Story power – DID YOU DO IT? Transporting the jury to the persuasive circle of the story, and applying psychodrama

The Spring 2022 Virginia Association of Criminal Defense Lawyers Champion Magazine printed my below article on the strength of telling a powerfully persuasive story at trial

By Jon Katz

DID YOU DO IT?

“Did you do it?” “Did you kill Horace Jones?” Thus began the powerfully persuasive direct examination by lawyer JD with his client Zach Carson. Zach was so despondent after losing the love of his life, that he confessed to a murder he did not commit, when he felt he had nothing to live for, and when the interrogating police took full advantage of his pliability. Although this was not at a real trial but a demonstration at the essential annual National Criminal Defense College’s Trial Practice Institute, JD’s direct examination came across as being as real as reality ever comes. And then, taking the license of the absence of a witness sequestration order, JD masterfully created a picture capturing all five senses, by asking Zach which police officers in the courtroom were present in the interrogation room, and calling each of those witnesses (by pointing at them with his index finger, and using a palm down hand when pointing towards a non-opponent) to stand precisely where Zach testified they stood around him in the already cramped interrogation room, to the point that the jurors could palpably feel the suffocation and grab for oxygen in that room, as Zach confessed to the police to a murder that he never committed.

It is scary enough to discover and promote a coherent story at trial, lest that story unravel if the evidence does not pan out as we hope it will. It is usually even more scary to put our client on the witness stand. Whether or not our criminal defense client testifies, persuading at trial necessitates finding the persuasive story and telling that story at every stage of the trial, not only through opening and closing argument, but even during cross examination of the most hostile witnesses, to the point where the criminal defense lawyer becomes a sort of witness himself or herself, at points not even needing to care much about what the opposing witness says, as the lawyer advances the story with his or her own voice.

TRANSPORTING THE JURY TO THE CIRCLE OF THE STORY

Why is storytelling so important to winning at trial? Look no further than Chris Farley’s character in Tommy Boy convincing the server to turn back on the fryer to make chicken wings, by telling a story about how much he stinks as a salesperson where he undoes an almost sure-thing sale just as if he had just over-loved his dog and accidentally killed it in the process. This summonses the indelible sights, sounds, tensions, emotions, fear, and revulsion that are hallmarks of many a riveting and even persuasive story. Such an approach transports the jury – along with the criminal defense lawyer – to the circle of the story, not merely looking at bits and pieces of the action, but experiencing and living the events as they unfold, and getting glimpses of defense-friendly images, themes and angles that the prosecutor is trying to avoid and even hide. This bringing the jury to the circle of the unfolding story is the best approach to opening the hearts, minds and beings of even the most prosecution-oriented jurors. Now the jury is not looking at the case as just another alleged drug deal, homicide, or DWI (where why would an innocent person be at the defense table?), but at their obligation to make the right decision, so that they do not wake up a day or two after rendering their verdict to be screaming in a cold sweat that they had merely gone through the motions of looking like a jury, but not fulfilling their oath.

COMING FACE TO FACE WITH OUR DEEPEST PAIN TO PERSUADE FOR OUR CLIENTS

A year after participating in the rigorous two-week Trial Practice Institute of the National Criminal Defense College – also known as Macon – I spent an entire month of my life ten miles from the nearest paved road and a mile from a usable cellphone signal, at Gerry Spence’s Thunderhead Ranch, for the Trial Lawyers College. On only the second day of this program, I witnessed lawyers who seemingly had their sh*t together and their business bank accounts well nourished, reveal some of their deepest pain, fear, doubts, and struggles. I already knew to expect at this ranch to mine our deepest and even darkest corners, but I learned that we were being encouraged not only to remove our protective armor, but also to figuratively remove our skin and bare our souls to each other. A lot of this is about “I’ll show you mine, if you show me yours”, warts and all, in that we cannot expect jurors to trust us any more than we trust them, nor to reveal themselves to each other during deliberations any more than we reveal ourselves to them. And we cannot reveal ourselves without knowing our true selves and true natures. And we cannot know our true selves and true natures without spending time with ourselves, not being busy, not reading, nor in conversation, but instead knowing our fears and joys, highs and lows, strengths and weaknesses, and true feelings. Who has time to go to those lengths? Who wants to look that deep at their real selves, especially if they are concerned that they will be revolted by what they find? But that is how we become more real, and the more real we are, the more persuasive we are, and the better people we are. And any pain that comes along the way can be embraced, for us to know the pain better, on the way to deflating the pain and sending it on its way.

