Fury Bailey - Personal Injury - Wrongful Death Attorneys

LESSONS FROM L.A. LAW --

HOW TO BUILD THE WINNING CASE

THROUGH THE USE OF CINEMATIC TECHNIQUES

by

WILLIAM S. BAILEY

FURY BAILEY

Seattle , Washington

Seventy years ago, Clarence Darrow could give an 8-hour closing argument that left the jury spellbound. This was not only because he gave a virtuoso performance, but also because his audience was unconditioned by the verbal and visual shorthand of film and television.

Darrow would be labeled a windbag or worse by a 1990's jury. Jurors now look at a real life trial with the same set of expectations they have for the viewing of television and films. A trial lawyer who fails to match the pace, production and entertainment the jurors are accustomed to elsewhere will lose their attention and possibly the whole case.

Serving as a juror two years ago forever changed the way I approach my cases. I saw the courtroom ritual with a spectator's eyes for the first time and realized the horrible truth: much of what trial lawyers do is boring.

Despite the good lawyering on both sides, the trial on which I sat almost put me to sleep. Why? The pace of the information presented was much slower than what I was accustomed to seeing on television or in a movie.

The shrinking attention span is a fact of life in the 1990's. It can be seen even in the world of TV lawyers. In the 1950's and 1960's, Perry Mason personified lawyers to the public. He pursued his cases at a relaxed pace. It took him a whole hour to figure out who committed the murder, usually with Paul Drake coming in at the last minute with the critical information.

Compared to "L.A. Law" in the 1990's, Perry Mason moved at a snail's pace. Quite often, three separate cases are tried in one episode of "L.A. Law". No case takes over ten minutes. Numerous romantic trysts are sandwiched in between. This show has not invented anything new; it simply recognizes the diminishing attention span of the general public.

The general flow of information in trial drags in comparison to what jurors experience through all forms of the electronic media. There is a crucial distinction to be made - courtroom time is measured in hours, media time is measured in seconds. The average TV news program takes only a minute and 30 seconds to cover a story - 30 seconds to set the stage, 30 seconds to tell the details, and 30 seconds to wrap up. For most of this time, there is also a picture, a diagram, or a cutaway to a location shot on the screen for visual interest. Yet, to express points no more complex, a lawyer often consumes an hour or more in the courtroom, with very few accompanying visuals. The net effect of this comparison is juror boredom with the courtroom of real life.

The ritualistic procedures and evidentiary rules of court also add extra steps in the communication process, making it more difficult to keep the jurors' attention. To overcome this handicap, lawyers must adopt TV's method of simplifying and distilling complex issues so that jurors can grasp the crucial facts of a case quickly and accurately.

The first lesson to be learned from "L.A. Law" is that shorter is always better. The rapid pace of television scriptwriting and editing sets a standard in the courtroom that I now strive to match. Some lawyers may see this as heresy, but a good two minute closing argument on "L.A. Law" may have more jury appeal than a real life, 30 minute courtroom performance by a charismatic trial lawyer. The same is true of expert witness testimony, which usually takes no more than two minutes on the TV screen, but often several hours in the courtroom.

In many ways, the trial lawyer's role is equivalent to that of a film director or a producer. It is a lawyer's intuition and judgment that bring a case together. The lawyer controls the presentation of every factual and emotional element of the case. Ultimately, it is the lawyer who creates the atmosphere in the courtroom and subtly guides the jurors' perception and interpretation of the evidence given there.

Nothing is more essential to jurors' attentiveness than maintaining an appropriate pace at trial. Keeping the case moving is essential to holding their attention. In "scripting" the testimonial sequences, lawyers should keep in mind that short, pithy statements are always preferable to long, convoluted ones.

