Know Your Audience before You Tell Your Story to the Judge, Jury, Arbitrator
By Kevin P. Dwight
Storytelling is a critical part of every case. A jury has to believe your story, relate to it, and feel that the outcome you are asking each juror to deliver is, at the end of the day, a fair and just result. A judge, who has hundreds of other cases on his or her docket, also wants to reach the right result but wants you to deliver it as efficiently as possible, without all of the pizzazz attendant to a jury trial. Trying your case before an arbitrator requires a combination of the two—enough zest to keep the proceedings lively while understanding you are telling your story to a sophisticated factfinder, typically a former judge or experienced litigator.
This article explores strategies for securing the right audience for your case—judge, jury, or arbitrator. Next, tips are presented to help you tell your story most effectively to give you the best chance of success, depending on your particular audience. Finally, this article examines how to tell our stories if, heaven forbid, we need to keep telling them to judges, juries, and arbitrators over Zoom and other remote video software programs.
II. STRATEGIES FOR SECURING THE RIGHT AUDIENCE FOR YOUR CASE
At the outset of a case, it’s important to figure out as quickly as possible what the facts are so that you can develop the legal theory that best fits your narrative. But once you know your case, a critical question becomes, “Who do I want to tell my story to?” Maybe there is a contractual arbitration provision that takes the decision out of your hands. Or maybe you are defending a case outside of California where jury-trial waivers are enforceable, and your client previously signed a contract waiving any right to a trial by jury. If your client already selected your audience via a predispute contractual agreement, most likely that agreement will be enforceable, and you won’t have the opportunity to revisit that decision.
But if there are no restrictions on your ability to select an audience, there are several important considerations to consider. First, ask yourself, “Is my case strongest on the law, the facts, or a fundamental notion of what is fair?” Most cases will have strengths and weaknesses in all three areas, with some favorable legal principles, some good and bad facts, and a level of fairness depending on how the law and facts are applied. But to succeed at picking the right audience, it’s critical to isolate the best features of your case and proceed accordingly.
If you conclude your case is strongest on the facts, you likely will want to tell your story to a jury. Telling a good story to 12 people, as opposed to a single factfinder, often gives you the best chance to succeed. A compelling narrative can also better resonate with individuals who, unlike judges and arbitrators, typically aren’t part of the legal system. As discussed below, you will want to center your story around two to three themes, ensure your story is relatable, and tell your story in a cohesive manner with a beginning, middle, and end.
If you decide you are better suited relying on strict legal principles or affirmative defenses, you may be more inclined to request a bench trial. Although you may have a good story to tell, you may gain a tactical advantage by trying legal issues before a judge that, if resolved in your client’s favor, are dispositive of the case. For example, if your case involves a potentially unenforceable contract, consider leading with an affirmative equitable claim for declaratory relief to void the contract at issue. California has an “equity first” rule, which provides that, “in a case involving both legal and equitable issues, the trial court may proceed to try the equitable issues first, without a jury . . . , and that if the court’s determination of those issues is also dispositive of the legal issues, nothing further remains to be tried by a jury.” (Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 671; see also Nationwide Biweekly Administration, Inc. v. Superior Court of Alameda County (2020) 9 Cal.5th 279, 317.)
Similarly, consider filing a motion to bifurcate to tee up your favorable legal issues for resolution before impaneling a jury. Given that our judicial system will need to continue to deal with the global pandemic for the foreseeable future, the benefits of bifurcation to streamline a case, avoid potentially needless interaction with jurors, and conserve judicial resources cannot be overstated.
If you think your best chance of prevailing comes from a sense of what is fair, you likely will want to get your case in front of a jury. As discussed below, fairness is more important for a jury than any other audience. Jurors like to believe that their verdict was—above all things—fair and that they dispensed justice in a way that reached a fair and just result.
There are also many reasons to select an arbitrator as your audience. If you want to keep your case confidential, arbitration is ideal. Arbitration could be the right venue if you are an employer, a large manufacturer, or other defendant that a jury might not always look favorably upon. If your client is cost-conscious, arbitrations are often more cost-effective and can be adjudicated more quickly. If you want to limit discovery, most arbitrators will be inclined to place at least some limitations on the scope of discovery—certainly more than you will find in state or federal court. Unlike a bench trial, you typically get at least some say in the selection of your arbitrator—whether by agreement with the other side or by submitting a rank-and-strike list, which you will want to vet ahead of time with your colleagues and a search of publicly available materials. You may also want to consider arbitration if your subject matter is complex or requires a particular background to adjudicate (e.g., tax or accounting issues). If you can agree with the opposing party to select an arbitrator with expertise directly applicable to your case, your job as a storyteller becomes that much easier.
Of course, the risks of selecting arbitration are not insignificant. Many grizzled trial lawyers avoid arbitration at all costs because they don’t want to put the fate of their case in the hands of a single person who, unlike a judge, has a vested interest in maintaining relationships with everyone in the room. In addition, the grounds to vacate an arbitration award or appeal from a judgment confirming an arbitration award are slim. And, if you’re a plaintiff’s lawyer, arbitrators may be less inclined than a jury to award substantial monetary damages or include a finding of malice that would lead to large punitive damages.
