Kelley,
Just wanted to let you know your posts on jury duty have hit the Washington Association Of Criminal Defense Attorneys listserve. You hit the nail on the head and accurately read the undercurrents. Having been a prosecuting attorney in King and Skagit County and a criminal defense attorney for the last long ten years, I am always glad to see how others, outside the system, see the players. I say players because in many ways trials are like plays. Reasonable doubt, preponderance of the evidence, clear and convincing evidence…..forget it! It all comes down to a good story, well told.
Oh, one of the defense attorneys recognized the case, admitted his involvement (stiffness and inexperience) and told us the rest of the story. Both defendants were found not guilty.
I personally would rather look foolish and win than poised and professional and lose. Please do not post or use my name but feel free to comment to your hearts content.
It’s fascinating to hear from you. I’ve always believed that the best attorneys are storytellers under the suits, but have never had someone from your side of the table talk about it.
I go on at (perhaps tedious) length about story in this blog because I’m a writer, but also because story is at the root of so much in the world: self-identity, our presentation in the world, the way we accuse others and defend ourselves (in court or in our living rooms), the way we organize our responses to things. I think people, consciously or unconsciously, look for stories to understand the world. If we’re hard-headed intellectuals, we talk about “making sense” or “clear thinking” — but really it’s all about a story that feels true to us.
It must sometimes be enormously frustrating to do your job. Because some things that are true do not make good stories. They don’t “make sense.” And how can you make the necessary human connection, tell a human story that a human jury can understand and respond to, if the truth doesn’t make a good story? That must be beyond frustrating, it must be frightening as well, given the potential outcome for the people at the table.
I am about to start making up theories about your work, and they may be totally wrong. No offense intended, and please feel free to point out my errors and educate me out of my ignorance if you’re so inclined. But now I’m imagining that it’s at those times — when the truth isn’t sexy, when it’s a story that doesn’t make sense or that people refuse to believe (an even greater obstacle sometimes) — that lawyers need to stop being professional and poised, and start being human. Maybe foolish, maybe awkward, maybe emotional, but necessarily real. To make the story more human because a human is telling it.
My best work comes from throwing myself out there, making story and writing choices that could easily make me look foolish (and sometimes do). It’s not that I win in spite of those risks — those risks are where the win comes from. Without being willing to look foolish, I can’t create that human connection: here I am, let me tell you a story. Does it sometimes work like that for you?
I know how many new writers come to the art thinking that the most important things are cool ideas and important themes and elegant phrases. I wonder how many lawyers come to their art thinking that the most important things are knowledge of the law and a certain scrappy attitude. When in the end, in both our worlds, expertise (although essential) is only part of the equation.
I’d be very interested in anything you have to say, if you’d like to continue the conversation.
Hi Kelley,
I’m the person who sent your jury duty post off to a lawyer in Seattle, who then sent it off to more lawyers (unless someone else did too).. As a trial consultant who does mostly death penalty defense work, I thought your comments would be helpful to folks who spend their lives asking potential jurors about their attitudes and life experiences. After reading the post above, I emailed it to even more lawyers. You are just so right about “the story.”
Victims, of course, have an automatically moving story because their lives ended tragically. As you noted, our defendants, because they’re the ones who caused the unhappy ending, start out unsympathetic. They also usually have lives that are so fractured that their stories are hard to piece together and even harder to tell. These are true stories that nobody wants to hear. Nonetheless, when the defense team has done its legwork and the defendants’ life stories are revealed, they are mostly the saddest stories I’ve ever heard.
The hardest thing for me about my work is trying to figure out how lawyers can communicate these stories to jurors (for whom the defendant is naturally the villain), and how to find the jurors whose minds will be open to the idea that this defendant, who did a terrible thing, is a person with his/her own story. So thanks for your insights. They’ve made me think even more about this process.
