TRIAL STORYTELLING—A TIME TO KILL

A Time to Kill

Trial advocacy is all about storytelling. In the movie Amistad, John Quincy Adams, portrayed by Anthony Hopkins, sums it up in this way: “Well, when I was an attorney, uh, a long time ago, young man, I, uh, realized after much trial and error in the courtroom, whomever tells the best story wins. In un-lawyerlike fashion, I give you that scrap of wisdom free of charge.” And, opening statement is your first and best opportunity to fully communicate your case narrative. A well-crafted story told in opening should lead the jury both intellectually and emotionally to the conclusions you wish them to reach.

Ideally, your storytelling will transform the jurors into witnesses to what happened or didn’t happen. The movie A Time to Kill, based on John Grisham’s novel, offers an excellent example of how to turn jurors (and the movie audience) into witnesses. Matthew McConaughey delivers a superb performance as Jake Brigance, defense counsel, delivering closing argument for his client Carl Lee Hailey, played by Samuel Jackson. Brigance tells the story of how his client’s ten-year-old daughter was raped and murdered by two white racists, whom Hailey is charged with having murdered. Although it is defense counsel’s closing argument, it could just as well have been a prosecutor’s powerful opening statement in a trial of the two white men for the rape and murder of the daughter.

Now, if you will, watch the closing and then we can break it down to see why it is such effective storytelling.

What did Brigance do to make the jurors (and the audience) witnesses to what happened? 

What are the techniques that he used?

Encourage Them to See with the Mind’s Eye: He encouraged the jurors to see what happened in their mind’s eye. He began by having the jurors close their eyes so that each one of them could imagine in the mind’s eye what is taking place. And, he tells them upfront, “Now I’m going to tell you a story. This story is about a little girl.” At this juncture, each juror has conjured up in their own mind what that girl looks like. While you may not wish to ask jurors to close their eyes, you can begin by talking about how opening statement is like a sketch for a painting and that the witnesses will fill it in brush stroke by brush stroke when they testify and then tell the jurors you will show them a sketch—an  outline of a picture of what happened.

Tense Shift: Tell the story in the present tense so the events take place right in front of the jurors at the time of opening, not in the past. Brigance says: “The truck races up. . . It tears flesh to the bone. . .They tie a noose. . .The hanging branch isn’t strong enough—she falls.” Only shift to the present tense when you have something central to the story to describe. If you use the present tense in other contexts, it can sound stiff and artificial.

Striking Word Pictures: Paint evocative word pictures. Use words of visualization. Give them graphic details—the important ones and not too many details. Brigance certainly described in detail what happened, and he described the places and people—“their drunken breath and sweat.”

Point of View: The story should have a point of view. Here the story could have been told from the viewpoint of the father or the little girl. Brigance seems to have adopted the eyewitness’s point of view. The listener is there watching it happen; it’s much like the Greek chorus, the group of actors in an ancient Greek tragedy, looking at and commenting upon what was happening in the play as it takes place.

Slow Down: When the scene in the story is dramatic, slow down the pace of your voice. A slower pace indicates the seriousness of the information being imparted as well as sadness. Additionally, it helps the audience take hold of what you are saying.

Show Emotion: Deliver from your heart.  When you do, your emotions will show in your face and body language. In turn, we all mirror emotions. When you show emotion, the jurors will feel it. At the end of his closing, McConaughey went silent, obviously gripped with emotion probably because he was seeing in his mind’s eye what he was describing. This is not to suggest that counsel should cry when telling the story because the jury could well interpret that as disingenuous.

In Trial Advocacy: Planning, Analysis, and Strategy, we describe in even more detail how to be a powerful storyteller with not only illustrations but also offer demonstration movies on the book's companion website.