Contrary to the judge's instructions in every
court trial, jurors do not listen to all the evidence and wait until
the end to make up their minds. Rather, they process what they hear
as they go along, and fit the information into a story that makes
sense to them, according to an article in The New York Times
of May 12, 1992. The article was based on research from a series
of experiments conducted by two psychologists from the University
of Colorado. In the study, jurors viewed a realistically re-enacted
film of a murder trial; in detailed interviews with the jurors afterwards,
the researchers found that in explaining how they had reached their
verdicts, 45% of the references made were to events that had not
been included in the courtroom testimony.
The implications of this research are important,
i.e, that unless jurors are given a coherent, compelling story in
opening, they will fill in the gaps with their own imagined scenarios
and make a decision based on half the evidence.
We also know from general research, that people
remember 80% of what they see versus 20% of what they hear. Even
more surprising, however, are the studies conducted by Litigation
Sciences, Inc. , and reported in Lawyers Alert April 1, 1991.
These studies indicated that most people remember up to 87% of the
information that they see and hear at the same time. Only 10% of
the same information is retained if it is presented orally, without
visual illustrations. The implications of this research are also
important, i.e., any message the jurors have to understand in order
to give you the verdict, must be visually illustrated.
The message from both research is clear: As
scriptwriter and director, the litigator's challenge is to find
the compelling story in the case and translate the story into visual
images so jurors 'get the picture,' - leaving no gaps.
What is not so clear is: What makes a compelling
story? And how do you draw a story as a piece of demonstrative evidence?
|What Makes a Compelling Story?
|Compelling stories are not about facts,
but, rather, about higher themes of justice vs injustice, right versus
wrong; truth versus lies; the good guy versus the bad guy; what is
fair versus unfair. Specifically, what the law says, how the numbers
fall, what the contract specified, how the product was defective or
what the patent infringed does not constitute a compelling story.
|Jurors vote on stories, not laws
|For instance, for many years I have been
involved in nursing home litigation, where plaintiffs sue nursing
homes for failing to provide adequate care for patients. Often times
the battle ground is staked out in legal terms like Rights of Patients,
Standard of Care or Proximate Cause. Yet, in the final analysis, jurors
make their decisions based on far more human factors, i.e., how many
times the family visited their dear deceased mother in the nursing
home versus how much the nurses in the home talked to the patient
and really cared about her. Neither of these scenarios has anything
to do with the legal issues; yet, they are the basis upon which jurors
make their decision.
|Product Liability Cases
|My work with the asbestos litigation further
verifies the thesis that jurors vote on the story rather than the
law; they focus on feelings rather than facts. Many asbestos cases
have involved retired ship workers suing asbestos manufacturers because
they suffer from asbestosis. Plaintiff's legal argument is that the
product is defective. But the story that plaintiff "sells" in the
courtroom is how painful this disease is, i.e., how a tiny strand
of asbestos gets into the lungs, begins to multiply and slowly, but
surely, consumes the lung tissue and leaves the diseased person gasping
for air and suffocating to death. Death comes slowly and for many,
as a relief. So jurors vote for plaintiff because of his suffering;
they justify their vote by saying the product was defective. In other
words, the significant issue is not the legal issue of Product Defect,
but rather the human issue of Suffering.
|Highly Technical Cases
A good story is especially important in highly
technical cases. It is unrealistic to expect 12 lay people to become
experts on complicated scientific, technological or financial issues
during the course of a trial - no matter how long the trial. It
is even more unrealistic to expect jurors to become so expert that
they can tell the experts themselves - who have spent years studying
the issues - who is right and wrong. Any strategy that is based
on educating the jurors so that they can out-expert the experts
is doomed to failure.
What can happen, and often does, is that jurors
sit in the courtroom for 6 months listening to dry, boring, incomprehensible
technical evidence, and then go into deliberations and come to a
verdict based on the fact that they hated one of the key players.
For instance, I recently assisted in a patent
infringement case involving the reproduction of genetic material
where the science was extremely complicated. To really understand
the issues, the jurors would have had to understand the technology
of genetic programming, and then make a determination about the
reliability of the experts - highly acclaimed scientists, who have
spent their lives researching the subject.
The jurors didn't understand the science of
the case, but they did understand human behavior and motivations.
They understood the competitiveness of scientists, the aggressiveness
of entrepreneurs, the urgency to capture the market, the vast amounts
of money at stake and human weaknesses and foibles. They voted for
the side they thought behaved better.
A good story, therefore, has a moral, ethical
or value-based element to it; it challenges jurors to act out of
|Visualizing the Story
|Finding a good story is the first step.
The second step is to translate the story visually through demonstrative
evidence. Translating the story is not blowing up bits of evidence
piece meal. Translating the story means developing an exhibit which
lays out the whole story, allowing counsel in Opening Statement to
take the jurors, step by step, scene by scene, through the case.
|Illustrating the story with one visual
For example, I recently helped plaintiffs in
a class action case involving a real estate partnership which rolled
over its assets to another company. Plaintiffs claimed the investors
were deceived by the prospectus, which evaluated the shares at $16
each, when they should have been evaluated at $42. Counsel's strategy
was to: 1) Blow up misleading quotes from the prospectus, and 2)
Rely on their experts to prove the true value of each share.
