McElhaney on Litigation

Hunt for the Winning Story

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Angus was giving a luncheon talk on discovery for the bar association last Wednesday. He started where most other discovery talks leave off.

“Your job is not just to find the facts that will get your client into court or keep the other side out,” Angus said.

“The law is like that old childhood game—scissors, rock and paper. At the count of three, you and a friend each hold out two fingers—a scissors, or a fist—a rock, or a flat hand—a piece of paper. The scissors trump the paper—it can cut it in half. But the pa­per can cover the rock, and the rock can break the scissors. Each one can trump or be trumped by one of the others.

“The law works like that,” Angus said. “Every rule can be trumped by at least one other rule. But instead of just three, the law offers hundreds of plausible combinations. Which means that any case—except the most obvious—can usually be decided either way with equal legal justification.

“So if the law doesn’t offer a clear route to the right decision, what does?

“Judges’ and jurors’ inner scripts. Their values and understandings of right and wrong that shape their sense of justice are what actually decide most cases. “Which means that a trial is not a legal puzzle. It’s a mo­­rality play. And the role of discovery is not just to get your case into or out of court. It’s to find the facts—the human elements—that tell the winning story.”

Angus had just announced the first topic in the outline he had written on the board—Look for the Moral Imperative: The Story of a Wrong That Needs to Be Set Right—when one of the firm’s most experienced lawyers raised her hand.

“I know this doesn’t have anything to do with discovery,” she said, “but this really troubles me. I’m a commercial law­yer. I try cases that involve business contracts and things like that. How can you find an injustice in a business case? How do you talk to a jury about the moral wrong in a breach of contract?” Angus, who works the whole room when he gives a talk, stopped, turned to face the commercial lawyer, and smiled. “Thank you,” he said. “That’s a great question. And it has everything to do with discovery.” A number of other lawyers in the audience looked surprised, as if they thought the question had nothing to do with discovery.

“The problem,” Angus said, “is that the language of the law often hides genuine injustice—not only from laypeople, but also from lawyers. The words we use to think with have a lot to do with how easily we access our inner scripts—the basic stories we use to make moral judgments.

“Say you represent a small builder who has just landed a contract to build six houses for a large developer. The builder—Mark Willis of the Willis Construction Co.—en­tered into a contract with Tri-City Lumber and Sup­ply for the sale and delivery of all the wood and other materials he needed to build those six houses.

“See how the ordinary words of real people make the injustice of Tri-City Lumber’s breach of contract come alive when you give your opening statement: “ ‘Mark Willis made a deal with Tri-City Lumber for all of the materials he needed to build those houses. They agreed on the price—$6 million. They agreed on the delivery date—March 15 of the following year.

They put it in writing and they signed it on the 15th of September.

“ ‘Mark believed Tri-City. He trusted them. He counted on them. He relied on them. He made all the other ar­rangements needed to build those houses. By March 15, he had six building sites all ready. He had six foundations poured. Six water mains and sewer lines installed. Six power lines all hooked up and six crews ready to start building.

“ ‘And no wood.’ ”

“Oh, my God!” the commercial lawyer said. “That’s mag­ic! How did you do that?”


“The magic is in the verbs and nouns of ordinary Eng­lish,” Angus said. “It’s in showing, not telling. Adjec­tives and adverbs don’t show what happened. They tell people what to think about what happened. And people don’t like to be told what to think—they resent it and reject what you say.

“So, long before you plan your opening statement, start to put together the story of the case with ordinary words that make it come alive, and pull together the facts that tell the story of the wrong that needs to be set right.

“The most difficult part of all of this is to train yourself to write and speak and think in verbs and nouns, cutting out the modifiers—the adjectives and adverbs—that we always seem tempted to use. Beware of the seductive lure of fancy words.”

Angus’ next topic was Don’t Be Satisfied With What—Al­ways Look for Why.

“Since the dawn of time, we have used stories to make sense out of the world—to learn, to teach, to instill moral values and memorialize events,” Angus said.

“In fact, psy­chological studies show that if you just dump raw facts on people’s laps, they will make up their own stories to try to understand what happened.

They create characters who are responsible for what occurred. They give these characters names, and look for motives for what they did.”

Angus stopped, paused, then said, “And if they can’t think of a motive for why somebody did it, then they decide it never happened.

“Did you hear that?” Angus said. “Motive is a key part of understanding people’s conduct. While it is seldom required by the law except in discrimination cases and a few crimes, it is virtually always relevant and admissible in any case.

“Motive is so valuable, so important, that it is admissible against the defendant in criminal cases even when it shows that he committed some other crime or wrong, as well.”

Use the “Real Law”—What People Think the Law Ought to Be—to Guide Discovery.

“The idea is not to try to get juries to decide cases despite what the law actually requires, but to point you to some useful information that may help prove motive or be relevant in some other way,” Angus said.

“Take employment law, for example:

“Some people think employers ought to let younger em­ployees go before laying off older employees. That’s typically not required by the law, but when the older employees are at a higher salary scale, saving the extra money may be a motive for letting them go first—and that amounts to age discrimination.”


Put the Focus of Judgment on the Other Side of the Case.

“What is the ‘focus of judgment?’ ” Angus said.

“A few years ago, some of the country’s leading plaintiffs personal injury lawyers were shocked when juries started returning verdicts for the defendants in cases with slam-dunk liability and devastating injuries.

“What was going on? The psychologists and jury specialists who studied the transcripts saw that the plaintiffs’ law­yers had taken liability for granted and focused almost en­tirely on what had happened to the plaintiff.

“That created two problems: First, the cases were not the stories of conflict, confrontation and judgment, but in­­stead were all about the tragedies that had occurred. And people feel uncomfortable about tragedies—we do what we can to distance ourselves from them.

“Second, there was no one to be mad at. When you only have one person to judge, you will find something about him you don’t like. In auto crash cases, some jurors blamed the plaintiffs for simply being on the road.

“On the other hand, we know how to handle anger—make the one at fault pay for what he did.

“The lesson is simple. The winning story puts the focus of judgment on the other side throughout the trial.”

Use the Persuasive Power of Character Evidence.

“Everyone wants the good guys to win,” An­gus said. “And character is a powerful way to show who the bad guys are.

“The problem is the law of evidence that says character is not admissible to prove conduct. You can’t use bad acts or reputation to show who was to blame in this case.

“But you can use bad acts—even crimes or wrongs—to show motive, identity, absence of mistake, intent, a common plan or scheme, knowledge, opportunity or preparation. It’s an impressive list of admissibility.

“Besides, the judge and jury can always take into account the way a party or a witness behaves in court or in a deposition—especially if it’s on video. “So if you find out what pushes someone’s hot button in a deposition and sets off Mon­go—his inner beast—there’s no rule that says you can’t push it again in trial and see what happens.

“That’s what the late Bob Hanley did in federal court with the defendant’s CEO in MCI’s antitrust case against AT&T. The CEO yelled and screamed at Hanley—in front of the judge and jury—for nearly 15 minutes. At the end of the case, the jury returned a $1.8 billion verdict for Hanley’s client.”

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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