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August Theme: Winning with Visual Story Action

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written by NITA guest blogger David Mann

Everyone knows the best story wins. But what exactly constitutes a good story? We all know it’s important to have a good guy and bad guy, and we know it’s important to frame things in light of common sense violations of rules or principles. We know we need an interesting protagonist who is easy to identify with. But we also know we can do all that and still have a story fall flat and consequently lose an otherwise solid case.

So what’s the secret ingredient to making a story come to life for the jury and leading them to take action? For winning cases in which I’ve constructed the opening, we’ve grabbed the jury immediately with vivid visual language that is active rather than passive. Here’s what I mean. Consider the wording in this sentence from an opening:

“Paramedic Miller’s lack of attention on the scene of Plaintiff Dan Gerson’s cardiac arrest was in violation of the laws of the commonwealth of Virginia. His actions were the cause of Mr. Gerson’s death, and the evidence will show that.”

Information is provided and a strong point is being made. But it’s not visual and it’s not active. It’s impossible for a jury to imagine the scene from that description, and the whole thing is in the passive verb tense, making it seem distant and unimportant. It has a certain legal-sounding formality to it that is at odds with the general culture’s insistence on approachable, plain language. Further complicating things is the fact that the story is displaced into the future, when we’ll presumably hear and see evidence that will tell the story. While it is of course necessary to use legal references and refer to upcoming evidence, don’t do it at the expense of moving the story forward. Establish an active, vivid story before asking the jury to focus on the evidence you’ll be providing and the legal conclusions you will be drawing – all at a later date. The later addition of evidence should serve to flesh out the images they’ve already begun to form in their mind from your well-crafted opening story. You’ve got one shot to do it. If you don’t succeed in planting that story in their imaginations, you might never get them invested.

The description of the paramedic and Mr. Gerson above is the type of sentence that makes up the majority of the first drafts of opening statements I see. We then work the story through several revisions to make it come to life. Look at the difference in this way of depicting the same story:

“Dan Gerson collapses in his chair and his niece calls 911. Within two minutes the police arrive and begin administering CPR. Six minutes later, the paramedics arrive but Paramedic Miller orders the police to stop CPR. Because of the Defendant’s actions, Dan Gerson is dead.”

The second approach is a story. It is told in action language a jury can visualize. The first passage describes the events from a distance: Defendant’s “lack of attention…was a violation of…” and his “actions were the cause of…” The second passage tells it in the present, one image at a time: Plaintiff “collapses,” Police “arrive,” and then Defendant “orders the police to stop.” All actions, all parts of a story that is unfolding in our minds as we hear it.
These are subtle yet powerful ways of making a story come to life. So remember:

  1. Use language that describes things in real time and space so the jury can actually see it in their minds. Avoid lofty statements of vague purpose (“This is a case about…”) until you are certain you’ve given the jury enough concrete story images to work with.
  2. Use action language in simple sentences when you’re laying out the first description of the story. Avoid passive (but legally prevalent) phrases like “…is in violation of…” and instead use clear action words like “violated.”

For lawyers who have spent their professional lifetime working with careful, formal legal language, this may seem counter-intuitive. But it’s critical for engaging the ordinary people in the jury. When the story comes to life, they’ll respond by taking action.

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About the Author

David Mann specializes in persuasive presentation skills and storytelling. A theater artist for over three decades, David now trains attorneys and business professionals how to use performance and storytelling techniques to win. He has taught with NITA for the past five years and has served as Program Director for NITA’s Persuasive Power in the Courtroom communication programs since 2015.

Contact David Mann to get in touch doing any opening statement work: 612-756-0200 or email at: david@davidcmann.com

August Theme: Why is Storytelling Important for Lawyers? (Or how I learned to survive on the Bench)

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written by NITA guest blogger, the Honorable Christina Habas

As trial lawyers, we are masters of our cases. We know the facts of the case like the back of our hands; the law comes easily to us to know what we must prove; and finally, we know how to communicate with power. What we often forget is that our biggest task is to convey our client’s STORY in a way that can be easily UNDERSTOOD by our listener. We also want our listener to REMEMBER what we tell them.

The best method of communicating concepts to be UNDERSTOOD and REMEMBERED is story. We tell ourselves stories all of the time, even when we are asleep, our brain is telling itself stories. As human beings, we are incapable of putting together large amounts of data in an understandable way unless we have the framework of story. And, as trial lawyers, we often must explain something to jurors who may have no personal experience or history to give them an understanding. If a juror has never before met a person who is paralyzed, they will have no concept of how that person copes with the world unless we find a way to connect with their own life experiences, making our client’s case more real.

