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Creativity in the Courtroom: It’s Not Like Laying Bricks

| Dec 12, 2016 | Company-News

The trial presented a business dispute of no interest to anyone other than the litigants.  Counsel for the plaintiff businessman had just completed his cross-examination of the defendant businessman.  From a purely academic perspective he had scored a number of telling points as he waded through a mountain of black exhibit binders which almost completely obscured the jury’s view of the witness.  As he passed the defendant’s counsel table on his way back to his own table, he whispered to me with a smile, “it’s just like laying bricks.”

His comment inspired me to gaze at the jurors he had just treated to his cross-examination.  They were each in different stages of catatonia, from glazed eyes to slumping posture and telltale yawns to obvious cat-napping to totally unconscious oblivion.  How do you sell a boring case to an audience which has no interest and no reason to be interested in its tedious subject matter?  The task, to my way of thinking, is significantly different from the task of laying bricks.  Multiple exhibits and reams of deposition testimony, no matter how artfully manipulated with the modern forensic tools at our disposal, have a regrettable tendency to get in the way of human communication.

The two businessmen in that case had strong and contrasting personalities.  There was the key to jury interest.  There was the contrast of human behavior and credibility that can bring dull documents to life.  An old trial lawyer told me in my youth that to try a jury case effectively you had to reduce it to something you could scribble on the back of an envelope.  It is difficult to attain that goal in the blizzard of electronic information which characterizes modern litigation.  It is nonetheless a goal to be considered and sought on the way to the ultimate goal of persuading a group of strangers to reach a result that it might otherwise fail to provide.

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