When I was a kid, we didn’t have HBO, Netflix, or Movies-on-Demand. Back then, if you wanted to watch a movie, there were only two choices. You could either go to the theater, or watch whatever was being televised on network TV.

When it came to broadcast TV, you didn’t have any control over which movies would be shown, but at least one movie was guaranteed to be re-broadcast every year. From 1959 to 1991, The Wizard of Oz was an annual television tradition. First shown on the big screen in 1939, The Wizard of Oz is one of the most famous movies ever created, and is adored by legions of fans. Some of the characters in the film, such as Dorothy, The Cowardly Lion and The Tin Man, are among the most beloved characters in movie history. But one of the characters in the movie is portrayed as one of the most evil characters ever written. The filmmakers went so far out of their way to label her as being wicked that they actually call her the “Wicked” Witch of the West. They did such an excellent job of selling her “wickedness” that generations of moviegoers have recoiled at the sound of her cackling laugh and promises to “…get you, my pretty, and your little dog, too!”

But here’s an interesting question: What if she wasn’t really wicked, but merely portrayed that way by a biased storyteller?

In 1995, Gregory Maguire decided to set the story straight in his book, Wicked: The Life and Times of the Wicked Witch of the West. In this version, he reveals the Wizard of Oz as a corrupt government leader intent on subjugating his citizens, depicts Glinda the Good Witch as a self-absorbed snob, and tells a much different story about what really happend on the road to Oz. Most importantly, we learn that Elphaba, who will later become known as “The Wicked Witch of the West,” is not an evildoer, but merely a crusading animal rights activist intent on saving defenseless creatures from the Wizard’s maniacal plans. This version of the story was so so powerful that it was adapted into a wildly successful Broadway show, simply entitled Wicked, that became a Broadway hit in 2003 and proceeded to break box office records around the world.

Here’s the important lesson for trial lawyers to note. There are always two sides to every story. Although both stories in this case were built around similar characters and similar “facts,” they lead to wildly divergent conclusions. In one story, she’s the most “wicked” person in the kingom. In the other, she’s a kind, caring individual who’s character has been assasinated by a corrupt government.

As John Quincy Adams once said, “Whoever tells the best story wins.” In this case, both storytellers did remarkable jobs of pulling in the audience and constructing plausible, persuasive stories, but in the courtroom, only one storyteller can prevail. As a trial lawyer, it’s your job to tell your client’s story persuasively so that you win.

However, when you’re creating a persuasive storyline in court, you’re going to face a few limitations that most storytellers will never encounter. Most importantly, you’re not permitted to change the facts, re-cast the characters, or make stuff up. (As I’ve said before, “your facts are your facts.” If you try to change them, you’ll lose your license to practice.)

So if you can’t change your facts, how can you tell a persuasive story?

One of the most important things you can do is change how you frame your case. Framing makes a tremendous difference. If I show you a picture framed in a cheap plastic frame, you might think to yourself, “Eh… it’s alright, but nothing special.”

But, if I take that same picture to the frame store, get it matted, framed, placed behind non-glare glass, and framed in an elegant wooden frame, you might think, “Wow! That’s an amazing picture!”

Nothing about the picture changed — only the way it was framed.

How you frame your case makes a huge difference. Your facts are your facts, but the way you frame your story makes a tremendous difference in how the jury will view it. One of the most important lessons you need to keep in mind when framing your case is that your jurors don’t want to fight against inertia. They like to leave things the way they are, and not challenge their views of the world. The more you force them to fight their natural instincts, the more difficult you make your job.

For example, think about a case involving police brutality. Most of your typical jurors think that the police officers in their community are good, honest people doing a difficult, thankless job. If you try to frame your case as a story of “cops are bad,” then you’re swimming upstream, fighting against the jurors’ instinctual beliefs. However, if you reframe your story as “Cops are good, and the best way that we can continue to protect the good cops is to point our fingers at the bad ones,” you can use their instinctive beliefs and attitudes to your benefit. Same facts, different story.

The next time you go to court, your client will be depending upon you to tell (and to sell) his story to the jury. Don’t merely recite a bland story for them — pick through the facts so that you can tell the most persuasive story possible. Don’t accept the common thinking that your client is “wicked” — spend as much time as necessary thinking about how to reframe your facts, and you’ll be able to tell a story that portrays your client in the most positive (and persuasive) light possible.

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“Hey, I don’t know if you noticed this or not, but there’s a significant problem with your case. If you don’t do something to fix it, you’re guaranteed to lose. But if you can fix it, your chances of winning will dramatically improve. Do you mind if I tell you what the problem is?”

