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

Effective trial strategy
Once the attorney learns the story best suited to delivering the facts of the case, traditional story elements - such as theme, point of view and sequence - can be used in all aspects of the trial presentation. That includes everything from the opening statement to demonstratives and cross-examination.

Oliver recalled a demonstrative used in a case in which a child getting off a school bus was run over and killed by the bus.

Focus group participants were fixated on how the child got under the wheels of the bus. The plaintiffs' attorneys worried that this indicated jurors were likely to focus on what the boy did wrong, rather than on what the driver did wrong.

"Here, we learned from the group that we had to effectively invite jurors to re-frame the central image of their stories very early in the process if the [safety] rules were ever going to stand out as the major factor by the end of the trial," Oliver recalled.

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The solution was to tell the same story from a different perspective.
Instead of using demonstrative evidence that showed the scene from ground level (i.e. the boy's perspective), they developed demonstratives that looked at the scene from above, as if from a helicopter. This drew jurors' attention to the danger zone - the area where child is too close to the bus for the driver to see him. This was represented as an orange square around the bus. Every driver is taught that he is are supposed to count the number of children who get off the bus and make sure they all emerge from this blindspot before driving.

"If you follow those [safety] rules, you cannot hurt a kid that got off your bus," Oliver said.

The graphic tied in with the attorneys' case story, which was that the driver failed to heed the simple rules of bus safety.

Oliver said the example illustrates why it is so important to understand how jurors are likely to reconstruct their versions of your story.

"If you know all decision-makers are going make their legal judgments from that private version of the case story, then everything you learn about the full range of those stories, and the paths people may take to build them, offers you directions for inviting them to do it the way you'd most like it done."

Oliver's book, "Facts Can't Speak for Themselves," is available through www.trialguides.com, www.amazon.com and www.nita.org.

Questions or comments can be directed to the writer at: nora.tooher@lawyersusaonline.com

Danger zone: What are the rules for when the driver can move the bus?

1. Look at the children getting off
2. Count them outside the danger zone (account for their safety)
3. Then move on right away
4. If for whatever reason you can't see a child to count him/her, get out and do it

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