Podcast - Trials Are About Connections
For trial lawyers, developing core themes is essential to building a persuasive case. In this episode of "The Trial Lawyer's Handbook," litigation attorney Dan Small recounts his pro bono work in Uzbekistan, where he helped educate Uzbek lawyers and judges about the U.S. adversarial justice system. Mr. Small explains how he used the fictional murder case State v. Faulkner to teach participants the importance of theme development and demonstrate how both the prosecution and defense can construct plausible narratives from the same set of facts. After extensive discussion and practice, the Uzbek lawyers embraced the process, delivering thoughtful and compelling arguments from each side. Mr. Small concludes that the experience underscores a broader point: The adversarial system demands rigor, but it offers fairness through demanding advocates to find and develop connections that together tell a compelling, yet plausible, story.
Listen to more episodes of The Trial Lawyer's Handbook here.
This podcast episode was adapted from Mr. Small's book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Dan Small: Welcome to another episode of "The Trial Lawyer's Handbook" podcast. In this episode we will continue discussing the murder case State v. Faulkner and how I used it for my pro bono work in Uzbekistan, as well as reflect on some of the other cases that we have talked about in prior episodes. These episodes are based in part on my latest American Bar Association book "Lessons Learned from a Life on Trial." If you want to listen to my breakdown of the Gilbert case, you can go back to episodes 122 and 123, and the SG Limited case was covered in 124 and 125.
In every case it's important to have core themes. As trial lawyers we should talk to nonlawyers — friends, family, strangers, anyone — to develop the core themes in a way that the jury will easily understand. The core themes are three to five short, clear, powerful statements that demonstrate to Juror No. 6 why we're here. In the Gilbert naval architect negligence case that we discussed in prior episodes, that process helped us understand the basic questions of the case and how to present them.
It's also important to have a story to tell and to fit the law and facts into that story. In the SG Limited case, the fun story of an internet game helped us to get the case dismissed by the U.S. district court, and then overcame the negative legal ruling on appeal and pushed a very favorable settlement. Whenever possible, tell a story, and tell it well.
On the defense, particularly in a criminal matter, there are some cases where the defense is safest relying on the burden of proof instead of presenting a story that can be contradicted by the evidence. The last thing you want is to put forward a story that the other side can prove to be false. Your credibility matters a great deal in any case. In one case that I prosecuted as an Assistant U.S. Attorney, I got frustrated and complained to the judge that the defense story was incomplete and made no sense. Wise Judge Tauro leaned over the bench with a smile and said, "Mr. Small, I think that the theory of the defense here is, 'prove it!'" A valid legal defense, but not the first choice, if there's an alternative story available.
In the Faulkner case, the murder case that we brought to Uzbekistan to use with judges and lawyers there to explore the adversarial system, good counsel could develop good stories on both sides. The prosecution painted the picture of a jealous and jilted defendant, Faulkner, sitting in the lonely guard shack, staring up at Wozniak's apartment, while Wozniak slept with the love of his life, until he could take it no longer. The defense, by contrast, could describe two hard-living, hard-drinking, sometime-lovers, Wozniak and Hyde, getting into a wild argument in the middle of the night, which led to a murder-suicide, or other theories.
With each Uzbek team, prosecution and defense, we spent time talking through the story. Seeing where the pieces fit. At first, they came up with wild theories, but we pushed them to look more carefully at the evidence and mesh the story with the evidence. Eventually, they became excited by the process, working to paint the picture with the facts and to watch out for the pitfalls.
When we use the Faulkner case to teach at Harvard's Trial Advocacy Workshop, it's great to watch as the students gradually fit the pieces together. What did each witness say that was inconsistent, and how does that fit into a theory? What were their actions, their words, both what they said and what they didn't say? All of that is complex with students who are generally familiar with the adversarial system. The Uzbeks had to take all those facts and issues and try to fit them and communicate them in a system they knew nothing about. They had never experienced the adversarial system and certainly never experienced trying to tell a story in that way.
Trials are about connections. Making connections between witnesses, between facts and between pieces of the story. The great challenge of preparing for trial, the Uzbeks learned, is finding, exploring and developing those connections. As an observer, it was a powerful reminder of the frustrations, the challenges and the excitement of that process. In the next episode, we'll look at how that process played out with lawyers and judges who had no background in it, but great enthusiasm about it.