"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 I’m called in to assist on a project, my first question is: "What is the story?" I’m looking for a story to tell the jurors which will emotionally connect them to my client’s case. But what happens more often than not, instead of getting a story, I get the law.

An Inheritance Case: The Plaintiff’s Story

For 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 man’s 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.

"Okay," 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 Stacy’s 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 didn’t 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 it.

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 and loyalties.

The important point here is that every case has to to be analyzed from two points of view: the legal case and the juror’s case. The legal case involves the law. The juror’s case involves the jurors’ feelings. The legal case for the plaintiff in this situation was about a verbal agreement. The juror’s case was about love, fairness and generosity of heart.

An Inheritance Case: The Defense Story

Now, let’s look at the case from the defense’s 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 the law."

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 defense’s story is every bit as compelling as plaintiff’s. Defense’s story is that Eloise is the villain - not the family. She did not like Edmund’s family, was jealous of the attentions Edmund gave them, and did everything she could to isolate him. When Edmund’s 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 opponent’s 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.

Looking 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?

ABC 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 plaintiff’s 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 plaintiff’s trade secret, and plaintiff wants compensation for the theft.

If the jurors find plaintiff’s 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 Defense Story

The defense’s 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 ABC’s products and obtained indemnity from Mr. X that his concept was original. Only then did they proceed.

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 ABC’s 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.

Selling 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 doesn’t 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 for.

The point is that people don’t buy cars because of the features; they buy cars because of the benefits. Madison Avenue figured this out years ago. They know that people don’t 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.

Selling 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 don’t 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 features.

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