Chapter § 7.05 Thematic and Strategic Preparations from Start to Finish

• Jurisdiction: United States
• Publication year: 2020

§ 7.05 Thematic and Strategic Preparations from Start to Finish

[1] Importance of the Story

Trial consultants and seasoned litigators alike talk a great deal about themes and their importance in any case. What they are really talking about is storytelling. Storytelling is one of the few human traits that is universal across cultures and through all known history. Another way to think about storytelling is that it is made up of the interactions of intentional agents, or characters with minds, possessing various motivations.⁵⁹ A good story has recognizable emotions and believable interactions among characters. Two-thirds of the most respected stories in the narrative tradition are variations on three patterns or prototypes.⁶⁰ The two most common are romantic and heroic struggles, such as David versus Goliath. The third focuses on plenty versus famine, as well as social redemption. These themes appear over and over again. The human brain is hardwired to identify these prototypes in the stories heard.⁶¹

Time and again, research has shown that humans respond more positively to information that is presented in story form rather than in a straightforward argument or analytical format.⁶² Information presented as a story is also more easily understood and retained. This is why it is important, in a case, to find the “story” or “themes” early on and weave them throughout the preparation of the case. Whether the story finds its way to a jury box, a judge, or the mediator’s office, the fact finders are human beings, and human beings predictably respond better to stories than to analytical presentations.⁶³

A roundtable meeting early in the case with as many team members present as possible to “white board” possible themes and story issues can prove fruitful. For example, an attorney who spent several hours briefing a trial consultant on the facts of a case put together a presentation for her team on the key players, events and legal arguments. She met with the consultant the night before the meeting and gathered everyone for the roundtable white board. Everyone came prepared with the basics, and the team spent a day devising thematic strategies to deal with the largest issues in the case. This was prior to the most significant depositions and provided an excellent roadmap for obtaining useful information from the depositions. Having started 18 months before trial, the exercise proved extremely useful in ongoing trial preparation, and was even woven into briefs to the court. The court granted summary judgment.

[2] Visual Story

Most people learn better with pictures accompanying the narrative of a story. Visual learners make up 61% of the general public, compared to 47% of attorneys.⁶⁴ This may explain why attorneys can grasp abstract legal concepts and tend to believe that a list of words on a page constitutes a “graphic.” In most civil trials, jurors are bombarded with a tremendous amount of dry and difficult information to learn in a short period of time. For many jurors, demonstratives need to tell the story with pictures, not with words. A bullet point list of words is not a demonstrative; it is a list. Timelines, bar charts, graphs, photos, and other demonstratives that visually represent what the speaker is describing properly prepare a case for the fact finder (a jury, the judge or a mediator).

Unfortunately, most trial teams begin preparing demonstratives late in the game. This can prove inefficient and costly. Most graphics firms charge a premium to work around the clock in the days leading up to a trial. Lawyers can save their client money with a more modest effort early in the litigation. Trial consultants can assist counsel with graphics in preparing important hearings and a mediator who is trying to learn a case quickly. She who teaches best, wins, and helpful demonstratives assist in this goal. Demonstratives prepared for use in pretrial research may only need to be tweaked to be ready for trial.

The effective use of demonstratives and technology is a skill all trial lawyers should learn. For example, in an extremely complex contract dispute, the judge had set a one-hour time limit for each party’s opening statements.⁶⁵ Counsel had a great deal of information to impart in that time, but because he had conducted pretrial research and understood which themes would resonate with jurors, his narrative was effectively streamlined to fit the time limit. While the opposition basically read his opening and showed two demonstratives throughout his one-hour time frame, the better prepared attorney chronologically walked through, in story form, a simple, building timeline with eight of the key big picture events.

Because he was well versed in the facts and the depth to which he wanted to go, he used no notes. In the segments between the points on the timeline, there were excerpts from pre-admitted documents, pictures, a “cast of characters,” and other helpful cues for the jury and the attorney. The attorney was clear, concise, in control, and conversational. His opening statement was far more successful that of the other side. The breakup of the timeline and the intersection of various documents allowed the jurors to anchor those pieces of evidence in time and, most...