Your blog was forwarded to me by Beth Bochnak, a jury consultant who helped me try a federal capital case in Vermont. I am the Federal Public Defender for the Northern District of New York. I also teach trial advocacy at Albany Law School. Your insights were good. Keep it up.
Kelley,
Alex is right…your insights are good. I teach an introductory legal communication class. You make concrete what I discuss in the abstract. It’s great to have real life examples that make a point in a way students can easily understand and likely better relate to. Your three posts will be required reading next semester.
Debra.
Beth (#1), thank you for letting me in on the backstory, I’ve been wondering where everyone came from (grin). And thanks very much for making it possible for people to find me and extend this conversation. I hope it goes on. It’s certainly making me think.
And what I’m thinking about now is the essential tension that I, as an outsider, perceive in the criminal justice system. The tension that I imagine exists for both prosecutors and defense attorneys, the tension between making a story of the truth in a way that people can understand it, and winning.
If people understand the human truth behind an incident, sometimes they will respond in a way that’s favorable to that human. And sometimes they won’t. So the question is, does one take the chance on having people understand the truth in all its complexity? Can the general messiness of human lives hold up under the harsh reductive glare of “the law”? Or does one just do whatever one thinks will swing the vote? I wonder if this is something that every professional in the legal system must decide for herself, maybe on a daily basis — what is more important, the truth or the win?
Because truth does matter in story. I think it matters to people like me — we who are the juries and families and friends of defendants and plaintiffs and victims — to understand what happened. The story which is always more than the sum of the facts — it’s the sum of the lives of the people involved, the choices and decisions they made that brought them to this moment.
Would be interested to hear how others feel.
Alex and Debra (#2 and #3), thank you.
I’m interested to hear about your teaching work (trial advocacy / legal communication). Communication skills are a foundation of both my previous corporate career and the consulting business I’m in the process of setting up. And one thing I know about communication is that people will create a story out of whatever we give them in an interaction. If we give them little context, they will fill in the gaps with their own assumptions and little bits and pieces of their own worldview… and if we give them a lot of context, a bridge into our worldview, often they will walk at least halfway across it.
That’s not magic. It’s behavior that anyone can learn, and use to build more bridges to shared understanding. I certainly hope for those behaviors in an attorney that might represent me.
I am very interested in this discussion as I work with child custody litigants. Their pain and fear make them numb to the daily concerns and needs of others. They keep a quick, dramatic explanation of their case prepared to inflict on anyone they think is willing to listen. Then probe the face of the listener for a spark of interest, an ember of hope or potential savior. Because child custody is such an emotional subject the listener often flees at the first opportunity.
Teaching parents to tell their story sans the drama to keep the âickâ factor from kicking in is key to a helping them get better results.
I went to see Sisten Helen Prejean (Dead Man Walking) give a talk on capitol punishment. For me it boiled down to her asking each of us this question: Would you like a snapshot taken of you at the worst moment of your life and that be the only picture of you anyone ever saw?
To me “truth”, “guilt”, “innocence”, “victim”, “justice” etc., are all about the story. And as suggested the story of every single person involved. Where is the room for being a human with a human story when the purpose is to establish “the truth”?
Kelly (#6), that makes complete sense to me. I can imagine that added to that mix is desperation, the need to get the story out now, now, now! so that the listener gets the impact whether they want it or not. I can imagine many situations in which I’d do that if I were desperate.
Communication is so full of potential pitfalls, one of them being that often the more desperate we are to connect, the more we make communication choices that actually put more distance between each other.
Teaching parents to describe emotion rather than “doing” emotion (which is how I interpret what you’re saying) sounds like a great strategy to me.
Robin (#7), that question stopped me in my tracks. If I heard an attorney ask me that as a juror, you can bet it would get my attention.