Whenever possible, examination of a witness or an oral argument should start with a dramatic punch that hooks the jury to the theme of the case. Details can come later. As film director John Sturges observed, "In America, you can't begin a picture slowly. You open with clouds and an airplane comes through. In the next shot, the plane has to explode." 1

There is another advantage to moving the pace along. An opposing lawyer's sworn duty is to poke holes in your case. These will be less apparent if you move the case quickly. As long time "B" movie director Bryan Foy observed, "You can't see the teeth on a buzz saw." 2

Severe editing and sparing use of detail in all testimony and presentations are essential. Admittedly, this is difficult to achieve in an era of discovery overkill. A significant case can generate several file cabinets of depositions. The lawyer's challenge is to extract only what can pass the same criteria used for film and television: "Will this promote involvement in the story?" If not, it should not be used.

In one sense, distilling a case to its essentials is nothing new. One of the most famous trial lawyers of all time, Abraham Lincoln, perfected this technique to a fine art 140 years ago. He had a single-minded power of concentration, thinking "slowly, methodically, deeply, as he tried to find the 'nub' of the question and strip it of irrelevance." 3 Through this process, he would boil the case down to the crucial points and present only these to the jury.

Having read all of this theory, you now ask, "That is well and good, but what specific techniques do you use?" This article will discuss how the methods of television can be applied in the courtroom. I will focus on four areas:

* delivering the visual knock-out punch

* scripting the opening statement - telling a story and very little else

* using videotape to distill the essentials

* streamlining direct examination

Visual Knock-out Punch

In the last few years, I have tried to identify the pivotal points on which a jury's decision is likely to turn. I then use these points in one combined visual and verbal message which is so persuasive that the jurors say to themselves, "That's it, that's all I need to know about liability in this case." I call these individual panels "liability flashcards", which is the most effective way to deliver a visual knock-out punch to your opponent. I cannot attribute this technique to the influence of "L.A. Law" alone. It is an outgrowth and a reflection of living in a visually oriented society, where one photograph and a slogan in a good advertisement can influence millions to buy a product.

Following discovery in Washburn v. Mid-Mountain Contractors , 4 a propane explosion case I tried last year, I assembled a liability flashcard which showed sequential photographs of the 800 foot scene of the accident and displayed them in a five foot wide panel. Shown this way, they produced a wide screen "cinerama" effect.

I had a graphic artist draw a picture of the pipeline that caused the explosion beneath the pavement shown in the photographs. Under this picture, I listed the "ten sins" of the defendant corporation - liability facts of what it did to cause the accident.

This one visual aid allowed me to explain a "complicated" liability case in less than one minute. It brought my entire case together. I had all witnesses - plaintiffs and defendants - refer to it during their testimony. Every one of the defendant's "ten sins" was firmly linked to the testimony of one of the witnesses. My opponent was left fulminating that this was "poppycock" or "nonsense," but he could not think of a way to undo the damage this liability flashcard had done to his case.

Another visual knock-out punch can be delivered through the use of storyboards, which are essentially comic strips - telling a story through key scenes and dialogue. These are used to plan every ad, film and TV show produced in the world today and are readily adaptable to courtroom work. For example, in the Washburn case, a graphic artist was able to condense all the events leading up to the explosion in a few panels.

The storyboard technique was also used effectively in another case where a college student was rendered quadriplegic during a fraternity rush function. 5 The plaintiff had dived off some rocks into a body of water and collided with another diver.

Through a series of five storyboards, the graphic artist depicted the danger inherent in this scene. He showed how hard it would have been for a diver to see people in the water below and the need for a spotter at the water's edge that day. The drawings were so compelling that the parties settled the case shortly after the defense lawyers saw them.

Defendants use this type of visual evidence effectively too. In a case involving alleged dental malpractice for failure to obtain informed consent, the dentist showed an artistic recreation of the way the plaintiff's teeth looked before the extraction was performed. It was not the kind of smile you would see in a toothpaste ad. The artist's illustration of the decayed teeth had such an impact on the jurors that the parties settled the case shortly afterward. The jurors later remarked, "As soon as we saw the drawings, the case was over as far as we were concerned."

Opening statement is the best place to deliver a visual knock-out punch. Most jurisdictions encourage the use of demonstrative evidence, even on opening. 6 It is then that jurors form the hypothesis that determines how they view the evidence during the rest of the trial. A Roscoe Pound Foundation study 7 found that 40 percent of the jurors had established a clear verdict preference after the opening statement. If you use strong visual imagery during your opening statement, you greatly increase the odds that this verdict preference will be for your client's case and not your opponents.

