"Jurors will vote with their hearts, and
then find the legal hook to hang their emotions on," a law
professor advised me almost 20 years ago. In other words, rather
than basing their decisions on the law, jurors vote according to
their feelings - and then decide the law they will use to justify
that decision. Perhaps the reason so many people were outraged by
the O.J. Simpson case was because it was such a blatant example
of his theory.
I have always remembered
his words and keep them in the forefront of my mind as I help clients
map out strategies for the courtroom. So when Im called in
to assist on a project, my first question is: "What is the
story?" Im looking for a story to tell the jurors which
will emotionally connect them to my clients case. But what
happens more often than not, instead of getting a story, I get the
Inheritance Case: The Plaintiffs Story
instance, in a case involving an elderly woman suing the family
of her gentleman friend for part of his estate, I was
informed the case was about a verbal contract. The plaintiff claimed
that she had been the old mans caretaker for 10 years and
that he had promised to financially compensate her in his will for
her services . But he had left his estate to his family, instead.
A new will, bequeathing her $100,000, had been drafted, but not
signed. Plaintiff had to prove there had been an agreement and she
should be compensated.
I replied, "But what is the story?"
Three hours later, after
asking what seemed at times to my client to be irrelevant, dumb
and exasperating questions, I got the answer to my initial query.
The story was about Eloise, an 80 year old woman, who for 10 years
had been Edmund Stacys social partner, travel partner and
in many ways, care provider. They lived in separate houses, but
acted as a couple. She loved Edmund, looked after him and was there
for him when his own family was conspicuously absent. "Where
was his son when Edmund got sick and had to go to the hospital?"
she lamented. "Where were his grandchildren when he had a birthday?
Who was there to take care of his everyday needs? Nobody, but me."
Edmund had wanted to leave
her money when he died, but she didnt want him to talk about
dying, so nothing was done until the last minute. A new will was
drafted, but Edmund left this world before having a chance to sign
This story, designed to fit
the evidence(!), gives the jurors a reason to care about Eloise.
They will award her money not because they believe she and Edmund
had a verbal contract, or because they believe she should be paid
for her services. They will give her money because she loved this
man, was there for him, and deserves recognition for her efforts
The important point here
is that every case has to to be analyzed from two points of view:
the legal case and the jurors case. The legal case involves
the law. The jurors case involves the jurors feelings.
The legal case for the plaintiff in this situation was about a verbal
agreement. The jurors case was about love, fairness and generosity
Inheritance Case: The Defense Story
Now, lets look at the
case from the defenses point of view. A mistake that defense
often makes is to only argue the legal case, and not develop the
emotional one. For example, the traditional defense position in
this case would be to focus on the fact that the new will was unsigned
- plain and simple; therefore, the plaintiff has no legal claims
on the inheritance. "And whatever sympathy you might feel for
the plaintiff," defense counsel will cajole the jurors, "You
must disregard those feelings and judge the case on the basis of
But if the defense believes
that jurors make decisions based on their heart, and then find the
legal hook to hang those emotions on, counsel will quickly look
for the emotional heartstrings to tug on behalf of the defense,
and not allow plaintiff to monopolize the sympathies of the jurors.
The emotional story might be more difficult to find, but it is there,
buried in the circumstances surrounding the case.
For example, when the circumstances
are examined, we discover that the defenses story is every
bit as compelling as plaintiffs. Defenses story is that
Eloise is the villain - not the family. She did not like Edmunds
family, was jealous of the attentions Edmund gave them, and did
everything she could to isolate him. When Edmunds son called,
she told him that his father was not there - although the son could
clearly hear his father in the background. She only invited her
family to holiday gatherings, never his. And when his grandchildren
wanted to visit him, she told them he was unavailable.
By presenting its own story
to the jurors, defense offers them an alternative place to put their
emotions. Now they have two choices: They can either vote for the
plaintiff because they want to reward her for her loyalty, or they
can vote for the defense because they want to punish her for isolating
Edmund from the love of his family.
These two scenarios meet
an important criteria for good story telling in the courtroom: Your
story should be as different from your opponents as you can
stretch the evidence. The jurors should feel like they are sitting
on two different cases by the time opening statements are over.
The challenge is to win the jurors hearts, and the best way
to start is with an interesting, credible story that can be supported
by the evidence.
for the Story in Technical Cases
Even in highly technical
litigation, like patent infringement cases, jurors still vote with
their hearts. So both sides need to find an emotional spin
on the way they present their case, i.e, a more interesting context
to help jurors get through all the technically demanding evidence.
Typically, however, in patent cases, plaintiff argues that the defendant
stole the basic concept and the defendant denies it. So where are
the emotions? What more can you argue except the technicalities
of the patent?
The story is always going
to be about people. So the first question when looking for it is
to ask: Who are the major characters in this human drama? What part
does each person play? What are the relationships between the characters?
What are the self-interests of each character? What motivated each
person to act the way he/she did? How believable is each character?
