I previously wrote about my experiences with a unique trial lawyer (and war hero) I had the pleasure of working with too briefly before he retired, Lee Horton. Lee gave me a copy of a primer he wrote with the goal of preparing young lawyers to try their first case. In the preface, Lee listed 4 golden rules on which he premised his successful career as a trial lawyer, focusing largely on air-crash cases. I already described the first rule. Here’s the second:
“I always want to know the four or five facts it will take me to win and the corresponding four or five facts it will take me to lose. I try to develop these facts as a Chronology early in the preparation of a case.”
Right off the bat I’m suspicious: isn’t this overly reductive? Sure it’s possible to reduce the “crucial” facts of a dispute arising from an intersection fender-bender or medical malpractice to four or five for each side, but how do you apply this rule to a complex commercial or intellectual property trial?
Some answers to this objection come to mind. First, bifurcation, or separate trials, of certain issues may be an option. In the event of a bifurcated trial, it is not unreasonable to expect that each separately tried issue can be reduced to four or five crucial facts. But I think a better way of looking at this point–and how I imagine Lee himself would answer the objection–requires a fundamental philosophical recognition that we are much more likely to grab and keep the jury’s attention if we do limit the crucial facts to be focused on to merely four or five, regardless whether the case is a fender-bender or Apple v. Samsung. If you’re preparing for trial and you can’t narrow the absolutely critical facts to just four or five, then maybe you should take yourself back to the woodshed and narrow your focus. Finally, if you really are getting ready to try an ultra complex case that cannot reasonably be reduced to four or five crucial facts, then give yourself the luxury of six, or ten, or whatever. The point is to focus.
Now, the issue becomes how to decide which four or five facts are most crucial? In my own practice, I begin with the jury instructions I expect will be given at the conclusion of trial. The elements of the claims and defenses identify the crucial facts. Many will not really be in dispute. But of those that are disputed, it should be possible to identify just a few that, if proven, will win or lose the case.
The other component of Horton’s second rule involves developing the facts “as a chronology.” I recognize that not every story is told chronologically, but I suspect jurors appreciate stories that are. I know I would. Think about it this way: if you knew you were going to be tested at the end of a movie about exactly what happened, would you prefer the movie to be more like Usual Suspects or Gone With The Wind?† Because we experience our lives as a chronology, beginning with birth and culminating with death (or amnesia), most of us can “follow along” better if a series of important events are told to us chronologically.
Lee Horton carries this “rule” of distilling the case to four or five crucial facts, told chronologically, throughout the remainder of his trial primer. At the end, in the chapter devoted to closing argument, he again echoes the rule:
“I have told you in each of these presentations (almost like a broken record) that, prior to trial, I have a well-defined theme that is consistent with the favorable evidence and deals with the unfavorable evidence. This theme is supported by three to five foundational facts. By closing, the jurors have seen me go to great lengths to weave this theme, and its factual support, through every aspect of the trial. A good closing should have a clear beginning, middle and end. The beginning should have impact and briefly recite the theme and the 3 to 5 facts that support it. It should be followed with a story-like presentation of the evidence, with several ‘impact points’ to keep their interest high.” (Emphasis added.)
It’s too bad Lee retired before I got an opportunity to second-chair a trial with him. It would have been a great learning experience, I’m sure.
†For the record, I am a HUGE fan of complex, nonlinear narrative in fiction (Infinite Jest, Alexandria Quartet) and movies (Memento, Pulp Fiction). But I try to leave that passion outside the courtroom.