Foundations, anchors, and opening statements

Skimming through notes on my iphone from the past year or so, I came across one that I wrote about foundations, anchors, and opening statements.  I’m pretty sure that I wrote the note during a murder trial last year in York County.  Not in the courtroom though.  Judge Cole would have a fit if he saw me typing notes on my iphone in the courtroom.

It occurred to me that opening statement is like laying a foundation for a building – if the foundation is strong enough, it can weather the storm that comes during the state’s case.  They can make allegations, poke holes in the walls, and blow shingles off the roof, but if the foundation is still solid by the end of the state’s case you have won the trial.

Then again, it occurred to me that opening statement is more like casting an anchor – if your ship is anchored well, when the storm comes it may get dragged a ways but it will hopefully weather the storm.  If the anchor doesn’t catch on anything, when the storm comes during the state’s case your ship will get blown away and beached or sunk.  I’m no sailor, much as I would like to be, but the analogy fits in my mind.

Opening statement has to tell my client’s story, and it needs to be compelling.  One thing that all people have in common is that we like stories, we want to be entertained, and we relate to others through story.  Most trials that I’ve lost had one thing in common – looking back, I did not tell my client’s story.  The jurors never got to know who my client was and there was nothing there for them to connect with.  Most of the trials that I’ve won were exactly the opposite – I was able to tell a compelling story, beginning in the opening statement and continuing through cross-examination, direct examination, and closing argument.

Unfortunately, most attorneys don’t tell their client’s story in the opening statement – most prosecutors do not give much to the jurors in opening, and in appeals and PCR’s that I have handled from other attorneys’ trials, rarely have I read an effective opening statement.  I believe that trials are won or lost in opening statement.  Jurors are going to view the testimony during the trial through a framework – if you don’t provide that framework they will view the evidence through the prosecutor’s framework, and if neither you nor the prosecutor provide a framework, the jurors will view the evidence through their own framework that may not be accurate at all.

Anyone who knows me knows that I am not a religious man.  But . . . some words of wisdom about opening statements from the New Testament:

“Everyone then who hears these words of mine and does them will be like a wise man who built his house on the rock. And the rain fell, and the floods came, and the winds blew and beat on that house, but it did not fall, because it had been founded on the rock. And everyone who hears these words of mine and does not do them will be like a foolish man who built his house on the sand. And the rain fell, and the floods came, and the winds blew and beat against that house, and it fell, and great was the fall of it.”

Matthew 7:24-27; and

Everyone who comes to me and hears my words and does them, I will show you what he is like: he is like a man building a house, who dug deep and laid the foundation on the rock. And when a flood arose, the stream broke against that house and could not shake it, because it had been well built. But the one who hears and does not do them is like a man who built a house on the ground without a foundation. When the stream broke against it, immediately it fell, and the ruin of that house was great.”

Luke 6:47-49.

Scenes of a Crime – Review

Scenes of a crime is a compelling documentary about the case of Adrian Thomas, who was convicted of killing his four month old son by child abuse. I recommend it for anyone who tries criminal cases, as a detailed case study of a coerced confession. The documentary includes commentary by Richard Ofshe, a leading expert in coerced confessions whose testimony was not admitted at the trial. By showing scenes from the actual interrogation video coupled with scenes from training videos for the Reid technique, and explanation by Ofshe, it is easy to see how and why a person would confess to something they did not do, even something as terrible as causing of the death of their own four month old child.

One tragedy in this case was the refusal of the court to admit the expert testimony under these conditions – the interrogation is an extreme example of a psychologically coerced statement, using a system that has been developed over many decades and which is clearly outside of the understanding of the average person who has never seen it in action.

Over a period of ten hours of interrogation, the detectives, operating on the mistaken assumption that the child suffered from a skull fracture, convinced Thomas that he was repressing memories of hurting his child, told him over and over again that he had slammed his child’s head down, minimized the act and gave Thomas justifications for the act, told him repeatedly they understood it was an accident and that they would not arrest him if he only admitted to it and that they would let him leave if he admitted to it. They lied and told Thomas that Thomas’ wife had told them Thomas did it, that the doctors said that was how it happened, and they told Thomas that it would save his child’s life if he admitted how it happened, because it would change the course of the doctors’ treatment of the child.

