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'you are limited ethically and practically by the truth.... truth can be elusive. Perceptions of events differ and recollections are debatable; rules of evidence may limit admissibility; you may not be able to find a witness. But truth is not so contingent that you are ever justified in disregarding it. Being careless with truth invites disaster...'
Harry Kalven and Hans Zeisel, in their pathbreaking work The American Jury, developed a way to measure the different attitudes of judges and juries in particular kinds of cases. The book, and the research since then, repays study.
People, including judges and jurors, understand and restate events in terms of stories. They take the available evidence and weave it into a coherent whole. If pieces are missing, they will fill in the gaps based on intuition, probability, or prejudgment about "what must have happened," or "how somebody like that would have acted." This process of filling in is called "confabulation" by some writers. A lawsuit is a contest between two different stories. Jurors hear the judge's initial instructions and the opening statements and begin to build a possible story that tells them how the case should come out. As they receive evidence, they fit it into their story. It is harder to put across evidence that challenges a juror's tentative story than evidence that supports it.
What shapes a story? We have spoken of juror attitudes, the judge's instructions, and lawyer rhetoric. Every trial lawyer knows that jurors' attitudes vitally affect the kind of story they will make from a given set of facts. Some lawyers hire jury researchers and voir dire consultants to help them identify people likely to be favorable. Other lawyers use only their experience in and of the community and their accumulated trial skills. For our purposes, we can ignore those preferences.
For example, assume that many people believe large corporations conspire with one another against the public welfare by fixing prices, evading environmental controls, or selling unsafe products. In some communities, a majority believes at least some of this.
It is obvious that if you are a plaintiff in an antitrust conspiracy case, you would put the conspiracy theory out front. That is an insight, but not much of one. The more important insight is that jurors who believe the conspiracy theory more readily infer conspiratorial behavior from concerted or parallel conduct. Your order of witnesses, presentation of documents, and points stressed with witnesses will emphasize that theme.
Now turn to the other side of the case. What will be the defendant's (or defendants') response? Unadorned denial is a possible stance, but it is almost always inadequate. There is no story to a denial and therefore no coherent alternative to the plaintiff's story. I say "almost always" because, in some criminal cases, a defense based entirely on reasonable doubt -- a form of denial made possible only by the burden of proof and the trial judge's repeated insistence on it -- may be tenable.
The defense story may be that the plaintiff signed a fair contract at a fair price and is trying to weasel out by invoking the antitrust laws. The story may be that the plaintiff got knocked around in honest competition.
Stories like these fulfill the three requirements of which we have been speaking. They appeal to jurors, they are consistent with the substantive legal rules about antitrust and the procedural rules about what may be proved in an antitrust trial, and they can be told by a lawyer in an opening statement and closing argument.
What is the evidence for saying that jurors view evidence in this way? Theoretical works, all based to some extent on Gestalt theory, support my view. For me, however, the most persuasive evidence has been given by jurors in their verdicts, reinforced by mock jury studies conducted by first-rate trial consultants. Jury studies even provide the opportunity to listen to deliberations; in a real case, you have to rely on the jurors' recollections of deliberation, if indeed the local rules permit you to talk to jurors at all. If you agree that there must be a story, how will you choose it, and how will you tell it? Choosing the story is a necessary predicate to identifying witnesses and planning the trial. I often tell young lawyers to write the closing argument in a case right away, recognizing that some parts of the story will necessarily be incomplete and contingent.
Consider an example. A widow and her children come to you. Their husband and father has been killed. The death is a traumatic event. How will you, hired to be their champion, tell that story? You are going to be limited by the substantive and procedural law, and you may need to do some legal research before you actually make choices. Who was killed? A diplomat in exile from his country. How was the death caused? By a bomb placed under his car. Who placed the bomb? We don't know yet, but we think the killing was politically motivated and carried out under orders from officials of a foreign government. What kind of political motivation do you mean? The present regime wants to silence its critics in exile.
Our story begins to become clear: What is, at minimum, a wrongful death case becomes a murder carried out for political purposes with the connivance of a foreign gov-ernment. The dead man was killed for his laudable principles. The theories of liability multiply to include killing an internationally protected person (a diplomat) and violating customary international law. The problems mount, too, because making a foreign state and its officers parties and obtaining evidence of their conduct will be difficult.
As I reconstruct the facts more completely, I see legal rules that add to the power of the story. As I consider new legal rules, I am guided in looking for new factual insights. You may well decide that the most effective telling of your story requires you to argue for a change or extension of existing law; if so, well and good.
