Presenting a persuasive and engaging damages story

Including the jurors in the story

Experienced plaintiff’s attorneys know both from personal experience and from research results that a story visualized is the most natural and most common organizing principle by which people make sense of information.

Compelling stories use facts, but a recitation of facts doesn’t necessarily tell a story. Stories focus on a human drama built around characters and motivations and struggle. Classic stories present the struggle between truth and lies, justice and injustice, bully and underdog, fair and unfair, good guys and bad guys, courage and cowardice. Jurors may not understand all of the technical issues in a case, but they understand human behavior and motivations. A compelling story revolves around a sense of right and wrong, and it challenges jurors to do the right thing.

Therefore the compelling damages story is always going to be about people and their motivations and values, rather than the dry addition and subtraction of numbers.

In keeping with this concept, skillful plaintiff’s lawyers understand that the story is not about something that has happened in the past, but rather is a story that is still unfolding. This is critically important. When a story is told as something that has already been finished, the drama and tension is gone after the first telling. (“And then he died. We’re here to collect for that.”)

Jurors covet the self-respect of doing something significant and good. The damages story that will absorb jurors is the story about them and what they are going to do in this trial. They are the heroes of the story, the protectors of what is right and good and the ones who stand against that which is wrong. The plaintiff is a main character in the story, but the damages story is a story in which the jury – as the hero of the story – has the ultimate choice to make.

A sample damages story

Using a wrongful death case as an illustration, an oversimplified but typical storyline might go something like this:

(Setting) Joe Jones is in the bar, feeling good, knowing he’s had more to drink than usual.
(Choice) He thinks about calling a cab instead of driving himself, but he decides that’s too much trouble and he can probably make it home okay.
(Conflict) He never saw the red light or Mrs. Smith’s car before he slammed into her broadside.
(Consequence) Mrs. Smith died four hours later, leaving her husband and two young children to cope with life without her.

After that, various numbers are offered to the jury as a potential basis for determining damages.

This damages story, although absorbing on first telling, starts to lose something as it is repeated in the opening statement, on direct and cross examinations, and in closing. By the end of the trial, the jury has heard it too many times and already knows how it ends. The tension of the unknown that lives in all great stories is gone, and the jurors no longer have the sense of being vicarious participants in the story. They’re just observers hearing the same story played out again and again.

A more compelling damages story doesn’t end with the events that have transpired before trial. Instead, the story is told in such a way that the jurors understand the ending is still being written, by them.

Using the same wrongful death case as an illustration, the arc of the story is extended into and beyond the trial itself:

(Setting) Joe Jones is in the bar, feeling good, knowing he’s had more to drink than usual.
(Choice) He thinks about calling a cab instead of driving himself, but he decides that’s too much trouble and he can probably make it home okay.
(Conflict) He never sees the red light or Mrs. Smith’s car before he slams into her broadside.
(Consequence) Mrs. Smith dies four hours later, leaving her husband and two young children to cope with life without her.
(Crisis) Mr. Smith struggles with the decision of whether to open up everything about his family’s life and grief in this trial and to put himself and his two children into the hands of a jury, in the attempt to provide a sense of justice and healing for his family.
(Climax) You, the jury, must make the decision for this family and this community of what is right and the value to be placed upon that.
(Resolution) This young family has the opportunity to face the future knowing that they and their wife and mother have been valued by this community.

This version of the damages story treats the jury as the hero of the story rather than as a passive observer. When told well, this second story has much greater potential for transforming the attitudes of jurors from uninvolved spectators to committed participants in the outcome.

The story is now about people and values, and finds its climax in how the jury will make the right decision at trial. With this understanding of the damages story, the next step is to understand how the visual strategy can reinforce the story. Skillful plaintiff’s attorneys often make strategic use of key visuals to tell the plaintiff’s story rather than just illustrating various facts.

In the damages story example, there are seven stages of the story that will be the organizing principle for the visual strategy. This approach assures that the damages story retains its central role rather than getting lost in a mass of facts.

For each stage of the damages story, there should be one visual that best stands as a symbol of that stage. In addition, additional visuals are needed to fully explain that stage. The key visual for that stage becomes the anchor for discussion of that stage of the damages story.

