Tell it to the Judge ... or the Jury ... or the Arbitrator? Before You Tell Your Story ... Know Your Audience!

• Publication year: 2022
• Citation: Vol. 35 No. 2
• Author: Written by Kevin P. Dwight*

TELL IT TO THE JUDGE ... OR THE JURY ... OR THE ARBITRATOR? BEFORE YOU TELL YOUR STORY ... KNOW YOUR AUDIENCE!

Written by Kevin P. Dwight*

Storytelling is a critical part of every case. A jury has to believe your story, relate to it, and feel that the outcome you are asking each juror to deliver is, at the end of the day, a fair and just result. A judge, who has hundreds of other cases on his or her docket, also wants to reach the right result, but wants you to deliver it as efficiently as possible, without all the pizzazz attendant to a jury trial. Trying your case before an arbitrator requires a combination of the two — enough zest to keep the proceedings lively, while understanding you are telling your story to a sophisticated factfinder, typically a former judge or experienced litigator.

This article explores strategies for securing the right audience for your case — judge, jury, or arbitrator. Next, tips are presented to help you tell your story most effectively to give you the best chance of success, depending on your particular audience. Finally, this article examines how to tell our stories if, heaven forbid, we need to keep telling them to judges, juries, and arbitrators over Zoom and other remote video software programs.

STRATEGIES FOR SECURING THE RIGHT AUDIENCE FOR YOUR CASE

At the outset of a case, it's important to figure out as quickly as possible what the facts are, so that you can develop the legal theory that best fits your narrative. But once you know your case, a critical question becomes, "Who do I want to tell my story to?" Maybe there is a contractual arbitration provision that takes the decision out of your hands. Or maybe you are defending a case outside of California where jury-trial waivers are enforceable, and your client previously signed a contract waiving any right to a trial by jury. If your client already selected your audience via a predispute contractual agreement, most likely that agreement will be enforceable, and you won't have the opportunity to revisit that decision.

But if there are no restrictions on your ability to select an audience, there are a number of important considerations to take into account. First, ask yourself, "Is my case strongest on the law, the facts, or a fundamental notion of what is fair?" Most cases will have strengths

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and weaknesses in all three areas, with some favorable legal principles, some good and bad facts, and a level of fairness depending on how the law and facts are applied. But to succeed at picking the right audience, it's critical to isolate the best features of your case, and proceed accordingly.

If you conclude your case is strongest on the facts, you likely will want to tell your story to a jury. Telling a good story to 12 people, as opposed to a single factfinder, often gives you the best chance to succeed. A compelling narrative can also better resonate with individuals who, unlike judges and arbitrators, typically aren't part of the legal system. As discussed below, you will want to center your story around two to three themes, ensure your story is relatable, and tell your story in a cohesive manner with a beginning, middle, and end.

If you decide you are better suited relying on strict legal...