The detectives also employed the power of psychodrama in their interrogation, although they probably did not clearly understand what they were doing and the effect it would have – what we could call the dark side of psychodramatic techniques. The detective showed Thomas what he believed happened, demonstrated how he believed Thomas had thrown the baby down, made Thomas repeat what the detective had done, and made him repeat it again with more force and emotion. The detective created emotion by telling Thomas how to feel during the re-enactment, and made it seem credible and believable.

My review – watch the documentary, it is well worth it.

My opinion – the conviction should be reversed based on the court’s refusal to admit Ofshe’s testimony under these circumstances, but that alone is not going to guarantee an acquittal on re-trial. Would Ofshe’s testimony have made a difference to the jury in this case? Almost certainly. It appears that the jury based their decision on the confession above all else. It is counter-intuitive that a person would confess to something they did not do, and expert testimony is crucial to helping a jury understand what happened and why.

I think there is more to the jury’s guilty verdict than simply the absence of Ofshe’s testimony, though. From watching the interrogation video clips, the filmmakers’ interview with Thomas, and the courtroom scenes, I don’t like Thomas. When he speaks, he doesn’t seem credible. In the courtroom, he looked mean and he looked angry. He looked like someone who could throw down a child if he were angry. I am going to guess that the only time the jurors came close to “seeing” what happened was when they watched the interrogation video, and that image is what stayed in their minds. What could the defense have done to counter that image, and to give the jurors a positive image to carry with them into the jury room? If the jurors are going to acquit him, they have to not only understand how a coerced confession is possible, they have to understand Thomas. They need to know him and like him, and want to help him. “Reasonable doubt” is never enough.

The defense lawyer says that the jury had “wooden heads and stone hearts” – I disagree. They are human, they have thinking minds and warm hearts. What would have made their hearts open to Adrian Thomas?

Music in trial

Music can be a powerful tool – in trial preparation and, when appropriate, in trial as well.  For many cases, I am able to find a song that sums up the emotion of the case or that encapsulates my client or their situation.  I play it on the IPod, I listen to it on the computer, I listen to it in the car, I learn the words, I sing it in the shower, and if I can I learn it on the guitar.  I internalize it.  When trial begins, I hear it in my head, I feel it as I am speaking to the prosecutor, the judge, and the jurors, and it helps me to convey the center of my client’s case.  Music evokes emotion, and music can transport us to another place where we can experience another person’s trauma, sadness, beauty, or joy.

I remember an exercise that Josh Karton did, a few years ago at a trial skills workshop, where he had a lawyer stand in front of the group and give a piece of their opening statement.  For a few minutes, we listened to a girl deliver boring, bland, canned lawyer-talk that explained her client’s case.  Josh stopped her, and asked her to think of a song, any song, that reminded her of her client or that felt like her client’s situation.

The lawyer came up with a song – it turned out to be a show-tune – then Josh made her sing it to us, standing in front of the group as if we were her jurors.  Josh worked with her on singing the song with feeling, singing every word as if it were important because every word is, and transformed the performance into something amazing like no-one other than Josh Karton can do.  Then he had her sing her opening statement to us, telling us about her client and her client’s case through the song.

Finally, he had her start over and deliver her opening statement without the music – the words changed, the meaning changed, the delivery changed, but most importantly the feeling changed.  I felt her love for her client, I was transported to the place where her client experienced the events of the case, and I heard the music in my head as I listened to her tell us about the client.  I note that he didn’t tell us to sing to the jury, and he didn’t tell us to literally make music for the jury.  But it became just one example of what a powerful tool music can be in trial preparation.

This week I saw an opportunity to literally use music during a trial, and I took it during my closing argument.  Before I began the closing argument, I put an IPod dock on the prosecutor’s table near the jury and played “Closer to the Edge” by Linkin Park.  The officer had just arrested our client, was transporting her to the detention center, and she had made some attempts to communicate with the officer as they drove down the road, to tell him what had happened and why he had the wrong person.  He didn’t cut her off, but after the conversation he turned on the stereo and cranked up the tunes.  The DVD from the patrol car was admitted into evidence, and the song along with it, which made it fair game for closing argument if I wanted to use it.

