WINNING AT TRIAL THE ART OF STORYTELLING

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1 WINNING AT TRIAL THE ART OF STORYTELLING W. MARK LANIER The Lanier Law Firm F.M West Houston, TX State Bar of Texas WEST TEXAS GENERAL PRACTICE SYMPOSIUM March 2, 2007 Lubbock CHAPTER 6

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3 MARK LANIER Mark Lanier founded The Lanier Law Firm in Since then, he has become one of the most successful trial lawyers in the United States. Most recently, he made headlines for winning not one, but two, major verdicts against Merck & Co., the maker of VIOXX. But long before anybody had even heard of VIOXX, Mark Lanier was making waves in courtrooms around the country. In 1993, he represented a small oil company in a business fraud case against Amoco Production Company, one of the nation s largest oil providers. That case resulted in a $417 million verdict for his client. And in 1998, he won one of the largest asbestos verdicts in U.S. history on behalf of 21 Alabama steelworkers. He is consistently recognized by his peers and the media as one of the best in his field. The prestigious National Law Journal named him one of nation's Top 10 Trial Attorneys in 1998 and Also in 2006, the same publication called him one of the 100 Most Influential Lawyers in America. He has received similar such designations from other publications, including The American Lawyer, Texas Lawyer, and Texas Monthly. Mr. Lanier graduated from Texas Tech University School of Law in 1984, and he remains on the school s Foundation Board. He founded the nonprofit Christian Trial Lawyers Association, and he serves on the Board of Trustees of the Committee for Economic Development. He and his wife, Becky, have five children.

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5 Winning at Trial The Art of Storytelling Chapter 6 TABLE OF CONTENTS I. INTRODUCTION... 1 II. THEORY OF COMMUNICATION... 1 III. WHY TELL STORIES?... 1 IV. HOW TO TELL STORIES... 2 V. GET TECH SAVVY USE POWERPOINT!... 3 VI. CONCLUSION... 3 i

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7 Winning at Trial The Art of Storytelling Chapter 6 WINNING AT TRIAL THE ART OF STORYTELLING W. Mark Lanier The Lanier Law Firm F.M West Houston, TX I. INTRODUCTION If I were good really good I could just put a few photos in here (each one being worth about 1,000 words!), sprinkle in a few Internet addresses with video clips, and presto! I would actually communicate my topic without writing a paper! But, I am not that good! So, instead, I will write and use words to convey the premises behind The Art of Storytelling. Clear, simple themes are the root for successfully presenting your case to a jury. These themes should be interwoven throughout trial from voir dire and opening, through the examination (and cross!) of each witness, to closing. One of the most effective ways to present these themes is through telling stories. II. THEORY OF COMMUNICATION There are a number of communication theories the experts write and talk about. Most all of these theories are based on communication as taking a message and impressing it into the grey cells (brain) of the audience (the receivers ). The question then becomes the purpose of the communication. Are we communicating to inform the audience? Are we communicating to stir conviction in our audience? Are we seeking to motivate our audience to action? Do we want to persuade our audience or mold their opinions? These questions are important because they direct, to some degree, how we go about our job communicating. If we are primarily teachers seeking to inform, then we may use one approach that imprints data onto grey cells. If we want to motivate, then our approach may seek to involve the heart, finding the emotional pull points for an individual and grafting our issues onto those points. If we want to change someone s mind, then we might want to first understand where his or her mind is on the issue, seek to find the impediments to our view, and then try to remove those impediments. While the purpose of the communication can dictate different approaches in communication, we find great power in telling stories under all scenarios of usage. III. WHY TELL STORIES? In short, people learn better with stories. Why is that so? A number of reasons: 1 Stories are Attention Getters. People get involved in stories and pay better attention to stories as opposed to factual dissertations. People Remember Stories. If you ever take a memory course, the fundamental method for memorization is to take one or more facts and turn them into a story. Stories plug into the mind much better than facts. Stories By-pass Defense Mechanisms. Defense mechanisms, we are told, are psychic mechanisms we use to resist feeling guilty, anxious, and a variety of other unpleasant emotions. It may be easier to think of it in terms of if you or someone close to you Agets Think about what triggers defensiveness in you. For example, if someone says AI think you are a bad trial attorney because you you start, at least in your mind, planning a defense to the accusation (i.e., AI=m not a bad attorney because What a story or metaphor accomplishes is an end run around the defense mechanism. Like an Aesop fable, AOnce upon a time, there were two bunnies. A fast one and one who was a good The person hearing the metaphor does not initially know where the identification attaches. Therefore, the message is digested before the identification and or defense happens. Here is another example that may help clarify this point. If a therapist were to say to a couple referred to her for marital problems, AIt=s useless to blame one another in a marital then one person in the couple will think of a time the other was clearly wrong. Ammunition is stockpiled for a strong defense. He or she will surely be focused on the particulars of their problems and miss the point. Instead, you could say, when you mix vinegar and baking soda, you

