What Movies Teach Us About Trial Practice - Part 3

We've been writing about trial tactic tips that we picked up from the movies, after seeing The Deep Blue Sea recently. The movie had lots of style but it was the trial tactic lessons that can be learned from the film that made it a real stand-out to us.

The first tip in this series was putting the end at the beginning, a way of mixing up the chronology of your opening statement in a way that can add drama and capture the Jury's attention from the very start.

The second tip explained the value of planting an Easter Egg in the evidence that allows your Jury to discover evidence in your favor without you leading them to it. After all, the truth of your case that the Jury discovers on its own will be far more compelling to them than anything the lawyers overtly say or do.

Another subtle point made in the movie, and this is our third tip in this series, and which can help your next Opening Statement is to bring the storyline full circle. Doing the same thing with your trial presentation can make your case a winner.

Have you ever heard a story or seen a movie that just comes to an end without really wrapping up the story with a conclusion? Did it leave you wondering what happened next? Well, human nature hates an incomplete story. It just isn't natural.

From childhood we are taught that every story has a beginning, a middle and an end. Remember? The Big Bad Wolf gets it in the end. Hansel and Gretel escape and win out. Sleeping Beauty wakes up and all is well in the world.

You can use that natural story flow to satisfy your Jury that your presentation of the evidence is the truthful one in your trial. How? By bringing it full circle.

When you get to the end of your case, it often can drive the point home even harder if that ending moment takes the Jury right back to the beginning again. That's exactly why your Closing Argument should echo back to what you said in your Opening Statement. But you can do much more. You can also make sure that your last witness, and your last question, reminds the Jury of the case theme you announced at the beginning. Give them the last piece of the puzzle.

Perhaps the best use, however, is to bring the Jury right back to the injustice that you pointed out at the beginning of your case. That tells the Jury that unless they change the ending, what the defendant did in your case will be repeated again and again. It can be a powerful way of nudging the Jury to make the world right by giving your client a verdict. By doing so, you are giving the Jury both the opportunity and the incentive to make the needed change. The Deep Blue Sea is a film that does that too.

The movie opens with a slow pan of an old home in London in the 1950's as night falls. A woman walks out the front door and puts milk bottles down on her doorstep for the milkman to pick up the next day. A man finishes smoking his cigarette and flips it into the street and goes back inside. The camera pans up and there in a dark window, seen from the night outside, is the shadow of a woman peering out into the dark. The scene sets the stage to know that life outside that room may be normal but something inside that room is dark and ominous.

At the end of the movie, a woman is shown looking out that window. The camera shows her in daylight and pans out and down to reveal last night's smoker leaving his apartment for work, the woman coming out to retriev her now-full set of milk bottles to start the day, and the camera pans right to reveal the shambles of a building next door as people begin to come out into the street. It is the exact opposite of how the movie started. We see life on the street returning to normal again as the movie has come full circle. We know that life inside that upstairs room is still not normal, but we are satisfied that life as we see it is returning to normal.

The "moral" of your case, the theme if you wish to call it that, always should be set out in your Opening Statement clearly in the first few minutes of your presentation and repeated at the end of it. And in your Closing Argument, bring the Jury full circle by bringing them back, subtly but earnestly, to that again. A story well told is one that has a beginning, a middle and an end. You can mix the parts up somewhat to add drama, but be careful you don't lose the Jury in the process. And always bring them back home again.

Ron Burdge

http://www.thelawcoach.com/

Helping lawyers help people

What movies teach us about trial strategy, part 2

The Deep Blue Sea is a fascinating movie that you may have to search out to find on a big screen near you right now. If you watch it for its style you'll learn a lesson or two (maybe more) about trial tactics. Style? Trial tactics from movie style? Here's part two about what we mean.

There's lots to talk about, but let's take a look at the second of three trial tactic lessons from this film that you can think about adapting to your next trial's Opening Statement for example.

Our second tip? Plant a not-too-obvious Easter Egg and let the jury find it on their own.

One of the unique aspects of movies is that very often there are seemingly pointless scenes in a movie that are never fully explained by the end of the film. These scenes, however, serve a purpose. Every movie has an obvious plot and then there are the not-so-obvious scenes that actually contribute to the plot but not in an apparent way. You have to think about them. These are the Easter Eggs.

In computer parlance, the techies who wrote computer code (and which became the computer games of our youth) often would plant code inside the game as a surprise for the game players - sort of an inside joke for those who knew it was there. Well, we're talking about taking the same approach with your next jury, but in a much more serious way.

The idea is to give them something that is not terribly obvious but which some of the jurors will begin to think about and work into the unfolding case facts during the trial. In other words, let the jury find greater meaning in your case by discovering it on their own. But to encourage that discovery process, you often will need to plant an Easter Egg - a simple fact or statement or bit of evidence that may lead one or more of the jurors to begin to think on their own. The risk, of course, is that they may not go the direction you want them to. And that is why you need to be careful that your Easter Egg directs the jury to where you want them to go.

Back to the move, as an example.

There's a scene, also relatively early in the move, where the heroine (if that is what she is) is looking at her boyfriend and the camera focus on him as he says that what he told her was not a line and that he really meant it. Then, just as abruptly as it went into the scene, the film cuts away to another scene. There is no explanation for what the scene has to do with the plot at all. It is only later, with a lot of thought, that the view realizes that the scene is the moment in the lives of these two people that they first fell in love with each other. You don't get that from the movie scene itself, though. Only when you look back on it, through the understanding of the rest of the plot, can you realize what that scene meant to the storyline of the movie.

