One of my favorite bloggers on trial advocacy is Mark Bennett. Mark has written a series of great posts at Simple Justice, Scott Greenfield’s blog on the topic of opening statements.

Mark offers 11 rules for better opening statements. One tip is to limit your opening statement to fifteen minutes. From experience, this is a solid tip. The rest of his rules could be summarized in a single sentence. Your opening should tell a story. Stories are all the rage in trial advocacy these days. If you have been to a CLE on trials. You have heard about story and why openings should be more like a story and less like a lawyerly presentation. The reason is simple. Jurors and judges love stories. Stories are more persuasive than speeches. Stories draw is in.

I have become frustrated with all of this talk of story. I was convinced, years ago, that storytelling is important for opening statements, for briefs, and even for simple motions. But CLE programming is light on nuts and bolts instruction on how to tell a good story. And that was why I was excited to learn about Pixar’s online class on storytelling offered through Kahn Academy. The class is excellently done, with great videos (each one tells a story) and activities to work on to get better at story telling. The video series is not aimed at lawyers, but it is exactly the storytelling 101 I’ve been looking for. I cannot give a comprehensive recommendation here because I am at the beginning of the lesson.

And, in case you aren’t aware of Pixar— Pixar is the company that perfected computer animation in the 1990s with Toy Story and with other great films. I have long been a fan of their work. They have not just made some of the best animated films of the past century, but some of the best films, period. Their success lies not just in technological achievement — though they have done some remarkable stuff — but in the craft of storytelling. Here are some screenshots of the table of contents for the series.

 

If you have been told that you need to embrace storytelling but you aren’t sure what to do, I hope that this will be a good resource for you. And how cool is Kahn Academy? It has been a go-to place for my children to supplement their school instruction for quite some time. But I had no idea that there was such great stuff on there for adults.

cc: Rudolf Vlček
cc: Rudolf Vlček

Recently Scott Greenfield wrote about David Aylor’s rather noisy departure from accused murderer, Michael Slager’s case. So much went wrong and was analyzed in the post. But there’s one piece of it that I want to emphasize here. Mr. Greenfield writes:

It’s hard to blame Aylor for being sucked in by Slager’s lie. Clients lie sometimes. And just as a more experienced lawyer might ask the client whether he really wants his lawyer to be the stupidest guy in the room, the less experienced lawyer might not question whether his client is being forthright. He may rely on his client’s denials. But then, he might also take those denials and do the one thing that commits them to posterity: shoot off his mouth.

When the New York Times broke the video, Aylor’s world spun on its axis. Two critical things happened simultaneously. The first was that Aylor realized that he had gone out on a limb for Slager, and the limb just broke.

Overall, I love representing clients. On most days, I love being a lawyer. I like winning cases, whether the “win” comes in the form of an acquittal, a dismissal, a reversal, or simple damage control. But I long ago took the advice of a colleague who is now on the bench.

As a young lawyer, I asked this older criminal defense lawyer how he handles situations where the client insists on knowing whether the lawyer believes the client’s story. That lawyer told me that he tells the client that he is completely “agnostic” about the truth of anything that anybody says in a case. He would tell his clients that he does not believe anybody. He doesn’t believe the client. He does not believe the cops. He does not believe the witnesses who claim that they have information. He enters the case with a neutral believe about everybody’s version of the events. He explained to the client that he was most effective by not getting attached to anybody’s version of the events, even the client’s.

I adopted this approach, and it has served me well. It has prevented me from saying things to a judge or opposing counsel that I may later regret (I haven’t been perfect on this point. And I have said things I regretted for other reasons from time to time). I have had the flexibility to change defenses as the discovery comes in and as my investigation has unfolded. I have been in a position to put the client on the stand one day or to refrain from doing so. And, there have been times when I have spared myself the embarrassment of making a really ridiculous declaration to a client that we both would have known was ridiculous.

Take this approach and you also avoid finding yourself where David Aylor found himself. In law, when dealing with the media, opposing counsel, or a judge, there is more danger in saying too much than there is in saying too little. Think of it like a reporter. Generally, reporters will not publish something unless they can get that fact from more than one source. This rule of thumb is perfect. Before telling judge at a bond hearing that your client has no arrests or prior felony convictions, ask the client for her criminal history. But also go the next step to obtain the client’s criminal history. Clients sometimes don’t know or don’t quite remember what their criminal history is. Never tell the media that your client will be vindicated. I assume that you already do not make promises like that to the client, right? Tell the media that you are going to work hard and complete your own investigation of the facts and that it is premature to comment on how this will all turn out. If you make a claim regarding a legal principle in court, have a highlighted case to show the judge.

