Trials are thought of as battles over conflicting facts, as if they were nothing more than “he said, she said” contests. Actually, your typical trial is more about disputed conclusions from fixed facts, than disputed facts. This is an important distinction, because it tells us where to
focus our efforts. It is along that pathway between the starting point and the destination that the defense will plan its ambush. It is there that they will try to divert the jury to the wrong conclusion. We must provide the jury with a roadmap to navigate from the facts to the right conclusions and show them how to spot red flags that indicate they’re being led astray.
There are two main ways the defense can misdirect a jury to the wrong conclusion: 1) By taking cherry-picked facts out of context (spotlighting them in a vacuum); 2) By playing on bias (hoping jurors will put too much weight on the wrong facts for the wrong reasons).
We deal with the bias part primarily during voir dire, which is a topic for another brushstroke. For now, I want to focus on the “out of context” part. If we can get the jury to understand that wrong conclusions come from taking facts out of context, it will be much harder for the defense to pull it off. No one wants to reach a wrong conclusion. Here are several frameworks to enlighten and alert the jury so they are more likely to reach the right conclusion, in spite of the defense’s best efforts. I am not suggesting you use all of these models in the same trial. It is more of a menu with options.
Roadmaps & Red Flags
You can lead into roadmaps and red flags with something like this that empowers the jury: No one wants to be led to the wrong conclusion. This verdict will be for all time. It will be part of your history, an opportunity to do something few get to do, justice in an American courtroom that makes a real difference in a person’s life. Here are some steps that will help lead you to the right conclusion.
Right conclusion roadmap:
1. View facts in context, not in a vacuum
2. Weigh the evidence fairly
3. Apply common sense to decide what makes more sense
Wrong conclusion red flags:
1. Taking facts out of context
2. Putting extra weight on evidence where it doesn’t belong
3. Letting common sense take a backseat
Now let’s apply the right conclusion roadmap to this case, while keeping an eye out for wrong conclusion and red flags.
You will need to write out the right conclusion we are seeking and the wrong one the defense is arguing for. Let’s use as an example a car crash, herniated disk case where the defense claims
Mr. Smith had a minor strain/ sprain that healed and the ongoing pain is coming from degeneration, not any herniation, while making a big deal out of a prior crash and the fact he worked as a plumber, which they say causes wear and tear. In that case this could be the right v. wrong conclusion:
The right conclusion is this crash caused a serious, permanent injury
The wrong conclusion is anything but this crash is causing his symptoms
As you tell your story, find opportunities to weave in steps from the right conclusion roadmap. This will give your points more authority, because you will be running the facts through a formal assessment process, not just jumping to conclusions. End by showing the defense is arguing for the wrong conclusion. Likewise, referring to the wrong conclusion red flags factors will provide you with structure and standing.
Spotlight v. Floodlight
In opening, after you lay your case out, end by using this framework to show how the defense is taking things out of context. You don’t have to openly accuse them of it to make the point. Pick the defense’s favorite facts and shine light on them this way.
In life, if we are serious about reaching the right conclusion in a dispute, the worst thing that can be done is for things to be taken out of context. It’s like turning all the lights off during a play so everything on stage is completely dark except for a tight spotlight on one person, making it look like they’re all alone. Then, when the floodlights are thrown on, it becomes clear the stage is full of other important characters. Suddenly, you see the scene in a completely different light.
This is not a stage. This is a court of law where we do American justice. So, it’s doubly important that we throw on the floodlights so you can reach the right conclusion based on all the facts, in context.
The defense will point to a prior crash more than 5 years ago where Mr. Smith had a few doctor appointments for neck pain. They will suggest that is the source of his current neck pain, not this crash. There is no question he had an accident 5 years ago. Now let’s put that fact in context, because it cannot be properly assessed in a vacuum. Let’s throw on the floodlights. All of the facts show that neck pain was temporary and went away. There were no complaints of neck pain for 5 years, no doctors visit for neck pain, no MRIs, no neurosurgeon, no injections, no surgery. The current pain started at the moment of the crash and has never gone away, in spite of all that intense medical care.
The sequence of events before and after the crash provide us the context necessary to see that the right conclusion is Mr. Smith suffered a serious disk injury in this crash. For 5 years before the crash he had no problems with his neck. The crash caused immediate neck pain that has never gone away. Those facts cannot and will not be disputed. Mr. Smith’s treating doctors, the ones that actually cared for him, will tell you he suffered a herniated disk from the crash, which
is a permanent, forever injury. They see proof on those MRIs that the herniation is a new injury caused by trauma. They will show you the films so you can see it with your own eyes.
Next, the defense will point to the fact Mr. Smith is a plumber and suggest that means his current pain is from job-related wear and tear. Now let’s put that fact in context, because it too cannot be properly assessed in a vacuum. Again, let’s throw on the floodlights. There is absolutely no evidence that Mr. Smith’s long career as a plumber suddenly decided to cause his neck to start hurting at the moment of this crash and never go away. The MRIs show a herniation from recent trauma, everything else on the film is just normal aging. In fact, Mr. Smith’s physical activities as a plumber developed muscles in his back that make him stronger and give him more support for his spine.
Subway Story
You can work this well-known paradigm shift story into voir dire while discussing burden of proof, weighing evidence or common sense. It goes like this:
There is a story some of you may have heard about a man who was riding the subway home at rush hour with his two young kids. His kids were misbehaving and bumping into other passengers. Their dad was oblivious. Everyone in the crowded car was glaring at him thinking he was a bad dad and a rude man. If you look at just those facts in a vacuum, that would be the right conclusion. When you add in the rest of the facts, it becomes clear that is the wrong conclusion. One of the passengers finally said something to the man about getting his kids under control. In a hushed tone, so the kids couldn’t hear, the father said he was sorry and explained he just came from the hospital where his wife was pronounced dead from a sudden, unexpected heart attack. She was the love of his life and a great mother. The kids didn’t know, he just picked them up from school. As soon as they get home, he has to tell them. He has no idea what to say or how they are going to survive as a family. Suddenly the man, who had been ready to ring the dad’s neck, realized this was not a bad dad or a rude man, he was a sad dad and a broken man. That was the right conclusion when the initial facts were viewed in context with the rest of the facts and circumstances. The fellow passengers whispered to others and they all helped to entertain the kids until the family reached their stop.
How many of you have heard it? How many of you have repeated it? How do you feel about the importance of looking at all the evidence in context to reach the right conclusion? How do you feel about the danger of reaching the wrong conclusion if facts are taken out of context or spotlighted in a vacuum?
The utility of recognizing that trials are more of a battle over conclusions than facts expands to other areas like heading off efforts to undo cause challenges and cross-examining experts. I will cover them in the upcoming Brushstrokes.