When I was a prosecutor I had a list of elements and issues I had to prove in order to secure a conviction. I even had little boxes on my notepad that I would check off when I believed I satisfied the elements. Some items on the list were exhibits I had to admit. Some were questions I had to ask (such as, what county did this happen in?). It was a mechanical, methodical approach. And since I, as the prosecutor, had the luxury of only prosecuting those cases I knew stood a high likelihood of conviction (clear evidence, in my skewed perspective), it worked more than 90% of the time.
But then I became a defense attorney/litigator. Much of my early work was via court appointments. I took these cases to trial as often as the retained clients, but my training as a prosecutor had me doing the same thing as then, only in reverse. I.e., admit exhibit that contests prosecutor’s claim, check; bash witness credibility, check; admit picture that shows my client as the one beaten, not the alleged victim, check. But something was missing.
While I’ve been fighting tooth and nail for my clients for more than a decade with good results, I had a mini-revelation a few months ago thanks to technology. First, an explaination as to why I wasn’t quick to modenize earlier. Simply put, I loved to play the part of the little guy. “We don’t have the unlimited resources of the government, so you won’t see me throw up PowerPoint slides or overwhelm you with flashy, technological wonders. You will hear the facts, facts that show that my client is innocent!” It worked pretty well, but something was missing.
Then I found myself facing an unwinnable trial. The evidence, circumstantial and otherwise, was simply overwhelming, but the client had nothing to lose. He was getting probation regardless of plea or trial. I also expected the prosecutor to lay out those facts in closing clearly and succinctly, and I needed to muddy up the water a bit. So I cringed and decided to brainstorm with the aid of my iPad’s Keynote program, basically PowerPoint light. Suddenly, I found myself thinking differently, more as a novel writer than attorney. The slides laid out the elements, for sure, but I went further than that. The closing is argument, so attorneys have wide leeway in making their points as long as they don’t discuss evidence that wasn’t admitted in trial. So I added a few quotes from sources as varied as Sherlock Holmes, and even Proverbs. Then the light went off.
Good trial lawyers aren’t just fact builders. They are storytellers. The facts are the things we lay out as we question witnesses. But the ultimate goal is to bring them together into a coherent story, one that jurors will have reason to believe (or a story that will sow “reasonable doubt” into their thoughts).
Don’t misunderstand me. There is a time to be the methodical list follower, or evidence automaton. There is also a time to get vicious in cross examining witness, the only chance an attorney has to make the jurors believe that the other side’s witnesses are less believable than his own. But that time is not the closing. Sure, the good lawyer must show how the State has not met its burden of proof on one or many of the essential elements of the case, but he must do so in a way that does not bore them to tears, or in a way that does nothing to counter the emotional intensity that comes with criminal and even civil cases (such as the bad medical outcome case where a child dies or patient is injured severely). People think in stories, emotional stories that captivate, so the good lawyer must play the part of the courtroom thespian or storyteller.
Simply put, Keynote has opened my eyes in a striking, dramatic way. It has helped me to see theories (plots) of cases I didn’t necessarily see before. When something is needed to move the story to the climax, the glaring emptiness in the Keynote slides is apparent, so I explore. I go to the scene of the crime to take pictures. I call up my investigator and have him interview a witness or two, or I call the witness myself to see if I need the PI to call him (do not make yourself a witness!).
There’s something else interesting about this process. In my last trial I flubbed the Keynote presentation by including a word that was not actually used in the jury instructions, so I winged it and referred back to the slides to prove my points. It actually went very well. Better, in fact, than I think it would have gone had I just stuck to the script. Hence, all this forethought and “storyboarding” seared the story into my mind.
In conclusion, I am not writing this post to brag, merely to state a point. Just because a lawyer has a JD degree doesn’t mean he will represent you effectively. He must (1) love to tell stories, and (2) know how to present his cases like a storyteller. This begins with a willingness, indeed, a passion, for trials. He wants to tell your story to as many people as will fit in the courtroom. If he doesn’t have this mentality, hire someone else. But remember, your case might not make for a very good story, at least one that would compel a jury to find you not guilty. Make sure he also recognizes the difference between a good story and a bad one.