3.3 Create A Cohesive Persuasive Story Outline

Another fact investigation planning device that many lawyers find particularly useful consists of asking, “What do I think really happened in the case?” Here the lawyer is using his or her own life experience to try to imagine motivations and reasoning and sort through the factual discrepancies of the case.

For example, “Do I really think that the broker is lying when he says he thinks he told the insured that the policy did not cover termites? Or, “do I think that he probably had that in his mind, but forgot to specify it because he didn’t want to do anything to put off the deal. Maybe he thought it would not ever come up?” Asking what most likely really happened will force the lawyer to confront the hard facts in the case—those facts which mitigate against the telling of the lawyer’s most extreme factual theory in the case. In Homestead Properties Inc, for example, we do know that termites were likely on Addington’s mind, because of Sedman’s experience with termites. In addition, the fact that discovery has produced Cosham’s notes, which corroborates that termites were discussed, (and shows no evidence of tampering), is a hard fact that speaks to Manhattan’s good faith in its turning over of the document.

On the other hand, the fact that Manhattan never paid for termite damage as part of an excess coverage police is also a hard fact for the plaintiff to overcome. Should not the lawyer then, by asking what really happened, come up with a theory that it doesn’t matter whether the party and nonparty witnesses lied, but that there is no expressed exclusion for termites? Ultimately what matters more is what Manhattan put in writing in the insurance contract with regard to the exception, to the exclusion for manufacturing defects.

In any event, creating a cohesive persuasive story outline can be very useful for spurring the imagination of the lawyer to look for key facts as the lawyer makes his way through the discovery process. In fact, what often happens in these story outline exercises is that the lawyer discovers he may be able to tell more than one story about why something happened the way that it did. Then his job is to pick the most persuasive story that he can tell. But why? Why need the lawyer tell only one persuasive story? Why not tell multiple persuasive stories and let the fact-finders take their pick?

Again, take for example the dispute about coverage of an excess insurance policy:

In such a case the insured is tempted to say that the broker promised to cover termites, the insurer promised to cover termites, or the parties did not explicitly agree, one way or the other, but the contract provides for coverage for termites. The problem with trying the case on all three theories at one time is threefold. First, the fact-finder often speculates quite correctly that you have talked to your client and indeed know what happened. Having multiple stories, then, the jury reacts like a parent or teacher might after hearing multiple versions of a story about what children were doing at the time something has gone wrong. With each version, the hearer starts to believe that they are not being told what really happened and when they hear inconsistencies they may question the speaker’s character for truthfulness.

Of course, in criminal prosecutions, this may be all the defendant has left; that the state can’t prove what happened. But fact-finders are often very keen to solve the case and discover what indeed happened. Multiple stories add to the cognitive dissonance of needing to solve the puzzle. If the defendant can relieve this dissonance by showing how the pieces fit consistently together, then so much the better. For plaintiffs and prosecutors this is vital. After all, multiple stories of what went on open up the plaintiffs and prosecutors to attacks that they don’t know what happened, are speculating, and therefore fail in their burden of proof.

This advice can cause a great deal of cognitive dissonance for the lawyer. Which story should I tell? There are a few rules of thumb that many lawyers have found helpful in sorting through this problem. First, preview your stories before listeners you know who have good common sense. What you are looking for here is someone, not in your law office or particularly beholden to you, who can warn you away from the incredible, histrionic, or overly clever explanation for what happened. (While most good trial lawyers say “not someone in your office,” many trial lawyers say that their secretaries serve this function for them.) Don’t rely too much on what junior associates or even other experienced trial lawyers may think about your clever explanations. Law office “group think” can often overly encourage the lawyer to take the high risk of an overly attacking factual theory in a case. Instead it is better to think, “Can I sell this theory to Mom? Or a good friend, someone with good common sense?” Note, I’m not saying that you need to be able to sell your theory to a skeptic. You can control the atmosphere in the courtroom, or in a negotiation, so that the listener will find you sincere and likeable, and want to believe you. Yet your theory must pass the straight face test. Can you tell it with a straight face? Can you persuade someone with a foot in the real world?

As a fact investigating planning device, looking for one factual theory instead of trying to juggle multiple versions of what happened can also inspire greater efforts at finding out other facts consistent with the persuasive story you will tell in the end game. Another question a lawyer should always seek to answer is this, “If what I say is true, then what else would be true?”