If someone made that offer to you, your immediate reaction would probably be, “Yes, please tell me what’s wrong!”

What’s surprising is that every day in courthouses around the country, lawyers regularly make offers like that to their opponents and don’t even realize it. For example, many years ago, I was the prosecutor handling a “Possession with Intent to Sell” narcotics case. It was a simple possession case (the drugs were found in his pocket), but the defendant insisted that he wanted a trial. I wasn’t the first prosecutor assigned to the case. A previous prosecutor had actually tried the case, but the jury had hung 5-1 in favor of “Guilty” so the case had been reset for trial. In the meantime, that prosecutor left our office, so the case fell into my lap. On the day of trial, several other cases on the docket seemed far more important than this one, so I offered the defense attorney a misdemeanor plea offer in hopes that we could resolve it and move on to more important cases.

“Oh no, that’s not gonna happen,” the attorney replied, “He wants his day in court.”

That seemed greedy to me, because technically, he’d already had his day in court, and now he was insisting upon a second day, but rather than say anything, I decided to bite my tongue and let the attorney continue talking. He proceeded to tell me what a wonderful attorney he was, how strong his case was, how weak my case was, and then, best of all, he started bragging about how great a job he’d done in the last trial: “The last time we tried this case, your predecessor called three witnesses, and that third guy didn’t even know what hit him. My cross-examination destroyed his credibility. By the time I’m done cross-examining him today, this courtroom is going to be littered with reasonable doubts. I can’t wait to get my hands on that guy again!”

The urge to interject during his tirade had been nearly overwhelming, but I continued holding my tongue until he’d wrapped up, then politely excused myself to make some last minute preparations for trial.

Jury selection proceeded without incident, and a short while later, we proceeded to opening statements. I delivered a perfunctory opening statement (“Drugs… Him… Possess… Thank you”) and sat down. After he concluded his opening statement, I proceeded to call my first witness, who testified that he’d found a large quantity of suspected drugs in the defendant’s pockets and that the drugs were packaged for sale, rather than personal use.

After he was cross-examined, I called a drug analyst to the stand, who testified about her work in the drug lab and confirmed that the items in evidence were actually narcotics. Her cross-examination was brief, so I decided to waive my re-direct examination. As she stepped down from the witness stand, I saw that the other attorney could barely restrain himself. This was the moment he’d been planning for — the opportunity to rip the next witness to shreds!

Once the lab analyst witness left the courtroom, the judge turned to me and said, “State, please call your next witness.”

Rising from my seat, I addressed the courtroom in a loud, clear voice: “Your Honor, that concludes the presentation of the State’s evidence, and the State rests its case.”

The defense attorney’s jaw hit the table in shock. He rushed to sidebar and, in a flabbergasted tone, said, “He… He can’t do that! I planned my entire case around cross-examining that third witness! What am I supposed to do now?!?”

Volumes could be written about the arguments that followed, but those are stories best shared at some other time, perhaps over a cold beer. Suffice it to say, his case had been torpedoed.

There are two important lessons you need to take away from this story. The first is this: Don’t brag or boast about your case strategies or the strengths and weaknesses of your case.

One of the reasons he lost the case was because of his tremendous ego and his need to boast. When he told me that he’d destroyed the third witness during the previous trial, I re-examined my case plan. I asked myself, “Do I really need to call this witness? How much does he add to the case, compared to how much damage he’ll inflict?” I decided that the minor amount of useful information he’d add to the case wasn’t worth the nightmare, and I decided not to call him. If the other’s lawyer’s ego hadn’t pushed him to brag and boast about the case, things might have turned out completely different.

Beware of falling into the same trap.

Since you’re a trial lawyer, your ego is larger than most. It’s nothing to be too embarrassed about — all lawyers have egos. Trial lawyers’ egos are even larger than most, because we live in the high stakes world of “win or go home.” We hate to lose, we love to win, and when we do a great job, we want to tell everybody else what we’ve done. It’s okay to brag, but unfortunately, some lawyers don’t know when to shut their mouths!

To avoid the problem and protect your clients, take a quick history lesson.

Back during World War II, the War Advertising Council and the Office of War Information (back in the ’40’s, federal agency names weren’t as cute or cryptic as today’s agency names, were they?) created a series of public service ad campaigns designed to remind Americans about the importance of preventing restricted information from being leaked to the enemy. The campaign was so successful that one of the catchphrases has become part of the American lexicon. Even if you weren’t alive when the campaign originally ran (1942-1945), you’re probably familiar with the phrase: “Loose Lips Sink Ships.” The lesson was simple: be discreet in your communications, especially when you don’t know who might be listening.

