South Carolina Criminal Defense Blog

One thing that I learn from participating in psychodrama sessions is that there are certain universal experiences that resonate with every human being and that tap into our shared emotional experiences as human beings. Betrayal resonates. Relationships resonate – father and son, mother and daughter, husband and wife. Identifying which of those universal issues is present in our client’s story can be key to helping a jury internalize that story.

Resonate – like when you strike a note on a piano and then hum that exact note, you don’t just hear it, you can feel it within.

When preparing a client using psychodrama, necessarily there are others present to help fill the roles – office staff or other attorneys involved in the case. During the process, when an element of the story appears that resonates with the others that are present, that may be a sign that this is a part of the story that you need to develop and focus on at trial.

When preparing a client for trial recently, a scene arose that involved the client trying to call family from the jail, and it captured the emotions of someone who has been wrongfully arrested and who has no local family that can come to secure their release – helplessness, a feeling of being lost and alone in a frightening place. It affected everyone in the room, in part because it touched on the shared experience of family relationships. Everyone has felt lost and alone at some point, even if it was not in a jail cell, and everyone knows how it feels to want desperately to be home and to need their family.

It resonated with us, and, although it may not be the most important information for the jury to have, we saw that it was one of many parts of this person’s story that will likely resonate with a jury.

Once upon a time . . .

And every day . . .

Until one day . . .

And because of that . . .

And because of that . . .

Until one day . . .

And ever since . . .

Since the dawn of time, people have been captivated by story. If there is a point that we need to illustrate, give an example that illustrates the point, don’t explain it – it will stay in the audience’s mind and they will relate to it. The same applies with explaining to the jury why our client is entitled to recover damages in a lawsuit – if you explain why, they might intellectually understand what you are saying, but they will not internalize it.

In working on the opening statement in a case with another attorney over the weekend, I recalled the importance of keeping the action of the story moving – if the listener is not thinking “tell me more,” the storyteller is missing something. If the listener is thinking “go back and tell me more about that,” but the storyteller is talking about something else, he’s lost the audience. It’s easy to get lost in the details, and for a storytelling to devolve into an explanation – but explanations do not hold an audience’s attention and explanations are not easily internalized.

I think of books by John Grisham, and the Harry Potter books, books that I could not put down once I began reading them, and I realize that what kept me reading was the mini-cliffhangers at the end of each chapter. As I near the end of a chapter, I want to know more, and the suspense keeps me turning the page – what happens next? The jury should have the same feeling when we are telling our client’s story – tell me more.

When I was working on our last trial in Georgetown, I found myself struggling with the story. There was no clear story that was emerging, as I read through the incident reports, the witness statements, and the information that my investigator had brought to me, what I found was a mess of conflicting statements and several different stories.

Some witnesses were lying. Some were telling the truth. Many were telling part of the truth and lying where it suited them, or where it would help their own self-interest. I considered that I would tell the story of how there was no consistent story from these people, that each would say whatever was most likely to help himself or herself on the stand. How each would contradict the other and have something different to say about the events relevant to the case.

I struggled with this for a few days as I was preparing for trial, and it bothered me. Then I realized what the problem was – the story that I needed to be telling was my client’s story and no-one else’s. His account was the only one that had been consistent from day one, had never changed and had never been shaken by the other witnesses. I realized that I had to go back to the basics and that I had forgotten what may be the most important thing – I had to “crawl into my client’s hide,” see the case from his point of view, and I had to tell his story to the jury.

When I realized what the problem was, everything fell into place for me. When I stood up to give my opening statement, I walked to the jury box in my client’s shoes, and I told his story. As each witness took the stand, I impeached them with their inconsistencies and I impeached them with their prior inconsistent statements, I showed the jury how they were each lying about different aspects of the case to help themselves, but most importantly, I told my client’s story, from my client’s perspective, through each of the witnesses.

Today I was helping another attorney in my office prepare for a trial that is starting tomorrow, in Georgetown again, and as we were trying to find the story I had to remember again whose story it is that we are telling.

In every case, civil or criminal, we must begin our trial preparation from the perspective of our client – it is their trial, after all.

I’m struggling with two notions and how they interrelate, two notions that were captured beautifully in a post today by Paul Smith. One is the idea that we must learn who our client really is, because we must be able to tell our client’s story to the jury, to the judge, to the opposing counsel or prosecutor if he or she will listen:

I reverse roles with the “killer” and see the tragedy that has befallen him,, I see that no child is ever brought into this world hating anything or anyone. What has happened to this child? Why is he now a hate crime? What causes him to be this way?

I suppose that I am not one to judge,, I discover the story of the client and then tell it. I tell the story with all the strength I have,, all the training I have and every ounce of conviction I have,, all because in the end,, the jury has to decide.

To get to know our client, to varying degrees, we must become the friend of our client. In law school they teach new lawyers to stay detached from their client and from their cases, instead of teaching them to care about their clients. But a cardinal rule of advocacy is and should be that if you don’t care about your cause – if you don’t care about your client – you cannot expect your jury, your judge, or your opposing counsel to care. And they will know.

Which ties into the second notion – why is it such an imperative to reverse roles with the client, to get to know them, even become their friend? Because of the stakes involved – particularly in a criminal case such as Paul was discussing, where our client’s very life is in danger of being snuffed out by the state. Paul talks about what I see as the human race’s need for murder – the masses turn to the Old Testament’s principle of “an eye for an eye,” the government seeks to appease the masses and its agents’ own personal need for bloodshed, and the jury looks for a justification to kill.

A few months ago on his blog Gerry Spence wrote poetically about our love of murder:

But why does the idea of murder enthrall us so? The television marketers know it – their endless violent murders. Why do we stare so at the screen, excited like waiting hyenas for the kill? The psychologists call it sublimation. It is our deeply repressed need to kill that attracts us to the murder movie. Thankfully we can kill by watching killers. Violence and blood is a requirement because a neat and quiet killing does not satisfy.

We are all killers at heart. We know this, but we do not admit it.

I think that this notion that we are all killers extends beyond the arena of murder – every person has good in them and every person has evil in them. Every person has within them at some times an ugly desire to hurt others, and at other times a noble desire to help others. Some are charged with crimes and locked in cages because they were unable to repress their need to hurt others. Some are rewarded as prosecutors when they let loose their need to hurt others. Other times the same prosecutors are overcome with compassion and take great pains not to hurt others.

Maybe our role as advocate is to overcome the need of the prosecutor, the corporate counsel, the judge, and especially the jury to hurt our client, by telling our client’s story as effectively as possible and by helping the jurors to climb into our client’s skin.