Story: Practical tip

The trial practitioner is constantly told to Come Up With A Story of Your Case. Story is frequently mentioned in this blog, for that matter. The truth is that humans learn by stories, organize information via stories, and store it as stories. Remember 8th grade: algebra didn't really start making sense until 2nd semester when you got into word problems. Or think back to 17th grade: all the rules of first year torts stick in your mind because of stories.

Jurors, as it turns out, are humans. They store, organize, and learn information from stories, too. So, lots of lawyers have heard this advice in a million articles and CLEs, and have sat down to compose their trial story. And some are pretty good, a few are excellent, and a lot are kind of mediocre. Two tips come to mind that we hope will help:

(1) Pick the sequence of your story-- and usually the best way to tell a story is not chronological. Tragically, most lawyers are very linguistic-logical, and start telling stories at the beginning and go chronologically until the end of it. Boring. Not only boring, but it also squanders precious opportunities at the beginning of your time (either in mini-opening, real opening, or closing) when juror attention and freshness is at its highest. Not the time to fritter away your best chance to appear interesting and compelling by talking about your (plaintiff) client's qualms about bringing this suit or your (defendant) client's philanthropic work in the community.

Usually, the place to start is the beginning of the next to last chapter. Assume the last chapter is about what happened to the participant after whatever it was happened. Start with the chapter before that, where The Event happened, and start at the beginning.

Start with standards that apply to your case. This sets the filters for jurors and takes advantage of norm theory (I'll spare you the details; it essentially holds that people better notice and remember deviations from norms... and hold responsible the party that could more easily be imagined having acted differently. Moral: lead with standards then tell a story that shows the other side breaking them.) These standards can be ANYthing: statutes, building codes, industrial standards, company regulations/protocols, moral standards, local customs, anything that you can say with a straight face informs how people ought to act.

So you're starting with a few standards that apply to your case, then going to the beginning of the section of What Happened In This Case. Then you can decide how far back to jump to give background.

But think of some of the most important and most engaging movies of recent decades: "Pulp Fiction," "Out of Sight," "Reservoir Dogs," "Memento," "Short Cuts," "Irreversible"... they are all told out of chronological order, because getting the information in a different order illuminates different motives differently. Heck, for that matter, consider one of THE most powerful devices in literature and theater: dramatic irony, where the audience knows something that the characters don't yet know. Put your jurors in that position! Equip them with some standards, then tell your story, and they'll be a step ahead of the characters.

(2) Another important practice point is what your story should be About. Stories are about PEOPLE; what they do, think, feel, choose, decide; what their values are (protectiveness, fairness, safety, whatever). Good stories are not about Stuff; not about the technology or the medicine or the machinery or the contract. They are about how people create them, why they create them, how they are affected by them, and so forth. Stories are about people. Stories are about people.

So your medical malpractice case won't be won on the medicine, whether your client is the plaintiff or defendant. It will be won/lost on how jurors process the people part of the stories-- both the person of the plaintiff and the people of the medical team/hospital adminstration. Both sides have a People story to tell.

Same with your intellectual property infringement case-- on both sides.

And on and on. Stories are about people and their motives and values and intentions and choices and behavior. Good stories aren't about Stuff.

Recommended Reading

Here are some books I would urge all trial practitioners to add to their library. Well, no-- don't just add them to the library; read them!

"Practical Jury Dynamics" (2004) and "Jury Thinking" (2005) by Sunwolf, Ph.D. (Published by LexisNexis). Sunwolf is a brilliant thinker about both the individual experience of jurors as well as the collective dynamic of group decisionmaking. Her books are for all practitioners, not just plaintiff nor defense. The books deliver richly on each word in their titles. Strong recommendation for both books.

"Jury Selection Strategy & Science" by Ted A. Donner and Richard Gabriel (West Group, updated periodically). It comes from West's "Trial Practice Series" and it delivers on that: very practice guidey and useful.

"Mastering Voir Dire and Jury Selection" by Jeffrey T. Fredrick, Ph.D. (ABA, 2005). Not the most exhaustive book on the topic, but a good overview on something that makes most lawyers uncomfortable. It also offers excellent advice on supplemental jury questionnaires and hundreds of good voir dire questions broken out by subject.

