Trial lawyers as storytellers, but what story?

Bill Shapard Jr., PRC
December 7, 2020

Sometimes the best story wins, even in court, as Max Kennerly, a plantiff's attorney, points out in his law blog. But, how will the story be developed before getting to trial? "Cases don’t come to us with summaries attached," Mr. Kennerly says, "telling us which points to emphasize and how to construct the presentation of evidence at trial."Kennerly went on to note that "the very core of what trial lawyers are told to do … is to somehow peer into the hearts and minds of judges and juries and determine the best way to convince them.”As any attorney would start our crafting his or her story for trial, the “evidence” is the “content” and so it should drive the “structure” of the presentation at trial — but the evidence is usually a jumbled mess of known facts, known unknowns, and unknown unknowns.

What this process reveals is the questions an attorney might ask a jury are not necessarily the same ones that the jury wants to ask.

"The lawyer," Kennerly notes, "has to create some semblance of structure to even begin arranging the evidence for presentation at trial. The core narrative of sin, suffering, and redemption fits much of our work, with the negligence as the sin, the damages as the suffering, and the plaintiff’s lawyer asking the jury to redeem the tragic situation, but it doesn’t get you very far into developing a real narrative for your case."Consequently, trial attorneys lack meaningful data for helping them prepare and present evidence at trial. So, where and how is this unstructured data going to be collected, analyzed and used to build the best story for court?Time and time again, we see that focus groups give lawyers what’s in the heads of potential jurors for a particular case and the approach to how the story should be crafted.Here's how it works:The concept focus group method begins with a group of 12 people who are paid to participate for the day in a research project. The moderator (typically a lawyer) doesn’t tell the people which side has hired them. Sitting at the head of the table, the moderator tells the group that they are “here to help evaluate a case for two parties who are in a lawsuit” and that “their work will help the parties settle the case.” Then, without giving them any further information, he or she tells the group that it’s their job to ask ‘yes’ or ‘no’ questions to learn what information they need to know to be able to decide the case.The moderator may stop the panel after every 15 or 20 questions, and make them fill out a survey. The survey asks what they think and feel about the case at that point in the process based upon the answers given. The jury then continues to ask questions until they agree that they have enough information to decide the case. They then take another survey, are read a sample set of jury instructions, deliberate and vote on liability.It should be noted that while Kennerly believes pretrial research can help lawyers see obvious problems with certain arguments and evidence, he's not seen it result in a lawyer successfully changing their entire narrative. But, keep in mind, we do not believe it's not the job of pretrial research to change the 'entire narrative.'Good trial lawyers know it’s necessary to use a story to present a case to a jury. Good jury research provides the data to help fine tune the narrative in presenting the best story.

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Bill Shapard Jr., PRC
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