Now, here's an example of an Easter Egg in a prior auto sales fraud trial. Among the documents in evidence was the sales contract and the dealer's finance contract. No one paid much attention to the itemization of the charges on them which was placed there by the car dealer who had ripped off the consumer. But in the consumer's Opening Statement, the remark was made that the car dealer had gouged the consumer with bogus charges and fees, although the focus of the case was the fact that it was an undisclosed wrecked car that had not been repaired right. The focus of the case, according to the attorneys of both sides, was the damage that had been badly repaired on the car. But the Easter Egg was not that.

The sales contract included the state sales tax and when the total was written into the finance contract, the dealer added the state sales tax back on it again. In the Jury Room, one of the jurors pointed it out and that single, small fact fueled the easier-to-find fraud that permeated the case and also fueled the degree of punitive damages they jury felt was needed to curb this car dealer and warn others. It was not the focus of the case for the attorneys, but it was the obvious example of the fraud to the jury because it was black and white and indisputable. It was an Easter Egg waiting to be discovered.

Even if it isn't Easter-time, the result could be a Christmas present for your client. Next week, the final instalment of what movies can teach us about trial strategy - and another trial practice tip you can use.

Ron Burdge

http://www.thelawcoach.com/

Helping lawyers helping clients

What movies teach us about trial tactics, part 1

The Deep Blue Sea is a fascinating movie that you may have to search out to find on a big screen near you or on DVD. While tons of critics liked it just barely half the viewers did. Still, if you watch it for its style you'll learn a lesson or two (maybe more) about trial tactics. Style? Trial tactics from movie style? Hang in there and you'll see what I mean.

There's lots to talk about, but let's take a look at the first of three trial tactic lessons from this film that you can think about adapting to your next trial's Opening Statement for example.

First, the movie starts out near the end of the storyline, a technique worth thinking about the next time you plan your Opening Statement. Many times an attorney will use the Opening to tell the facts of their case as a story, commonly following a chronological storyline of what happened first, then second, and so forth. The theory behind it is that this logical progression through time is an easily recognizable and natural flow for most people to follow and understand because it is the way we live our lives. That's true, but it's not always the most dramatic and riveting way to get someone's attention or to hold it.

The movie is a good example of what we mean. In the movie, in a matter of minutes we are taken to a scene of the heroin's intended act of suicide. Knowing nothing about the character, we are quickly hit with natural questions - all related to how this beautiful woman got to that obviously wrenching point in her life. We want to know more. And that's the whole point of putting the ending at the beginning.

Without knowing that it's the ending, when first observed the viewer is taken aback and, quite often, shocked. How could a movie start with something so shocking and not tell us what led up to this? If this is the start, where is it going? What is going to happen next?

The illogical placement of the movie's "end" at the beginning literally pulls the viewer into the movie. It makes us want to know more because the human mind craves to make sense of the senseless, to make logical that which is illogical. Because of that, this movie pulls you into it from the very start, almost forcing you to ask all the questions that the writer (and director) have yet to answer. And when the viewer hears and sees those answers, it satisfies the uneasy heart with a contentment that is unequaled and ingratiates the viewer to the one who provided those answers (the one who made sense of the world around us).

If you understand that part of human nature, you have an opportunity to take advantage of it in your next trial - because the very illogical nature of it makes it something that most attorneys are ignorant of and ignore even when they are aware of it. The seemingly illogical start of the film is your grand opportunity in a courtroom.

A clever construction of your next Opening could do exactly the same thing to your "viewers" - those people sitting in the jury box. If your chronological story has a dramatic conclusion at its end, then for your Opening Statement think about the possibilities that can open up if you can move the end to the beginning of your Opening instead.

Not only will it take the jury by surprise and draw them into your story, but it will likely strike your opposing counsel as illogical, senseless, and lull them into a complete misperception of what is occurring before their very eyes. With the end at the beginning, they may well perceive your story as confusing the jury - while all the while it is telling the story of your case precisely as you wish it to be, i.e., dramatic, compelling, and enrapturing.

Let’s take an actual wrecked car case (not disclosed at date of sale by local selling dealer). Owner and family are later driving down the road at night, on their way home from out of state family trip, when a deer jumps out and the car hits it, wife screams, kids scream, deer bounces off bumper to hood to windshield and over car, causing damage everywhere it hits. With car on side of road, owner makes sure everyone is okay, his blood pressure and adrenaline goes back down, car towed to the out of town dealer and cab takes them all home. Days later the out of town dealer calls and says we won’t cover the unfixed and badly fixed prior repairs. You can imagine what follows.

Now in a normal sequential opening statement you might start with the first owner’s history of the car, his accidents and repairs, the trade in of it, the reconditioning of it, and the resale of it, and then the client-consumer’s own accident and discovery of the old damage. But putting the ending first would be different. Instead, you would take the most dramatic event (the client’s own accident) and start your opening there and go forward to the owner going down to the out of town dealer and being shown the old accident damage and then jumping back in time to the “beginning” of the car’s history, which is what happened with the original owner having an accident, etc. All your drama comes from your client’s own accident and the shear terror of it. The unexpected twist in the story comes when he finds out there was a prior accident too (insult added to injury).

Not every case has drama, but most probably do. Not every case is amenable to the end of the story being placed at the beginning, but many probably do. Think it over carefully before you dismiss it in your next case.

If you grab your jury's attention at the outset, your opposing counsel may never catch up. And that can mean you (and your client) will have the jury's attention from start to finish. Do it right, and you will win.

Next time, the Second Lesson on what movies teach us about trial tactics. Part 2 coming up.

Ron Burdge

http://www.thelawcoach.com/

Helping lawyers win cases, for over 30 years.