Podcast - The Stability in Simplicity

Dan Small: Welcome to another episode of "The Trial Lawyer's Handbook" podcast. In this episode we're moving to the civil case involving Jack Gilbert, based in part on my ABA book "Lessons Learned from a Life on Trial."

Jack Gilbert was widely known as one of the top naval architects on the eastern seaboard. He designed much of the East Coast fishing fleet, and as that work slowed or went overseas, he broadened out to designing ferries, tugboats, fireboats and many other commercial vessels. One of the fishing vessels he designed — we'll call it "The Bailey" — was a beautiful 93-foot working boat. However, when it went to sea, its owner complained that it showed signs of instability, and he brought a lawsuit for negligence in the U.S. District Court in Portland, Maine. I was retained to help represent Jack in defending the suit. He was a great naval architect and became a good friend.

The Grand Banks is a large area of the Atlantic Ocean southeast of Newfoundland. It's called the "Banks" because its submerged highlands create a relatively shallow bank, ranging from 80 to 330 feet. There, the cold Labrador Current mixes with the warm waters of the Gulf Stream. That turbulence lifts nutrients to the surface and creates one of the richest fishing grounds in the world.

However, the same turbulence that creates extraordinary fishing also helps create extraordinary weather. It can be an incredibly inhospitable environment, with rogue waves, fog, icebergs, winter storms, hurricanes and sea ice. Designing a boat for those conditions is a challenge. So was bringing those challenges to life for the jury.

Take winter ice, just as one example. The jury may hear that term and conjure up visions of cute little icicles, hanging from the rigging, catching the light in a beautiful way. In reality, there's nothing cute about winter ice to these fishing crews. In temperatures far below freezing, the spray from the sea below, the rain, sleet and snow from the skies above, accumulate ice on every surface, every support, every line, and not in cute little icicles but in rapidly growing thick sheets of ice. A fishing boat this size can accumulate thousands of pounds of ice above the waterline. All that added weight can create a serious threat to the boat's stability and to the lives of all aboard.

To try to keep control over winter ice, a crewman may be assigned, often at all hours of the day and night, and in the worst of the weather, to go out on deck with a hatchet and literally hack away at the ice. Imagine that duty: climbing the rigging on a tossing and turning boat, in the cold and wet, to cut away sheets of ice. It's a tough job, but a necessary one. And that's just one of the challenges. So when we talk about vessel stability in this context, it's much more complicated, more dangerous and more difficult than just keeping from tipping over a canoe.

A key part of putting a case together for litigation, and preparing for trial, is developing your core themes. These are, in my view, a small number — three to five — of short, clear, strong statements that explain your case and help answer Juror No. 6's questions. How do you learn what those questions will be? One way is by talking to potential jurors. Not in the courtroom but long before: at a bar, at the gym, at the dinner table, sitting around with family, with friends, with strangers. You can talk about your case with other lawyers, wander down the hall and share stories and questions. But they will probably not be your jurors. I have long believed that to learn how to present your case, you have to tell the story of the case to non-lawyers, even to complete strangers — especially to complete strangers — and then listen carefully to their questions and reactions. The good news is that most people like to hear stories, and most cases can be put together pretty interestingly. Depending on the case, you may need to change names, places or details to keep it confidential, but it's still interesting. Search for opportunities to tell the story to non-lawyers. The insights you'll get from their questions can be invaluable, and it's from telling the story over and over, and listening to the questions, that you will develop your core themes.

When I told the story of the Gilbert case, to strangers and others, the first core theme that emerged was obvious. "'The Bailey' was a safe and stable vessel," period. We had to be clear and confident in that belief. But that led to questions such as "What happened?" and "What went wrong?" Working with our client and our experts, it became clear that the owner had loaded the boat up with oversized equipment. He'd wanted a bigger boat, but rather than spend the money on a bigger boat, he saved money and got a smaller boat and then loaded it up as if it were much bigger. So the second core theme became "He pretended he had a bigger boat." Like a child at Christmas overloading the tree with ornaments, he overloaded the boat for its size.

Telling the story, though, we realized that that was the "what?" but not the "why?" Why did that matter so much? Why did it make it unstable? Again, going back to our client and experts, we learned the answer and added the third core theme to the story: "Every pound added above the waterline affects stability." That was the key.

Once you've developed your core themes, the challenge is to present them in a way that the jury will understand. Vessel stability can be a complex issue. All kinds of calculations and charts and graphs. Our experts had all kinds of fancy stuff on vessel stability, but the last core theme was so important that I felt that before we got to the science, we had to bring it to life. We had to make it real for the jury.

So we did. We got a big aluminum tub, filled it with water, got a little toy plastic boat to float in it, and brought the whole thing into the courtroom, right in front of the jury. Then my expert, with all of his Ph.D.s and everything else, took three metal washers and added them to the top of the boat, one at a time, explaining as he went, roughly as follows:

With the first washer, "Add a little weight above the waterline, and nothing happens."

With the second washer, "Add more weight, and the boat starts to become unstable." Our little plastic boat started to wobble.

And with the third washer, "Add more weight, and over it goes!" The boat flipped over.

"And so ladies and gentlemen, as you can see, every pound added above the waterline affects stability."

It was an absurdly simple demonstration, but so what? Sometimes simple is important. We knew from telling the story to others that our jury had to start with a clear understanding of this concept. From that point on, our experts and our other witnesses could talk about stability, could talk about adding weight, all with the comfort that they could always refer back to our simple demonstration and the jury would understand. They had seen it for themselves, and they would remember it through the whole trial.