Scripting the Opening Statement

1. Don't waste any precious time explaining the purpose of opening or how a trial is conducted. As Shakespeare said, "The play's the thing." The jury wants the chance to hear what happened, why and who is responsible for the problem at issue.

2. Don't use adjectives in describing either your client's injuries or the defendant's liability, e.g., "horrible", "disfiguring", "callous". This causes the jury to switch on a "hyperbole filter" and discount much of what you say.

3. Portions of the opening statement in Washburn exemplify how sometimes less is more. There is power without adjectives:

The Kent Fire Department got there fairly quickly. Norm remembers this huge pumper truck right next to him shining a light down on him. It was almost surreal. And the aid car got there very quickly too. . . Norm remembers hearing the radio talk going back and forth. His own radio, which had been strapped to his side, had melted into a pool of plastic. And he remembers them saying, 'It's too foggy for a helicopter so we have to go by ambulance.' . . . Norm was conscious through most of this. He remembers them asking his name, his address, and his telephone number and he was able to give it. And then they put him in the ambulance, and he remembers them giving him morphine. And then he remembers them putting a tube down his throat. And, in his delirium, he thought he was being strangled to death, but then he passed out. He didn't wake up until much later at Harborview Hospital .

He was in Intensive Care, and he remembers looking through the glass at Sharon, his wife. He couldn't talk because he had a tube in his throat. He couldn't write because his hands were all bandaged up. . . But what he did was trace out the words "I love you" in the air.

3. Convey in the first 30 seconds both the enormity of the injury and place the blame for it squarely on the defendant. This happens on every episode of "L.A. Law" and is the legal equivalent of taking a hot branding iron and applying it to the defendant's hide - with appropriate dignity and decorum, of course.

4. Use extensive demonstrative evidence during the opening - visual anchor points - that you can weave through the entire trial. Always have a liability flashcard showing a large blow-up of the scene and the key facts that say your client deserves to win. This will indelibly shape the juror's perception of the events of the accident.

5. Limit yourself to a maximum of 30 minutes for opening statement, no matter how complex the case. If you think you can't do this, it's because you haven't taken enough time to distill the case down to the key facts.

Trial lawyers are familiar with the use of videotape and liability and damages presentations. I put this venerable tool to another use in the Washburn case: sorting out evidence most essential to maintain a dramatic pace and persuading jurors. I had my cameraman videotape all liability and damages witnesses and give me the preliminary edit and transcript. I then edited and re-edited the video down to the most powerful and persuasive lines. You get a completely different perspective on your case when you view it on a video monitor. I ended up with a 45 minute synopsis of the case - 20 minutes on liability and 25 on damages.

The results of this process radically transformed my view of the case. The 45 minute tape was paced like a TV program, albeit not as polished. This distillation said it all and said it well. Why, then, should I take weeks of the jury's time to try this case? All I really needed was on the tape. This gave me a very helpful perspective on what points were the most persuasive and how to pace the testimony to maintain a high level of audience involvement.

I also showed the expert witnesses their edited performances which crystallized exactly what information I wanted to elicit from each. This demonstrated how to streamline their testimony far better than any purely verbal coaching could have done. The experts saw themselves on the TV screen making points in a concise edited way that would be the most instructive to the jury.

I did not try the case in 45 minutes, but working with the videotape preview did help me complete it in four days - far short of the time it would have taken otherwise.

Occasionally I worried about cutting out too much information and coming up short in the juror's eyes. It was a risk. For example, I did not use an economist, but just put in Mrs. Washburn's testimony about what her husband had earned before the injury.

As another example, I put on an engineering expert for only 30 minutes. Another plaintiff's lawyer in a companion case out of the same explosion that hurt Norm Washburn, had spent five hours on the same engineer. I decided to cut out all scientific explanations by this expert: despite their soundness, they bored me after I switched perspective from a " lawyer" to a "consumer".