I don’t believe it was a racial issue per se, but, for context, she is a middle-aged black woman, who was handcuffed in the back seat of a patrol car, driving down a back road in rural South Carolina, and she had never heard this music before – personally, I love Linkin Park, but, reversing roles with this woman, it was a frightening experience that you could only understand by hearing the music in context.

It was an experiment, and I think the results were mixed.  I saw that some of the black jurors were affected by it, and I think that those individuals understood what I was trying to show them.  One younger white female juror started laughing – I assume she knows and loves Linkin Park and that she had no concept of what I was trying to show her.  It may have helped to polarize the jurors, although that was not what I wanted – the result of the trial was a hung jury and a mistrial.  Thoughts?


Jury Nullification law passed in New Hampshire

New Hampshire has signed into law a statute that essentially allows the defense to inform the jury of their right to nullify the law in light of the facts of any particular case:

519:23-a Right of Accused. In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.

Prior New Hampshire case law had left it in the Court’s discretion as to whether to instruct the jury on jury nullification or not (my guess is that did not happen very often if ever).  Government lawyers and most judges are quite hostile to the idea of jury nullification, and there is an open debate in many states as to how far defense counsel can go in arguing for jury nullification – I think that most prohibit an express argument for a jury nullification verdict, but there are many variations on the argument, many of which, based on the facts of a particular case, a defendant is constitutionally entitled to.

A D.C. Bar ethics opinion on jury nullification arguments gives one common example:

Indeed, we can imagine situations in which it “may be possible for a defense lawyer to satisfy [the effective assistance requirement through] a reasonable strategy of seeking jury nullification when no valid or practicable defense exists.” United States v. Sams, 104 F.3d 1407, 1996 WL 739013 at *2 (D.C. Cir. 1996). Because a “criminal defense lawyer may take any step required or permitted by the constitutional guarantee of the effective assistance of counsel,” Restatement of the Law Governing Lawyers, § 110, comment f, it is unlikely that any such step for which a reasonable evidentiary basis exists will be deemed to violate the Rules of Professional Conduct.

Thus, to consider a final hypothetical, imagine a situation in which the court rejects a defendant’s pre-trial challenge to a police search as a violation of the Fourth Amendment. Given that definitive ruling it is unlikely that a lawyer could argue that the jury should acquit the defendant because the scope of the search was excessive and that a not guilty verdict would send a message to the police to stop using such aggressive, impermissible tactics. Conversely, if the evidentiary predicate for the argument were laid, it might be appropriate for the lawyer to argue that the police’s violation of departmental procedures designed to limit the scope and extent of a search were a basis for questioning the credibility of their testimony and the evidence gathered as a result of such violations. Although the distinction between the two arguments is, perhaps, a fine one, it is a distinction with substantial significance under the Rules.

The Court may prohibit defense counsel from asking the jury to “nullify” the law, but counsel can and should argue bias and credibility of witnesses.  If the conduct of the officers is such that they should not be believed, that can warrant an acquittal – an acquittal that is a form of jury nullification but one that the defendant is entitled to regardless of that state’s laws or ethics rules on nullification.

Tim Lynch, writing for CATO at the National Police Misconduct Reporting Project, suggests that New Hampshire’s law does not go far enough, and that every court in the nation should be giving the following instruction – which is an actual jury instruction that was given in America’s courts at one time:

Trial Judge to the Jury:

It is presumed that juries are the best judges of fact. Accordingly, you are the sole judges of true facts in the case.

I think it requires no explanation, however, that judges are presumed to be the best judges of the law. Accordingly, you must accept my instructions as being correct statements of the legal principles that generally apply in a case of the type you have heard.

The order in which the instructions are given is no indication of their relative importance. You should not single out certain instructions and disregard others but should construe each one in the light of and in harmony with the others.

These principles are intended to help you in reaching a fair result in this case. You should give them due respect. Moreover, justice will ordinarily be done by applying them as a whole to the facts which you find have seen proven. You should do just that if, by doing so, you can do justice in this case.

