Using scene-setting to persuade the decisionmakers, and to get the client to open up to the lawyer
Often I feel an ill-placed center of gravity sought or accepted by too many judges. Of course judges bear the brunt of overloaded dockets and postponed cases by at best feeling like a grocery store cashier with never-ending lines of customers mixed in with inconsiderate and unaware people cutting in the line to ask where to find the store-brand wax beans. However, the center of gravity —- too often topped by a black hole —- too often set or accepted by too many judges is to move the case along, too often at the expense of getting enough of the evidence, law and case to the judge and jury, and thus sacrificing justice.
The trial lawyer’s challenge is to get the center of gravity and balance to the side of justice, even if that means using some centrifugal force at first to overcome the misplaced center of gravity.
Old habits die hard. How many times have you heard people get even to the level of mockery and hostility when pronouncing “this has never been done here before” or “that is a fanciful new idea”? The inventors of the wheel probably received such flack. Praised be the wheel inventors for pursuing forward.
Beyond the robes of judges, the suits of lawyers, the uniforms and badges of police, the armor of witnesses, and the inconvenience to jurors are people who not long ago emerged from the wombs of their mothers, having left a place of comfort, warmth and harmony to an outside world of cold air, confusion, helplessness, and diapers. These are not people to be feared; nobody is. These are not people to disdain; they are more like us than they are not. These people -— and all people -— are people worthy of our efforts to know and understand with a compassionate spirit and heart, first and foremost because we are all humans on this small planet, second of all because this is the only way we move beyond a culture of conflict and inhumanity towards one of greeter harmony, and third, for trial lawyers, because this is the best way for us to be effective persuaders for our clients, on top of the need for us to know, find, keep and improve the essential skills of oral and written argument.
A trial lawyer’s necessary challenge is to find a way to risk financial profit levels and time that would otherwise be used at leisure in order to fully absorb the lawyer into each client’s cause. How else can the trial lawyer discover the story and persuasion in each client’s case? How else can the trial lawyer earn the client’s trust and get the client to fully open up to the client’s self and the lawyer? How else can the trial lawyer open up to himself or herself in order also to connect with the client, the opposing lawyer, the judge, the jury, and opposing witnesses?
As confirmed recently through exercises with some very effective and persuasive colleagues, a lawyer comes closer to trial victory through the interrelated approaches of scene setting, connecting fully with our clients, and psychodrama (see https://katzjustice.com/why-does-psychodrama-work/ ).
Here is one scenario —- from the civil side, but certainly useful for the criminal defense side -— that is ripe for scene setting. A plaintiff was unceremoniously dumped from his job, and various factors point out unlawful discrimination. The plaintiff’s lawyer can get closer to victory by getting into the moment (and away from all the legalese and lifeless prose of the hundreds if not thousands of pages of case evidence) and practicing fully being in the role of the client, including literally walking on the stage or floor to set the scene where the client was fired, to even include setting up chairs and other physical items to set the stage.
By setting the scene in such a way, the lawyer, client, judge, and jury are better able to be transported to the land of a moving picture being worth a thousand words, to the land of being in the moment, and to the land of the lawyer and client speaking in a just-folks way rather than in the stiff and stilted manner too often favored by too many lawyers. By setting the scene (and certainly by visiting the scene, if that is possible), there are fewer obstacles to the lawyer and client being on the same page in talking about what really happened, including on the deepest levels.
In this employment discrimination scenario, it is not even too detailed to consider whether any particularly expensive pieces of artwork or furnishings are present, to counter the employer’s potential claim that this was merely a layoff resulting from hard economic times for the company. Second, and infinitely more important, is to know about the photos and other mementos kept in the office by the client. Such photos might define the central meaning of the client’s life, the reason he arrived to work on time each day no matter the weather nor his health, the reason he worked hard throughout the day no matter how mind-dulling much of the work may have been, and part of his feelings of worth vis-Ã -vis all members of his family.
Through these family pictures on the client’s work desk might emerge the persuasive story of the case, both as to the client’s inspiration to achieve consistently high performance (if that is the case), and to the devastation the client experienced by this critical element of the client’s sense of self being yanked unceremoniously and unfeelingly from the client as if he was as expendable as the desk on which he worked.
