Storytelling at trial: beginning, a middle and an end

A look at how the story is told at each stage of trial

2019 January

During a lunch break in jury selection, a courier from my office brings our trial materials into the courtroom. You know what I am talking about: the bankers boxes with the case file, pleadings, depositions, depo summaries, direct and cross outlines, motions in limine and responses, jury instructions, bench memoranda. There are also the large, black, vinyl zippered cases with time lines, enlarged exhibits, blow-ups of photographs, and anatomical drawings. My clients are watching the courier with interest, and turn to me and say, “What’s all this?” I say, “That’s for our trial.”

During the same break, the tech-support team I have worked with for over a decade comes in with the tech-support equipment. Tyler sets up his workstation near our trial table, erects the big screen, hooks up the projector to his computer, and uses duct tape to safely secure the plugs and cords. Tyler and I hug, and chat briefly.  We confirm that we both have hard copy binders of Tyler’s data bank, Bates stamped from one to infinity. My clients again are watching with interest, and again turn to me and say, “What’s all this?” I again say, “Meet Tyler. He’s part of our trial team.”

There is something special about being a trial lawyer. I love it body and soul. What other profession so religiously, spiritually meets regularly to share our experiences – what’s working, what isn’t working, new ideas?

Pages and pages have been written about trial lawyers as storytellers. Respectfully, we are more than storytellers. We’re Cecil B. DeMille, Frank Capra, Steven Spielberg, Sidney Pollack, Jane Campion, Barbra Streisand, Francis Ford Coppola, Kathryn Bigelow, Martin Scorsese. By the first day of trial, we’ve planned the order of witnesses, summarized depositions, written direct and cross scripts, created exhibits, prepped witnesses, edited and approved day-in-the-life videos, written and argued motions in limine, submitted proposed jury instructions. And finally, written and choreographed opening statements.

We are more than storytellers. We are producers, directors, writers, cinematographers, editors, emcees and moral commentators.

A palpable beginning, middle and end

Every aspect of a trial should have a palpable beginning, middle and end. This construct simplifies the creation of everything. For example, voir dire beginning: introductions, breaking the ice, sharing your personal information, having jurors introduce themselves, sharing their personal information. Voir dire middle: discussion of legal issues, discussion of factual issues, smoking out strongly favorable/unfavorable jurors. Voir dire end: discussion of damages, discussion of juror rights, discussion of juror responsibilities.

The progression of everything – voir dire, opening statement, order of witnesses, direct exams, cross exams, closing argument and rebuttal should feel orderly, and should make sense to the jury and to the court. An agreement with the defense to allow defense witnesses out of order may be routine in some jurisdictions, but it disrupts the flow of your story, and should be avoided.

Motions in limine

Part of effective story telling is controlling the narrative. Motions in limine provide the opportunity to get control of that narrative weeks or months before the trial. Remember the basics of the rules of civil procedure. Only relevant evidence is admissible. But not all relevant evidence is admissible. Relevant evidence is inadmissible if offered simply to turn the jury against the plaintiff or in favor of the defendant.

When considering what evidence should come in and what evidence should stay out, imagine your opponent’s opening statement. What rosy defense talking points can you exclude even before she gets to stand up and speak? Get a copy of the defendant’s CV, look at his web page, check out his social media, Google him. Does he volunteer, work at a free clinic, or play in a rock band?

File motions in limine to exclude irrelevant evidence about the defendant offered only to humanize him or to get the jury to like him. Evidence regarding his status in his family, his church or his community is irrelevant. Be prepared to argue to the court that the ultimate question is whether the defendant was negligent, and not whether the jury should like him.

Consider other motions in limine concerning irrelevant information about the plaintiff. Doctor and hospital records often include information about the plaintiff’s social drinking, smoking history, and tattoos. Move to exclude bad conduct, bad relationships or documentary statements in evidence that will distract the jury from the real story.

Demonstratives

Keep it simple. Demonstrative exhibits should be easy to put up and take down whether they are hard copy boards or digital projections. Demonstratives should highlight the memorable elements of the story. They should not require the jury’s effort to see, read or immediately understand.

Is there a window of time that is central to the story? Create a simple time line that places the conduct of the defendant at its center.

Avoid technical language. Translate unfamiliar terminology into regular words that will be easy for the jury to remember and repeat during deliberations. Wherever possible, personalize your demonstratives to the plaintiff, using her name and photographs.

Finally, be familiar with the internet presence of the defendant and the defense experts. There may be artwork, statistics, protocols or products on a defense-endorsed web page that ratifies your story.

Voir dire

Going first is a big advantage. First impressions matter. A good storyteller easily and quickly connects with the listeners. Avoid the podium, scripts and reading glasses. Talk from your heart and not from a piece of paper. Be sincere. Use open body language and expressive hand gestures. Smile. Establish friendly eye contact. Move around. Talk to individual jurors. Use their names if you have them. Be polite and respectful. Thank each juror individually for their frankness, even if you do not like what they have said.

Give them the short, movie trailer version of what your case is about, omitting some important facts so your story doesn’t unfold all at once. Talk to the jurors about their jobs and responsibilities, weaving their life experiences into the themes in your story. Plan an orderly voir dire so that the discussion topics have a meaningful beginning, middle and end.

Opening statement – point of view

The opening statement is our first opportunity to shine the spotlight on the defendant. David Ball teaches us that an effective opening statement aligns the defendant’s conduct with the relevant rules. This approach immediately zeroes the jury’s attention on the defendant – what he knew, when he knew it and what he did about it. The story should center on the rules and the defendant’s duty to follow them. Construct the foundation of the opening statement from the perspective of the defendant’s training, knowledge base and skill set (or lack of any of those). The imperative of opening statement is to not waste a moment of time getting down to the business of focusing the jury’s scrutiny on the defendant and his actions before, during and after his tortious conduct.

