phase, you should know what your best-case story is and what the effective themes are; you should also know the most effective order of presenting those themes and your evidence. The third phase involves confirming the validity of your conclusions by conducting additional survey work, and learning how to use that intelligence to conduct an effective voir dire. The third phase should produce both generic and case-specific questions that will assist in identifying those jurors who are not likely to listen to or agree with your case.

Opening statement is the time for you to tell your story, to introduce your case themes, and to describe how you expect the evidence to fit into those ideas. Many lawyers will try to state their advocacy themes right in the beginning, perhaps in the first sentence or two. Today’s research suggests that sometimes this may not be the best approach. In fact, it may be better to repeat some of your opponent’s arguments. You may need to show that you have heard the opposition and understand their position. This can make you seem more reasonable and can make jurors more receptive to what you will say in support of your own case themes.

Once the trial moves into the presentation of witness testimony, be sure that your direct and cross-examinations relate back to your story and case themes. Repeat language or phrases developed during the opening statement. Using the same exhibits or visual aids that were used in opening is another way to relate back to the story; creative exhibits will also assist the jury in understanding and remembering your message.

Many litigators believe that so-called interim commentary is one of the most valuable new tools being used in courtrooms. Using this technique, each side is given the opportunity to explain the significance of an upcoming witness, an exhibit, a cross-examination—matters that will help the jurors understand ahead of time what to look for instead of having to guess, and perhaps miss, what the lawyer would like them to hear and understand. With interim commentary, at the moment you call a certain witness you can tell the jury what issues the witness is going to address. In many courtrooms, jurors are being allowed to ask questions of the witnesses. Research in actual cases has shown that the jurors’ questions are rarely disruptive and usually ask simply for clarification of things that were not understood or were missed.

A number of today’s jury innovations are part of a trend toward more active juror involvement during trials. One controversial innovation allows jurors to discuss the case among themselves before the proof is closed, provided that all jurors are present for the discussion. In theory, this aids juror comprehension. Critics have expressed concerns that this process will cause jurors to make up their minds earlier and will make it impossible for some jurors to keep an open mind until they have heard all the evidence. But a study of actual trials suggests that jurors usually find such discussions helpful in understanding the evidence without adversely affecting the ultimate decision.

Closing argument is a time to confirm the trust that the jurors have placed in you. It is your last chance to arm your friends on the jury with arguments to convince the fence-sitters. It is a time for you to point out a pathway of reasoning that leads to the conclusion that you want. Explain and review the key evidence that are the signposts along that pathway. Convince the jurors to make the decisions you are advocating as the fairest outcome.

G. Marc Whitehead is with Sonnenschein Nath & Rosenthal in Chicago, Illinois.

This article is an abridged and edited version of one that originally appeared on page 34 of Litigation, Winter 2000 (26:2).

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