My job as the trial consultant was to ask the
questions jurors would ask in the courtroom if they were allowed.
So after hearing counsel's strategy, I began a brainstorming process
by querying: "Okay. But what's the story?"
The story was clear to my clients, i.e., under
the law, section AB, a prospectus is not allowed to say C if, in
fact, D has not been documented by E, and besides, there was proof
that F played a part which was not considered by G. Furthermore,
H neglected to consider I when concluding J. Moreover, according
to the figures from section K of L, put out in M by N, the real
estate market determined that O was worth P and not Q like the defendants
"Okay, but what's the story?" I repeated. Counsel
patiently explained further that although the real estate market
had collapsed in 1989 in California, their experts would testify
that the partnership's holdings had, under examination by R, only
lost S in value and that when analyzed by T would reveal a gross
value of U and a net value of V, once discounted by XY and Z.
"Okay, but what's the story?" I asked again,
perversely. At this point in the brainstorming process, my clients
will usually scrutinize me carefully - wondering if I am kidding
them, or if I really am so dense - and begin to doubt their decision
to hire me when I can't even understand the simplest of facts.
What I am doing, though, is reflecting back
to my client the confusion a juror would be experiencing, waiting
for the evidence to make sense. I understood their strategy, i.e.,
to select quotes from the prospectus to thrust into the heart of
defendant's case, foil the opponent's attacks with figures from
last year's financial reports and cut through to victory with menacing
statistics from their real estate expert. But I still did not have
a human context in which to understand that strategy, or to feel
one way or the other about it - or about the shareholders.
I wanted to know: Who were the original managers
of this partnership? Were they professional developers? What business
were they in before this one? Will the jurors like them? Why did
they want out of the partnership? If they wanted out, why did the
new buyers want in? Who were these buyers? Will the jurors like
them? How did Dean Witter get involved? Why would Smith Barney put
their name to a prospectus that was inaccurate? Who are the investors?
Which investors will be in the courtroom? What is the history of
these investors? Will the jurors like them?
Through a series of brainstorming sessions,
where we probed for motivations as well as facts, the story began
to reveal itself. This brainstorming process is difficult, yet always
richly rewarding. After we find the story, we have the issues on
which to build the case. The story is like the skeleton of the case.
Once the skeleton is in place, everything hangs together - case
presentation, opening statement, order of witnesses, demonstrative
evidence - and the rest of the case preparation is simply filling
in the details.
It turned out that the crux of this case was
not what the prospectus said, or what the value of the real estate
holdings were, or how much each share was worth. The story was the
transfer itself. And the exhibit we developed told the whole story:
|The Roll-up Exhibit
Before the roll-up, the partnership holdings
consisted of real estate, illustrated by a vault with a building
inside. On top of the vault were magnetized icons of money, totaling
25 million dollars. This money represented the partnership's cash
holdings before the roll-up.
Gradually, we introduced the players, adding
magnetic icons piece by piece. First, we introduced the original
managers of the partnership, Equitec, and their bankers and brokers.
Then we introduced the new buyers, Hallwood, more bankers, stockbrokers
and lawyers, and the management contract that Hallwood made with
Equitec. After having introduced the players, we took the cash icons
on top of the vault and began placing them at the appropriate spot,
to illustrate which players got how much money for executing the
roll-up. By the time everyone had been paid their share for doing
this deal, all 25 million dollars was gone from the investor's holdings.
And that was the story. The investors got robbed
out of 25 million dollars because of this roll-up. Equitec took
over $3 million from the deal, plus a 3 year management contract;
Dean Witter $5 million; Bank of America $9 million; lawyers, bankers
and other professionals over $11 million. And Hallwood got a cash
cow, by locking the investors out of their equity for 100 years.
The trial lasted 3 months. Plaintiffs won a
35 million dollar verdict. The post-trial survey report indicated
that the jurors remembered the exhibit which told the plaintiff's
story in Opening Statement.
So despite the volumes of numbers, statistics,
charts, graphs, blow-ups, facts and figure the jurors heard between
Opening Statement and deliberations, when the jurors got to deliberations,
they remembered plaintiff's story about how the big professional
guys stole 25 million dollars from the small investors. The story
was compelling, interestingly developed and allowed the jurors to
act out of their higher sense of what was right, just and fair by
giving the investors back their money.
Whether representing plaintiff or defense, the challenge
for litigators is to construct their case presentation around a
story, then design an exhibit which tells that story. Ideally, the
exhibit will allow the litigator to take the jurors step by step
through the story. The story will address the jurors' higher principles
and allow them to vote out of their sense of justice and fairness.
The story will not be about the law; rather, the law will justify
the juror's voting for the story.
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