McElhaney on Litigation
Give Chronology a Timeout
Organize your evidence so it will have the most impact with the jury
Posted Oct 1, 2009 8:00 PM CST
By Jim McElhaney
“What do you mean, jumbled?” said Harry. “I called every witness according to his or her position in the company. I arranged the testimony of all the witnesses and introduced each exhibit in strict chronological order. I spent weeks organizing my proof. I don’t see how in the world anyone could suggest it was jumbled.”
Harry Burke was hot. He had asked Angus to watch the mock trial of an upcoming industrial contract case and was stung by the very idea that his carefully orchestrated presentation might be hard to follow.
But it was. In fact, it was incomprehensible. The trouble with Harry was, he didn’t want to hear that. So he attacked Angus.
Angus just smiled and said, “Harry, you did an amazing job of covering every point. You didn’t miss a thing. But you put it together like an index, which doesn’t explain what happened.
“You’ve lived with this case for nearly three years,” Angus said. “You know it backward and forward. But the judge and jury don’t. It’s new to them. And you’ve got one chance to do it right. One opportunity to teach them your facts so they understand them. If you don’t, you lose.”
“But that was the point of the strict chronology,” said Harry. “So they couldn’t get lost.”
“You had 21 different witnesses,” said Angus. “And you tumbled 21 different chronologies on top of one another, assuming the jury would remember all the different names and dates and times and places from one witness to the next. Then you expected them to fit all those misshapen pieces of the puzzle together by themselves.
“Don’t get me wrong. Chronology can be very useful. It implies there is a story. It suggests that cause and effect are at work. But it can also get you into a heap of trouble, especially when there are multiple chronologies, or the elements of cause and effect are separated by other witnesses’ testimony. Instead of blindly following chronology, it’s your job to make simple sense of it with the facts.”
“That’s what I was trying to do,” said Harry. “But if it didn’t work, what would make it better?”
THE FACTS ALONE AREN’T ENOUGH
“Don’t just give them facts,” said Angus. “Tell them the story. Start with your opening statement, where you put together a series of verbal snapshots that you create out of the evidence. Use the words of visualization in your opening. Tell the judge and jury what is happening—what they are seeing and hearing—so they virtually become eyewitnesses to your facts.
“Then show them word pictures again in your case-in-chief, although not necessarily in the same order as in your opening. But now, use the witnesses and your exhibits to paint the pictures. You know how to do this, Harry. We’ve talked about it before.”
“I know,” said Harry, “but I was afraid that if I didn’t have all the dates and times and places and witnesses and documents in the right order, people would lose track of where they were.”
“Most of that stuff was just clutter,” said Angus. “You called 21 witnesses, but only six or seven really matter. You introduced 117 exhibits, but only used 25 or 30. And of those, just 10 or 12 are important to the case.
“Get rid of that clutter. Then plan your case by grouping your facts into vivid, understandable word pictures.
“After you’ve decided what goes in each of your pictures,” said Angus, “decide on the order in which you’re going to show them to the jury, with three questions in mind: First, what order makes it easiest to understand the story? Second, what order makes the moral imperative come alive so that the jury decides your client is the victim of a serious injustice? Third, what order puts the focus of judgment on the other party?”
“Hang on a minute,” said Harry. “I understand the importance of making the facts understandable. And I get your point about the moral imperative—if the jurors get mad at the defendant for being unfair, they will want us to win. But what’s this business about the focus of judgment?”
“It’s simple,” said Angus. “The jurors know they’re supposed to decide the case. They figure the way to do it is to judge the parties and what they did. But comparative judgments aren’t easy to make. The jury tends to really scrutinize just one of the parties.
“If you present the facts so your plaintiff is the center of the case, then that’s who the jurors are going to examine more closely—and the harder they look, the more they’re going to find what they don’t like, especially when they haven’t even thought about the defendant yet. But when you build your case around the defendant’s conduct, the chances are much greater that the jurors will find some reason to hold it responsible.”
“Wow,” said Harry. “This is powerful stuff.”
“It’s not enough just to show the jury what happened with word pictures,” said Angus, “or even to take advantage of the moral imperative and put the focus of judgment on the other party.
“Even though you may have created a powerful series of pictures, they won’t last forever. Memories melt. Feelings fade. Impressions wither and die.
“Information and ideas are like French bread,” said Angus. “They’re best when fresh.
“So the challenge in any trial—where the jury is continually bombarded with evidence and exhibits and arguments and instructions—is not only to tap into visual memory but to plant things during the trial that will bring back your pictures during jury deliberation.”
MEMORIES PACK AN EMOTIONAL PUNCH
“But what has more staying power than these word pictures you’ve been talking about?” said Harry.
“Actually, it can be almost anything,” said Angus. “A photograph, a little handwritten note, a child’s toy, a birthday card, a set of keys, a piece of jewelry, an old watch. It’s not what it is, but how you use it that counts. Usually you want something you can hold or touch to bring back memories. That’s why I think of them as souvenirs—mementos that make the pictures come back to life.
“But it doesn’t even have to be an object,” said Angus. “A good souvenir can be a simple story that you retell in final argument.
“Eric Kennedy of Weisman, Kennedy & Berris in Cleveland likes to ask surviving spouses in wrongful death cases what they miss most about their husband or wife. He says they invariably smile when they conjure up some fond memory.
“Then, in final argument he talks about how the spouse reacted to his question: ‘Remember how Mrs. Baker looked when she told you what she missed most about Dan? There she was, sitting in the witness stand. In court, surrounded by a judge and a jury and the lawyers, having to answer all these questions. It’s very uncomfortable to have to testify under any circumstances. This case has got to be one of the most stressful events in her life.
“ ‘But when she started talking about Dan, she suddenly left the courtroom. It was like she wasn’t here anymore. She had a smile on her face—you saw it. It was just for a moment, when she was thinking about Dan. And you know what he must have meant to her.’ ”
“That’s really touching,” said Harry, “and I’m hearing it secondhand.”
“Once you understand the power of this idea,” said Angus, “you’ll start thinking about the right souvenirs for all the important pictures in your case.”
“But I don’t have a case with anything like that kind of emotional appeal,” said Harry. “What do I do with a boring industrial contract case?”
“First, stop thinking of it as boring,” said Angus. “Your client’s plant was shut down for six weeks because the defendant refused to deliver what only it could supply, until your client had totally retooled its assembly line to use other parts. So what about a picture of an empty assembly line? What about a calendar with a big, red X drawn across every day for six weeks? The calendar doesn’t even have to be in evidence; you can just use it as a visual aid to your final argument.
“You can use the defendant’s own testimony as a souvenir. The head of its sales department made some really damaging admissions in her deposition. Have a few of those blown up and mounted on foam board and use them as exhibits when you quote her in final argument.
“But I think one of your best souvenirs is that wooden nickel the defendant’s CEO handed your client in Detroit when he sneered and said, ‘Here, this is enough to cover your entire operation.’ The jury will really love the CEO for that.”
The ABA Journal is occasionally reprinting some of Jim McElhaney's most popular columns from past years. This article originally appeard in the Journal's December 2002 issue under the headline "Creative Tension."
Jim McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston.