STAGING A SCREENPLAY FOR TRIAL
by Patricia Fields Anderson
This article was published in the Spring, 1997 issue of Litigation (Vol. 23, No. 3). Litigation, published four times a year, is a publication of the American Bar Association Section of Litigation, and is the preeminent journal in the field. At that point in her career, the largest part of Pat’s practice consisted of representing news media clients, but the general principles discussed apply to any kind of case.]
“Anybody can win a winner,” he told his law clerk. “But it’s really something to take a loser and turn it around and win that one. That’s the mark of a good lawyer.” These words of the experienced trial lawyer have stuck in my mind for years.
Certainly every case can be lost, but can any case be won? How do lawyers take a losing script and turn it into an award winning performance? Is there some formula, some constant, that enhances the chance of success?
As I enter my fifteenth year as a trial lawyer, I ponder these questions and try different things, like most lawyers. Here are some of my thoughts on dressing yourself and your case for success at trial.
No Love Story
Don’t let blind love rob you of your objectivity. This isn’t a love story. The lawyer who becomes too enamored of her case will not recognize or appreciate the significance of the other side’s screenplay. She will convince herself of the righteousness of her cause and be blind to even the possibility that the other side’s case might be more persuasive or sympathetic or compelling – and, therefore, more winnable.
A lawyer, as far as is possible, must realistically assess the pluses and minuses of the case and recognize all its warts. Sometimes the crucial witness is dead or has moved across the country and assumed another name. Sometimes crucial documents are missing or have been destroyed. Sometimes the case is assigned to a cantankerous judge known for hostility to your type of claim. Perhaps the client is unkempt in appearance and cannot tell a coherent story. Perhaps the opposing party is a pillar of the community, with an unblemished record of devotion to the causes of small children and animals. Maybe the client’s story doesn’t make sense, on some nagging level deep in your gut.
None of these problems is insurmountable, as long as you recognize and deal with them. Bring the client into the problem-solving loop at an early stage. Explain why that legendary but now-missing deed can kill the case. Maybe there’s some fact the client hasn’t shared (how many times has that happened to you?) because it did not seem important. Investigate the possibilities, both factually and from a legal-theory standpoint. Maybe your fraud case really works better as a constructive trust. Perhaps there is a group of witnesses who can supply, in piece-meal fashion, the testimony of the missing witness.
Your failure to diagnose and cure the weaknesses in your case will be fatal. You can be sure your opposing counsel is digging away busily at those weaknesses, turning a grain of sand into Mount Rushmore.
Recently, a lawyer was cross-examining the defendant in a fraud case before a federal jury. The defendant testified that he could not remember or be responsible for what he had said in his deposition, because it was taken on the very day of his father’s sudden and unexpected death, even though he had asked the lawyer to postpone the deposition. Now, the lawyer knew that no such off-the-record conversation had occurred, but how to prove the defendant had just lied in front of the jury?
Between court sessions, this lawyer was able to lay his hands on the death certificate of the defendant’s father. When he put the defendant back on the stand a few days later, he had him restate. embroider and expand the lie. Then, the lawyer confronted the defendant with the death certificate, which showed the father had died the day after the deposition had been taken. Some of the jurors smiled at this point, the lawyer said. They later awarded the plaintiff substantial damages, both compensatory and punitive.
This incident vividly demonstrates a cardinal rule of trial preparation. You must gather information from the moment you undertake the case and never stop. The trivial, insignificant bit of information might turn into something quite significant at trial, and it can reveal itself at any time. You cannot always predict what will be important despite your very best planning. You may have decided on a theme of the case, and you may have all the proof necessary to prove your elements, but it is infinitely better – safer – to know too many facts than too few.
Never rely solely on discovery to obtain the facts. While taking discovery, conduct a parallel fact investigation, obtaining witness statements, gathering documents, running criminal background and litigation checks, perhaps using a private investigator. You need to fully understand what happened and why it happened. Remember, in this fact-gathering stage it’s too soon to know what you will need as evidence, and so you should avoid rejecting even the most seemingly trivial facts or details as “chaff.” They might turn out to be “wheat.”
Clients, especially on first telling, will edit the facts to suit what they think will win their case. Disabuse them of this instantly. Cross-examine your client just as the opposing lawyer will do, and get them to spill it all. One of the all time, wish-I-were-somewhere-else experiences is hearing your client testify to previously unvoiced facts during a deposition – or, worse, at trial. Don’t you just hate when that happens?
Many clients have trouble staying on track when telling their story. Ask yourself why this client repeatedly goes down a particular rabbit trail at a particular point in the story-telling. Maybe the client does this for a reason that you could turn into helpful proof. Maybe you think it’s not germane that the client’s next door neighbor is an auto mechanic – “those German cars, you know” – but maybe that neighbor’s ability to distinguish German headlight design from Japanese headlight design will add texture and credibility to the case. Stay with the client as he digresses. Sure, that takes time, but it may not be the dead end it seemed when he started.
One of the best things you can do is to put a relaxed,
confident, credible client on the witness stand.
One of the best things you can do is to put a relaxed, confident, credible client on the witness stand. How you get there, however, varies with the personality, experience level, and attitude of that client. Most people are unfamiliar with the intricacies of the legal system and, consequently, are a little afraid of that which they do not understand. Some clients deal with this fear by trusting the lawyer completely, with an attitude of “tell me when it’s over.” Others want to discuss strategic decisions with you, ad nauseum, and second-guess your every move. One of the most critical judgments is deciding where on this continuum your client falls, and using it to his advantage and yours.
During a lengthy and difficult defamation case I had a few years ago, my principal client was a veteran journalist, accustomed to knowing the most and knowing it first. She had an extraordinarily retentive mind and was a wealth of information. She had years of experience in covering the criminal justice system but almost no familiarity with the civil system (she thought it was too boring). Like all good reporters, she possessed a healthy skepticism toward the justice system, lawyers especially.
I decided to make her a part of the litigation team, in effect. I sent her copies of the controlling case law and a copy of the rules of civil procedure. I brought her inside the magic circle of trial preparation and explained strategy to her. All these efforts paid off; she relaxed, became confident in our representation of her and, as a result, delivered winning testimony at trial. I certainly don’t advocate this technique with every client, but for the client who is suspicious of you or of the system, more information than less is better.
Every good litigator knows that you must be in absolute control of your courtroom (but we let the judges think they are). That means being in absolute control of the facts and testimony, including knowing what your client is going to say, how your client will react. and how jurors will perceive him.
No matter how senior you are, or how good your paralegal’s document index, you must read all documents. There are no shortcuts that won’t short-change your effectiveness. Set aside time, free of distractions, and personally read each and every scrap of paper. And memorize the crucial ones, if you can.
An associate once repeated a favorite adage of one of the most senior partners of Philadelphia’s oldest law firm: “Every case comes down to just fourteen important documents, no matter how many documents are involved.” The numerology aside, which documents jurors will seize on is not totally predictable. It can be an old letter, or a deed, or a change order, or an internal memorandum, or even an exchange between lawyers. But it is absolutely true – juries attach totemic importance to pieces of paper. In their lives, important matters are usually reduced to writing. They tend to be suspicious of claims that the contract was formed., or the hiring was made, if there is no piece of paper to back the claim or at least to show the matter was under active discussion.
Control the jury’s fixation on the paper. If you are in the happy position of representing the side with the smoking gun document, blow it up, and show it early and often. Use it during opening statement. Hand it to as many witnesses as possible. Make sure that jury has read every word on your blowup and has heard lots of people talk about it. A jury’s natural inclination is to give a document deference; showing it to them repeatedly reinforces that tendency.
If faced with a piece of paper that the other side claims is its conclusive proof, you are in for a big fight without some corresponding, negating piece of paper. Plan in advance how you will address that argument in a logical, commonsense way. Can you find a solid document to counter? If not, the credibility of your own witness about the paper becomes pivotal, so work hard on his testimony.
When you pick a jury, you are casting the most important roles in the play you hope to direct, even if they don’t have any lines. The stars of any trial are not the parties, or the courtroom personnel, or even the lawyers. The stars are those strangers who listen and watch carefully, and through a combination of observation and reasoning from life experiences – select the winners and the losers. A great deal has been written about the best way to question a panel of prospective jurors, and certainly every lawyer has favorite techniques. Over the years, I have learned a cluster of techniques that work well for me.
Jurors do not like to have their time wasted and will punish the lawyer who blathers away during voir dire, asking meaningless questions about an alma mater or long lines at the grocery store checkout. Jurors almost always are serious minded about their roles. Get right down to the things that matter in the case.
Treat Voir Dire as a Director’s Casting Call
I represent media defendants. I know from previous research that 15 percent to 20 percent of any given venire will not rule in the media’s favor, no matter what or how compelling the evidence. I want to know who these people are as quickly as possible, so I can strike them and move on to others. Usually, these people have had some bad experience with a newspaper or a TV station and have generalized that experience into a universal anti-media bias. It can be disapproval of an editorial years ago, or even frustration that their newspaper is never delivered on time. When asked, they’re anxious to tell you about that bad experience. They lean forward. They raise their hands. They positively quiver in recalled righteous indignation.