Setting

The jury needs to know the setting at the outset to put the defendant’s bad choices into context. This context often includes the values and standards the jury should use in evaluating the defendant’s actions.

When dealing with a topic already familiar to a jury, such as drinking and driving, the setting may be simple to establish. When dealing with a less familiar topic, such as medical standards of care or product testing and safety standards, the setting may require more careful development.

In a drunk driving/wrongful death case, the plaintiff’s attorney will want the jury to focus on the defendant’s choice to drive home even though he knew he had been drinking excessively. A simple visual for the discussion of the setting could be a blown up copy of the bar tab, showing the number of drinks, overlaid on a picture of the sign for the bar. This visual then becomes the symbol and reminder of the setting in which Joe Jones decided to drive home anyway.

Choice

The choice is the key choice made by the defendant that violated a moral principle (one valued by the jury) with the foreseeable result of harm to someone.

Not every violation of the law is a moral choice, so you look beyond just the violation of the law for the moral choice that caused the violation and harm, because that’s where the power of the story comes from.

In the drunk driving/wrongful death example, Joe Jones didn’t really make a choice to run the red light (although that was certainly a violation of the law), but he did make a conscious choice to drive drunk instead of calling a cab. That becomes the focus of the spotlight on the defendant.

To symbolize that choice visually, the key visual might be an enlargement of an excerpt from Joe Jones’ deposition (a “call-out” in graphic terms) saying he doesn’t like the hassle of dealing with cab, overlaid on a sign from the bar offering cab rides for drinking patrons.

Conflict

The conflict is the point in the damages story where the actions of the defendant come into contact with and cause harm to the people the plaintiff’s attorney represents. In the drunk driving/wrongful death example, that point is the wreck and the death four hours later of Mrs. Smith.

Our key visual for this stage may be a call-out from the EMS record overlaid on a picture of the accident scene. There will be other visuals introduced in the trial to explain the accident and support this stage (such as a diagram of the intersection, the police report, the ER records, etc.), but identifying the key visual for this stage helps make sure that the human drama of the damages story doesn’t get lost in the facts.

Consequence

The consequence is what you traditionally think of as the damages (as well as the underlying causation if that is seriously disputed).

Obviously presentation of causation and damages are crucial to the plaintiff’s case. You just don’t want to get confused by considering damages as the end of the damages story.

In the drunk driving/wrongful death example, there are various damages to consider, including the conscious pain and suffering of Mrs. Smith before her death, the loss of her contribution to her family, and the emotional impact of her death on her family. The plaintiff’s attorneys would be presenting numerous visuals in trial, possibly including such things as an enlargement of the table of economic damages from the economist’s report and medical records from her last hours of life. But as a key visual, plaintiff’s attorneys might use the last family picture before her death overlaid with a brief call-out from the grief counseling records discussing the struggles and questions of the children.

This is the point where damage cases run the risk of derailment. If this is where the damages story stops, with proof of liability together with categories and amounts of damages, the story can go flat. Plaintiffs can look like they are simply trading tragedy for dollars, and the dollars won’t do much to fix the problem. That’s why the story needs to continue on to the crisis of trial, and the visuals need to reflect that.

Crisis

The crisis is what makes jury trials gut-wrenching. Until someone goes through the trial process, there is little sense of the fear of trial that plaintiffs experience. In actuality, most plaintiffs feel vulnerable and exposed in trial, particularly in cases that delve into personal or family matters.

The jury needs to be given some understanding of that fear to provide the emotional foundation for the awarding of sufficient damages. On one hand, when a plaintiff tells a story of tragedy that seems to be in the past, and now wants dollars for that tragedy, it’s easier for the jurors to feel like detached observers. On the other hand, when the jury understands the ongoing fear that the plaintiff is suffering and realizes that it is the protector of the plaintiff, the dynamic shifts. The jury has the chance to make a real difference.

This phase of the damages story allows the plaintiff’s lawyer to show the impact of the litigation on his or her clients. In many cases, it also allows the plaintiff’s lawyer to turn any frivolous defense pleadings against the defendant.

