McElhaney on Litigation
Carve Out a Path That the Jury Will Follow Through the Thicket of Your Case
Posted Dec 25, 2006 3:17 AM CDT
By James W. McElhaney
Wait a minute,” said Angus. “You’re telling the story of the trial—not the story of the case.”
“What do you mean?” said Andy. “What’s the difference?”
“Everything,” said Angus.
Andy Lundquist had hired Angus to help him put together a big employment discrimination case, and to get a measure of Andy’s progress, Angus asked him to do an impromptu opening statement.
“Look,” said Angus, “the key to persuasion is not just which pieces of the puzzle you choose to present. Even more important is the order in which you put them together.”
“OK,” said Andy, “but so what?”
“The job of the opening statement is entirely different from the job of proving your case,” said Angus. “How you put one together may be entirely different from how you organize the other.
“In your case, for example, you wouldn’t want your first witness to be an expert that your opponents could use on cross-examination as a foil to present all of their major arguments. It would invite them to interrupt the start of your case with a powerful summary of theirs.”
“So I don’t have to talk about which witnesses I’m going to call or in what order, or what they’re going to say?” said Andy. “I’ve been doing that for 20 years.”
“Right,” said Angus. “And you don’t have to say, ‘The evidence will show’ every 30 seconds, either. So let’s talk about some of the ideas behind persuasive organization in an opening statement.
“You already know there is no single right way to organize a case, which is one of the reasons why advocacy is called an art instead of a science. On the other hand, that doesn’t mean organization isn’t important or that it isn’t based on reason.
“No matter how simple, organizing any case does two valuable things:
“First, it makes your case understandable. If the judge and jury don’t understand your case, it’s in trouble.
“Second, good organization lets the judge and jury see and hear where you’re going. It says you’re prepared and you know what you’re talking about. It tells them that you’re the guide they can trust to show them the way through the thicket of facts and law the other lawyer has scattered in front of them.
“Next, a trial is not a legal puzzle. It’s a morality play, and it’s your job to lead the judge and jury through the minefields of injustice to show them that fairness is on your side.”
The Jury’s Bright Idea
"So how do you begin?” said Angus. “One good way is to start with a crisis. Not with the disaster that might be coming, but with a turning point. A big, looming problem.”
“But why?” said Andy.
“Tension creates interest,” said Angus. “It makes people want to know what happens. A crisis foreshadows harm or trouble, making the judge and jury think it’s going to happen before you actually tell them. Which makes it their idea—and people like their own ideas. So when they learn that the disaster actually occurred, they believe it’s because they had already thought of it themselves. The power of this effect goes even further. Being told they were right, jurors feels validated that their idea was correct.”
“Wow!” said Andy. “So that means start with a crisis.”
“Not always,” said Angus, “but it is a powerful way to begin. It can be even stronger if you foreshadow the crisis with some little detail like this:
“When Jack Reynolds walked into his office at Mega Manufacturing Co. on Aug. 15—almost exactly two years ago—something strange happened. When Jack tried to turn on his computer, it hummed, the screen lit up and the disks and drives cronked and whirred, just like always. But when he entered his secret personal code at the prompt, the computer didn’t respond. Nothing appeared on the screen except the message ‘Not a valid code. Enter your correct personal code.’ He tried again and again, but he still couldn’t access any of his files.
“Let’s stop there,” said Angus. “What do you suppose happened?”
“He’s been fired,” said Andy. “They won’t even let him access his own files.”
“Did I tell you that?” said Angus.
“No, the facts did,” said Andy.
“And what kind of people are running Mega Manufacturing?” said Angus. “How are they treating Jack Anderson?”
“They’re arrogant,” said Andy. “Impersonal. Unconcerned about the well-being of the folks who actually do the work that pays their salaries. They just turned him off before they even talked to him.”
“Did I tell you that?” said Angus.
“No,” said Andy. “The facts did.”
“But instead of the little details that led you in that direction, suppose I said, ‘The evidence will show, ladies and gentlemen, that the management of Mega Manufacturing Co. is made up of arrogant, impersonal individuals who are unconcerned about the well-being of the folks who actually do the work that pays their salaries’?”
“It would have just been lawyer talk,” said Andy. “A hired gun shooting off his mouth. It’s the kind of thing you hear all the time.”
Angus smiled. “Which shows that the details pointing to character can be a powerful part of the story,” he said. “It also tells you to put those details where they fit, not off somewhere by themselves.
“Finally, it demonstrates why you should show, not tell. Use the storytelling technique that depends on facts and careful organization, not judgments and opinions.”
Focus of Judgment
“Next, ask yourself, what is this story about? it is not just about the elements of your cause of action or defense. Of course, you have to satisfy the law. Otherwise you’d be hit with a winning motion for a directed verdict at the end of the case.
“But despite the law’s importance, real people never organize their stories around legal principles, and neither should you—especially in an opening statement.
“So if you’re not going to concentrate on hammering home how you have satisfied what the law requires,” said Angus, “what will your story be about?”
“That’s obvious,” said Andy. “It’s about my client.”
“That’s what you would think,” said Angus. “But there’s a factor at work in every case that may strike you as counterintuitive. It’s called the ‘focus of judgment.’
“Here’s how it works: When the whole emphasis of your case is on your client, then the judge and jury have only one party to judge: your client. And when they don’t have anyone else to blame, guess what? They’ll find something they don’t like about him. They’ll blame your client for what happened.
“So you want to put the focus of judgment on the other side in every part of your case. That idea not only tells you how to conduct the direct or cross-examination of every witness, it also gives you the central idea for how you put together your opening statement.”
“OK,” said Andy, “so no matter what kind of case, the plaintiff should start the opening with the story of a tragedy and then blame the defendant for what happened. Right?”
“Wrong!” said Angus.
“I talked about a crisis—not the disaster or tragedy that may be coming. Genuine disasters make us feel helpless. They’re beyond our power to cure or make go away. So we distance ourselves from them.
“But fault—as in wrong, injustice—has the power to stir our blood. It makes us angry, and we know what to do about anger: Make the wrongdoer pay.
“So if you’re the plaintiff in a civil case—personal injury, fraud breach of contract, theft of intellectual property or employment discrimination—you can start with a crisis and foreshadow its appearance, but don’t tell about the tragedy until you’ve made the judge and the jury mad at the defendant.”
Start Strong, End Strong
“How do I do the micro-organizing within the big groups of crisis, fault and damages?” asked Andy.
“First, make a list of all the key facts you’ve got to include in your opening,” said Angus. “Remember, these are just the essential facts, not all the little bits and pieces you can think of. Then group these key facts into a series of verbal pictures—word snapshots that show what happened.
“Now you’re ready to start moving them around, trying out what order best fits you and your case.
“Start strong and end strong. Generally speaking, the big rocks—the big ideas—go in first. You won’t have room for them later.
“Remember, you want to show, not tell. So get rid of adjectives and adverbs in your verbal snapshots. Let the verbs and nouns do the basic work of showing. Then the order of your word pictures will make the judge and jury link them together into the story of the case.”
Andy just sat there for a full two minutes. Finally he said, “You really make it sound easy.”
“It is,” said Angus. “All you have to do is get rid of a lifetime of bad habits.”
James W. 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. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.