You have to direct this scene across a fine line, however, between cueing these prospective jurors to identify themselves and allowing them to “testify” and taint the rest of the venire. If possible, once you have seen the body language of eagerness to tell a story, ask the court for permission to voir dire these individuals singly, in chambers, away from the others.
Once, when a judge let me do this, a prospective juror recounted his bad experience with a newspaper in another state (it didn’t amount to much) and then stated, emphatically, “I could not be fair; I just don’t think I could.” He continued railing about how much he disliked newspapers. I am confident that this otherwise nice, elderly gentleman would not have felt comfortable enough to admit this had he been with the rest of the panel. The court, of course, struck this man for cause.
This eagerness of potential jurors to “testify” is either going to be very bad or very good for you. There is no in between here. So you’ve got to know early who these talebearers are. And you have to be crafty.
For example, I simply ask, “Have any of you had a bad experience with a newspaper or TV station or reporter, or do you know someone who has?” Make note of the would-be testifiers, but do not argue or attempt to influence them at this stage. Move on to another question or another person. As time passes, and this person has not been allowed to tell of his bad media experience (which is now on his mind), he will become antsy and feel compelled to mention it at the next available opportunity. You must control him and pacify him – until you can get back to chambers. Then, let him cut loose about how he cannot abide your client.
Naturally, this same technique will work in other cases too, whether your client is a large corporate employer perceived as a polluter, or an injured person with a history of litigation. If the McDonald’s scalding coffee case has caused a potential juror to resolve to reform the tort system singlehandedly, by steadfastly refusing to rule in any plaintiff’s favor, you need to know that, especially if you represent the plaintiff. Just ask suggestive questions, like “Have you had a bad employment experience with a large corporation, or do you know someone who has?” “Have you ever been dissatisfied with an eating experience at a fast-food restaurant, or do you know someone who has?” “Have you had any firsthand experience with environmental pollution, or do you know someone who has?” How you phrase this question – and you should assume that someone in the venire has had or knows of someone who has had “a bad experience” – will prompt those irrational biases, and even rational ones, to bubble up out of the subconscious cauldrons where they lurk.
You know the opposing lawyer is going to cast your client in the role of “unfeeling corporate employer” or “greedy polluter” or “money-hungry faker.” For this very reason, this type of question or line of inquiry should not be objectionable. If a prospective juror already has this belief about your client, as representative of a class of bad people, flush it out as the first order of business. And get those folks out of the courtroom, pronto.
Once you have weeded out these biased people who need no provocation, you are free to proceed with the subtler forms of inquiry and mental explorations. You now can generally focus on potential jurors’ attitudes toward the type of claim or defense involved, as distinct from the parties. Again, being direct pays off. “What concerns, if any, do you have about large verdicts awarded for pain and suffering?” “How do you feel about the job corporations are doing in controlling environmental pollution?” “What reasons do you think a criminal might have to infiltrate a law enforcement agency?” Or, in my bailiwick, “What concerns would you have if a newspaper let a government official kill a story that made her look bad?”
These types of questions do two things. First, they flush our those hidden biases… Second, they introduce your jury to important themes in the case.
These types of questions do two things. First, they again flush out those hidden biases, if any remain. Second, they introduce your jury to important themes in the case. Presumably, your client did what she or he or it did for a reason, and you can start the jury thinking, as early as voir dire, about those reasons. Some judges call this “attitudinalizing” and frown on it, but if you avoid argument-merely raise questions – you usually can satisfy even the most demanding judge.
A few years ago, while writing the appellate brief on a case I had tried, I looked at the transcripts of voir dire, opening statement, and closing argument. I was struck by how similar each of these trial phases were, in terms of ideas advanced, questions raised and themes presented. At the time, I was not conscious of saying the same things repeatedly, but the transcripts show iteration and reiteration of certain basic phrases and ideas, all central to my case. Some lawyers call this the “teaching method”: tell ’em what you’re going to tell ’em, then tell ’em, then tell ’em what you told ’em. Certainly there is no question that repeated doses of the same idea ultimately will sink in for each juror, sooner for some, later for others.
Don’t be afraid of the weak juror. Be more concerned with the strong personalities on your panel. These people, one of whom will be elected foreperson through sheer force of personality, will carry with them one or two other jurors. In fact, you don’t want a jury of six or twelve leaders, unless you like passing the time while they deliberate endlessly.
“Patricia,” the 40-year lawyer and retired judge used to tell me, “trial work is pure theatre.” A true observation, born of years and years of experience.