In the drunk driving/wrongful death example, the key visual might be two call-outs from defense court documents, one a pleading denying any responsibility and placing blame on Mrs. Smith, and the other a discovery request for all counseling records of plaintiffs.

Although plaintiff’s lawyers are typically prevented by the court from talking about discovery disputes and matters of law, that’s not what they’re doing with the story that surrounds this visual. Instead, they’re using the visual to talk about the decision the plaintiff had to make to expose himself and his children to the personal probing of litigation as the price for seeking justice, while the defendant denies and seeks to shift any responsibility. There truly is a crisis of faith in deciding to trust twelve strangers with the intimate details of your life while facing the fear of rejection.

Climax

The climax of the story is the jury’s decision. Plaintiff’s lawyers motivate and empower jurors by placing them squarely within the story, as the ultimate protectors of justice and their client.

This becomes the perfect place to use a key visual constructed from part of the verdict form, the part that best reflects the ultimate decision the jury will have to make. In the drunk driving/wrongful death example, that key visual might be a call-out with the listing of blank damage categories for negligence of the defendant, with the figure of $10,000,000 superimposed.

Other parts of the court’s charge will also be shown visually in trial, but this visual becomes the focal point for discussion of a verdict that truly makes a difference.

Resolution

The resolution is the end of the story after the jury’s decision. The resolution paints the picture of what the jury can achieve with its verdict. Showing tragedy and asking for money as a result is not necessarily motivating to jurors. Jurors want to see how their verdict can make a difference. The resolution shows them that by providing a picture of hope for the future.

The resolution can focus on how the verdict makes a positive difference for the plaintiff. Alternatively, it can focus on how the verdict makes a positive difference for the community or world.

Ideally, plaintiff’s attorney will be able to show both results from a verdict. In the drunk driving/wrongful death example, they might compose a key visual with a picture of father and children from the back (looking into the future) with the superimposed call-out of language from literature that the defendant has admitted disregarding noting the link between “zero tolerance” and reduced deaths from drunk driving. This becomes the symbol for the discussion of how this jury is standing for and advancing what is right and good.

Start the cases with the damages story

If plaintiff’s attorneys don’t start with the story, they’ll end up with illustrations of facts that seem disjointed and powerless. They should work through the seven stages of the story discussed above. There will most likely be many facts that need to be taken a layer deeper to the underlying motivations of the people involved. A story is about people and their motivations and values.

It is also likely to find while working through the story that some of the seven stages haven’t been developed yet. That’s one of the benefits of this process for plaintiff’s lawyers. They’re always led to consider possibilities for discovery and trial that probably wouldn’t have occurred to them otherwise.

A simple and useful exercise is to fill in a simple storyboard outline for the case. For example, using the damages story example, a simple storyboard outline might look like this:

(Setting) Jones knows he’s had more to drink than usual.

Bar tab shows 5 mixed drinks.
More than usual consumption.
Bar is 4 miles and multiple intersections from home.

(Choice) Jones chooses to drive instead of calling cab.

Aware of sign offering free cab ride.
Doesn’t want to wait on cab.
Doesn’t want hassle of returning for car.

(Conflict) Jones runs red light and broadsides Mrs. Smith.

Independent witness says Jones at fault
Jones tells police that Mrs. Smith ran red light
Jones denies more than two drinks

(Consequence) Mrs. Smith dies four hours later

Mrs. Smith intermittently conscious before death
Leaves husband and children ages 12 and 9
Family continues to struggle to adjust

(Crisis) Mr. Smith struggles with decision to file suit and come to trial

Smith fears further trauma to struggling family
Smith struggling with anger at Jones’ denial and blame shifting
Smith hopes accountability helps with healing

(Climax) This family is in your hands

You decide whether accountability is owed
You decide how to value accountability for Mrs. Smith’s life
You decide how to stand up for this family and community

(Resolution)

This family will heal knowing Mrs. Smith was valued
This community will know you stood for accountability
You will know in your heart you stood for accountability

By going through this short exercise, a plaintiff’s attorney will get to the heart of the story, and will start to get ideas about the visuals that might support each of the headlines.