In talking with the jurors after the case was over, I found that my fear of undertrying the case had been unwarranted. In fact, the jurors all commented about my "thoroughness". This made me realize even more how warped my perspective had become through the constant skirmishing within the traditional advocacy process.

Direct Examination

Direct examination is the primary vehicle for telling a client's story to the jury. Much of what is said on this subject in trial practice textbooks is wrong. Take a look at the two minute direct examination on "L.A. Law" - then ask yourself if it is really necessary to take an hour and a half to present an expert's testimony to the jury.

The following suggestions are ways to make direct testimony more effective:

1. Don't spend a lot of time establishing the credentials of the expert witness. If experts do not speak with clarity and authority, all the qualifications in the world will not redeem them. If they speak eloquently, extensive recitation of credentials will not exalt them further. It is adequate to establish their expertise in general terms by asking a few basic questions. The rest will become evident during their testimony.

2. Present expert's conclusions to the jury at the beginning of testimony, preferably during the first minutes. Tell jurors exactly why the experts were called and ask the experts to summarize their opinions in as few words as possible. Federal Rule of Evidence 705 8 allows a lawyer to make direct examinations more concise by freeing us from the juror-numbing necessity of introducing voluminous data underlying the expert's opinion. So use it! The days of the hypothetical are over.

3. Shorten testimony by introducing written exhibits without extensive repetition of their contents through the witnesses. The jurors will be able to look at the exhibits later when they deliberate. Use valuable testimony time for telling the story, not for getting bogged down in details.

The effective use of medical records does not require much time. There is no need to ask doctors to discuss each time that they examined a patient when the medical records can be admitted into evidence for this purpose. Focus instead on the impact the injury has had on the plaintiff's life.

4. Boil down any scientific or medical principles to a definition of 25 words or less and have an illustration or exhibit prepared to demonstrate every concept. The book How Things Work 9 is an ideal reference to consult on this point. The book shows how even the most technical concepts can be made clear by a combination of simple words and effective graphics. Medical and scientific principles have an enormous capacity to bore the jury. There is no reason to burden the jury with unnecessary detail.

5. Don't ask bland "what if anything happened next" questions of the witness. The rules do not require you to be a listless, Socratic questioner, so ask focused questions that will elicit lively responses. Watch any direct examination on "L.A. Law", which will invariably follow this principle, and then compare it to your own direct examination. You can be assured that at least some of the jury will do the same thing.

6. Listen carefully to witnesses during prep sessions and note their use of language to facilitate questioning. Learn to punch their own buzz words so they will more readily understand what you want them to talk about. A vague question begets a vague answer.

7. Complement witnesses' testimony with appropriate visuals during most of the time they are on the stand. Look at the TV news: segment showing just the talking head of the anchor person are limited to roughly 15 seconds at a time. My rule of thumb is if there isn't a visual to go along with any portion of a witness' testimony, the presumption is that at least some of the jurors aren't paying attention.

Irreversible Trend

The "L.A. Law" approach is here to stay. Trial lawyers must learn to adapt the techniques and production of television and film to jury trials. Trial practice rituals must give way to dramatic media presentations. This will neither trivialize nor confuse trials, but ensure the jurors are interested, informed and entertained.

Copyright 1991, William S. Bailey

Endnotes

1. R.L. Bare, The Film Director 80 (1971).

2. Ibid. , 81.

3. B.P. Thomas, Abraham Lincoln 99 (1952).

4. Cause No. 88-2-08575-7, State of Washington , King County Superior Court, filed May 10, 1988 .

5. Kuoppamaki v. Epsilon Gamma Foundation , Cause No. 89-2-00247-4, State of Washington , Thurston County Superior Court, filed 1989.

6. See, e.g. Tegland, 5 Washington Practice , Evidence Sec. 31-39 (1989).

7. Guinther, The Jury in America 105 (1988).

8. FRE 705 provides that: The expert may testify in terms of opinion or influence and give his reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise.

9. Simon and Schuster, How Things Work (1984).

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