We also know that if there is not a cohesive and coherent story in a case, the jurors will likely tell themselves their own story as they hear about a case. If my passion is to ride bicycles, I may listen to a case about a bicycle accident from the perspective of the cyclist – on the other hand, if I have unpleasant experiences as a car driver with bicyclists, I will likely listen with that perspective. This means that the listener will fill in any gaps in a story with their own story that fits into their own personal experiences and philosophy. This is how verdicts are sometimes perplexing, because the jurors have made a decision based upon the story they tell themselves, and that story is not necessarily in lock-step with the evidence presented at trial.

Storytelling is also effective because of the way we are hard-wired: when we listen to a story, our brains are transported into a calm, receptive state. We know, as the listener to a story, that we will not be called upon to actually participate in the process, and we have “mirror neurons” that fire the portion of our brain that would fire if we were actually participating in the action, as we listen to a description of the action.

Finally, if the listener can actually VISUALIZE your case in their own mind, you have a much better chance that the listener will not only understand what they are listening to, but also remember what they heard. This is the way a good trial lawyer will arm jurors so that the jury will reach the verdict that supports the lawyer’s client’s version of the case. It will ingrain the action in a way that makes the juror unlikely to be swayed away from that vision of the case.

August Theme: A Guide to Crafting your Story in Court

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written by Mark Caldwell NITA’s Director of Resources

Remember how you saw the world before you went to law school? That view was far different from your view of the world today. Sometime in your first or second year of law school you began to think and speak as a lawyer. You ceased to see the world in multi-hues and it became black and white. This starkness allowed you to apply facts to the law and reach a legal conclusion. Think about your frame of mind when you first hear about a case – before you perform a legal analysis of the case and begin structuring your potential claims, defenses and motions. This is when you hear your client’s pure story of the events that occurred in a persuasive form. You are either persuaded to take up the client’s cause by that story, or you reject it because you are not persuaded.

Our training and experience in legal analysis is essential to building or defending a case. In getting ready for trial this process often hinders our ability to communicate persuasively and making a case memorable to judges, juries, and others we need to persuade. What we need to do as lawyers is to convert our legal analysis back to its purist form of story. It needs to have a clear beginning, middle, and ending. Parties and witnesses, including experts, need to be introduced as characters which illustrate a central conflict and offers a fair solution.

We sometime confuse case story with other advocacy concepts. Your case story is not just a theme – such as “A man’s word is his bond.” Too often we select a theme that resonates but fails to present the facts in a persuasive fashion. A case story is not the legal theory. For example, a child is neglected or dependent if: the child lacks proper care, through the actions or omissions of the parent. This may hint at a story, but it is not a very good one. Likewise, a case story is not just a tag line – “This is a story of a promise; a promise made and a promise broken.” Instead, think of your case story in the same way that historian Ian Toll describes writing about history as an “episodic narrative, picking key episodes to write about that, in their composite, provide an accurate portrait of what happened, without bogging down in too much minutiae….”

In crafting your own case story it may be helpful to think in the terms taught to fledgling authors. You can translate common components of good story writing to trial. Your case theme is akin to the Premise Line of a story. A Premise Line tells the listener, “What is your case about?” When properly conceived, your premise expresses your whole story in one or two neat sentences. Let me give you an example from the movies – A treasure-hunting archeologist races over the globe to find the legendary Lost Ark of the Covenant before Hitler’s minions can acquire and use it to supernaturally power the Nazi army. It is your “elevator speech” that defines your protagonist (your client), shows the antagonist (the opposing party), offers a sense of setting, conflict, and stakes, and hints how the action plays out. It is not what some think of as the “grabber” that starts your opening statement.

Next comes the Designing Principle or what lawyers may think of as the theme. This is what organizes your story as a whole and makes it hang together instead of a lose series of facts. Your Designing Principle suggests how and where you will begin your story – is it a chronology or a topic driven revelation of the facts that complete the legal elements.

Every story, including trial stories, has a Central Conflict that shows the harm done to your client. It also reveals the remedy or equitable solution that will make things fair and right.

Each case has parties and witnesses. These are the Characters who populate your case story. Some will be fully fleshed out individuals who you spend time accrediting while others will be flat characters who serve a purpose but do not need a full development to be credible. Here is a flat character example – the police officer who first arrived on the scene of a crime but did not conduct the full investigation. He is important to the story but not someone who defines the story.