Even so, it is difficult to draft legal statements that are so exact that they are right for all conceivable circumstances. Accordingly, you are entitled to act upon your conscientious feeling about what is a fair result in this case, and acquit the defendant if you believe that justice requires such a result.

Exercise your judgment without passion or prejudice, but with honesty and understanding. Give respectful regard to my statements of the law for what help they may be in arriving at a conscientious determination of justice in this case. That is your highest duty as a public body and as officers of this court.

New Hampshire’s law does not require any instruction by the judge – it requires only that the court allow a defense lawyer to argue a form of nullification to the jury.  If the attorney is arguing one thing to jurors, however, and the judge is stating something different, the right to argue nullification is meaningless.  The attorney is asking the jurors for something the judge says they cannot give to him or her.



Mitigation and point of view

Whether a client’s goal is a dismissal, an acquittal, a reduced charge or a reduced sentence, I’ve found that mitigation is an essential part of preparing the case.  We now have one paralegal who is responsible for gathering documents, letters, certificates, degrees, photographs – any information available on the client’s background and the client’s character, and then putting it together in a format that is easy to read.  Information can come from the client, the client’s family, neighbors, teachers, church members, anywhere.

Obviously this is an easier task for some clients than for others, but for some clients what we find is amazing.  It is an important part of getting to know our client, what makes him or her tick, what his motivations are, what his background is, what his potential is, and what his goals and his dreams for the future are.

In the right case, mitigation materials can be used to show the prosecutor who the client is – some prosecutors tend to demonize defendants, and it helps to remind them that this is a human being they are dealing with, in many cases not so different from you and I.  In the right case, the materials collected may help when talking with a victim or witness, or arresting officer.

The mitigation materials can provide an outline for details about the client that a jury needs to hear during trial.  If the client decides to enter a plea, or if the worst occurs and the client is found guilty after a trial, the work has been done and is ready to present to a court at sentencing.

In Carl Bettinger’s book Twelve Heroes, One Voice, he has a passage where he discusses the importance of point of view in storytelling, and he suggests that mitigation shifts the point of view to that of the client:

Point of view is important in both civil and criminal stories.  According to Rick Kammen, one of the preeminent death penalty attorneys in the United States, the focus of the mitigation portion of a death penalty trial is to shift the point of view from that of the victim to that of the killer.

The idea of mitigation in a death penalty trial is to explore what made the defendant what he is, what shaped the defendant and brought him to the point where he could have done the terrible deed that the state is asking the jurors to kill him for.  Mitigation in most other criminal cases is usually seen as persuading the court, at sentencing, that the defendant really is a good person, that the deed he is being sentenced for was out of character and not likely to be repeated, that the defendant really does have redeeming qualities.

Mitigation is so much more than a thing you do at sentencing  – the process of investigating a client’s background and putting together the positive things that are happening or have happened in a client’s life helps you to understand who the client is, and helps you to help others understand who the client is.  The prosecutor and police are investigating only the negative things in the client’s past, through interviews or at least through their criminal history – if we don’t take the time to investigate the positive side of a client’s life no one else will.


Win Your Case

In Win Your Case, Gerry Spence describes his approach to trying cases, and essentially lays out the method that is shared at Spence’s Trial Lawyers College in Wyoming.   He begins with the importance of self-discovery, a lifelong process that we ignore at the peril of ourselves and our clients – as Uncle Slim said, “ya can’t get nowhere with a thousand dollar saddle on a ten dollar horse.”

Spence talks about the importance of story, of credibility, of working on yourself, knowing who you are, and just being yourself when you are in front of the jury – discovering the story through the use of psychodrama, telling the client’s story in opening, direct, cross, and closing argument.  There are a thousands books out there on trial practice, and programs that teach trial advocacy – this book goes beyond technique and suggests what we can do with those skills once we have them.  Any trial lawyer who cares about his or her clients should read this book; I can’t recommend it enough.

Trial Chicken – a day in the life

Last week was a term of court for Horry County Central Jury Court – on Thursday, six cases were dismissed that morning; cases where we would not accept pre-trial diversion or a plea, and insisted on a trial that morning.  Two officers took us up on our offer to try their cases.  One dismissed at the very last minute before jury selection.  The other picked a jury, started trial, gave an opening statement, took the stand, learned the hard way that you can’t prove a drug case without a chemist, and dismissed in the middle of trial.

