Oct 6, 2013

Every case that goes to trial has good and bad facts. In fact, if there were no bad facts, there would be no need for trial. The good cases, where fault is clear and my client has massive injuries, usually settle. Simply said, trials usually involve facts that are mixed and varied, like a box of chocolates.

Young attorneys normally think of a case as "our case" and "their case." We are going to tell our story, put on our witnesses, and showcase our experts. Then the young attorney will sit down, let the defense put on their story, put on their witnesses, and showcase their experts. After more than twenty years of trying cases, let me tell you that such a strategy is a recipe for disaster for plaintiffs because following this strategy will normally lead to a devastating loss.

In a trial, the plaintiff has the burden of proof and must meet that burden to win the case. If the jury simply hears a mix of good and bad facts, the jury will most likely find that the plaintiff did not meet the burden of proof. Even if a plaintiff barely squeaks by the burden to win, the value of the jury verdict will be diminished by the onslaught of bad facts presented by the defense attorney. Frankly speaking, it's a mess! Trust me when I tell you that the sting of a low verdict at trial causes as much heartache for plaintiffs as an outright loss.

In my early career as a trial attorney, I told well-prepared stories, presented qualified experts, and gave impassioned closing statements. In these closing statements, I usually referenced the words of "overly-quoted" dead guys like Thomas Jefferson, Thurgood Marshall, and a lawyer favorite: Clarence Darrow. Unfortunately, my juries were largely unmoved and unmotivated to compensate my clients. Even when I did not lose, the verdicts were small, unimpressive, and forgettable.

At some point, I realized that the only people who cared about what Jefferson, Marshall, or Darrow said were fellow young attorneys who never ended up on my juries. I eventually recognized that it was not my work ethic that was lacking. Instead, it was my approach that was suspect. After limited success at trial, it finally occurred to me that in trial, the way an attorney tells the story and frames the issues is what ultimately leads to success.

A great example of successfully framing an issue can be found on Broadway. While I am not a turtleneck-wearing theater goer, I was dragged against my will a few years ago to a popular Broadway musical called Wicked: The Untold Story of the Witches of Oz.Wicked is nothing more than a reframing of the classic tale the Wizard of Oz from the perspective of the Wicked Witch.Wicked retells the story we all know so well and undermines and challenges what we thought we knew about the Wicked Witch. In the musical, we learn that Glinda, the Good Witch, is arrogant and naive, the Wizard of Oz is a tyrant, and that Elphaba, the green-skinned "Wicked Witch" is a kind-hearted woman who is the victim of unfair prejudice. By the end of the musical, the crowd roots for the Wicked Witch to succeed and mourns her untimely death.Wicked teaches us that false first impressions, false assumptions, and faulty predispositions toward a particular belief can distort your perspective of the truth.

Clearly, Wicked's retelling of the story in the Wizard of Oz changes the viewer's (call it the jury's) entire outlook on who was truly "wicked" in Oz. The same principle applies to the competing stories that are told at trial about a certain event like a car crash. Which story will prevail—the plaintiff's or the defendant's? The answer is that the jury will accept the story that best incorporates all the important facts in the most logical way. Win the battle in framing the story for the jury and you win the case. Sound easy? Believe me, it's anything but easy. Nevertheless, because defense attorneys never think like this, devoting brainpower to this trial approach nearly always produces incredible results.

The plaintiff's story at trial must include good and bad facts. If you ignore the bad facts and allow the defense attorney to introduce and frame these facts for the jury, your trial will usually end in a loss.

In our cases, the bad facts usually include things like minor property damage to the vehicles, premature statements by our client that she did not sustain injury in the collision, preexisting injuries in the same areas where the client is claiming injury, and evidence of dishonesty/deception by my client.

However, if Wicked can creatively and convincingly retell the Wizard of Oz, how hard could our job be as trial attorneys? Certainly, my clients are usually more likeable than the Wicked Witch. At the heart of every case is the conviction and motivation that I initially felt to take on my client's case when they first told me their story. My first impression was that the client had a case worth fighting for. Granted, some cases have too many bad facts to take to trial. But a few mixed facts should not change that conclusion or weaken this initial conviction.

There are four steps that I take in framing my trial story. Each step is vitally important to framing the trial story correctly for the jury.

STEP 1- Formulate the Trial Story:
An attorney must first formulate the plaintiff's story for trial without any regard to what the defense attorney might argue. As a young unseasoned trial attorney, this was my final step in trial preparation. I know better now. In formulating the trial story, you must focus on the good facts of the case and ignore the bad or neutral facts. I tell the story of the case with blinders on without any regard for the problematic parts of my case.

STEP 2- Channel the Defense Attorney to Create the Defendant's Trial Story:
Before trial, you must figure out the story that the defense attorney will tell the jury. This story will only include the bad facts for the plaintiff's case. In formulating this story, we ignore every good fact in the case for the plaintiff and make it all bad (just like insurance defense attorneys always do).

STEP 3- Embrace or Undermine:
Once I write out the "good facts story" and the "bad facts story," I take each bad fact and work it into the story if it can be framed properly, or I prepare to undermine the bad fact if it cannot be properly framed. For example, if I know that the defense is going to talk about low property damage to my client's vehicle, I will detail the extensive damage to the other car. After all, discussing the damage to one vehicle in a collision is only half the story, right?

If the bad fact cannot be reframed, I prepare the best and briefest argument to undermine the fact. In such a circumstance, I will simply point out that the defense will tell you "X," but that's wrong because of "Y." Again, for a plaintiff, bad facts cannot be ignored. These facts must be embedded into the trial story.

Recently, I prepared for a trial that involved an insurance company that should have done the right thing. Despite having plenty of opportunities to make things right, the insurance company chose to do the wrong thing every time. In preparation, when I attempted to tell the trial story, the details became so confusing that the overall feeling I had was "no wonder the insurance company did the wrong thing." I continued to workshop the good facts and undermine or embed the bad facts over and over again until the story made sense. I discovered that the story made sense once I told the story from the eyes of the insurance adjuster. I did not begin my opening argument with the date of the crash. Instead, I started my story two years later at the time my client made a claim for benefits. This approach made the case much simpler and made the bad choices by the insurance company more obvious.

STEP 4- Reformulate New and Improved Trial Story:
After writing and rewriting my client's story tirelessly to the point where my staff would walk the other way when they saw me in the hallway to avoid being asked for the 50th time to listen to the story, it was time to take my trial story on the road. I am a big believer in presenting trial stories to focus groups to prepare for trial. When the story comes easily and the vast majority of the individuals in the focus group are supportive of the case, I know that I am ready for trial.

These days, I spend more time framing the trial story than I do any other aspect of the trial. Any case worth bringing to trial is worth the devotion necessary to formulate and frame the proper trial story. If this approach works for Broadway musicals like Wicked, why can't it work for your car crash injury trial?

At Anderson Hemmat, we know how to best frame the facts of your case to bring out the truth. Effectively communicating the story of your case is critical whether you are communicating to an insurance company or a jury. Call us today for a free consultation.


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