Wednesday, March 9, 2016

Simple Jury Persuasion: “Because it’s about you” 

Originally published by Douglas Keene.

mike-nicholsBecause I am away from home so much, I have my DVR set to record episodes of PBS’ American Masters series. I like history and biographies so this is meant to fill that interest and not aimed at trial consulting per se. Yet sometimes the nexus is a wonderful surprise. Recently, as I watched the American Masters episode featuring Mike Nichols—I was intrigued when I realized this master storyteller had valuable lessons for us on case narrative.

First, the documentary has been described as “obsessively loving” and it truly shows how much those who worked with Mike Nichols absolutely adored him. Produced by his former creative partner Elaine May, it is both insightful and beautiful. He didn’t always hit home runs with his films, but when he did make a winner, he really did! Consider The Graduate, Who’s Afraid of Virginia Woolf, Catch-22, Carnal Knowledge, and Charlie Wilson’s War. If your tastes run to theater, he is the director who first brought to the stage Barefoot in the Park, The Odd Couple, Plaza Suite, Streamers, and Annie. It makes me tired to even read the list of his accomplishments.

Here are just a few of the gems in this documentary which allows Nichols to tell the story of his life and how he honed his craft. In explaining his approach to writing and directing, he said that many choices relate to a very simple but critical question that he poses to himself, as an advocate for the audience:

“Why are you telling me this?”

His primary area was comedy, and in that context he says there are two answers. First, he says, an answer to this question can be “Because it is funny.” But the second answer, in addition to the first (not instead of it) is “Because this is about you.”

I don’t think most people would react to this simple exchange the way I did (pausing the show, replaying it in my mind, rewinding, watching it again, and pausing once again to think about it). He went on to say that he realized over time that he makes films about the “human experience” and often it was only in “looking back” on the experience of making a film and directing characters to tell the story that he would find himself realizing—“I know that guy! Wait, I am that guy!”. His final comment on this theme was that the goal was to get the listener to ponder the same questions as the writer or speaker does in creating a narrative.

“Do you also…”

“Have you felt…”

“How do you make sense of that?”

“Do you know what that is like?”

From a litigation advocacy perspective, we would say Mike Nichols tried to incorporate “universal values” into his films. It’s a theme we often talk to clients about—how to tell your story so it reflects back shared societal values to the listener. Ultimately, every story (on stage, screen or courtroom) succeeds no better than the director (that is you, counselor) is able to build a connection between the facts—or the significance of the facts—with what is important to the audience. In work with clients I have framed Nichols’ question differently, but with a very similar intent. I have spent countless hours brainstorming how the facts of a trial story answer the question “Why should a jury care about this?” The correlate of the first answer Nichols offered varies somewhat depending on the case.

In a personal injury case that is easy for jurors to relate to, the connection is easier to imagine. In a complex commercial case or an intellectual property case, litigators often overlook the question altogether. If the story necessarily involves engineering or technical matters clearly beyond their capacity to understand, jurors always wonder what the point of the testimony is, since they really can’t make a lot of sense of it. In post-trial interviews, it isn’t unusual for jurors to comment that the 3 days of testimony on arcane accounting relating to damages was a total loss, or that the ‘death march’ through the prove-up of patent claims and prior art was pointless. The ‘director’ failed Nichols’ test for those jurors.

The missing link is that the jurors weren’t told why it is important. The “why are you telling me this?” question was not answered for them. The answer is that the story needs to be told on two levels— at 10,000 feet for the jury to fully appreciate, and at the granular level for later review by courts of appeals. So you tell the story in two languages: ‘common sense’ and ‘science’. You tell them that’s what you’ll be doing, you do it (linking the common sense they understand as the translation of what the science means), you re-state the connection, and move to the next issue, where you do it once again. Afterwards, the jurors are more likely to say “I get why she told it two ways, but I sure prefer the easy way.”

But the second answer is paramount. If they accept the answer to the first question (it needs to include the technical for completeness, and I will build the bridge between that and what you already know), they will be more open to the answer to the second. And the second answer (“Because it is about you”) has to do with connecting the evidence to what is meaningful to the jurors.

Every trial is about personal rights and property. I should be able to do X without being hurt. we should be able to have control of our land, our activity, our inventions, our ideas, our future, our health and well-being. I have a right to be free, to keep others from mistreating me, to exercise my freedom to do XYZ, and no one has a right to cause me suffering.

It applies equally well to complex commercial cases as it does to personal injury or Oscar-winning films. Everyone wants their rights protected. In an intellectual property suit, Plaintiffs typically are accusing Defendants of theft (of trade secrets, identity, invention, et cetera.). As a value, it often resonates well. After all, who wants their stuff stolen?

But the same theme is fair game for Defendants, as well. Because if the Plaintiffs are over-reaching in their claims which are alternatively public domain, they aren’t stealing from the Defendant, they are stealing from everyone—the Defendant, yes, but also from the world of innovators, from the marketplace, and from the jurors themselves. And that story can be told with equally credible passion.

Telling the story in a way that shows your client isn’t necessarily “like them” is still okay, if they see a connection between your client and what is important to them as individuals and as jurors. Let’s face it—the jury will never be fooled into thinking a patent holder with a PhD in genetics or computer engineering is “like me”, but the story can be told in a way that allows the jurors to see that “what is important to [your client] is the same as what is important to me”.

We’ve seen the same strategies used with corporations when attorneys will talk about the organizational commitment to volunteerism and community involvement. How is this company making its community better? What values of mine does this company share? Do I find company representatives likable and credible? Are company representatives the sort of people I would like to work with or enjoy spending my work hours around?

We very much agree with Mike Nichols’ comments about his work and how he learned the importance of telling a good story. After all, everyone loves a story that could be about them. We don’t know if every filmmaker knows these things or not—but after watching this documentary, it was pretty easy to see why everyone who worked with Mike Nichols just adored him. If you can find this episode online somewhere—it is well worth watching. You can’t help but be shocked at just how many iconic films and plays were directed by Mike Nichols, and you will definitely learn a few things about telling a story in a way that invites the listener to identify and to believe.



Related posts:

  1. Simple Jury Persuasion: Make an emotional connection with your jury
  2. Simple Jury Persuasion: Human flaws bind us all
  3. Simple Jury Persuasion: The tactics of effective salespeople

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today
via Abogado Aly Website

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