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
What is not so clear is: What makes a
compelling story? And how do you draw a story as a piece of
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
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 principle.
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
Illustrating the story with one
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
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 claimed.
"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
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.