How to set such a scene in the court room to burn the image in the jury’s mind, rather than having the jury sort through words, words, and more words? Although the judge may not have heard of doing so before, it can be worthwhile to give persuasive reasons to the judge for setting the visual stage right before the jury’s eyes, at minimum by having the client get down from the jury box to walk the jury through the workplace, to the client’s office, and to his desk with the family photos. At maximum, it might help the plaintiff even further in arguing his case perhaps even to get a desk into the courtroom —- or at least a folding bridge table to act as a desk —- and to get pylons or similar materials in there to accentuate how small and modest was the plaintiff’s office or work cubicle while the client paid his dues to the employer.
Arguments to persuade the judge to allow such visual scene setting include:
– If the lawyer is in a jurisdiction where s/he is not required to stay at the podium during opening, direct examination, cross examination, and closing argument, then it is no more an imposition to enable the witness to get down from the witness box and into the well of the court.
– The lawyer can give the judge examples of why the witness is much more comfortable and capable of telling the witness’s story through such visual cues, to help the witness be transported to the moment in time that is the subject of the direct examination.
– Judges like administrative and time efficiency, so show the judge how no time will be lost to permit the lawyer to open up a bridge table and to set up boundary pylons, particularly if doing so will help the witness answer questions with less hesitation, in no extra time, and perhaps more quickly and clearly to the listeners.
For the lawyer to find the persuasive story of the case with the client and to set the scene, the client should open up to the lawyer. Obstacles to getting the client to open up include clients reluctant to tell the truth; clients fearful of testifying in court, seeing that most people are terrified of public speaking; clients embarrassed or otherwise uncomfortable to discuss sensitive issues with anybody, let alone the authority-figure lawyer who is often stereotyped as an overthinker rather than as a fully-feeling person; and insufficient resolve by the lawyer and client to invest the time and sometimes money needed for them to fully connect towards the goal of having the lawyer and client more persuasively connect with the judge, jury and witnesses.
Getting the client to open up to the lawyer might start with having the lawyer meet with the client where the client is particularly comfortable. That place might be the client’s home; it might be a particular spot outdoors; it might be at the client’s favorite coffee shop. That place likely will not be the lawyer’s office, cluttered with framed diplomas, lawbooks, and other items making clear to many clients the perceived major differences between the client and the lawyer. The goal is for the lawyer to eliminate such gaps in relating to each other.
Of course, for criminal cases, many felony clients are thrown in jail pending trial, either on a no-bond status or with a bond too expensive to pay. That presents more of a challenge to meet the client where s/he is comfortable, and requires more imagination to transport the client to a place of comfort. In any event, for the jails that interfere with fully confidential meetings with no interference by a plexiglass divider, the lawyer needs to stand the lawyer’s ground, even if that means waiting more time to go to higher and higher levels of persuasion and jail command until the lawyer gets such full and confidential access to meeting with the client.
On the lawyer’s visit to the client’s home (or perhaps in an imaginary visit to the home if the client is in jail), the otherwise recalcitrant client might open up by having the client show the client’s home, and by the lawyer asking about a photo or some other important item at the client’s home. If the client’s home is a comfort zone (and it may not be, for instance if the client is self conscious about having a clean house to visit, or if the client experiences too many family conflicts there), this can be a particularly good place to discuss the client’s case.
If the lawyer has problems and hard work to get the client to open up and to trust the lawyer, the challenges are even greater for doing so with judges, jurors, and opposing witnesses, none of whom will be accessible in the depth, breath and reliance level as is the client. At the same time, the lawyer gets farther in getting the judge and jury to care about the client and to open up to each other the more that they feel they can trust, identify with, and like the lawyer and client. If nothing else, the more the judge and jury trust and identify with the lawyer and his or her client, the less they will feel the need to watch their backs with the lawyer and client, and the more they can focus on the work at hand.
One of the biggest challenges to trying in-court scene setting are the opposing lawyers who object that this has never been done before, and the judge who nods in agreement. Even if such an objection is granted, that does not prevent the lawyer from painting word pictures to the jury, including using present-tense questions to the witness along the lines of: Please show the jury where your office is. How far have we walked from the front entrance to your desk? What objects are atop your desk?
If you have tried such scene-setting yourself, please tell me about your experience with it, either by posting a comment to this blog entry, or by emailing me privately.