A critical part of persuasion is storytelling, including bringing the jury within the circle of the story.

Of course, storytelling alone may not be persuasive enough, because trials ordinarily involve various versions of the truth and challenges to the credibility and reliability of various opposing witnesses and evidence. Sometimes, several possible explanatory stories exist, as in Rashomon, thus presenting a challenge for the trial lawyer about how to address the various possible stories, including to point out that the very existence of various contrasting possible explanatory stories point to reasonable doubt about whether the defendant is guilty.

Recently, I won a bench trial for driving under the influence of drugs that at first blush seemed to have some strong possibilities mixed with some tough hurdles. A civilian eyewitness saw my client during rush hour driving erratically for several miles, crossing over the yellow divider line several times, causing other drivers to avoid him, hitting a concrete barrier, later hitting a metal barrier, and basically driving so badly that nobody would want to be on the road with him.

The civilian called the police, who found my client sleepy and admitting to have had two Ambien the night before. He could not stand up for very long.

Here is the most compelling story for acquittal that I could find, which I presented at all stages of the trial: My client took Ambien the night before, but we do not know how small the tablets were, because nobody testified to that. At first blush, one might conclude that the Ambien caused my client’s sleepy state. However, because one takes Ambien to obtain a restful sleep and to awake refreshed, here my client’s sleepiness may well have had nothing to do with the Ambien but instead from Ambien’s not having provided a restful sleep. Furthermore, how sleepy could my client have been to have driven five miles to his destination rather than ending in a debilitating crash miles before? Although there was testimony about my client’s hitting the concrete and metal barriers, our photos of the property damage show that the result was minor denting to my client’s car’s driver side.

Added to the above, we provided a Rashomon alternative to explain my client’s driving behavior and overall behavior. He suffers from migraines, which, when severe, can go beyond headaches to causing my client to be incoherent and otherwise out of it. While our client asserted his Fifth Amendment right to remain silent, his son testified to my client’s migraines and that the son gets them, too.

Showing what was absent in the story, I pointed out that there was reasonable doubt about what caused my client’s driving behavior, whether it was Ambien, a migraine episode, or something else that does not spell driving under the influence of drugs. Further missing from the story was whether my client had been offered a blood or urine test to check for drugs that might have caused his erratic driving. The prosecutor provided no expert testimony to connect Ambien with driving behavior.

Knowing that my client’s driving behavior would give any listener cause for pause, I underlined that none of us would have wanted to be anywhere near my client that morning, but that the question here was only whether he was driving under the influence of drugs.

As I told the story, I visually and otherwise transported myself to my client’s path of travel, that I myself have driven countless times for years, actually looking at times towards the direction of where my client was first seen driving, and then where he hit the concrete barrier, hit the steel barrier, and finally parked. This visualizing helped me tell the story more as an eyewitness, and perhaps helped bring the judge all the more front and center into the circle of our story with all his senses.

The trial always being focused on the decision makers, I did not keep my eyes off the judge for long. By the same token, by transporting myself to the scene of the story, I was better able to report the events as they happened — being here now — without an inflexible script, and with the ability to refine the story more persuasively as I told it.

In explaining his acquittal of my client, the judge agreed that the outcome hinged on what caused my client’s driving behavior. I believe he mentioned the absence of any evidence of a blood or urine test. Once he acquitted my client, he pointed out the need to beware driving after taking medications that could affect it. Better that he expressed such a concern through an admonition than through a conviction.

ADDENDUM: In general, driving under the influence of drugs can be harder in various respects for prosecutors to prove than driving under the influence of alcohol. Such drugs as marijuana (which can remain in the bloodstream for weeks) can remain in the bloodstream much longer than does alcohol, which means that the presence of drugs alone does not automatically show that the drugs were consumed close in time to the driving, and does not provide an automatic correlation between driving behavior and drug-taking. Moreover, blood test results generally are more cumbersome for prosecutors to present into evidence than breath test results, because the blood test result requires the testimony of the person who drew the blood, proof that the blood was properly preserved and kept in the proper chain of custody pending delivery to the analyst, and testimony of the analyst itself. Also, while drunk driving laws provide per se rules of guilt for having a blood alcohol level of 0.08 or higher (where some jurisdictions ask the blood alcohol level at the time of driving, and other jurisdictions ask the BAC at the time of testing).