Thanks again to Public Defender Revolution, for giving a name to “trial chicken” (and for this visual):


The Blind Poet – communication and persuasion

In his article, Trial Theory and Blind Poetics, Steven Lubet says that the central dilemma of litigation is that memory is visual, but communication is verbal.  He concludes that visualization is the key to persuasion.

He explains that witnesses testify using words; then the jury visualizes scenes based on the words that the witness is using.  This process is never complete nor is it reliable – words can never capture the full experience that the witness is trying to convey, and the jury is going to place the limited facts conveyed by the witness into a mostly imagined re-visualization that is mostly based upon each juror’s individual experiences and memories.  In other words, each juror hears the testimony through their own unique filter, and may visualize something different than what the listener intended; in fact, each juror may visualize something different than the other jurors.

Lubet says that the trial lawyer’s goal, then, is to carefully choose the right words to create the desired visualization in a juror’s mind – which will lead to understanding and hopefully to the desired result.  Visualization, therefore, is the key to persuasion.  The lawyer, who has not personally experienced the events that are key to the case, is likened to the blind poet Homer (who may or may not be blind, and who may or may not have written the Illiad and the Odyssey) – Homer’s use of vivid visualizations, simile and metaphor, allusion, and careful description, are an incredible example of effective visualization accomplished through words alone.  Lubet uses several examples, like this excerpt from the Illiad:

Just as he shot past the matchless runner Achilles
speared him square in the back where his war-belt clasped,
straight on through went the point and out the navel,
down on his knees he dropped—
screaming shrill as the world went black before him—
clutched his bowels to his body, hunched and sank.

You can see the action becoming slow motion as the runner dies, feel his horror and pain as he falls, a sequence of events that the author likely never saw himself and yet was able to convey vividly through his choice of words.

I agree that visualization is an essential component of effective communication and persuasion, but I believe that it is more accurate to say that the key to persuasion is emotion, which can be created by effective visualizations.  Decisions are made based on emotion and not logic, then logic is used to justify the decision that has been made – understanding this opens up a new dimension to the art of persuasion.  The trial lawyer’s goal is to carefully choose the right words to evoke the desired emotion in each juror’s heart – which will lead to understanding and the desired result.

Last year some associates and I were working on this theory, and experimenting with trial prep by mapping out the desired emotions we wanted to convey at each stage of our client’s story.  Outline the case by emotion rather than by chronological facts, then fill in the outline with the facts/events/visualizations from the case that would effectively create each emotion.

I would say, then, that the trial lawyer’s goal is to carefully choose the right words to create 1) the desired visualization in a juror’s mind; and 2) the desired emotional response.

Also, I would say that Lubet’s central dilemma of litigation, that memory is visual, but communication is verbal, is based on a false premise.  Depending on what researcher you listen to, anywhere from 50% to 80% of all communication is non-verbal.  If you believe that communication is only or even mostly verbal, no matter how great of a wordsmith you are, you are losing most of your potential for effective communication.  We have to understand that, not only do we create visualizations through the words we choose, but also most of our communication is visual to begin with.  To be effective, we must show the jury, not just tell them.

In trial prep, in preparing for effective communication with a jury, psychodrama is an invaluable tool.  Re-enactment of events using psychodramatic methods not only allows us to find the story of our client, or the witness, or the alleged victim in a case, but it  allows us to find the right scenes that we need to show to the jury.  It allows us to find the right words to paint a picture of those scenes for the jury.  It allows us to find and express the real emotions that flow from those key events in a person’s life.  It allows us to show the jury, instead of just telling them.

There is no rule that prevents a witness from coming down off of the witness stand to show a jury what happened.  Rule 401 of the South Carolina Rules of Evidence, regarding the admissibility of evidence, says:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

There are times when a re-enactment, or when the witness leaving the witness stand, will help the trier of fact to understand the evidence being presented, when it would make the existence of a fact more or less probable.  Although it is not appropriate for every event or scene that a jury needs to see, it is entirely appropriate for some events because there is no way to effectively verbally convey a visualization of some scenes without actually showing the jury, whether it is in opening statement, closing argument, or through a witness who is testifying.