In your initial discussion about jury duty you spoke of two concepts, “Storytelling” and “truth.” Much of the discussion has since been about the former. The latter is directly related, but it needs to be understood from a legal framework. First, there are constitutional, procedural, and evidentiary rules, that limit what stories lawyers can tell. A prosecutor may not comment on a defendant’s invocation of his right to remain silent, regardless of the fact it occurred and is therefore true. In a federal capital case, I was not allowed to tell the jury that local prosecutors agreed in writing that a death sentence was inappropriate and that the case should be settled, only then to be overruled by the United States Attorney General. For both good and bad reasons these truths do not reach the jury. Second, in an adversary system each side advocates its own version of the truth. The lawyers are responsible for seeking to exclude evidence (even if true), that damages their side. Third, any participant in a trial, may potentially lie or assist untruthfulness in others. Many recent studies show that human beings (lay persons or “experts”), are extremely poor judges of when others (particularly strangers), are lying. Therefore, even when jurors hear excellent storytelling, they may not know whether it is the whole story nor accurately assess which parts are false.
Hey Alex,
This is powerful stuff, and makes me scratch my head and wonder how attorneys and advocates stay sane sometimes.
I’ve never believed in the idea of Truth as an absolute, although I am hesitant sometimes to say so in the company of people whose work is connected in important ways with ideas of truth. Religious people, folks in the justice system, even some medical professionals, some scientists. But thank you for opening this door.
So even if I get as close to “absolute truth” as I can conceive of — if I define truth in the most limited way, as only what is factual and observable and not subject to interpretation, — even then, as I understand now from what you are saying, that most basic “truth” may not make it to the jury.
And then there are all those other layers you’re describing — sacrificing portions of “truth” to the responsibility to win, and the basic reluctance of people to actually tell the truth sometimes.
You’re absolutely right that most people can’t tell when someone is lying, assuming any skill on the liar’s part. And of course we don’t like to admit that, because there’s the cultural idea that if we are “gullible” or if we admit that we can be fooled, bam, there goes our credibility out the window. So maybe we don’t challenge the story, don’t ask the pointed questions… this is one thing I’m glad we have attorneys for. It seems to me that many of us need that kind of advocacy, and that it takes training to challenge others in that way. I’ve known few people who seemed to exercise it as a natural skill.
So, where are we? When the truth doesn’t make sense, the storytelling needs to be good. If the storytelling is good, the jury can be convinced of things that are not necessarily “the whole truth.” Like any tool, you can use story to build or to break.
I understand why people lie to protect themselves or someone else. I even understand the psychology behind lying to please the questioner, to try to give the answer that is “wanted.” And I understand some of how our culture influences us to lie in order to look smarter or more powerful or more “in the know” than we really are. But how do we find the truth in all that? And what does it mean to say that we want people to tell the truth, the whole truth, and nothing but the truth, in a system that can be so antithetical to that idea?
I’d be interested to know what you (or anyone) think about the idea of Truth and Reconciliation Committees. I know it’s a wider idea than individual justice — I’m just curious how (if?) you think it relates to the kind of truth we are talking about.
Three points. First, mistakening facile lies as truth is only part of the problem. Similarly, persons cannot always determine when the truth is being told. An inarticulate, nervous witness who confuses minor details may be written off as not credible, even when the substance is true. Second, legal advocacy is more a set of learned skills than inherent talent. Although we have all met natural storytellers, those persons may easily translate those gifts to suit the courtroom or not. I see more potential in a student that works hard to learn forensic skills than one who is confident about their capacity to entertain an audience. Storytelling is simply one skill that can be taught as part of what a lawyer needs to know. Third, simply because presenting objective truth is not the responsibility of either side in a lawsuit does not mean it is not a goal of a trial. In an adversary system, truth is the intended result of two strong advocates presenting competing versions.
Oh, absolutely — I’m not trying to imply that storytelling is the first or most important skill of a good attorney. I’m a great storyteller, and I have no doubt I would be a terrible lawyer.
