As a law student, professional, and member of Haub Law’s Advocacy program, I have had the privilege to observe and participate in courtroom proceedings. One thing that has become clear to me is the difference between arguing your case and arguing the law. While it is important for an advocate to understand the law and how it applies to their case, arguing just the law in a jury trial is a recipe for disaster. Jurors are regular, everyday people who have families, jobs, hobbies, and vices. The denser a legal argument that an advocate tries to make, the less likely that advocate is to connect with the jury in a way that makes them want to hear the story.
Lawyers are representatives, they have a duty to act on behalf of their clients with their best interests in mind. In my opinion, the greatest expression of this attorney-client relationship is seen in the courtroom. And the most effective way for any attorney to argue their case effectively in a trial is to do one key thing: control the narrative.
“Controlling the narrative” is a simple concept, it is the goal of a trial lawyer to maintain power over the story that the court is listening to and to steer the court’s understanding of the facts surrounding that story in their clients’ favor. The tactics to “controlling the narrative” can be broken up into three tenants: theory, theme, and execution.
A case theory is simple in concept; using the facts available to them, attorneys weave a clear timeline of events leading up to the issue at trial and attempt to highlight key pieces of context or information that will convince a jury to believe the attorney’s narrative instead of the opposing party’s. There are two foundational steps to building a proper theory; first, an advocate must have a nearly encyclopedic knowledge of the underlying facts of their case. This includes which exhibits exist, which witnesses are available, and the dates and times of key events. Next, the attorney must pick and choose what parts of the story fit in the way that is most beneficial to their client. The types of facts that different advocates will use depend greatly on their respective cases – no two clients or cases are ever exactly the same. If there is a case relating to a car accident that took place in the dead of night, an advocate may want to highlight the time of the accident and visibility of the road. A case concerning a form of fraud will likely lead an advocate to address all prior instances of proper/improper conduct by the accused.
When an advocate can create a clear and logical theory of the case, it becomes that much easier to achieve the goal of controlling the narrative. If the theory makes sense, the narrative does. If the narrative makes sense to the jury, then you have control of it.
Additionally, the advocate must anticipate and address any potential counterarguments or inconsistencies in their theory. This means being able to predict, to a reasonable degree, any questions, or objections that the opposing counsel may raise and being able to provide a plausible explanation or counterargument. By anticipating and addressing potential counterarguments, the advocate can create a more convincing and compelling theory that is less likely to be dismantled by the opposing counsel.
It is important to note that the theory is not just a one-time presentation, but a continuous effort that is shown through every piece of evidence presented to the jury. The advocate must be able to consistently present the theory in a clear and logical manner, respond to new evidence and testimony as it arises, and be able to fit anything that comes up at trial into the story that has already been established. Therefore, it is crucial to have a deep understanding of the underlying facts of the case and be able to anticipate any challenges that may arise. By mastering the theory, the advocate can control the narrative and steer the jury’s understanding of the facts in their client’s favor.
As opposed to a theory, which is a detailed and comprehensive outline of an attorney’s narrative, a theme is less fact and detail-based and more reliant on emotion and expression. The theme of the narrative can be considered the “headline” to the case, the quick title that will grab the attention of someone hearing it and make them want to hear more. Themes are typically single sentences or phrases that encapsulate the general feeling advocates want the jury to experience when listening to their case. Due to the abstract nature of what may be a “good” theme can often make it one of the most difficult things to accomplish for a trial attorney. A great theme has the potential to immediately seize the attention of a court and hold it in a vice grip until the verdict, but a poor one can erect a barrier between an attorney and the court that will be hard to overcome.
There are an unlimited number of themes for any case that will see a courtroom, but some buzzwords are more popular than others, and for good reason. For example, if an advocate’s theory is that their client was harmed by the defendant and were the victim of medical malpractice, they are likely to use classic, or well-known, themes centered around the idea of their client being “helpless” or the defendant having a “duty of care.” While not always the most original or unique, classics exist for a reason and are reliable in almost any situation.
In the same way a theory is not just a one-time presentation, the theme should not just be a catchphrase or slogan. Rather, it should be a consistent message that is woven throughout the entire trial. From opening statements, to examinations, to closing arguments, the advocate should be able to use the theme to connect the jury to the underlying facts of the case and make them understand the significance of the events in question. By using the theme effectively, the advocate can create a powerful emotional bond between the jury, the client, and the narrative.
The power of any theme or theory is limited to how well an advocate executes. Actual trial manners and actions play a crucial role in controlling the narrative. Effective advocates must be able to use their tone of voice, body language and word choice to create a connection with the jury and make them feel like they are part of the story. For example, using casual and common language can make the jury feel like they are talking to a friend, rather than a lawyer, and this can help to build trust and credibility.
Additionally, the advocate should be aware of their courtroom presence and use it to their advantage. This means being able to use confident body language and making eye contact with the jury, as well as being able to use gestures and facial expressions to emphasize key points. The importance of courtroom etiquette in the presence of the jury cannot be understated; while jurors are obviously going to be keeping an eye on your direct and possible cross examinations of witnesses, they are just as likely to take note of your more subtle actions throughout the course of a lengthy trial. How an attorney interacts with their client at counsel table, the look that may be on their face during an objection or while listening to testimony that goes against their own, even how an attorney reacts to a ruling or comment from the judge; all these subtleties can and will be seen by the jury. The decision of an effective advocate will be to use these subtleties to the advantage of their case rather than allow them to become a detriment.
It is important to remember that every decision, every word, and every action in the trial has the potential to affect the jury’s perception of the case, so it’s crucial to be aware of how the advocate comes across. Jared Hatcliffe, a career trial attorney and one of the most respected advocacy coaches and professors here at the Elisabeth Haub School of Law, is known for a phrase that perfectly encapsulates the importance of “execution” in controlling the narrative: “Always look good.”
At the end of the day, it all comes down to understanding the jury and connecting with them on a personal level. By mastering the theory, theme, and execution of your case, you can create a clear and logical narrative that resonates emotionally with the jury. Controlling the narrative grants control of the courtroom, control of the courtroom turns a case that can be won into a case that already has been.