The Psychodynamics of Trials

By Chuck Driebe

Psychodynamics is a term that originated in psychology first used by Sigmund Freud more than a century ago. The term roughly means the interaction of persons’ background and emotions with his or her current experience, namely a trial. Psychodynamics here means developing a theme(s) or story line(s) that will emphasize and use this interaction to advance your case.

A general practitioner can be considered a jack-of-all-trades and a master of only a few. However, a skill that is almost always necessary is the ability to try a case either before a jury or a judge. Lawyers sometime get so caught up in the minutia that they over­look the psychodynamics. Your theme or story line should be emphasized throughout the case from voir dire to closing argument. And don’t forget the experienced lawyers on the other side probably have their theme, too. You just hope your psychodynamics are more appealing than theirs.

How do you come up with the theme? Of course, you first need to analyze the law, then the facts, either through the witnesses or exhibits, and then assess the goal of each of the parties to the case. As you go through this process, a theme will usually come floating to the surface that will give the trier of fact the context or big picture for your case. Remember the emotional appeal of your words.

Every trial seems to go off the tracks in some way, creating problems for your case. If you keep your theme firmly in mind, you won’t get too distracted when the evidence or rulings don’t exactly go the way you had planned or hoped. If a witness doesn’t testify exactly as you anticipated, just go back to your framework (theme) and don’t get derailed.

How about some examples of themes from my experience:

  • A Marine Corps veteran shot his brother-in-law 31 times in self defense. He had been discharged as a schizophrenic paranoid and quit taking his medications. The theme was obvious: he was legally insane at the time of the shooting. We got him off … to the state mental hospital!
  • A fraudulent conveyance case brought by the ex-wife of a man accused of giving stock to his girlfriend (my client). I got so consumed with the legal arguments and details that I lost my way and forgot the psychodynamics. The result: a quick jury verdict against my client.
  • A will contest between two sisters. We attacked the will procured by the other sister giving her all of the estate. She was quite strident and her lip was poked out all of the trial. Our client was well-manned and soft spoken. The theme: good sister vs. greedy sister. The jury reached a verdict in 30 seconds after a four-day trial.

Chuck Driebe, editor-in-chief of SOLO, has a general practice in Jonesboro, Georgia. Contact him at .

Copyright 2007

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