"Jurywork" by the National Jury Project (West Group). This is a comprehensive practice manual for all phases of jury trial work, including setting favorable conditions for jury selection with the court, through questionnaires and voir dire (plenty of examples of each), through procedure and law of jury selection. It is intended mainly for plaintiffs and for criminal defendants (I affectionately refer to them as the National Jury Commune-- affectionately!), but is widely modifiable for all uses.

"David Ball on Damages" by David Ball (NITA, 2005). Written for the plaintiff practitioner, but I recommend that defense counsel study it, too (you'd study the other team's playbook for any moderately important game, wouldn't you?). Eminently practical, and it borrows heavily from Sunwolf's work as well as the National Jury Project's "Jurywork." Good practical playbook. And other than referring to the title of the book, QUIT USING THE WORD "DAMAGES"! Why? Because that word has no meaning to real people, only to lawyers. Read the book.

"Facts Can't Speak for Themselves" by Eric Oliver (NITA, 2005). Eric is a bright, bright guy who has figured out how to convey his bright, bright thoughts about how people (and therefore jurors) really process information they are told and how they then process it to their conclusion. He offers methods to take advantage of these built-in processes. Throughout my own comments and throughout literature on case presentation, you will see the word "story" countless times. That's because stories are how humans store and organize information... sometimes well, sometimes poorly, and sometimes totally inexplicably. Eric talks about harvesting stories that will help you-- through focus groups and other means. Also good foundation for jury selection. Strong recommendation.

"Legal Blame: How Jurors Think and Talk About Accidents" by Neal Feigenson (American Psychological Assn., 2000). Gives the psychology background in an accessible way and offers good practical suggestions for taking advantage of schemas, presets, and educational psychology.

"Preparing Witnesses" by Daniel I. Small (ABA, 2004). Excellent and practical guide on something many lawyers don't give enough attention or effort. There is so much that jurors impute to or infer about your client and your story based on HOW witnesses perform (as distinct from what they say) that witness preparation should be in the very top tier of things that get the lawyer's attention in the period right before trial. But it kind of gets short shrift as time runs out and the list of things to do stays long. This is a misallocation of time and focus, attorneys. And if you can't do it, bring in an expert to do it (namely us!). This book provides a nice basis for getting to deep stuff that matters and getting beyond the "shine your shoes & be sure to pause after questions so I can object" prep that's going on out there.

"Creating Winning Trial Strategies and Graphics" by G. Christopher Ritter (ABA, 2004). Enormously helpful and interesting book for all lawyers and trial consultants. Visual presentation is a critical part of teaching and persuasion in court, a crucial part of telling your story, and is absolutely universally expected by all jurors under the age of 65 (and increasingly expected among those over 65). The problem is that it's not intuitively obvious what makes an effective graphic as opposed to one that is absolutely jammed with data and covers all facts known to man (the latter being the tendency of lawyers, who are very gifted with linguistic logic). This book will give a good, accessible education to those of us who aren't graphic artists, and will spark creativity of how to present your story better to an audience that craves visual help. Check out the stylized map showing Napoleon's army's advance on Moscow and retreat from it, which graphically shows the size of the army dwindling, and where and when the army was diminishing. Expensive book, but worth it to make you think differently about presenting information for the rest of your career.

"101 Quick Courtroom Tips" by Bob Gerchen (Legal Action Publishing, 2005; www.courtroompresentationtips.com). Bob is an accomplished trial consultant who brings his theater & communications background to the hands of every lawyer in this book. Try a few your next time out.

Any of the Old Textbooks Out There on Damages, Widely Available on ebay.com or alibris.com. The ones I have are "Cases on Damages, Third Edition" by Beale from 1928, and "Sedgwick on the Measure of Damages, Fifth Edition" from 1869. I love these books and they make great props for attorneys: Plaintiff attorneys might point out that the first case in them is usually Delves v. Wyer from 1605, which provided damages for the tort of trespass. Next is usually Hawkins v. Sciet from 1622, which gave damages for the tort of defamation (someone called another guy "a bankrupt"-- scandalizing enough to warrant a 150-pound award in 16freaking22, when that was real money.) Et cetera. This can establish the point that going to court to seek money and justice for harms caused is several centuries old and is a well-established part of a civilization. Likewise, defense attorneys can hold up the book and point out that the rules of how to calculate the right amount of money for harms caused is really old and comes from not making the plaintiff rich, but to make up only for the harm really caused and no more. Et cetera. (Hey, hire us and we'll come up with something snappier for you!)