We effectively convey our client’s story to the jury by:  1) choosing the right words to create not only the right visualization but also the appropriate emotional response; 2) understanding that communication is not entirely verbal; and 3) whenever possible, showing the jury instead of telling them.



Should jurors be permitted to question witnesses?

The idea initially makes me a bit nervous – who knows what questions would arise and how do you un-ring the bell when a prejudicial or inadmissible topic comes up?  But it does make sense.  The jurors are the decision-makers and there is no doubt that their minds are full of questions throughout the process.  If the attorneys don’t ask the questions that the jurors want to hear, the jurors are going to feel like they are flying blind and being asked to make a decision without the information they need.

In an article written by Ellen Chilton and Patricia Henley (I’m not sure the date of the article), they point out that, traditionally, in what was once an inquisitorial system, jurors were permitted to question the witnesses and it was a normal part of the truth-finding process.  However, in our current adversarial system, juror participation in the trial is discouraged or denied.

Centuries ago, juries were viewed as inquisitive bodies and jurors were allowed to question witnesses both outside and inside the courtroom. As the modern legal profession developed, the adversarial system of litigation dominated, and jurors gradually took on a less active role in trials. Jurors became “passive fact finders” instead of independent investigators of the facts. Rules of evidence were developed to limit the information the jury received, and, eventually, jurors were not allowed to question witnesses at all

In a few states, jurors are expressly prohibited from asking questions by judicial decision. The Nebraska Supreme Court, in State v. Zima, [1] disallowed juror questioning on the ground that such a practice departs from the traditional adversarial nature of judicial proceedings and may violate the party’s due process right to an impartial jury. Georgia’s supreme court has also disallowed juror questioning of witnesses in State v. Williamson, [2] where it reasoned that jurors may be personally offended if attorneys object to their questions, and that this may be a basis for prejudice. Finally, in Morrison v. State, [3] the court concluded that allowing jurors to submit questions to witnesses results in reversible error per se because it undermines the adversarial system by distorting the jury’s fact-finding role and leading jurors to assume the role of advocates.

There is now a developing trend towards allowing jurors to ask questions and to participate in the trial process, albeit with limits.  In S.C. and probably most states, it is normal for a jury to come back with a question or questions for the court during deliberations – it may be a question that can be answered by restating the law that applies to the case or by re-playing a witness’ testimony, but questions that involve interpreting the evidence or questions that involve facts that are not in evidence will not be answered.  During the trial itself, no juror questions are permitted.  I don’t think we have a rule or case that expressly disallows it, although we may.  Regardless, it is not allowed.

Many states now permit jurors to submit questions that they have for the witnesses.  Arizona, Washington, California, Florida, New Hampshire (with the consent of all parties), Idaho (in the court’s discretion), Massachusetts, Indiana, Oklahoma, South Dakota, and now Illinois are examples of states allow the submission of written questions from the jurors.  Some are in the court’s discretion and some are expressly provided for in the rules of procedure.  I haven’t researched how many states allow it and I’m sure there are more that I did not list, but the point is that it seems to be on the track to becoming an accepted practice throughout the country.

The procedure seems to be to allow the jurors to submit written questions if they wish, at the end of the witness’ testimony.  The Court will allow the attorneys to object outside the presence of the jurors and the question may or may not be allowed – if the question is not allowed the jury is instructed to draw no inference from the fact that the question was not permitted.  Illinois’ new rule follows this format:

243. Written Juror Questions Directed to Witnesses

      (a) Questions Permitted. The court may permit jurors in civil cases to submit to the court written questions directed to witnesses.

      (b) Procedure. Following the conclusion of questioning by counsel, the court shall determine whether the jury will be afforded the opportunity to question the witness. Regarding each witness for whom the court determines questions by jurors are appropriate, the jury shall be asked to submit any question they have for the witness in writing. No discussion regarding the questions shall be allowed between jurors at this time; neither shall jurors be limited to posing a single question nor shall jurors be required to submit questions. The bailiff will then collect any questions and present the questions to the judge. Questions will be marked as exhibits and made a part of the record.