You never have to extricate yourself from a limb that you never climb. And there is no reason to take what your client says and run with it. Mark Bennett wrote an excellent post about this business of clients who want you to believe them. His words are well worth repeating.

You have told me repeatedly that you are innocent. You don’t mean “legally innocent”—that is, unconvicted—but “factually innocent.” I don’t know whether you’re telling me the truth or not (people lie to me all the time), but please know that it doesn’t matter to me. It won’t decrease my fee, and it won’t make me do any better job.

You might wonder whether I believe your protestations of innocence. Don’t wonder. At this point, I listen without judgment. I neither believe nor (unless your story is bad to the point of incredibility) disbelieve. You don’t want a dumb lawyer, so if you are factually guilty, you don’t want a lawyer who is dumb enough to believe you when you lie to him. And you don’t want a lawyer who thinks it’s his job to judge you, so if you are factually innocent, you don’t want a lawyer who is judgmental enough to care.

Take my opinion for what it is. And there may be wildly successful lawyers who take a different approach. I am an agnostic when it comes to the facts (and also when it comes to what “the law” is). I tend to listen to all the facts without necessarily committing to any. As the case progresses, a theme or theory will emerge. I will do everything ethically within my power to see that my theory defeats the State’s. Which is why the classic cocktail party question that lawyers get “how can you defend the guilty?” is not a particularly interesting one. It isn’t interesting because it is the wrong question to ask an agnostic.

It’s been a long holiday season, and January’s been a busy time. I’m hoping to re-develop the blogging habit. And I find that I am much better at writing posts when I’m reading posts. Toward that end, I opened up the RSS app and caught back up on my favorite blogs, Simple Justice and Defending People. Scott Greenfield is as prolific as ever. He writes more blog posts before 8:00 a.m. than some people write all year. Mark Bennett is doing some sort of thing where he is numbering his blog posts.

Two of their posts caught my attention. One post is about listening and the other is about asking for advice. To be in a helping profession, lawyers are pretty bad at both. Law school doesn’t help us in the listening department. After all, we are trained to spot issues, to separate wheat from chaff, and to separate the most pertinent components of the fact patterns from the fluff. Clients need us to have that skill. But clients often have other needs — namely to “vent” or have somebody hear their story. A tension exists between those two needs. So, sometimes it’s good to just let the client go. Sometimes, it’s best to direct the story to the most pertinent facts. It’s not always easy to know when to do which. Moreover, sometimes lawyers get so busy that some of us avoid communicating with the client at all (under-communication is a common source of bar complaints). Scott Greenfield quotes Bennett:

Listening is vital to trial lawyers. It’s probably more important than any other single skill, but it is less studied, less trained, and less practiced. Lawyers often don’t listen very well. I’ve seen egregiously bad examples from all sides of the criminal bar; many times I’ve wanted to shake a lawyer or judge by the collar and shout, did you not hear what that person just said?

But the listener is not the only party to the conversation who needs to step up his game. The person asking for advice needs to do some work as well. I very often get calls from colleagues with tough legal issues who want to “pick my brain.” It’s often an honor to be a person whom other professionals might want to turn for advice on how to think about things. It is also an honor to be a person whom a potential client seeks out for help. The best “seekers” of advice do their homework before coming to me. The worst have no real sense of what their problem is and look to you to define it for them. He has three pointers for asking for advice:

before you ask for advice do whatever legal research you can yourself. You’d better have spent some time on the problem before bringing it to mentors. Not doing so is lazy and disrespectful—if your mentors thought your time was more valuable than theirs, you would be the mentors and they would be the proteges. If you haven’t already done a bunch of online research, their advice is probably going to be “get back with us after you’ve spent some time on Westlaw” or Lexis or CaseMaker … or even Google Scholar.

Secondly, you should know the facts inside out and be prepared to answer questions about them before you go to another person for advice.

Third, be able to explain succinctly the problem and be able to explain the work you have done before coming to the person for advice.

* From other lawyers, it can be difficult when a person calls to say, “I’m doing an appeal, and I’m not sure what to do. How do you do a criminal appeal?” I have gotten those calls. They’re maddening.
* From potential clients, it can be difficult if the client does not know whether or how many times she has been convicted in the past, does not know exactly what her charges are, and is not all that certain what the status of the case is.

How to ask for advice and how to listen to a person who needs advice are two great topics for a new year. On this blog, I’m hoping to “listen” more to other bloggers, to courts, and to clients to make this website more valuable. I also hope to use this more of a forum to seek the wisdom of others in a more deliberate way. I hope to get better at these things in my practice as well.