8 Winning at Trial The Art of Storytelling Chapter 6 will get bubbles. It is useless to dwell on who=s at fault B the baking soda or the vinegar. Neither person in the couple can immediately identify with the vinegar or baking soda; so, the point about the futility of blame is digested rather than diverted by a defense mechanism. People Identify with Stories. When most folks hear a story, they grab a hold of some aspect(s) of the story and begin to cast themselves into the story/experience. Empathy, understanding, anger the full panoply of emotions can be transferred from a story into a personalized experience for the listener. Stories Simplify Difficult Concepts and Issues. Use stories to things. Stories make it possible to easily understand complex rules of law and legal positions. Jurors, after all, have not been to law school. They want to apply what they know about right and wrong to the facts of your case. You are not going to implant your law degree into their brains no matter how hard you try. You can read definitions of Aproximate or Apreponderance of the all day long and all you will receive back are blank stares! So, if you want to get your point across, then put your legal definitions into the same stories and themes they already understand. For example, in a civil business dispute, you could say, AMy client may be the tortoise, but the other is the hare. He can have all the potential in the world but my client did all the work! Just because we simply did our job and trusted he would do his part, that does not mean we should be cheated through his It is almost impossible to oversimplify your case for a jury the simpler, the better. IV. HOW TO TELL STORIES Mock Trial Research. Watching ordinary people make sense of your case is something you really need to experience. It is also one of the best sources of trial themes and stories. Research jurors will take the facts of your case and try to understand them. In order to do this feat, they will simplify your facts and use their own home-spun analogies. They put the facts into a conceptual framework in which they are able to make sense of it. All you have to do is listen. We mock trial almost all of our cases. No major manufacturing company today would release a new product without focus group testing. Could you imagine the folks at Pepsi saying AYou know, let=s just try hot pink cans for a while and see if our sales go Sounds ridiculous, yet I still meet trial attorneys who take a case to court without knowing whether they are going to win or lose it first! When it is time for people to convince one another, like during deliberations, analogies will be rampant. What you will hear is, AWhen he said that, it made me think of the time or AThat sounds like (blank) to or AMy PaPa used to always Use of Themes. Another idea I find useful is to look for what I call in the stories I plan to use. An anchor is something that will help keep the analogy in the jurors= mind. The anchor can trigger a memory of the point you want the jurors to remember. For example, common household items that the juror is likely to encounter during the trial are good anchors. In explaining the spread of Asbestosis in the lungs over time, we used moldy bread. [In telling the story, I note how my son can spot mold on break before anyone else, but in a few days, everyone can see the mold. This method is more simple than trying to explain and readers to the jury. Plus, there is the added benefit of tying an to the bread.] Hopefully, whenever a juror sees a piece of bread during the trial, the asbestosis story would be triggered by the anchor. Testing the Story. After you have developed your themes and decided on your stories, test them with the mock trial. It is never enough simply to depend on our own intuition to test a theme. [No disrespect intended, but we do not think like a juror.] A doctor who treats himself has a fool for a client! See how that works! Also, the mock trial gives you the opportunity to apply the final touch in the story telling process B the delivery! A good trial attorney is an actor. He has to work the crowd. Use props, easels, and blowups. Effective stories are a little like show-and-tell. Supplement the stories with good 2

9 Winning at Trial The Art of Storytelling Chapter 6 Practice. visual effects, but also, work on your dramatic pauses, inflections of voice, and emotional tonality. Ad libing has little place at trial. Practice makes perfect. Story telling improves with practice. Another excellent place to practice is on your children. Try explaining your case to a ten your old! I am told many attorneys practice their story telling on their wives when it would be better to practice on the younger ones! Tell your stories; tell any story. Tell stories to your friends, family, co-workers. Tell all kinds of stories to all ages. Learn what words interest people. Learn to vary your voice. Use your face and hands to help a story (not in a distracting way!). Get Books on Storytelling. V. GET TECH SAVVY USE POWERPOINT! 1 Want to produce an opening, evidence, and a closing that captivates jurors, makes complicated ideas easy for them to understand, and seamlessly complements your case themes and verbal delivery? Turn on your computer and open your PowerPoint program! These days, it is common to see evidence displayed in courtrooms on TVs, projectors, or computer screens. Yet, many seasoned attorneys are reluctant to fully integrate these new evidentiary tools into their trial strategy. Some have voiced justifiable concern that using presentation technology the wrong way might create a show out of a trial, distracting jurors from the message. On the other hand, not using presentation technology poses its own risks, including being perceived by mediasavvy jurors as old-fashioned and outdated. The solution? Guide jurors through your story by creating a storyboard. 2 This innovative presentation technique which is much more compelling than a conventional presentation created with PowerPoint software will help jurors see the big picture, make complicated ideas easier for them to understand, and keep their attention through the long haul. Instead of the traditional bullet points PowerPoint presentation, a PowerPoint storyboard displays a varying sequence of visual frames that are tightly linked to one another like a filmstrip. Every visual element is designed on top of a clear, organized, and persuasive story structure and seamlessly complements the attorney s verbal delivery. The technique keeps simple graphics flowing across a screen in a way that helps jurors remember information and apply it to decision-making. Showing what you mean, instead of just telling, gives you significant persuasive power. The more you mimic the way jurors accumulate information to form opinions in their daily lives, the more you tap into those processes for the purpose of persuasion. A graphical approach motivates, invigorates, and explains. It is an attention-getter and an attention-keeper. Jurors brains and emotions react to words and phrases without consciously doing so. Using pictures helps them find the way to the result you seek. You can pick up the basics of a PowerPoint storyboard quickly, but mastering its use for the demands of trial will take practice and more practice! Technical people can help with setup, but ultimately, you run the show. VI. CONCLUSION No matter where you are in your practice, no matter your measure of success and your comfort with your approach never become an old dog! Learn new things. Figure out how to kick up your game a few notches. Don t be afraid to open your computer and try PowerPoint! Either way, research and find the themes for your case and then tell the jury a story that will present your case in a compelling way that the jury will not forget. 1 Parts of this section are from the article by Cliff Atkinson and W. Mark Lanier, Tap into the power of a PowerPoint Storyboard, TRIAL, April For the best book on PowerPoint and a step-by-step description of how to build a PowerPoint storyboard, see Cliff Atkinson, BEYOND BULLET POINTS: USING MICROSOFT POWERPOINT TO CREATE PRESENTATIONS THAT INFORM, MOTIVATE, AND INSPIRE (2005). 3

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