Articles / Reviews

'Facts can't speak for themselves'
Turning case stories into winning trial strategies
by Nora Lockwood Tooher, Lawyers Weekly Staff writer

Trial consultant Eric Oliver has come up with a new twist on the old "story model" for juror decision-making. For decades, trial lawyers have accepted the notion that jurors unconsciously draw on personal experiences to construct their own stories about a case. And many attorneys assume that the trick to winning a case is to select the jurors most likely to view their client's story favorably.

But in his new book, "Facts Can't Speak for Themselves," (NITA, $60), Oliver, who is head of MetaSystems, a trial consulting firm in Canton, Mich., explains that the trick isn't finding the "right" juror, but discovering through focus groups how to create the most effective case story, regardless of jurors' personal backgrounds.

Essentially, Oliver contends that each juror creates his own story about the case, which is different from the story the attorney presents and even different from the story other jurors develop.

In a recent interview with Lawyers USA, Oliver talked about how jurors rewrite case stories, and how using focus groups can help attorneys develop the strongest story for trial.

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No bad jurors
Many lawyers and trial consultants view focus groups as a testing ground for their case facts and juror selection as a way to find the ideal jurors for their case.

That's a mistake, according to Oliver.

"In the past, most trial lawyers have thought, 'I have to come up with the right kind of person to listen to my story to come up with the right kind of outcome,'" he said.

Oliver says that focus groups that are given just the barest facts about a case subconsciously rewrite the story in their heads. And they don't stop at one story.

"In the early processing, they have multiple possibilities of what the story is going to be all about, but fairly quickly, they arrive at a conclusion," he explained.

"What they're going to do is construct a hybrid of their own, based more on their background than anything on the table. They quickly arrive at the elements, and from that point forward, they just distort, delete and generalize the facts. Most of that happens outside their conscious reach."

So, it's almost impossible to pick the "right" juror. Instead, lawyers and consultants have to adapt their practices so they respect the story-building going on in each decision-maker's head. That way, they can identify the strongest and weakest elements of their case, and then build their case presentation based on the strongest elements.

The goal, he said, is no longer to identify "bad jurors" who will always interpret a case one way, but to find out which story elements will lead to stronger or weaker versions from which to judge a client's case.

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Focus groups essential
The subtitle of Oliver's book is "Reveal the stories that give facts their meaning," and almost half of its 531-pages are devoted to focus groups. Oliver typically conducts day-long focus groups with 21 people divided into three, seven-person juries. The groups are given basic facts and then asked to give their responses.

"We're trying to take focus groups and invite them to distort and delete and generalize the story to their heart's content," he said.

"Once we've developed all those trends, we can find the strongest ones, put them in the strongest package and make sure the lawyer, witnesses, demonstrative aids and motions are all lined up along the lines of delivering what story in the package we know will be most persuasive."

For example, Oliver worked with attorneys for a power company in a case involving a fire that occurred when a stray power line fell on an unoccupied warehouse.

The 21-person focus group was told during the opening statement that the power company had already accepted liability and that their task was restricted to determining damages. Both sides agreed that the fire burned for eight hours. But there was a great deal of dispute over the contents of the building and their flammability.

One person argued that the building must have been highly flammable, because it burned for eight hours. Another took the opposing position that it couldn't have been very flammable, because it took a full eight hours for the building to be destroyed.

The two people had heard and seen the attorneys for both sides summarize their cases just minutes before. Yet, they each came up with opposite stories. Oliver cites their reactions as an example of the range of possibilities that even a single fact holds in any case story.

"If you do that with all the facts in the case, what you'll end up with is a map to where the strong points are, the weak points are and how to deliver the case - what order to deliver the case, what language to use," he explained.

"What you gain is the story that's going to be most effective for most people, regardless of their backgrounds," he added. "The facts are the facts. You're stuck with them. But there's a million different ways to present them, and it makes a huge difference."

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