Finally, you must understand and develop your Plot, or the factual theory of your case. These are the facts that fill in the elements to prove you have met the burden of the proof. Your organic plot must show that each event is causally connected; that each event must be essential (not facts that clutter with useless information); that is proportionate in its length and pacing; and has a sequence that has a unity and totality of effect. Your plot structure gives you the map on how you call witnesses, introduce exhibits, and have the story play out in a persuasive manner.

Changing your thinking from black and white legal theorist to storyteller brings color back to your cases, it makes the facts more memorable, provides a reason to feel good about the decision, and persuades in the way that maintains attention – just as story has done throughout history.

Why You Should Start Thinking About Your Trial Technology Well Before Trial

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written my guest blogger and NITA faculty Wayne Stacey

Courtroom technology is not about slick presentations and overdone graphics. Courtroom technology is about helping jurors follow your story and remember the supporting exhibits. It is also about engaging each juror’s individual learning methods.

While we often focus on the usage of technology as we approach trial, the focus should begin much earlier. In today’s civil trials, key witnesses are often outside the trial-subpoena power of the court. That means the only way to present those witnesses’ testimony to the jury is through deposition playback.

Anyone who has sat through video playback knows that it can be brutally boring and difficult to follow, which means that the jury will likely miss the point and overlook important evidence. The jury sees witnesses questioned in the open-ended style common to depositions rather than the leading, cross-examination style common to trials. As a result, the jury is left with a meandering series of questions and long answers rather than a crisp cross-style trial presentation. And most damaging, the jury is left with no easy way to link the video testimony with the trial exhibits.

To solve this presentation problem, focus on creating the material for engaging video clips during the depositions. Consider yourself the director in a short movie. The witness is your actor, and the exhibits are your props.

Trial technicians bring your vision as director to life. They can sync video playback and exhibits in a split-screen view to create a visually engaging video. But more importantly, they can draw the jurors’ eyes to the key material through annotations. The example below shows how a good trial technician can link witness, exhibits, and annotations. The video playback in this example looks more like a live-witness presentation than typical video playback. The witness is shown in the upper left corner. The exhibit is shown simultaneously on the right side of the screen. The trial technician creates a callout over the exhibit—helping the jury understand the origins of the callout. And finally, the trial technician can annotate, in real time, the exact material corresponding to the witness’ testimony. This arrangement makes the story and the evidence easy for jurors to follow. Jurors are not required to flip through paper exhibit copies or search a screen for the relevant material.

This type of engaging video playback does not happen by accident. Trial technicians need guidance when selecting exhibit clips and annotating the clips. The deposing attorney must provide that guidance through carefully-crafted deposition questions. Rarely will courts allow a technician to clip or highlight exhibit material not clearly called out by the deposing attorney or the witness. Think about these questioning techniques as controlling the eyes of the witness, the trial technician, and the jurors. All of this must be set up in the deposition.

Three steps will guide trial technicians and the jury through typical exhibits. These techniques must be rolled out during the deposition to make them useful.

  1. Introduce the exhibit properly: Often exhibits are introduced mechanically in a deposition, such as by introducing the document as Exhibit 1 and then explaining that Exhibit 1 is marked with Bates No. 743,231. The mechanical introduction is useful for record clarity, but it is not useful for the jury. For example, the exhibit number used in deposition frequently does not match the exhibit number used in trial. Jurors are unlikely to do any conversion between deposition exhibit number and trial exhibit number. And few jurors will connect with an exhibit’s bates number. This type of mechanical approach would rarely be used at trial.
    If the exhibit is one that the jury should see, remember, and understand, introduce it with the video playback in mind. Guide the witness in the deposition to the key identifying features of the document such as title, date, signature, etc. The trial technician can follow this guidance and highlight those identifying features for the jury during the video playback.
    In the example above, you would want to direct the witness to the company name, “Data Dynamics Corporation;” the document title, “Quarterly Income Statement;” and the time period, “For the Period July 17, 1987.”
  2. Guide the witness to the correct section of the exhibit: Once you have introduced the document to the deposition witness (and the jury), guide the witness to the correct section. Try to set the stage for the section that the witness (and eventually the jury) is seeing. Call out identifying material such as chapter headings, section titles, paragraphs, etc. The trial technician can highlight this material based on the deposing attorney’s questions.
    In the example above, you would guide the witness to the totals section that includes the “net sales” and “costs of sales” information.
  3. Guide the witness to the exact material that you want the jury to see: If you have done steps 1 and 2, the jury should be following your questions about the exhibit. They know what document you are asking questions about. They know the section you are focused on and how it fits into the whole exhibit. They are following the testimony and the visual presentation because the trial technician is guiding their eyes by highlighting material corresponding to your deposition questions. And with a final question, you guide the witness (and trial technician) to the exact material that you want the jurors to remember.
    In the example above, you would direct the deposition questions to the specific “gross profit” entries. The jury could forget everything else about the exhibit, but they should remember the approximately $400K in profits. They saw the number with their own eyes—because the trial technician highlighted it for them. They know where the number came from because you guided the witness (and the jurors) through the exhibit.