III. HOW TO TELL A STORY MOST EFFECTIVELY TO A JURY VS. JUDGE VS. ARBITRATOR
Having selected your audience, you now need to determine how to tell your story most effectively to maximize your chances of prevailing before that particular audience.
a. Tips for Storytelling to a Jury
With a jury, storytelling is paramount. You need a coherent story with a beginning, middle, and end. Research shows that when evidence is presented in a narrative format, as a story, it is more persuasive than evidence presented in chronological order or in witness order. (Sherrod, When it comes to jury trials, should you tell a story or stick to the facts? ABA J. (Apr. 11, 2019). Develop two to three primary case themes, and emphasize emotions that drive your story. Focus your story around what is fair, and craft your narrative around it. Storytelling to a jury can in many ways be a morality play—present your case in a sense of what is both fair and “right.” Use technology and demonstrative exhibits to visually tell your story and break up your narrative—an opening statement or closing argument should feel like an interesting story, not a lecture. Use case documents and other objective evidence over vague, self-serving witness recollections from events that likely occurred years earlier. And remember to be consistent and stick to the facts—don’t lose your audience by being too loose with the facts or telling a story that just doesn’t add up. Tell the most persuasive, fair, and honest story, and you have a good chance of prevailing.
b. Tips for Storytelling to a Judge
Of course, judges also want to reach the correct result. But judges may not be as easily persuaded by a good tale and will hold steadfast to upholding the law, even if it comes at the expense of a more fair resolution. That’s not to say you should ignore the fairness aspect of your case—judges are human too. You need to know your judge and become familiar with what he or she expects from you at trial. Most judges want to do one thing: get the case resolved. So find the most efficient way to tell your story. Eliminate unnecessary details and work with opposing counsel to stipulate to as many facts as possible before trial. You still need your case themes, and your narrative still requires a cohesive beginning, middle, and end. But make sure the story keeps moving, and focus less on the drama that you typically would if you were in front of a jury, or even an arbitrator.
c. Tips for Storytelling to an Arbitrator
In arbitration, it’s critical you get to know your arbitrator during the prehearing process to fully understand how to tell your story at the arbitration hearing. Is the arbitrator someone who “split the baby” on prior discovery issues and other pretrial rulings? If so, plan accordingly in crafting your final “ask” at the arbitration hearing. Unlike a judge, who has a duty to take whatever case comes across his or her desk, an arbitrator is getting paid to listen to your case specifically. So an arbitrator typically isn’t as focused on simply getting the case over with.
Additionally, arbitrators do not have the same concerns as a judge that their decision could be subject to appeal. Thus, an arbitrator may be less likely to apply the law as rigidly as a judge. As a result, you can focus on the drama, the entertainment, and the pizzazz—just as you would with a jury. Use visual aids, keep the arbitrator entertained, and anchor your story around a sense of equity and fairness. You likely can conserve your energy on technical legal points and strict rules of evidence; by and large, arbitrators allow reasonably proffered evidence to come in. Focus on getting all of your evidence in, and telling your story in the most compelling way. Use pretrial and posttrial briefing to help craft your narrative and convey the main legal points that drive your case, but remember that good arbitrators are busy, too, and there is no substitute for telling your story during the time set aside for your arbitration hearing.
IV. ZOOM IS HERE TO STAY (UGH!) – SO HOW DO WE TELL OUR STORIES TO OUR AUDIENCE WHEN WE ARE REMOTE?
At this point, we all know Zoom. Probably too well. But remote video software programs like Zoom can be incredibly helpful and efficient, while simultaneously creating a sense of fatigue and frustration. Regardless of how you feel about Zoom, by April 2020, the number of daily meeting participants on Zoom topped 300 million. For better or worse, it’s here to stay.
How do we know Zoom won’t be a casualty of the pandemic, like toilet paper shortages and disinfecting groceries (remember that)? A survey of 7,689 people across 10 countries was conducted to determine how they used video conferencing software during the pandemic and what they wanted the post-pandemic world to look like. (How Virtual Do We Want Our Future to Be? (May 10, 2021)) Now, full disclosure: the survey was prepared and commissioned by Zoom (based on survey data and findings provided by Qualtrics Research). Regardless, the survey results are telling. Eighty percent of survey respondents (in the United States) agreed that everything will continue to have a virtual element post-pandemic. And when it comes to courtroom and other legal activities, including jury duty, court hearings, and depositions, if given the choice to engage in those activities in person or virtually, 23% stated that they would prefer to do them in person only, 66% responded that they would prefer a hybrid of video and in-person engagement, and 11% responded that they would prefer to engage only virtually. So that means going forward, Zoom is here to stay.
It can be difficult to connect with an audience over Zoom. You don’t know if they’re multitasking or tuning you out altogether. It can also be cumbersome to introduce documents and ensure that everyone is reading from the same page. So how do we reach through the two-dimensional computer screen to tell our story most effectively?
First, prepare and get comfortable with your technology. Make sure your Zoom background is easy on the eyes. Make sure you are well lit. Invest in a high-quality camera. Learn how to display and highlight a document. Consider multiple computer monitors, one dedicated to Zoom and the other to your documents, outlines, and other trial necessities. Second, if you’re working with a witness: practice, practice, practice. Awkward exchanges over Zoom are even more pronounced than in “real life.” You don’t want to constantly talk over one another, or waste time asking a witness to read a document that it appears he or she has never seen before. Third, mix things up. Use video, audio, demonstratives, documents, and other media more than you would in an in-person trial so that the audience isn’t just looking at your face the entire time. Fourth, practice it all again.
Knowing your audience is critical to your success at trial. Applying these strategies should help you maximize your chances of not only selecting the right audience but telling your story to that particular audience in the most compelling way possible.
Kevin Dwight is a litigation partner in Manatt, Phelps & Phillips, LLP’s San Francisco and Silicon Valley offices.
A version of this article was originally published by ALFA International in the March 2022 ALFA International Client Seminar Coursebook.