McElhaney on Litigation

The Play is the Thing


Nick Williams and Ramona Sanchez—two recent drop­outs from Windstrom & Crusher—were waiting for Angus when he got to the office Tuesday morning. Nick had a pot of dark mountain roast coffee, and Ramona was holding a box of blueberry scones from the bakery around the corner.

“Good morning,” said Nick. “The new firm of Williams & Sanchez needs some help with a case.”

“I don’t know if we can help you with the case,” said Angus, “but Jimmy and I can certainly help you test the coffee and scones. Let’s go into the conference room.”

The case was pretty straightforward. One of Williams & Sanchez’s first clients was a small local dairy and ice cream manufacturer that suddenly found itself in the crosshairs of the biggest milk producer in the state.

“We’re claiming intentional interference with a whole series of contracts,” said Ramona. “First, MegaMilk started disparaging the Corner Creamery’s products with its local retailers and distributors, but that didn’t work.”

“Then MegaMilk actually sabotaged the Corner Creamery’s freezers and delivery trucks so they couldn’t possibly meet their commitments,” said Nick. “Result: economic disaster. They’ve lost more than half their customers, and they’re barely able to stay afloat.”

“So how can we help?” said Angus.

“We’ve got a powerful case,” said Nick, “and we’ve survived all the defendant’s pretrial motions, but we can’t agree on how to put the case together for trial. We’ve never done that before.”

“I think we ought to do what we’ve been trained to do,” said Ramona. “Lay out the elements of our cause of action and prove them one by one.” “And I think we ought to stick to the calendar and the clock,” said Nick. “Go through everything in chronological order.”

Angus smiled. “Following the legal elements or sticking to the timeline are the two most common ways to organize a case,” he said. “The third is to start strong and end strong, and pour everything else in the middle, hoping the jury will put it together for you. It’s what Judge Standwell calls ‘the chicken-pot-pie method of trial organization.’

“Unfortunately, none of them is really satisfactory.”

“Why not just follow the law, point by point?” said Ramona.

“Because a trial is not a legal puzzle,” said Angus. “It’s a morality play. Your job is not to show some law professor that you know what the law requires. You’ve already convinced the judge you have enough evidence to satisfy the law.

“But that just got you into court. Now your job is to make the jury want you to win. You need to tell the story of a wrong that cries out to be set right. You need to show the jury how the Corner Creamery was deliberately sabotaged by MegaMilk.”

“OK,” said Nick. “So what’s wrong with chronology?”

“Timelines are fine once you figure out which facts go together to tell a story,” said Angus. “But until you gather the facts into the right groups, chronology is filled with clutter.”

ORGANIZE PIECE BY PIECE

Ramona looked like she had been knocked over by a falling tree. “Putting a case together is a lot more daunting than I realized,” she said.

Angus smiled again. “Actually, it’s not,” he said. “It’s just that you and Nick have been trying to solve too many problems with one magic formula. Stop trying to organize the entire trial at once and concentrate on do­ing one job at a time.”

“What do you mean?” said Nick.

“Organize each part of the trial according to the job it has to do,” said Angus.

“Start with the opening statement. How you put your opening together is entirely different from how you assemble the body of the trial or how you organize the testimony of each witness.

“An opening statement is not a set of Cliff’s Notes for the order in which you are going to put the witnesses on the stand or for what each witness is going to say. The opening statement should be the story of the case. Not the story of what you’re going to do but the story of what MegaMilk did to the Corner Creamery.”

Ramona broke into a grin. “Wow,” she said. “Suddenly I feel like I’ve been let loose from a whole flock of albatross traditions that have been weighing us down.”

“Once you focus on the role of the opening statement,” said Angus, “it’s easy to organize it any way you like. Start at the beginning or start at the end. Start with MegaMilk’s corporate plot to destroy its competition, or start by holding up an early success story about the Corner Creamery in the Sunday Times & Courier.”

“Wait a minute,” said Ramona. “Is something like that relevant?”

“It is if you’ve got a witness who says that story is what made the CEO of MegaMilk furious,” said Angus. “It shows he had a motive for wanting to destroy the Corner Creamery. And motive is virtually always admissible to help prove who did what.

“Now that you understand that what goes in the opening is more important than where it goes, let’s talk about a few more ‘whats,’ ” he said.

“First, the heart of the morality play is the wrong that needs to be set right. We may disagree about what jus­tice is, but injustice has the power to stir people’s blood. When you’re the plaintiff, the wrong is what the defendant did. And when you’re the defendant, it would be wrong to have to pay for what you didn’t do.

“Second, this means you should put the focus of judgment on your opponent. When you are the plaintiff, put the defendant on trial. And when you’re the defendant, put the plain­tiff on trial. The case is not so much about how good you are as it is about how bad they’ve been.

“Third, show—don’t tell. When you use adjectives and adverbs to describe what your opponent did, you are telling the jurors how to think—and they resent it. You’re not selling water beds, used cars or exercise machines. Tell the story with facts—not opinions.

“Fourth, think and speak in pictures. It makes the facts come alive, and the jury actually starts to see what you’re saying.

“Fifth, tension creates interest. When two different forces—people, corporations or a ship and an iceberg—are on a collision course, people want to know what happens.”

SET THE LINEUP

Angus paused while Nick and Ramona finished taking notes. Then Nick looked up and said, “What’s next?”

“The order of witnesses and then how you organize each witness’s direct examination,” said Angus.

“First, especially at the beginning and the end, you want good witnesses—friendly, open, pleasant people who know what they’re talking about. And if they naturally start and end the story, so much the better.

“Second, no matter how good the witness is, don’t start with someone whose testimony gives the other side the opportunity to interrupt the beginning of your case with a devastating cross-examination. You want your first and last witnesses to be as bulletproof as possible.

“Third, be careful about calling the opposing party as an adverse witness right at the start of your case. It’s disarming, but it’s dangerous.

“Fourth, because experts are explainers, it’s usually better to have the witnesses who provide the facts they are going to explain come before they do. And be careful how you pick your experts. Choose good explainers who make their opinions come alive in preference to those who just have impres­sive resumés.

“Fifth, don’t worry about not being able to call the witnesses in the order you’d like. If you do a good opening statement, it’s not going to make that much difference.

“Now it’s time to talk about organizing each witness’s testimony,” said An­gus.

“Once again, what goes in and what stays out are the most important parts of what you do.

“Take one witness at a time. Start by making a list of all the facts you want the witness to testify to.

“Don’t worry about order at this point; just make sure that you get every­thing you need on the list. And don’t write down everything they’re going to say. A few words for each point are enough.

“Next, arrange all those facts into groups that fit together. Then organize the facts in each group so they make a coherent picture—a verbal snapshot. Give each picture a name, just like the titles of the scenes in the DVD version of a movie.

“Now, with just the names of those scenes on a piece of paper, experiment with the order in which you’re going to show them to the jury. “And that’s it,” said Angus.

“You do that with all the witnesses?” said Ramona.

“Exactly,” said Angus. Then he turned to me and said, “Jimmy, anything you want to add?”

I washed down the last bite of my second scone with a sip of dark mountain roast and said, “Me? I was too busy taking notes to think of anything to say.”


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.


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