Research involving a listener’s attention span suggests that we are becoming less patient with sagas and epics, and more attuned to telegrams and mini-bites of data. Use the fewest number of documents and words to tell the story. Remember the jurors are strangers to your story at this point and cannot absorb every fact in opening statement.

An opening statement should tell the story in present tense and active (not passive) voice. Choose your words carefully, using neutral descriptors. Avoid words that convey emotion, drama, hyperbole or judgment because these interfere with the jury’s job of processing and sorting important facts. Avoid reference to “my client.” No storyteller ever referred to the hero as “my client.” It reminds the jury that you are a lawyer and subverts your emergence as their storyteller.

PowerPoint is a helpful tool to minimize our reliance on a written script. Nevertheless, as a crutch, it distracts the jury’s focus from you and your story. PowerPoint slides should be kept to a minimum. Backgrounds and fonts should be plain black or white – no distracting graphics or wallpaper. Words should be minimal. A juror who forgot his eyeglasses should still be able to absorb and digest a PowerPoint slide within a few seconds. If you cannot frame a PowerPoint slide within a few words, delete it. Finally, never turn your back on the jury to read them the PowerPoint.

Plaintiffs’ case in chief

Baseball analogies are a great way to understand good storytelling at trial. For example, I think of the ordering of the plaintiffs’ trial witnesses as the best major-league batting line-up of all time. In my hometown, one of the greatest baseball cities in the world, that would be the 1995 Cleveland Indians. Batting first is Kenny Lofton, reliable, fast and a smart base-runner. Second, Omar Vizquel, also reliable, trustworthy, cool headed. Third Carlos Baerga, and fourth, Albert Belle, who had 50 home runs that season but, while a cannon, was notably a very loose one. The lower half of the line-up was nearly as strong, in particular Jim Thome, who averaged .314 that season.

The order of witnesses is also critical in a primacy/recency way, thinking again in the construct of the best witnesses in the beginning of your case, the weaker witnesses in the middle, and strong witnesses at the end of your case in chief to close strong before the defense gets started.

The first witness should set the tone for your case. Maybe a family member who best articulates who the plaintiff was, before and after the injury. Maybe the expert witness with personality, persuasion and international credentials. Build the momentum through each witness’s unique role in your story. Identify which witnesses will do the reveal of the facts you left out in your opening and order those witnesses in such a way to keep your jury engaged and involved.

I have, for the most part, stopped calling the defendant in my case in order to have maximum control over how we tell our story. I had an experience where a smart defense lawyer had coached his client to repeat one or two catch phrases during my cross exam of him in my case-in-chief, even if it was wildly unresponsive to the question. I spent a large part of that cross exam trying to keep him focused on the great admissions I had gotten at his deposition. When he took the witness stand again in the defense case, a large part of his direct exam was spent explaining and softening what he really meant. The story has already taken shape in the jury’s mind by the time they finally hear from the defendant in the defense’s case.

Direct exam – edit, edit, edit

Not to beat the same drum, but keep the beginning, middle and end construct in mind when writing a direct exam. Each direct exam should be tightly scripted, and by that, I don’t mean read the witness questions off a piece of paper in front of the jury. What I mean is draft the direct exam, put it aside, and then come back and read it some time later. Does it flow? Does it make sense? Is it interesting? Will the jury understand why you wanted them to meet this witness? Will the jury hear what the witness has to say that is of interest?

Some of us were taught as young lawyers to spend time at the beginning of a witness’s direct exam to go through the witness’s biography. This is especially true of expert witnesses. At a recent trial, the defense lawyer spent a good 15 minutes on his expert’s CV, talking about hospital committees, editorial committees, even a tennis club committee. It was a long, boring way to introduce a witness to the jury. The first 15 minutes of every direct exam should be as interesting as the first 15 minutes of NCIS or Law & Order SVU. If it is not, it needs editing.

We were also taught that leading questions are for cross exam, and open-ended questions are for direct exam. Too many open-ended questions are too broad and don’t work for good storytelling. Start topic areas with simple yes/no questions, followed by focused open-ended questions so that your witness can give concise, meaningful responses, and your story unfolds in a clear, understandable way. The beginning and end of every direct examination should be powerful and unforgettable.

Cross exam – edit, edit, edit

My biggest shortcoming in cross examination is not enough editing. The strongest cross examination should be as short as possible. Short questions, short answers, short exam. Like direct examination, the beginning and end of every cross examination should be powerful and unforgettable.

Closing argument/rebuttal

The ending of the best story has a message, a lesson, a moral. Closing argument is more than a recap of the facts and evidence. Rather, it is confirmation of the most compelling issues in this plaintiff’s story. What message does the story convey that will result in a jury seeing the case’s significance to themselves, their families and their community? The answer to the question often lies in a betrayal of a universal trust or obligation. Telling a story of betrayal of a trust activates a jury’s sense of justice and protection.

Some final thoughts on story telling

Hollywood has given us some iconic lawyers. Gregory Peck wanting us to walk around in another man’s skin. Denzel Washington asking us to “talk to me like I’m a six-year-old.” Tom Cruise demanding the truth. Paul Newman’s dogged persistence. Joe Pesci’s refusal to be bullied to be anything other than his true, pure self. These are memorable characters because each of their stories timelessly embodies a universal need or aspiration – a common thread in every trial.