As the lawyer, you are like a Broadway director. You have written the script, lined up your props, selected the wardrobe and rehearsed your cast members. You know just how you want your play – your story, your case – to go. Unlike a Broadway director, however, you face a rival director, one who is actually present in your theater of operations, attempting to rip pages out of your script in the middle of the play, no less! This person, the opposing lawyer, has written an alternative play, and can be counted on to insert as much of her own version as possible.
The important thing for you to remember is that the jury does not know your play and has not read either script. How you choose to tell your story in large measure will determine whether you get panned or wildly applauded by the jury. Perhaps one of the most important strategic decisions you make is the order of proof with which your story will unfold to the jury. They have not spent months studying the documents and talking with the witnesses and thinking about the issues. Your opening statement should give them a broad overview of your story and make them anxious and interested in hearing it.
Most people are basically decent and honest, and they value those traits in others. But beyond that, people are willing to believe the most improbable things for the very thinnest of reasons, some of which may be no more substantial than feelings or emotions. If you doubt this, go
Lawyers don’t think like Joe Lunchbucket.
Use a theme that works for the average juror.
to the jury assembly room and listen to the conversation the next time you’re summoned for jury duty. You may be quite surprised at some of the opinions you hear and what kinds of things are offered as “evidence” for those opinions. You, on the other hand, have been through law school and no longer think like Joe Lunch bucket. But you can make the way jurors think work for you.
You are creating a reality for the jury. There may be a fact in your case that has no particular meaning or significance to you, but may create a “screen” through which your jury filters all subsequent evidence. For example, when Johnny Cochran spoke to the Simpson venire of the Los Angeles Police Department’s “rush to judgment,” he was striking a chord deep in the core beliefs of many who had come into contact with the LAPD. He skillfully set up a mind-set in his jury that predisposed its members to believe the worst about, to assign the most sinister meaning to, trial evidence that showed even minor inconsistencies and irregularities in police procedures and testimony. He had found his “screen,” and he used it effectively.
Finding these “screen” facts is best done through the use of a skilled, experienced jury consultant, willing to try out slightly differing versions of the story, emphasizing a different fact each time in interviews or focus groups. I once watched in wonderment as members of the focus groups discussing my case, across racial, age, gender, and educational lines, rejected the plaintiff’s claims about selling his stock in a company to a much larger corporation. The mock jury simply said he hadn’t done his homework. These folks concluded that if the plaintiff had received less money than he’d thought he would for the stock, it wasn’t due to the defendant’s fraudulent misconduct; it was due to his own carelessness and greed. Their commonsense interpretation of the facts would never have occurred to me, but it was a theme that worked for the average juror.
Keep a Sharp Eye on the Audience
Sometimes, jurors are shocked or surprised or angered by certain evidence, especially if it’s not expected. These strong, visceral responses actually are discernible in the courtroom, if you open yourself to them. In fact, the courtroom frequently is full of palpable emotions, and the trial lawyer who ignores the evidence’s effect on jurors is at her peril. You must be alert to this intangible quality of your play-how it makes the jurors feel.
Jurors register affect in the most subtle of ways: suddenly averted eyes; a quick, punctuating nod; a collective, nearly inaudible sigh or gasp. Try to be in that jury box watching the play unfold with them, and figure out what their clues mean. Sometimes, there are no outward signs at all, but you will nevertheless be able to feel the sudden chill in the air – the sudden, ineffable “something.” Pay attention to your own feelings as well, and not just your reasoning and thinking.
Many times lawyers get so focused on the script, they miss or even ignore the emotional impact of the evidence and just plow ahead as planned. In this circumstance, you may be plowing ahead, but the jury may not be hearing you. You must be prepared to feel that emotion from the jury box – even though not outwardly discernible – and make use of it. Be prepared to revise your script at a moment’s notice. Be prepared to linger over a point, explaining it more fully than you had planned, if you sense confusion or anger. Cut short your display of gory photos, if you feel the jury has had enough. Don’t cross-examine the victim with his videotaped deposition if he’s grown more sallow since then and you sense the jury’s already sympathetic. Always remember your jurors are not familiar with the script the way you are, and they are not seeing and hearing the evidence they way you do.
As a director, you’ve got to satisfy your whole company and cast (forget about your opponent’s; let her worry about them). Thorough preparation and careful attention to the other side’s case will go a long way in making you a better trial lawyer and enhancing your overall chances for a winning performance — even with a dog of a play. And remember that when you lose a verdict, if your client believes you have given it your most artful attempt, chances are that client will be satisfied with your performance and let you sit in the director’s chair again.