But I don’t think storytelling is just about entertaining, either. When I imagine myself as a jury member, I don’t wish to be entertained — in fact, I would be suspicious of an attorney who seemed to be in pursuit of that goal. But I do want to be persuaded. I want to know as a jury member that I am making the right choice. I want to be a mile beyond reasonable doubt, not just one toe over the line. And perhaps the facts alone will persuade me, but in real life it seems that the arguments often center not on the facts, but on the extenuating circumstances. That’s the part of it that feels like storytelling to me — the part that may not make “sense” except on the emotional level, which is where story operates.
I understand intellectually what you’re saying about truth being the intended result of adversarial presentations. But emotionally, I find myself resistant. I’m glad that you called out this point, because it’s helping me figure out that I wish, very much, that our system of justice was not inherently adversarial. I wish that we didn’t all walk into the courtroom with that mindset. I don’t see how it can be avoided, given human nature, but I know that humans do not generally respond to an adversarial approach with cooperation and teamwork and “let’s all get to the truth together.” It seems like the system creates its own obstacles to the discovery of truth.
And just to be clear, I mean no disrespect to the core system or the people who work in it. We need a legal and justice system, and we need people who are skilled in law and trial. I don’t think our society could function otherwise. But I think that, as with any human system, the efficacy of any individual event can be greatly affected by human factors — pride, insecurity, fear, ambition, despair, whatever — in spite of the impartiality intended by the system itself.
You are my ideal juror, so next time you are called for service, please do not say you will hold the prosecution’s burden to “a mile beyond reasonable doubt.” You will be the first person the prosecutor strikes. Also, pardon my previous typos. I am unfamiliar with blogging and I have become unduly reliant on Spellcheck for producing legal documents and articles.
Okay, Alex, I won’t say that (grin). But it won’t matter. They never pick me anyway.
The time before this, I got booted on another hypothetical (what a surprise, huh?). And I was actually on the de facto panel that time.
The question was, if a police officer came to my door and said that I was in no trouble, but he or she would like to come into my home, would I let them in? And I said no. When asked why, I said because the officer doesn’t have a right to enter my home without a specific reason. Well, I was told, it’s a police officer, wouldn’t you want to cooperate? And I said that if the officer had a specific reason to come into my home, I’d be happy to obey the law. Which I thought was pretty cooperative, but maybe that’s just my wacky definition.
And I don’t actually need to go a mile beyond reasonable doubt. I would do my best to parse the details of a case and find where I stood in relationship to what seemed reasonable. It’s just that it would be reassuring to feel morally certain that I was making the right call, that I understood “the truth.” Of course that’s an unrealistic hope in most cases, I suppose. But it would help me in those 3 AM moments when I knew someone was in jail, or on the street, because of me, and wondering whether I did the right thing.
No worries on typos, I don’t generally notice them, and if I do I simply assume the commenter is being creative (grin).
A federal judge once told me that he would have no problem allowing the police to search his car if he was pulled over because he had nothing to hide. It is difficult to even know how to respond to such a statement. But if he – someone who was familiar with instances of police misconduct – felt that way, you can imagine the subservient reaction of many unquestioning citizens. If you would like some suprising juror responses to hypothetical questions, I have many from the capital trial that Beth Bochnak assisted me with in Vermont. I forgot to address your previous question about truth and reconciliation committees. Not all crimes have victims, but those that do, particularly capital crimes, would benefit from a system that seeks to repair the damage by bringing offenders and survivors together. There is a developing movement among capital defense lawyers to work with persons who do victim outreach in order to contact family members of the victim and establish a relationship that sometimes ends in a settlement in which everyone feels they were treated fairly.
I would love to see the responses to hypotheticals. You can email them to me if you like… let me know if it’s okay to post them, because it would be an interesting new direction for the conversation. But if not, I’d still like to see them.
You can reach me at contact [at] kelleyeskridge [dot] com.
I am — what’s the word I want? Moved, hopeful — at the idea of a movement like you describe. I remember hearing about the original Truth and Reconciliation meetings in South Africa, and being astonished into tears at the idea, and at the results. One of the challenges of an adversarial system is that it does tend to keep us all in our separate corners.