Lights, Camera, Trial: Directing Your Trial Team
In an interview with The99Percent.com, Francis Ford Coppola said:
When you make a movie, always try to discover what the theme of the movie is in one or two words. Every time I made a film, I always knew what I thought the theme was, the core, in one word. In The Godfather, it was succession. In The Conversation, it was privacy. In Apocalypse, it was morality.
The reason it’s important to have this is because most of the time what a director really does is make decisions. All day long...there are many times when you don’t know the answer....So knowing the theme helps you make a decision when you’re not sure which way to go.
Leading a trial team is much like being the director of a feature film. You are tasked with providing direction to a large team of people who are working to execute your vision. You are constantly presented with decisions, small and large, that need to be made in order to allow your team to continue its progress towards its goal. It is up to you to provide consistency and cohesion throughout a long, fractured preparation process. And your performance on all of these separate tasks will be judged solely by the overall effectiveness of your story in the eyes of your audience.
With so many moving parts, clarity of vision is crucial to guide your decisions and to provide clear direction to your team. However, too often, trial teams operate without that clear theme, in the vain hope that some type of winning theme will emerge in the days or hours leading up to trial.
Too much is at stake to hope your theme will coalesce of its own accord. Just as the best directors have a clear vision for their films prior to shooting, the best trial attorneys establish their themes long before delivering opening statements.
Without the guiding light of a solid theme, your team is left to navigate either independently without direction or with complete reliance on the lead attorney to make every decision. The former can lead to a flurry of aimless activity and the latter can lead to a paralyzing bottleneck in the war room. Neither is a way to run a trial team when time is such a precious resource and millions of dollars hinge on the outcome of a case.
However, the strongest trial themes do not appear through a sudden stroke of inspiration. They are, instead, developed and evolved through testing and refinement over the course of your preparation.
Find Your Theme
There is reluctance among many attorneys to begin simplifying a case too early. Which makes perfect sense, since so much of litigating is about keeping options open and considering all possible legal strategies. However, the open-ended mindset that dominates during discovery and motion practice quickly comes into conflict with the realities of preparing for trial.
In some respects, trial is about putting on a show for an audience. Increasingly, that show is as complicated as some Hollywood productions. There are scripts to write, castings to conduct (for witnesses), rehearsals to schedule, and props and special effects to coordinate (your evidence and visual presentation). With so much work to be completed in such a short amount of time, the lead attorney will need to rely on the team to make progress on many of these projects simultaneously and without extensive day-to-day input.
Therefore, having a clear vision that you can communicate effectively to your team can be the difference between putting together the trial equivalent of an Oscar-winning classic or a box-office bomb. For that reason, there is no more valuable exercise for your trial preparation than forcing yourself to simplify your case into a straightforward and coherent theme early in your preparation.
Test Your Theme
In high-stakes litigation, it is too risky to debut your theme for an audience for the first time when the jurors are already seated in the jury box. You need to test your theme and story with real people to hear feedback on the strengths and weaknesses of your argument.
Just as directors use storyboards and digital previsualization tools to develop their vision, the act of creating a “prototype” of your case will help shape your view of your case as you move forward. And don’t be afraid of presenting themes to jurors even if they are not fully fleshed out. Listening to how other people understand your case can reveal what you are failing to convey or emphasize. If your message is not getting across, it is probably worth retooling and testing it again (which is a great reason to test early!).
While there are no guarantees at trial, a theme that has already resonated with a test audience stands a much likelier chance of success than one that has only been shared with the other attorneys on your team. Dedicating the time and effort early in your case to theme development will allow your team to work more efficiently and effectively in the frantic lead-up to trial.
Share Your Theme
With an established theme, team members will be better equipped to make decisions during preparation that will preserve the cohesion of your case at trial. And as the leader of the team, you will be able to consult your theme to provide consistent guidance in all aspects of your trial preparation.
When you reach trial, it will be clear to the jury that the same theme flows throughout your opening statement, demonstratives, evidence, witness testimony and closing argument. That level of cohesion is interpreted by jurors as confidence and conviction in your argument—qualities that are commonly rewarded by juries.
And perhaps that is the essence of the Coppola quote above. While an audience member might not ever single out a specific decision on wardrobe or makeup as reinforcing Coppola’s theme, the gestalt after watching a Coppola film is that his theme is powerfully conveyed and easily identified.
Most trial lawyers would hope for the same result. A jury that understands the evidence and testimony of your case within the framework of your theme is likely one that will rule in your favor.
This article appeared in Law360 on August 18, 2011.
Appeared in Law360
August 18, 2011