The Atlanta Lawyer January/February 2011 | Page 17

relationship building Tilting at Windmills By DeAnn Sinrich Trial Consultant [email protected] I n a recent case, the lawyer I was assisting kept referring to the defendant as an evil wrongdoer. I asked, “Why are we talking about evil and intent? Isn’t this just a simple negligence case?” He countered, “Well, yes, but I really think this defendant is a bad guy. And don’t you think the jury will award more money if they are angry?” “Perhaps,” I replied, “but I don’t see any evidence that this defendant is who you think he is. And unless you have something more to show the jury, I think the tack you are taking is likely to backfire.” My client didn’t change his beliefs about his opponent, but he did begin to shift his language. As we continued to work together he slowly (and begrudgingly) removed the exaggerations, embellishments and the harsh characterizations from his trial story. At trial, the defense took a page from my client’s old playbook. The defense lawyer continued the bitter pretrial banter in front of the jury, making subtle references about the plaintiff’s lawyer and some not so subtle suggestions about the character of the plaintiff himself. Because the jury’s perceptions were different from the defense lawyer’s case story and overtones, he lost credibility. Ultimately, the defense lost the trial. Like Don Quixote, who fights windmills he imagines to be giants, lawyers can become so involved in litigious discovery that they too create imaginary enemies. As a trial consultant, I have seen very few cases where there is a clear hero and villain. Instead, the characters involved are complex human beings with conflicting motives, fears and hopes, each with a story to tell. The problem is that in the courtroom, as in life, we sometimes lose perspective and begin to see our foes only as our expectations, theories, and selfinterests allow. Many passionate lawyers believe that zealously advocating for their client requires them to force opponents into convenient, two dimensional stereotypes. This often leaves them ill-prepared to face the three dimensional human being the jury observes in the courtroom. The Official News Publication of the Atlanta Bar Association During trial, jurors watch and listen, making assessments about what happened, who did what to whom, who is credible, who can be trusted and who is trying to get away with something. Based on these factors, the jurors begin to make up their own stories about what happened. They tend to believe that “the truth” lies somewhere in the middle between the narratives presented by the opposing parties, and is very strongly represented by the experience they are having right now, in the courtroom. Usually, the side whose presentation resonates most closely with the jurors’ perceived and collective stories wins. It’s a bit like Pin the Tail on the Donkey. Since the dynamics of a trial are in constant flux, lawyers, as storytellers, have to be able to listen and react as events unfold in the courtroom. They can’t be blinded by the history of contentious wrangling with their opponent. They must recognize that the story is ongoing, and includes everything happening until the jury gets the case. Like good actors, attorneys must remember that their job is to react and respond to stimuli. When we see a performance in a film or play where the actor’s response is out of balance with the stimulus, he is considered to be (a) overacting, (b) a bad actor, or (c) telling us that there is something else behind his reaction. When a lawyer’s reaction seems too largely based on the perceived stimuli, jurors ears perk up. They may wonder: What is he hiding? Is this dangerous territory? Who is he protecting? Whatever immediate conclusions the jurors draw, the bigger danger is the disconnect between the lawyer’s affect and the jurors’ perceptions. When lawyers seem unwilling (or unable) to recognize the truth or impact of events happening in the moment, this creates a divide that separates them from the jury. They are basically proclaiming that the jury’s experience is either wrong or irrelevant, communicating arrogance, ignorance, or contempt for the jury. I have seen great lawyers lose and mediocre lawyers win. Why? Because the successful story is the one that connects and resonates most with the jury. And if jurors lose trust in the storyteller, then they lose trust in his story as well. January/February 2011 THE ATLANTA LAWYER 17