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“The play’s the thing.” More on the power of storytelling

Aug 08, 2013 “The play’s the thing.” More on the power of storytelling

Do jurors — and judges when sitting as factfinders — want to be talked at monotonously like all the adults in Peanuts? Do they want to be whined to like George Zimmerman’s prosecutor did in closing argument? Or, do jurors and judges as factfinders want the lawyer to tell them how to make sense of all the often disjointed and often interrupted testimony and other evidence in the scheme of the governing law, seeing that the lawyer has presumably spent much more time with the case, to internalize it,than has the juror? What other way is available to persuade — and compellingly in a way that sears ideas and information into the factfinders’ memory — than through storytelling at every stage of the trial, from jury selection, to opening statement, to direct and cross examination, to closing argument, where the closing argument becomes in many ways a fait accompli/done deal, in the light of the storytelling that has already been accomplished?

I can hear all the hesitation a criminal defense lawyer might have to starting storytelling from the very beginning, including:

= Why would I want to bring out prosecutorial evidence in my opening statement that may never come into evidence by the prosecutor  in the first place, and why would I want to bring out defense witness evidence n y opening statement when I want to see how trial goes before my client decides whether to testify (and the scope of the defendant’s testimony) and before the defense figures out which of its witnesses to present on the witness stand and the scope of their testimony? Answer: Through thorough review of the evidence, thorough case investigation, effective pretrial motions in limine to keep out some of the most harmful evidence against the criminal defendant, and through calculated risk-taking, compelling storytelling naturally follows. To do otherwise is more harmful than not storytelling from the beginning.

– What if my case’s story is not exciting? Why bore them with a story? Answer: The best way to transform evidence from dull to interesting or less dull is through storytelling. Imagine, also, empowering the jury to create its own story that helps the criminal defendant. For instance, how interesting can a pickpocketing defense be? Just ask my trial law guru Steve Rench, who successfully defended a woman in a theft trial. His client was arrested for allegedly pickpocketing a man she danced with in a bar; perhaps the jury got the idea that the would-be victim was there with unwholesome intentions. At one point while the jury was present but the proceedings were on hold, Steve went to a sheriff’s deputy and pointed towards his client (held on bond during trial but in civilian clothes) during the conversation. Although his client was caught redhanded, the jury acquitted. Steve later saw one of the jurors at a bus stop, and asked the him if he had any comments about the trial. The juror merely said "Your client is okay," meaning to Steve that the jury disregarded the judges’ jury instructions out of a belief that she had served enough time in the pokey while waiting for trial. In Steve’s view, jurors are results-oriented, seeking to fix problems, which can put a real damper on the commands of jury instructions. With his words and hand motions to the sheriff’s deputy that the jury saw but could not hear, Steve provided the jury with a script to write, and a happy ending to give to give to his client who was "okay". (Is that what the jury did in acquitting my client caught with eight pounds of marijuana in his backseat, giving him a benefit of the doubt for being "okay" after having to endure paying $650 hourly to  a smell expert from the University of Pennsylvania, on top of paying my fee, for what I have seen as a questionable seizure and search of the marijuana package?) 

– What if I lose credibility for putting in pieces of the story that never come into evidence? Answer: I provide a similar answer to my first one above. When you prepare well enough for trial, your intelligence, wisdom, and gut will tell you what evidence is likely to be presented at trial. If you offer any pieces of evidence in opening that do not come into evidence, feel free to acknowledge tis to the jury in closing, to say you anticipated it was coming into evidence and felt it prudent to raise the matter early on in trial, and then to show how your arguments, themes, and theory of the case remain just as sound even without the evidence that was discussed in opening that never was presented to the jury by testimony or trial exhibits.

Here is more about the power of storytelling:

– Storytelling open’s the jurors’ ears without their fearing lawyerspeak, pushiness and boredom from the lawyer

– How did Hamlet corner his stepfather into showing that e had murdered Hamlet’s father? Hamlet arranged a play — a story — to reenact a similar murder, and his stepfather reacted in outrage. As Hamlet foresaw: "The play’s the thing wherein I’ll catch the conscience of the king."

Empower the jury to supply a happy ending to the criminal defendant’s plight/story.

– Storytelling can also be very persuasive — while humanizing the client — at sentencing, whether or not the defendant entered a plea of innocent or guilty.

– Storytelling at trial enables the storyteller to shed his or her lawyer/legalese role, and to take the jury on a compelling storytelling journey, where all the evidence consequently and persuasively falls into place.

– Storytelling enables the lawyer, in opening and closing, to take on the role and persona of his client and/or other key witnesses, giving a humanizing voice to the client that may never have happened on the witness stand, particularly if the defendant asserted is right to remain silent.

– Storytelling enables us naturally to also address critical missing pieces of the story, as in: "How could the police have held onto this seized marijuana for nearly a year but never taken just a few moments to try to obtain examinable fingerprints from the packaging to catch the real culprit?"

– New Mexico lawyer Carl Bettinger talks of the importance of empowering the jury to be the heroes of the client’s story who will provide the client a happy ending to the story.

– Texas lawyer Jim Perdue quite sensibly talks about the many jurors uncomfortable about learning loads of data who can comfortably process the data through a lawyer’s storytelling.

Tell me a story.

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