Thursday, December 13, 2007

Discovering the Client's Story and Telling it Well

Josh Karton says we are all "hard-wired" for stories. Recently I saw this dramatized when I picked my daughter up at Borders at 2 a.m. after she waited for hours to buy the last Harry Potter book. Even in this digital age, it was amazing to see thousands of people at one bookstore and to realize there were many other bookstores that looked the same way in Omaha and perhaps millions of bookstores across the country looking the same way.

But how do we tell the judge a good story, one that doesn't simply entertain them but makes them genuinely empathize with our client and minimize the sentence she's facing?

I tried something new once after losing several appeals of termination of parental rights cases before the Nebraska Court of Appeals. I began my argument with the question, "May I tell you a story?," assuming that while they liked the respect inherent in "May it please the Court," that they were up for something different and perhaps bored with it. I knew it would get their attention and that I needed to do that to have a shot at winning this longshot appeal.

I went on to tell a story, seemingly unrelated to the case, about me watching baseball on t.v. and my wife asking me "How can you watch this stuff day after day? It's so boring." I said to her, and to them, "Yeah, you're right, it's boring but," I went on, "it's the only thing on t.v. that you don't know the ending to. And once in awhile, it's not boring; it's magical, and somebody digs down deep and surprises you, and you see an ending that's more dramatic than anything any made for t.v. drama. That's when it's amazing, when you see somebody get a chance to prove themselves against all odds, and they do something dramatic, right there live, before your eyes. That's why I watch baseball," I said, "for those moments when people do amazing things that you never expected."

The judges were still looking at me dumbfounded, and, while they hadn't even answered my question about whether they wanted to hear a story, I took their silence as agreement and carried on anyway. That's when I brought the story back to the case, saying "and that's what this case is all about, my client never had the chance to step up to the plate. And because she didn't get this chance, we never got to see how this story might have ended, how something magical might have happened..."

And then I went into my argument about how my client's parental rights should not have been terminated, how she didn't get the chance to see if she could do what was asked of her in an evaluation that was before the judges as an exhibit. The phrase "she never got a chance" became a theme that I hoped they would take back with them. I think I even mentioned something about the Bad News Bears, hoping they might have taken their kids there and remembered the scene at the end where the game ends early to chants of "Let Them Play!" as I wanted to get my client another chance to "play" too.

But, it didn't work.

I lost the case. But I felt like my presentation, my story, worked despite the fact that we lost, because the "live event" seemed to get their attention. My goal was to get them to look at the case differently, more closely, and to have the phrases I used echoing in their minds when they read the exhibits and crafted their opinion.

I wish I would have had the chance to ask them whether my odd way of beginning an argument repelled or attracted them to my client's cause. I knew it was a tough case to win and that drastic action was necessary. But, it didn't work, we didn't win, so I can't claim anything other than a feeling that it came off pretty well, but evidently not well enough.

Maren Chaloupka once wrote that there is a fine line between a "courtroom stunt" and a successful, engaging presentation that ultimately wins the case. My story might sound like a stunt described in words, but it felt like it hit home, even to judges who were uncharacteristically speechless throughout my argument.

But, let's face it. We've all seen and perhaps even performed courtroom stunts that had good intentions but didn't work in the moment. So what's the difference between a stunt and a good story? A stunt is about the lawyer's ego, about her need to be "different" or simply on stage. A good story, however, is about the client, about getting the judge to see that person as something other than a case number or offense, empathizing with the client's choices and background and sentencing the person accordingly, mercifully.

I've told some good stories in court that got the judge's attention, but I've also tried and failed, when my ideas sounded better in rehearsal than "on the stage" of a courtroom. But I've also seen a lot of lawyers who are afraid to do anything that's not "by the book" even when the case cries out for something creative and unorthodox, when not doing so turns the trial into a slow plea.

One phrase I remember from NCDC is "a trial is a contest between competing stories. The prosecutor is handed her story in the form of the police reports. But this is only one side of the story and until we discover our client's story, their story will win and our clients will lose." I have even heard a law enforcement officer say that "it's all in how you write the report" as if he was aware that what he wrote would be accepted as the truth, even when he was simply making up stories.

One luxury of private practice that I didn't have as a public defender is the extra time to "discover the story" of the client. In fact, the other day I met with a client for an hour before we cancelled her warrant, learned all about why she missed court, how she moved away to be closer to the couple who wanted to adopt her baby and then moved back to Omaha with the child after deciding to keep it. I learned that she came to Omaha after meeting the father of her child, how she met him while travelling across the country selling magazine subscriptions, and how he promised her a great life here, thousands of miles away from her family, and how he beat her up when she got here. She was charged with assaulting him, with damaging his car, and with disorderly conduct, but that was only the last chapter in a story that needed to be discovered.

When we got to court, the judge I'd picked as likely to let my client go with no bond was gone, replaced by a judge who would set a bond if we didn't enter a guilty plea that day to either assault, damage to property, or disorderly conduct. But the hour spent discovering her story paid off as the judge, after hearing my client's story behind missing her trial date, for purposes of deciding whether to set a bond, later asked the prosecutor to drop the assault and damage to property charges and plead to the disorderly conduct for a $25 fine.

The car my client had scratched with the paint can, that I was worried would lead to payments of restitution, was not important to the judge after he heard how the owner had two previous domestic violence convictions for assaulting my client and how she'd been struggling with what to do with the baby he'd left her with. The hour spent "discovering the story" paid off and probably saved her days in jail and hundreds in restitution, and perhaps an assault conviction. I didn't have to even attempt a courtroom stunt as her story was engaging enough by itself.

But how do you know when the time is right to step out of "lawyer mode" and try storytelling techniques that hopefully grab the fact finder's attention and win for your client? Like Jeff Bridges says about Duracell, "it just has to work." But if staying in "lawyer mode" isn't working, maybe it just has to change?


Anonymous said...

I have tried hundreds of cases as criminal defense attorney. In my first year as an attorney, I got carried away with a stunt. I was a an assistant public defender and I was defending a lady who had stolen form a convenience store. One of the elements of this crime is the mens rea. My client had told me that she had consumed a twelve pack prior to entering the store and was high as a kite from the alcohol. Not much of a defense I thought, but the offer was sixty days in jail and this was the maximum jail sentence that she could have received. Well, with nothing to lose I tried the case. During the trial, I brought in a twelve pack of CHEAP beer (I was a poorly paid pd) and obtained the court's permission to use it during my closing argument. During closing, I opened up each can of beer and poured it into a big clear fish tank and told the jury that this was how much beer my client had testified to consuming prior to committing her crime. I argued to the jury that there was no possible way she could have formed the criminal intent to steal from the store. The courtroom had the smell of the morning after a great fraternity party. The aroma of beer was intoxicating and brought back many memories of college. The jury was out for FIVE minutes and promptly returned a verdict of guilty as charged. My hopes were dashed but, my client went down with a fight and I made the prosecutor work for their conviction. My client may not have prevailed that day, but at least she knew her pd cared enough to try. I was gratified by this and I thought your story was very inspiring. Thank you.

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