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
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 law.
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,
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 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 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
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 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 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
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
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.
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.
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 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 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
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 for.
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
Cases Compared to Selling Products
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 features.