DRAWING OUR BEST SELVES TO THE FOREFRONT THROUGH PSYCHODRAMA

Mental health therapist DC of Maryland is one of the greatest trial consultants and a great and deeply caring man. Don believes deeply in the persuasive and therapeutic benefits of psychodrama, a form of psychological therapy developed by Jacob L. Moreno that focuses on working through problems with role playing and reverse role playing. Working with psychodrama many times, and having been a psychodrama protagonist, I have seen the magical breakthroughs it can create in drawing criminal defendants to persuasively express themselves; to better understand what makes the prosecutor, judge, jurors and opposing witnesses tick; and to stay grounded when the earth beneath their feet seems to be moving with the fury of an earthquake. Many times I have brought Don in as a consultant, and often his first question to me is how I am feeling and doing personally about the case. When I consulted with him about a then-upcoming child pornography jury trial, he asked me why I even defend such cases. Because even people accused of the most vile and base actions are humans and deserve a strong defense. Don then asked if I like my client. Yes. Why? Because he gives me no problems. Does your father like you? Yes. Why? Because I give him no problems. Is that what like is about? Of course not; I was speaking too much off the cuff. Like is not defined by whether the other person gives no problems, but is much deeper and complex than that. And if we don’t find a way to like – or at least care about, and humanize– our clients, the judge and jury will not.

PSYCHODRAMA MUST NOT BE DIRECTED BY AMATEURS

One day, Don was helping a lawyer prepare for a capital murder trial, and the lawyer brought along his client’s mother. In front of the group of thirty lawyers, Don talked to the mom about her feelings about what was going on with her son and his case, and soon she said “I cannot go through with this.” Don gently put a hand on her shoulder, and stated as a truism that “This is the perfect time.” The defendant’s mother went through some deep emotions when with us, and that could have left her in significant psychological pain if handled recklessly. Instead, Don ultimately guided her to resolution, and she probably was doing a lot better emotionally after leaving the room than before she entered the building. At the conclusion of these psychodrama sessions –- which also are about discovering and developing the persuasive story – we go around the room, and each person shares a relevant personal part of themselves and their experiences and feelings, often pouring out their own emotions. This is akin to clothing the lawyer whose case is being developed and the protagonist who is the criminal defendant and maybe also their loved ones, after they have bared their souls to the group and trusted those assembled to not ridicule nor judge them, and to maintain total confidentiality over the events in that room.

MAKING THE TIME TO GATHER WITH OTHER LAWYERS AND NON-LAWYERS TO DEVELOP THE PERSUASIVE STORY AND TO INTEGRATE OUR CLIENTS INTO THE PROCESS

Fortunately, several area Trial Lawyers College alumni on numerous occasions have come to my office or other case preparation venues to help me and my client prepare to win at trial, using the integrated storytelling and psychodrama approach, and I reciprocate. A bonus is when non-lawyers also join. Sometimes my clients invest in adding DC or another psychodramatist, and even an acting teacher to integrate that teaching aspect of being totally and persuasively real and in full touch with the events of the case. It is uncanny how some of these participants and my clients immediately click with each other to the point that I learn essential aspects about my clients’ life story and role in their case – and engage more deeply with my clients –that would otherwise have taken much longer to ever learn. I tell my clients to enter these sessions with fully open minds and to see lawyers behaving in ways that we do not see in television and films. All of my clients have naturally taken to the approaches we take at these gatherings, often getting new insight into what really happened in the moment of the incident from the perspectives of all involved, and often being better healed from the trauma of their case or other life events. One psychodrama protagonist at the Trial Lawyers College told me that such participation changed his life.