      (c) Objections. Out of the presence of the jury, the judge will read the question to all counsel, allow counsel to see the written question, and give counsel an opportunity to object to the question. If any objections are made, the court will rule upon them at that time and the question will be either admitted, modified, or excluded accordingly.

      (d) Questioning of the Witness. The court shall instruct the witness to answer only the question presented, and not exceed the scope of the question. The court will ask each question; the court will then provide all counsel with an opportunity to ask follow-up questions limited to the scope of the new testimony.

      (e) Admonishment to Jurors. At times before or during the trial that it deems appropriate, the court shall advise the jurors that they shall not concern themselves with the reason for the exclusion or modification of any question submitted and that such measures are taken by the court in accordance with the rules of evidence that govern the case.

I can see several obvious benefits to allowing the practice.  It helps the attorneys on both sides of a case because, even if a question is not allowed, the attorneys know what information the jurors are looking for and what they need to make their decision.  It helps the jurors because they are allowed to ask for the information that they need to make their decision.  It benefits the integrity of the system as a whole, because it can only further the truth-finding function of the jury and the trial process as a whole.

More discussion:

Improving the Jury System. Ellen Chilton & Patricia Henley

Juror Questions During Trial: A Window into Jury Thinking.  Shari Seidman Diamond, Mary R. Rose, and Sven Smith.

Juror’s Unanswered Questions.  Shari Seidman Diamond, Mary R. Rose, and Beth Murphy.

What are your juror’s thinking?  Elliot Wilcox at Trial Theatre.

Every successful case starts with an act of imagination

A few days ago I found this article, written by professor Steven Lubet at the Northwestern
University School of Law, titled “Trial Theory and Blind Poetics.”  I’ve read it and re-read it, and I recommend it.  It’s relatively short, eight pages, but it packs a wealth of insight into a small package.

The article encapsulates some of what I see as the most important tools in effective advocacy, and I see Lubet’s ideas as a jumping off point, the beginning of a conversation and an invitation to experiment, rather than an author stating conclusions.

Lubet begins by talking about the importance of developing a compelling story, a story that is holistic and not incremental, a story that will be developed over time as new facts are learned – “every successful case starts with an act of imagination.”

He points out that the components of a successful story are that it must be factual and logical, and it must be visual – it must allow the jury to see the facts and the events as they happened.  It must have a powerful moral claim – the decision makers must know that they are doing the right thing at the end of the day.  I would add that it must have an emotional component as well – ultimately people (jurors) do not make decisions based on logic; rather they make decisions based on emotion, and then they use logic to justify the decisions that they have made.  Few mediums are more effective for evoking emotion than effective storytelling.

People are captivated by story – it has been this way since the dawn of time in every culture around the world.  Explanations can be persuasive, but effective storytelling allows a jury to experience a thing, to visualize it, see it and relate to it.  It is easy for an opening statement or a closing argument to devolve into an explanation or even a rant, but when the storyteller gets lost in the details, the audience is lost.  Explanations do not hold an audience’s attention, and you want the jury to be thinking, “tell me more.”

Gerry Spence says that the first thing he did when he took on a new case was to write his opening statement – what he meant by that is the first thing he did was to write his client’s story, which then evolves over the course of the case as new information is gained and as different ways of presenting the information is tested.

Lubet in his article says that the story must be imagined as a whole concept, rather than as the combination of distinct parts.  That may be true, but there are often other stories that must be developed before the trial begins – for example, each potential witness in a case has their own story that must be explored, in an attempt to understand that witness and their motivations.  That witness’ story has to be developed and can be told as well – the witness’ story as it impacts our client’s story, and as a part of our client’s story.

One important aspect of trial preparation in our office that is not mentioned by Lubet is the use of psychodrama to discover the story.  Re-enacting key events in the client’s life and key scenes from the case allows us to learn new facts that would not have come out through simple interviews, and new ways to present those facts.  It helps us to find those facts or events that resonate, it helps to find the truth and clarity when the facts otherwise seem confused, and it helps in discovering ways to help the jury visualize what happened in a case – showing them rather than telling them.

Once upon a time . . .

And every day . . .

Until one day . . .

And because of that . . .

And because of that . . .

Until one day . . .

And ever since . . .