Witness Preparation: Cinematic Lessons

• Publication year: 2021
• Citation: Vol. 34 No. 1
• Author: By Daralyn Durie and Jesse Lanier
• topic: Civil Procedure

Witness Preparation: Cinematic Lessons

By Daralyn Durie and Jesse Lanier

Daralyn Durie is a founding partner of Durie Tangri LLP who specializes in trying complex

civil cases across a range of subject matters.

Jesse Lanier is a senior associate at Durie Tangri who specializes in complex civil litigation.

A trial jury is like an audience at a play that wants to be entertained. Witnesses, like stage actors, have to play to that audience if their performances are to be convincing. — Janet Malcolm
Witness: The car that made these two, equal-length tire marks had positraction. You can't make those marks without positraction, which was not available on the '64 Buick Skylark!
Attorney: And why not? What is positraction?
Witness: It's a limited slip differential which distributes power equally to both the right and left tires. The '64 Skylark had a regular differential, which, anyone who's been stuck in the mud in Alabama knows, you step on the gas, one tire spins, the other tire does nothing.
(Jurors mumble in agreement and nod their heads knowingly.)
Attorney: Is that it?
Witness: No, there's more! You see? When the left tire mark goes up on the curb and the right tire mark stays flat and even? Well, the '64 Skylark had a solid rear axle, so when the left tire would go up on the curb, the right tire would tilt out and ride along its edge. But that didn't happen here. The tire mark stayed flat and even. This car had an independent rear suspension. Now, in the '60's, there were only two other cars made in America that had positraction, and independent rear suspension, and enough power to make these marks. One was the Corvette, which could never be confused with the Buick Skylark. The other had the same body length, height, width, weight, wheel base, and wheel track as the '64 Skylark, and that was the 1963 Pontiac Tempest.
Attorney: And because both cars were made by GM, were both cars available in metallic mint green paint?
Witness: They were!
Attorney: Thank you, Ms. Vito. No more questions. Thank you very, very much. You've been a lovely, lovely witness.
My Cousin Vinny

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Prologue

Name your favorite courtroom drama.

Many trial lawyers are partial to My Cousin Vinny for its slyly grim and (relatively) accurate depiction of the procedure, performance, and backroom politics of a trial. But your favorite fictionalized courtroom drama might be To Kill A Mockingbird, A Few Good Men, Twelve Angry Men, or any number of others.

It's no wonder that trials frequently form the backbone for compelling entertainment. A trial is a storytelling vehicle, and, the structure of a trial generally follows a traditional storytelling format. There is foreshadowing, pay-off, and a conclusion that (ideally) ties everything together. Nonetheless, despite the popularity of trials as dramatic devices, it's tempting for trial participants to assume that a real-life trial is merely a technical device for airing the so-called truth. But reality is more complicated.

As documentarian Errol Morris observed in A Wilderness of Error, "[a] trial is not a science fair but rather a magic show. A show based on appearances and logical fallacies and sleight of hand. It isn't about proof. It is about convincing the jury." While we might take some issue with the current of cynicism running through this observation, it is undeniable that proving one's case with evidence is only one component of successfully trying that case.

A good trial lawyer, therefore, must be a documentarian and an auteur. Her job is not just to present the jury with facts, but also to win over the jury by spinning an interesting and convincing yarn that fits into recognizable storytelling archetypes. And a trial lawyer, like a film director, must speak through characters in the story. The most effective way to tell a successful story is not with bare facts or "smoking gun" documents, but through compelling and well-prepared witnesses.

There's a reason actors thank directors when they win an Oscar. The director is the coach that makes the performance possible. She's on the outside looking in, seeing glimmers of useful grist in the actor's behaviors on and off camera and drawing them out in a way that suits the story she's trying to tell. The quality of the writing, directing, production design, and cinematography matter too, of course. But a poor performance by a lead actor undermines all of the other components.

As the success of a film depends on the performances of the actors, the success of a trial depends on the quality and persuasiveness of your witnesses.

Writing the Script and Casting

Preparing a witness for trial starts well before the witness is deposed. Simple fact-gathering conversations can be an effective way to identify which potential witnesses will be able to give the best performances. Of course, your assessment of the case and how best to present it will evolve as you learn more about your witnesses. It's therefore usually beneficial to have several separate fact-gathering conversations with each witness to learn what he knows, what he thinks he knows, and whether his recounting of events is consistent conversation to conversation.

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Compare your witness's accounts with the...