The Synchronics Group
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San Francisco, CA 94117
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The Research
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
Negligence Cases
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 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 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 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 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.

Plaintiff's Victory
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.

In Conclusion
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.