"Determining Damages: The Psychology of Jury Awards" by Edie Greene and Brian H. Bornstein (American Psychological Assn., 2003). It's maybe the driest of the offerings here, and it would not be the first book I suggest you run out and buy. But it lays bare a lot of myths out there (e.g., jurors who are similar to your client will automatically be more sympathetic to your client because of it) and provides a good framework for the psychological phenomena that jurors go through.

And eventually... Richard Gabriel's and my book on damages for the defense, and my DVD on voir dire.

Got other suggestions for the trial practitioner's library? Please send them to me.

Use your jury research in negotiation & mediation

A great way to leverage your investment in pre-trial jury research (such as focus groups and mock trials) is to have your trial consultant appear with you at the mediation. By the time you get to a mediation, you have lived with the case for a couple years, and have beaten opposing counsel over the head with the same list of facts and legal interpretations that you can probably recite each other's lines. So mediation is where you can repeat the same thing to an outsider and have that person do it for you-- great, right? Well, what if you could change the playing field altogether?

We have gotten really beneficial results for our clients by making a 30-45 minute presentation that includes:
* A 10-minute piece explaining the methodology used in designing the focus group; describing the recruiting process for participants (that they mirror what we expect to see in the jury in that venue), etc.
* A summary of THE OTHER SIDE'S argument, assuring them that they were well represented. Obviously, this will be the first point of serious resistance on the part of your opponent-- "You guys didn't tell them this... nor that." Well, yes, we did. Let us tell you how.
* Then a summary of the key findings that favor us: things we learned about OUR case, strengths we might have discovered, weaknesses we learned how to address, decision paths, and so forth. (We don't really discuss verdicts as they are dangerously unpredictive of outcome, and we don't say anything invalid or untrue.) (Seriously.)
* We show a selection of video excerpts. This is a great moment. Opposing counsel gets to see laypeople discussing his or her baby for the first time. It's a nice bolt of reality therapy.

Does opposing counsel swoon at our feet and offer to settle at whatever result we name? Well, I'm hopeful that will happen sometime but it hasn't happened yet. Rather, what does tend to happen is that opposing counsel is moved from the "facts & law" debate into the mindset of getting serious about predicting what the verdict is likely to be. That is what makes outcomes calculable at that stage of the game, and that starts moving the process. The next week or two after the mediation will bring much better results.

Same goes for negotiation. We'll prepare some talking points of valid conclusions from the research for counsel to share with the other side. Again, it shifts the debate from "you think/I think" to "we've done our research, and here's what forms the foundation of our conviction." It also sends the tacit message of "We see no reason to change our position until you show us some better research."

Give it some thought & get in touch if you want to discuss it.

Welcome to Juryology

Welcome to Juryology, a blog devoted to all things related to jurors: understanding them, picking/excusing them, educating them, and thus winning with them.

We will also discuss using pre-trial research both for use at trial, but perhaps as importantly, in your mediations and negotiations.

I am a trial consultant & member of the State Bar of California, practicing with the firm of Decision Analysis Trial Consultants in its San Francisco office.

Here you will find:
*Practice points for lawyers
*Thoughts about jury issues (as distinct from legal issues... a point I will return to many times, I am sure. Example: Lawyers think they have a "B&P Code 10500 action;" real people think it's a "what does a handshake mean nowadays?" case.)
*Insights into different kinds of research, such as focus groups or mock trials
*Applications of jury research to your negotiations, mediation, and settlement efforts
*Commentary about notable jury trials
*Strategies for figuring out how to present your case to jurors
*Book notes
*Occasional comments from readers
* Please e-mail your questions and I will address them

And if you are curious about how trial consulting might help you win your case or settle it more favorably short of trial, send an e-mail right now and let's talk.

Check back a couple times a week. I will make it valuable for your jury trial practice.