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Develop Your Trial Story – Sooner, Not Later

Alan Rudlin
By: Alan Rudlin

The traditional way for trial lawyers to prepare for a new case is pretty straightforward. The first step is to get one’s arms around the basic facts of the case – to understand the facts and the timeline of the case in depth. The second step is to ask oneself what the ideal resolution of these facts would be: What would the client want a fact finder to conclude? The third step is to begin to fit the facts into legal frameworks or algorithms that accord with the client’s view of the case.

Often, however, lawyers take these steps, and then, when they are close to trial, probably too close to trial, they begin to ask themselves how a jury would likely view the case that they are putting together. This is the wrong time to ask that question. The right time is much earlier than most trial lawyers think.

The story is told of a famous trial lawyer who is walking down the broad front steps of a courthouse. He encounters a younger lawyer walking up those same steps, laden down with piles of books in each arm and obviously feeling the weight. The older lawyer says to the younger one, “Son, what you need is a story.”

The older lawyer was right. The process of building and developing a convincing story for the jury should start very early, right at the beginning of trial preparation. The first questions to ask, after you know the facts, are “What is the story that I want to tell the judge or jury about these facts?” and “How can I tell and show this story?” Newspaper articles and children’s books tell stories quickly and efficiently by using both words and illustrations, and that’s what trial lawyers need to do as well.

Once you as a trial lawyer grasp these points, the best way to proceed – again, earlier and not later – if the client can afford it, is to create a nonlawyer “filter” to test your story. Don’t just rely on your “lawyer brain,” which doesn’t think the way that ordinary people (jurors) do.

If you can, create a demographically matched mock jury to hear and test out your case. In a case that’s worth hundreds of millions of dollars, the cost of mock-testing your story is small in comparison with what’s at stake. In a smaller case, consider explaining your story to nonlawyers who work in your firm such as administrative assistants or paralegals, or to friends and family members, and then listen to what they have to say about the story. Was it convincing? Did it flow well? Were there obvious holes in the story?

One of the things that we at A2L do well is to help lawyers come up with a persuasive story and to help them tell it in ways beyond the use of words. We believe in showing and telling at the same time. The earlier you pay attention to your story, the better off you will be.

Other articles and resources from A2L about storytelling, trial preparation, and how great trial lawyers win include:

A2L Consulting's Storytelling for Litigators 3rd Ed E-book

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