On the factual side, you are limited ethically and practically by the truth. As we shall see, truth can be elusive. Perceptions of events differ and recollections are debatable; rules of evidence may limit admissibility; you may not be able to find a witness. But truth is not so contingent that you are ever justified in disregarding it. Being careless with truth invites disaster in our adversary system, which encourages your opponent to take advantage of your heedlessness. To this practical concern, add the ethical rules under which we all function, obedience to which defines us as members of this profession. For the defense, you will usually be presented with the opponent's complaint or indictment, and you can guess at the story behind the formulaic allegations. Too many times, I have come to a case to represent the defense and found this basic work not yet begun. Sometimes the defense team has not tried to "game out" the plaintiff's or the prosecutor's story. More often, it has focused only on disproof and denial rather than structuring a story of its own.
The story is more important than technique. If you respect the jurors, they will probably forgive your technical faults. But if you forget the story, you will lose. This book is entitled Examining Witnesses, but the following fourteen chapters are worth little unless you know that the whole of a trial is different from the sum of its parts. That, too, is a Gestalt insight.
In a criminal case, the jury convicted a developer of bank fraud. The defense lawyer had tenaciously battled every prosecution witness. The defense case even showed the logic of all the "deals." The jury convicted because the jurors agreed with the prosecution's story. "Nobody could make this much money honestly. There had to be a conspiracy."
Jury work tells us that most people in the developer's community are ready to believe that those in business conspire against the public good. But most people in that community also believe that it is possible and not necessarily bad for somebody to make a lot of money quickly by shrewd investing and taking risks. If the defendant is personally admirable to the jurors, this story has an even chance. But unless this positive story becomes the theme of defense, no amount of competent cross-examination can succeed in winning the jurors over.
It is not enough to show that the prosecution witnesses are thieves or that they are singing for lenient treatment. The defense story of the case is that this defendant profited in the same way that many others have lawfully done---by recognizing and seizing opportunity, and attendant risk, in a volatile market. In an antitrust case, the plaintiffs' theory was that the corporate defendants had conspired to depress the prices paid for crude oil under a long-term contract with the plaintiffs, who owned an oil field. Faced with such an accusation, the quick answer is, "We deny the allegations, and we despise the allegators." But jurors are usually not content to disbelieve or reject a story put forward by one side. They want to see how and why people act, including the plaintiffs who bring lawsuits.
The defense story began by observing that there was a contract between the plaintiffs and the defendants. It was negotiated among experienced people on both sides of the bargain. A deal's a deal, and the claim of collusion was arguably just a means to jettison the agreed price.
In addition, the defendants were not making supernormal profits refining the crude oil. Indeed, because the crude they were buying was of such low quality, they were compelled to spend millions of dollars on sophisticated refining techniques to get value out of it.
The advocate cannot begin to see such a story unless she delves deeply into the client's life and lore. It empowers jurors to walk with them through the background and history of the issues they are to decide. From this survey emerges, in the well-planned case, principles on which jurors will agree, such as "a deal's a deal," and "the person who takes investment risk to make a useful product is entitled to a fair, competitive return."
In another case, an attending physician ordered a nurse to inject a patient with a drug. The physician was negligent, for the reference materials cautioned against using the drug except in life-threatening situations. The physician settled. In a trial involving the nurse, what is the story? Professional principles dictate that a nurse should not unhesitatingly follow orders to give dangerous medications. She should exercise independent judgment. In addition, the dose was allegedly administered contrary to the directions in the reference manual.
Once the professional rules are proved, the story might be that this is just another case of somebody following orders and denying responsibility. Don't we say to our kids, "Just because the older children do it, that is no reason for you to follow along"? Don't we hope that if we take our car to a garage, the mechanic will exercise independent judgment when the owner tells him to perform a dangerous and expensive repair that the mechanic's training and skill tell him should not be done? Put another way, there is no such thing as worthwhile technique for its own sake. Technique must be in the service of a claim for justice, a story with a moral. Choosing a story is an exercise in seeing the whole case while keeping an open mind as new facts and legal theories appear.
Now to the job of telling the story. If it's a good story, you should be able, before your preparation is far along, to summarize it persuasively in a few sentences. From these sentences come the key words and concepts that you will stress with every witness. ... every witness's testimony must be related, while that witness is on the stand, to the story you are telling. Impossible, you say. Do that with a custodian of documents. I'm glad you asked. My client was charged with an attempt to evade income taxes, allegedly by understating his personal income by about $7 million over four years. He did report several hundred thousand dollars of income each year. We would not stipulate to the admissibility of the original tax returns from the IRS Service Center.
Part of our defense story was that our client was not in charge of the financial side of the partnership. He reported income on the basis of what he knew he had received. His manner of living did not bespeak greater income than he reported.
