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4 Tips for Stealing Thunder in the Courtroom

Laurie Kuslansky
By: Laurie Kuslansky

Jury Consulting, Litigation Consulting, Juries, Jury Consultants, Trial Preparation, Labor and Employment, Emotions

 

stealing courtroom thunder motion in limineby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

In Limine” in Latin means “at the threshold” and some judges wait for the threshold of trial to rule on motions in limine. Using this motion, litigants may attempt to preclude arguments and/or evidence that one side believes is a “side show” by the other side, but may not find out until trial begins if it will be in or out of the case. Lenient judges may let in such information, despite cogent protests against it. When that happens, how do you deal with it?

The Problem

In many venues, and for many jurors, the side show is more interesting, understandable and dramatic than the drier facts of the case.  For example, wording of a contract pales in comparison to illicit acts alleged against some of the key actors. Nasty remarks ring louder than appropriate conduct. A spotty personal history is a bigger attention-getter than that person’s work history. An affair outside the workplace is juicier than business as usual.

 

When to deal with the side show?

Answer:  As soon as possible.

We understand the reluctance of counsel to appear defensive and side-tracked by overly-attending to the opposing side’s case. However, not doing so leaves too much room for the opponent to enjoy an unwanted advantage. If the jury gets the wrong impression from your adversary, it is difficult to reverse it by waiting too long or worse, leaving it to jurors to figure out themselves. Leave nothing to chance. In order to downplay the relevance or importance of distracting, negative information, address it head on and early. Some refer to the potential techniques as “stealing thunder” or “raining on their parade.” 

 

What is thunder?

“Thunder” in litigation is potentially powerful, negative information asserted by an adversary. It may be front-and-center information that is harmful, a weakness in your case presented by your opponent, or the stuff of a side show that is not immediately relevant, not really probative, but presented for that very reason – to be loud and problematic in order to leave a lasting impression.

Where does “thunder” come from for jurors?

Anywhere. 

There are numerous real-life anti-heroes in the news who can easily roll off the tongues of potential jurors (e.g., Bernie Madoff, Toronto mayor Robert Ford, Olympian-turned-murder defendant, Oscar Pistorious, George Zimmerman, or good-turned-bad teen idols, such as Justin Bieber, Miley Cyrus, Lindsay Lohan, Amanda Bynes and Chris Brown). 

Antiheroes became all the rage in TV and movies of late. Popular culture and its vivid images are easy points of reference for many jurors.  For example, 10.3 million viewers watched the final episode of Breaking Bad.  Such figures lend credence and impact for negative impressions. 

If jurors have seen movies such as “Wolf of Wall Street” or characters on TV shows such as Tony on The Sopranos, Walter White, the meth-making chemistry teacher on Breaking Bad, Patty Hewes, the super-lawyer representing amoral corporations on “Damages” and others – they have immediate access to highly negative images of anti-heroic characters in fiction that are summoned when evaluating key figures in a lawsuit who may share negative traits with them. Or, at least, that is the hope of a trial lawyer trying to use negative information as thunder. Here is a list of TV’s top 17 anti-heroes of 2013. After all, jurors may have seen them, so you should know what you may be up against if they have.

 

“Stealing Thunder”

If you are certain your opponent will raise potentially negative information that can highlight weakness to your case, thereby creating thunder, it is foolhardy to let it echo unaddressed.  If such weaknesses will not be raised by your opponent, of course there is no reason for you to do so. 

One way to do counter damaging negative information is by stealing its thunder, i.e., “a dissuasion tactic in which an individual reveals potentially incriminating evidence first, for the purpose of reducing its negative impact on an evaluative audience.“ [1]

 

How to Steal Thunder?

It isn’t enough to tell people not to think about the pink elephant in the room, or at trial, to simply “tell” jurors what doesn’t matter. You have to go the extra step of explaining how and why it doesn’t matter. Taking the bull by the horns requires showing that the side show doesn’t pass muster in specific ways:

1)    Do it first.  If you are the Plaintiff, anticipate the defense presenting a side show, and steal their thunder by addressing the negative information in your opening – before the defense does so in its opening statement.

2)    Actions speak louder than words.   For example, were there any actual actions taken at the time to show that the complaints had merit? Did anyone lodge a formal complaint at the time? Did anyone go to HR? Did anyone file a lawsuit? If not, then those are issues that were not issues at the relevant time, but only ones magnified after the lawsuit. 

3)    Now vs. Then.  If possible, show that those allegedly disgruntled about such conduct now did not take action at the time. Contrast the two time frames to show a lack of support for the allegations at the time and that they only became alleged issues after the fact.

4)    Options and control: Key in succeeding to defeat such issues is showing that, at the time they allegedly mattered, the aggrieved had the wherewithal to make choices and take actions, but did not – not because they couldn’t, but because they didn’t have reason to do so.  Otherwise, dismantling their complaints is anemic.

 

Does it work?

Yes. Stealing thunder significantly reduces the impact of negative information. [2]  It minimizes the importance and reduces the potential damage of negative information. However, this tactic is “no longer effective when opposing counsel revealed that the stealing thunder tactic had been used on them.”[3]

 

Sorry, but I have to steal your thunder, too.

You may be countering the advice provided here with the thought that you don’t want to draw attention to the opposing side’s side show by talking about it directly in your case.  While that is understandable, it is ill advised. Even if you don’t talk about it, and your opponent does, the jury will, too, and decades of real-life jury interviews have shown that when jurors talk about your client, you do worse, and vice versa. Litigation is just the opposite of what Oscar Wilde once said, i.e., There is only one thing in litigation worse than not being talked about, and that is being talked about -- so take heed to direct the talking.

 

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[1]  Dolnik, L., Case, T. I., & Williams, K. D. (2003). Stealing thunder as a courtroom tactic revisited: Processes and boundaries. Law and Human Behavior, 27, pp. 267-287 at http://www.ncbi.nlm.nih.gov/pubmed/12794964

[2] Williams, Kipling D., Bourgeois, Martin J. and Croyle, Robert T. The Effects of Stealing Thunder in Criminal and Civil Trials. Law & Human Behavior (Springer Science & Business Media B.V.);Dec1993, Vol. 17 Issue 6, p.597

[3] Op Cit. Dolnik, et al.

 

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