INTEGRATING STORYTELLING AND PSYCHODRAMA EXTINGUISHES LAWYER-SPEAK AND SCRIPTS, AND PUTS THE CRIMINAL DEFENSE LAWYER IN THE PERSUASIVE AND SPONTANEOUS MOMENT

The most riveting part of Martin Luther King, Jr.’s “I Have a Dream” speech was not the typed out part, but his ad libbing after Mahalia Jackson urged him to “Tell them about the dream.” Our notes and trial outline must not be a crutch, but instead can be a flowchart and roadmap for persuading the jury, while knowing that the map does not reveal the unexpected detours that we might encounter and need to transcend along the way. Great trial lawyering is like applying the great improvisation of a jazz musician and the powerful fighting of a martial artist, without an ounce of anger, as anger weakens the fighter.  Speaking of martial arts, I benefit greatly from applying the principles of my t’ai chi ch’uan martial art to trials. This includes the power of zero, where we do not keep trying to match nor chase prosecutors and their strengths, but instead we use the opponents’ energy to our advantage and remember that we are in court to persuade the judge and jury, and not to upstage the prosecutor merely to upstage.

ENGAGING THE JUDGE AND JURY

The most flawless-looking performance is meaningless if the judge and jury are not swayed. Persuasion is not about slickness, but about giving one’s all in pursuing justice for one’s criminal defense client. In applying the storytelling approach to one of my assault bench trials, I knew my client was not meant to testify, and this took away the usual “he said / she said” approach to assault defense. Instead, I pursued the theme of “Club Ah versus Club Blah”, which is what I really called them at trial. Jim reported to the police that my client Steve had slugged him at Club Blah (actually a bar popular with preppy types). The problem is that my client Steve would never be caught dead in Club Blah, and preferred the grittiness and down-to-earthness of Club Ah. Jim testified that Steve – whom Jim had never seen before in his life – walked right up to Jim, accused Jim of stealing Steve’s coat, and slugged him in the nose. One does not need to engage in a lengthy psychodrama exercise to realize that if Jim was put into such shock and pain from this slug, that he barely had any sufficient chance to know nor remember what his assailant looked like. Therefore, a big chapter of my cross examination of Jim was to show how briefly Jim even saw his assailant before Jim collapsed to the ground after being slugged.

I presented the testimony of two of his friends that were with Steve at Club Ah that evening. The two friends confirmed they were with Steve at Club Ah the entire time (providing Steve’s alibi) and that Steve and his closest friends would never be caught dead being seen in Club Blah.

BECOMING THE STORY

In my closing argument, I go right to the center of the story, going into character of the assailant (who is not Steve, of course) and Jim, the assailee, actually standing in the spot of each of these two men depending on which person I am speaking as. “You stole my coat!” Jim: “No I didn’t.” “Yes you did.” BOOM goes the slug. And I, as Jim, fall right to the courtroom ground, injecting no exaggeration into it, and benefiting from the experience of my own youthful fistfights. Laughter comes from the bench, where the judge had perhaps never seen such lawyer theatrics at trial. This is the type of laughter that opens the judge’s and jurors’ hearts and minds to the criminal defense lawyers’ presentation. The judge remarked at the impression I had just made through action, rather than by mere words. I proceeded: “This reminds me of ‘A Moment’s Notice’, the title of one of John Coltrane’s greatest compositions. Because that’s the only brief look that Jim gets of his assailant at Club Blah, when Steve the entire time is at Club Ah. That’s reasonable doubt.” And the judge agreed. And we all celebrated at a restaurant, but I would have better enjoyed doing that at Club Ah.

READINGS AND PROGRAMS FOR APPLYING THE STORYTELLING AND PSYCHODRAMA APPROACH

If this article piques your interest, let us make storytelling and psychodrama a part of a future VACDL program. Feel free, also, to email or call me. Very worthwhile is to attend long weekend programs of the National Criminal Defense College and Trial Lawyers College (and their longer programs if you are willing to be away from your law practice for that long). Here are some videos and books to read on persuasive storytelling: The look good cross of Terry MacCarthy (On YouTube, search for “Terry MacCarthy on Cross Examination – Part 7”); Practical Jury Dynamics, by Dr. Sunwolf; How to Argue and Win Every Time, by Gerry Spence; and Cross-Examination: Science & Techniques, by Pozner and Dodd.

Fairfax criminal lawyer Jonathan Katz constantly pursues ways to provide an even more winning defense to his clients accused of committing Virginia DUI, felony and misdemeanor offenses. To learn the great things that Jon Katz can do for your defense, call 703-383-1100 for your free in-person confidential consultation with Jon. 

This article was first published in the Spring 2022 Virginia Association of Criminal Defense Lawyers Champion Magazine.