Not “The Other Side Of The Story,” The Other Story

It doesn’t matter which side you represent, you must tell a story. For plaintiff, this is obvious: there’s a wrong to be righted, and it always has a story. For defense, this is equally true, though not always acknowledged.

You see, it’s not about “the other side of the story,” for that places the control back in plaintiff’s hands. Plaintiff still defines the terms of the game, the boundaries of play. It’s about “the other story” where defense presents an entirely different scenario for jurors to experience. Now the playing field is level. Jurors can choose to be convinced by one story or the other.

The truism “the best defense is a good offense” holds. Instead of defending, defense now speaks to plaintiff’s claims by showing how they fit as legitimate, “good” pieces within defense’s story.  So, for example, with a med mal case, defense could include as part of its story, how Doctor’s procedure/process is highly regarded - the best possible and safest course given the patient’s condition. That Doctor trusts, relies on, and has seen excellent results from the procedure/process. That Doctor used various diagnostics to validate Doctor’s choice. That Doctor’s was employed a well-thought out decision-making process (“decision tree”).  And of course, to include in the story as well, how plaintiff neglected Doctor’s instructions, and the alternate causes for plaintiff’s current condition.

As laborious as the above may seem, giving the jurors a rich and many-pronged defense story, as opposed to simply defending against specific claims, will greatly increase your chances of – a winning case.

How to Persuade With Jury Instructions

Jurors struggle in just about ever case to figure out what the jury instructions actually mean in real life, and how they apply to the case at hand. No matter how many times jurists attempt to make jury instructions more accessible to the ordinary person, the language remains obscure and convoluted. You must help jurors make sense of the language - and most importantly - help the jurors understand how these instructions fit with your case if you are to prevail.

For example, take "negligence." Jurors’ often interpret the term the way they think of it in daily life: deliberately, intentionally failing to do something one should have done. But unless clearly instructed that the intent to inflict harm is not a prerequisite of a finding for the plaintiff, the jurors, for example, might easily absolve a physician's incompetence because "the doctor didn't mean to hurt the patient."

Even when jurors understand the words as meant in a legal sense, they can fail to see how the instruction applies to your case. What is obvious to you is often cryptic to jurors. Throughout the trial, relate testimony and evidence to the key terms of your jury instructions, and remind jurors at closing of how you accomplished this. A "bottom-line" type chart will easily reinforce the connection.

The lawyer who provides the clearest and most easily understood interpretation of the facts is most often he/she who wins their case. Sounds easy, yet takes quite a bit of skill to accomplish. However, a worthy goal, indeed.