Courtroom technology does not make your story better. Technology’s role is to help you visually tell the story and help your jurors remember the evidence. The next time you are drafting your deposition outline for a deposition that could be played at trial, ask yourself what type of video are you creating. Are you creating something that the jurors can follow? Are you introducing evidence in a way that the jurors will visually follow? Or are you creating something destined to put everyone to sleep? Whatever you create, it starts with the questions you ask in the deposition. The conventional wisdom of asking open-ended deposition questions is not always the best solution.

Some Thoughts About Courtroom Technology

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Written by guest blogger Judge McGahey

I’ve been invited to share some thoughts about the use of courtroom technology. Let me start with a caveat: I didn’t use much of what is now considered “courtroom technology” when I was in practice, primarily because much of it didn’t exist. But I’ve watched a lot of trials as a judge, and I’ve seen courtroom technology used effectively or misused disastrously; I think that gives me some perspective that could be helpful. Put another way, from the technical side, I have no idea how courtroom technology “works.” But from the advocacy side, I absolutely have some ideas on how it “works.”

Question #1: Can You Make It Work? – Do you understand anything about how the technology operates? Do you know how to make the technology work in the courtroom? Have you investigated which of the multitude of presentation programs is most compatible with your practice? Have you looked into which program is easiest for you, as an individual, to actually use? Can you push the right switch, button, toggle, clicker, whatever, to actually make the exhibit appear where you want it to appear? Would you be better off with someone else in charge of the pushing? And even if you’ve answered these questions, have you actually practiced with the technology so that your use of it is seamless and smooth?

Question #2: Will It Work (In the Courtroom)? – You’ve picked your program and know what button to push. But now you need to figure out whether what you want to do will work in the courtroom where you need it to work. Every courtroom has its own peculiarities. Here in Denver, I preside in a courtroom located in an historic building that was built in 1932. But the acoustics are poor, the sound system is quirky, the sight lines aren’t great and the electrical wiring is old and slapdash. Heck, it’s hard just to find a wall socket that’s easy to access. If you’re going to use technology in my courtroom, you better set it up and make sure that it works, that everyone can hear what’s being said (if you have sound), and that the jurors (or the judge) can clearly see what’s on display. We’ll let you or your tech folks come over to the courtroom ahead of time and set up before trial starts; I don’t know a judge who won’t accommodate a request like this, if at all possible. And please remember to bring along what you need to make your setup function; I’ve had trials held up because someone didn’t have a long enough extensions cord or extra batteries.

Question #3: Does It Work (As Part of Your Case) – All of your best intentions about courtroom technology are pointless unless what you do with it makes your case more credible. A flashy or clever exhibit still has to have impact as an instrument of persuasion; it can’t just be an exercise in nifty graphics. I’ve seen lawyers do really clever and creative things using technology that left the jurors cold. I’ve also seen simple, black and white power point slides used in a closing argument to convince jurors to award a plaintiff more than the lawyer asked for, or to help convict someone of first-degree murder. Think hard about the most effective way to present your case. Are any of your exhibits dodgy so that the judge might not let them in? Does the judge expect you to show your presentation to opposing counsel before you use it? Will your jury be tech savvy or inclined to skepticism about a case using technology? Does your presentation match up with what you’re asking the jury to do? Does the technology overwhelm your argument? Does what you present reflect your client’s case or your ego?

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I realize that what I’ve written is very basic. But even experienced lawyers get distracted by shiny objects like really neat presentation software and then forget about the basics that make a courtroom presentation successful. Never forget that your goal as a trial lawyer is a successful outcome for your client, not just impressing a jury with technical wizardry.
I’ll see you in court.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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