On cross-examination, we took the Service Center witness over the tax returns, noting that the income reported was very high---in the top bracket---and that our client paid a hefty amount of tax. We noted that our client had not taken questionable deductions or gone in for tax shelters or anything like that. We noted the various stamps on the forms, showing they had been checked for accuracy by IRS personnel. By the time this first witness left the stand, the jury had already begun to see that witnesses would bear out the story that we told in the opening statement.
Each of the remaining chapters contains signposts and directions for the remaining journey. For the plaintiff, who must go first and bear the burden of proof, telling the story means organizing witness testimony, deposition evidence, and exhibits. Ideally, all exhibits should have been premarked and as many as possible admitted by agreement or in a motion in limine process. In the ordinary case, the exhibit list is appended to the pretrial order.
All noncontroversial exhibit rulings should, by one means or another, be obtained before trial. Each party, the plaintiff and the defendant, must consider how many exhibit admissibility rulings to try and defer until trial. There are some evidentiary issues, such as the balance between probative value and time-wasting, that cannot be made in the abstract and must usually be deferred.
An advocate who is well prepared and skilled in argument is benefited by deferring evidence rulings until trial, on the theory that she will win more contested trial rulings than the opponent. One risk is that you are not as persuasive as you think you are. However, a party whose case rests to any great extent on uncertain evidentiary, procedural, or substantive law premises will want more certainty about what will be admissible. That advocate will make maximum use of the in limine motion and pretrial evidence ruling process, simply to have the ability to plan how the story should be told.
I have learned this lesson painfully. I had prepared a fairly complex affirmative defense to a criminal case and had brought witnesses great distances to support it. The defense was that the defendant had changed his name to avoid unjust prosecution and that the injustice he faced was provable. This was a form of "necessity" defense. The proposed jury instructions were drafted, waiting for the charge conference. Just before voir dire began, the prosecutor rose and made an oral in limine motion to exclude a theory of defense that sounded like the one I had planned to use. The judge listened, pretended to hear my response, and granted the motion.
Since I believe in a full opening statement when the defense is going to put on evidence, I had very little time to reconsider the story we were going to tell. This was federal court, and voir dire wouldn't take long. The moral of this: Find out what will be allowed, or at least be prepared to make changes. The obvious corollary is that pretrial rulings on evidence and issues help ensure that your opening statement does not make promises the judge is going to prevent you from keeping.
In that case, we were able to shorten our story and still have it make sense, and we won. The jury acquitted on two counts, and the court of appeals reversed the third count with directions to acquit. In retrospect, the judge may have helped us by forcing us to try a leaner, cleaner case.
We did not retreat to bare denial. Rather, we decided, first, that we would not put on a defense at all. The prosecutor would be left with a case of somebody who had two different names that he used at different times. The prosecutor was not much freer to attribute a motive to the defendant's use of another name than we were.
The case then became one about what harm could possibly have been done. What was all the fuss about? Roy Rogers was born Leonard Sly, John Wayne started out as Marion Morrison, and Gary Hart (then a political contender) was once Gary Hartpence.
Pretrial clarity on evidence matters saves time and keeps you from doing time-wasting exercises that detract from your story -- and indeed from your image as storyteller. 'Were these records made and kept in the regular course of business?' 'Was it in the regular course of business to make and keep such records?" "And were the entries . . . ?' And so on. Formulas such as this are part of our lawyer lore, but when we exhibit them in court we disempower the jurors and reinforce bad stereotypes of lawyers. Cicero was a brilliant lawyer. Yet when he wished, in argument, to mock a lawyer on the other side, he did so by acting out the formalist incantations of Roman civil procedure. These he contrasted with the work of one who practiced a useful art, like defense of the Roman Republic. You adulterate the story by ornamenting it with useless ritual.
Those who try cases with me grow tired of my repeating, 'Go to court every day and say your case.' I intend this sentence to describe what we have been discussing. Know the story of your case. Be able to evoke that story in few words. With every witness, every exhibit, every objection, every gesture, consider how to underline some part of your story. Repeating the sentence helps to guard against regarding some witnesses as simply routine or some tasks as unrelated to victory. Your opponent, the judge, your client, busy witnesses, and your own sloth may nudge you toward changing a sensible order of proof. Don't fall for it.
* The above was excerpted/modified by the 'Lectric Law Library from 'Examining Witnesses by Michael E. Tigar The Amer. Bar Assn. 1993. 315 pgs hrdbnd; Prod.Code 531-0093; $110. For more info call the ABA at 312-988-5522.
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