Who will the jurors like?
Corporation v DEF Inc.
Consider a patent infringement
case where one company is suing another for stealing a trade secret
and using it to manufacture a successful medical device. By delving
into the circumstances around the claims and asking questions which
seem irrelevant, but go to motivation - we begin to find a story.
The plaintiffs story
in this particular case is that Mr. X, a disgruntled employee who
once worked for Company ABC, stole a trade secret from the company,
got a patent on it and took the patent to Company DEF, who developed
it with the full knowledge that the concept had been stolen. Now
Company DEF has a product on the market worth millions of dollars,
based on the plaintiffs trade secret, and plaintiff wants
compensation for the theft.
If the jurors find plaintiffs
story compelling, i.e., that Company ABC is the victim, Mr. X the
villain, and Company DEF the self-serving accomplice, then their
hearts will go out to the plaintiff, and they will be more disposed
to find that there was an infringement.
The defenses story
is that Company DEF owned the patent for the product it developed.
Before developing it, they researched the patent office, researched
the market place, researched Company ABCs products and obtained
indemnity from Mr. X that his concept was original. Only then did
Now, 6 years and 7 million
dollars later, Company DEF has a viable product on the market and
Company ABC is crying that they have been cheated. But, they had
a chance to patent the concept, and did not. They had a chance to
develop the product, and did not. By keeping the concept a trade
secret, they took a gamble - and lost. Now they are blaming Company
DEF for their mistake.
It the jurors believe that
Company DEF did all it could to make sure the concept was original
before putting millions of dollars into producing it; if they believe
that Company ABCs complaints are based on sour grapes, then
their hearts will go out to the defendants, and they will be more
disposed to find that the patent was not infringed.
Benefits Rather Than Features
Selling cases to jurors is
not very different from selling products to consumers. Every good
salesman knows that you do not sell features; you sell benefits.
Features are the specific components of a product or service; benefits
are how the buyer will feel using the product. For instance, in
selling a car, one of the features might be air bags; but the benefit
is feeling safe. Another feature might be high gas mileage, but
the benefit is saving money.
Features prove that the product
will give you the benefits it promises. Usually, just knowing that
a car has air bags is enough to feel safe. But if a customer really
needs proof that the air bags will provide safety, he/she might
want to know about the particular air bag technology used in that
car. Or if a customer doesnt believe that the car can get
the mileage advertised, he/she might want to hear about the mechanics
of the engine. The features, therefore, are like proof statements
that the car will perform as advertised and give customers the benefits
they want, i.e., provide the particular feelings they are looking
The point is that people
dont buy cars because of the features; they buy cars because
of the benefits. Madison Avenue figured this out years ago. They
know that people dont buy vacations to Hawaii because of the
sun and surf, but because vacationing in Hawaii makes them feel
relaxed, rich, healthy, young, romantic - chose your preference.
Cases Compared to Selling Products
So what does this have to
do with the courtroom? Everything. We are selling our case in the
courtroom. And jurors, like everyone else, buy benefits, not features.
Yet we spend most of the time in the courtroom digging, probing,
revealing, questioning, challenging the minutiae of the features
- i.e., the air bag technology, or the mechanics of the engine.
And we spend too little time selling the benefits.
For example, in my discussion
about strategy for the above two cases, note that I did not mentioned
the facts of the written contract, nor the technicalities of the
patent infringement. These are the features of the case,
the components of the argument, the proof statements that substantiate
the story. They are the legal issues - the facts, figures, and technicalities
- of the case. They indeed need to be addressed.
But they are just proof statements.
A good salesman can sell a car without ever going into the details
of explaining the air bag system. And a good attorney can sell a
case without ever going into the minutiae of the evidence. But the
rituals of the courtroom demand that we do go into the minutiae
of the evidence. And it is a significant part of the trial. It fills
up the space. But the important point to keep in mind is that the
minutiae is not what is going to determine how the jurors vote.
That will be determined by the story. So the story is the important
element to keep emphasizing, even as we go through the minutiae.
Remember, as a trial attorney,
you are selling feelings, not facts. In the world outside of the
courtroom, people buy feelings like status, money, health, wisdom,
enjoyment. Inside the courtroom, jurors buy feelings like helping
people they like, punishing people they dont like, righting
a wrong, acting justly, acting fairly, supporting institutions they
believe in. The challenge is to tell a story which allows the jurors
to feel good about voting for you. In the patent infringement case,
jurors who vote for the plaintiff can feel good about righting a
wrong; jurors who vote for the defense can feel good about rewarding
the entrepreneurial spirit.
Jurors make decisions based on their feelings.
They use the facts to justify the way they feel. A savvy trial attorney
knows how to sell feelings through compelling stories. A skilled
advocate knows how to keep the jurors focused on the big picture,
even while putting on the complicated, technical and often confusing
evidence. A persuasive presenter knows how to sell benefits, not
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