By Dr. Ken Broda Bahm:
The mantra when persuading juries, judges, and really anyone is often “Keep it simple.” That is for a good reason, and often the simplest way to tell a story is to begin at the beginning and end at the end, working your way straight through the events in sequence. At the same time, the popular dramas and storytelling that surrounds us in novels, movies, and television are replete with examples of alternate ways to tell a story to bring emphasis to a particular part. Shows like Lost or Breaking Bad as well as novels like Slaughterhouse 5 or It will play with the timeline as part of the creative process, and change the framing by encouraging an audience to receive parts of the story with or without particular knowledge.
Of course, in trial, the purpose is to be clear and influential, not to be creative. At the same time, a story order that steps outside the linear narrative in order to make a point can be clear while at the same time adding some drama and highlighting a point of strategic emphasis. In this post, I will share five alternatives to the linear narrative which can serve as strategic and attention-gaining ways to tell your trial story in opening statement.
1. Begin at the End
Anyone who is currently watching the HBO series White Lotus has noticed that both seasons one and two begin with a discovery at the end, and then with a quick “7 days earlier” transition, goes back to the beginning of the story. Knowing what is coming at the end changes how you view the events leading up to it. Depending on your goals in the case, you might want to start your opening statement with that dramatic conclusion — the tragic end result, for example — and then go back to the series of events that contextualized and predicted that end. In a way, it might be a way of encouraging hindsight (which, depending on your side, you may want to do) by making that ending seem inevitable and anticipated along the way.
2. Begin at the Turning Point
Rather than beginning at the end, you might instead begin at the essential climactic moment at some point in the middle, then return to the beginning, and work up to and past that moment. It’s a technique as old as the Greek epics – In medias res – or beginning in the midst of things. It could apply well to the dramatic stories that lawsuits are based on. For example, let’s say you want to highlight your adversary’s moment of choice during the story, you might start with that essential decision, letting jurors know through primacy that this is the most important fact. Then, you might leave that choice hanging as you go back to the beginning, tell the full story leading up to the choice, and then move beyond to show what they chose, and the results that caused.
3. Tell the Story in Reverse
While it might be harder to process, beginning at the end and working your way back to the beginning does appear in some novels and cinema — the film The Eternal Sunshine of the Spotless Mind, for example. While it might not sound practical to execute in an opening statement, I did use it on one of my cases. In a Plaintiff’s suit on a police shooting, we decided to begin at that moment when the shooting occurred, and then in a series of stages working backward in time, to encourage the jury to take a step back from that moment, then two steps back, then three, and so on. At each point, the focus was on alternatives that could have avoided the violence. And the further we went back, the greater the number of chances the officer had to have resolved things another way.
4. Flash Back or Forward
The flashback is, of course, a common device in story telling, and it can invite a dramatic shift in how we see things. Think about the final Harry Potter book and film, and the way the extended flashback ends up rewriting the character of Severus Snape. The same can be accomplished with a quick move forward (which the same story does at the very end). Momentarily stepping out of time in an otherwise linear story can dramatize the importance of a given fact. In your opening, you want to use this tool with care and purpose, to avoid confusing the jury. But when focusing on a particular document, like a smoking gun email for example, you might jump back (…Let’s recall that they anticipated this issue way back when they drafted the contract), or forward (…and moving to the ending we now know, this email is the point when that became inevitable).
5. Change Perspective and Retell the Story
The most famous example of a non-linear story might be Rashomon, the Japanese film where the same crime is described in vastly different ways by four different witnesses. These differences in perspective are, of course, a common part of litigation and not just literature. While you won’t want to do your adversaries the favor of telling the story from their perspective, you can make effective use of a different perspective. For example, in cases involving fraud claims or other situations where some information is hidden, I have coached attorneys to tell their story in two parts:
Part One: Naive perspective – Here is what we believed was going on based on what we knew at the time…
Part Two: Informed perspective – Now, let’s go back to the beginning, and I will add in what we only now know was really going on…
Of course, the imperative to keep things clear will place some reasonable limits on how fancy you can get. You can’t tell a story like the one in Christopher Nolan’s Memento, where it appears the script was cut up and shuffled. But litigators should also challenge themselves to be creative within the constraints of clarity. It is not just a matter of walking through the timeline, because story is more than just sequence.
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