But before you’re tempted to reprint the posters and post them all over your courthouse, think about the second lesson from the story: Keep your ears open and listen.

Your opponents probably love to brag about the strengths of their case or the weaknesses in your case. Next time, rather than disagreeing with them, quietly listen to what they’re saying and encourage them to boast. Play “dumb as a post” and see what they say. As the great Yogi Berra said, “You can observe a lot just by watching.” Don’t get drawn into an argument with them trying to justify the strength of your case or dispute the strength of theirs. If they try to pick a fight, just give them noncommittal responses like, “You may be right,” and let them continue boasting.

You’re trained to battle in the courtroom, so it won’t be easy to suppress your natural instinct to respond in kind, but it’s something you’ll have to do. Then, after they’ve finished boasting, find a way to shore up your weaknesses or better prepare for their strengths. If you do that, then you can brag and boast when it really matters… After you’ve won your case!

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Two hunters are out in the woods when one of them collapses. He doesn’t seem to be breathing and his eyes are glazed. The other guy whips out his phone and calls the emergency services.

He gasps, “My friend is dead! What can I do?”

The operator says “Calm down. I can help. First, let’s make sure he’s dead.”

There is a silence, then two gunshots are heard. Back on the phone, the guy says “OK, now what?”

The first time you hear that joke, it’s hilarious. The second time, it’s still pretty funny. By the third time, however, it starts to lose its luster. That’s the danger of repetition. Yet despite the danger, nearly every trial lawyer I’ve ever met lives by some variation of this theme: “You’ve got to repeat your most important fact three times before the jurors will remember it.”

Indeed, it’s true:

Repetition makes it easier for jurors to remember important details.
Repetition makes it easier for jurors to remember important details.
Repetition makes it easier for jurors to remember important details.

Every trial lawyer knows that repeating information makes it easier for jurors to remember. However, experienced trial lawyers also know that just because something is important once, that doesn’t necessarily mean anybody wants to hear it again.

That’s the paradox of repetition. Repetition helps us remember, but it can also bore us to sleep. As the trial lawyer, your goal is repeat the information often enough that your jury remembers it, but without putting them to sleep. Here’s the good news: You can repeat repeat important information without boring your jurors, just so long as you follow a few simple guidelines.

First, modify each repetition. Unmodified repetition is a surefire cure for insomnia. The repeated information needs to be different than the first version. You can’t simply repeat it, because that’s not only boring, it’s condescending. Basically, unmodified repetition tells your jurors, “You dummies probably didn’t get this the first time, so I’m forced to repeat it for you.”

To avoid that problem, make sure that your second iteration differs from the first. For example, if you made your first point with oral direct examination, consider making your second repetition with a different medium, such as a demonstrative aid, video testimony, or a physical exhibit.

Second, repetitions need to get better. Each version should increase in strength. Start with your weakest iteration. Each successive repetition should be stronger, otherwise we lose our interest. For example, you could start with the verbal testimony, then add the photo, then add the demonstrative exhibit. Or you could start with the tamest description, and progress towards the strongest and most visceral description. You want to increase the intensity. If you start with a 10, your next witness can’t be a 9, because even though normally a 9 might be great, it doesn’t work in this situation.

It’s like watching Raiders of the Lost Ark, and then following it up with a double-feature showing of Indiana Jones and the Temple of Doom and then Indiana Jones and the Last Crusade. They’re both enjoyable movies, but they’re a bit of a letdown after watching the original. If you’re gonna repeat something, the second version needs to be more memorable. Think Godfather II and The Empire Strikes Back, rather than Jaws II and Rocky II.

Third, keep it interesting. That principle is a little vague, but important nonetheless. You can repeat information all day long, just so long as you keep the jury’s interest. But the moment it stops being interesting, you’ll lose them. Take the Rocky franchise for example. All of the movies are basically the same (Rocky faces unbeatable opponent, Rocky does montage training sequence to the best workout music ever written, Rocky fights the unbeatable opponent, “Yo, Adrian!”), yet despite the repetitive nature of the scripts, millions of people enjoyed all of the films. (Well, except for Rocky V — that one really sucked).

The same thing is true with Toy Story II, Spiderman III, and the James Bond franchise. Not only don’t audiences mind the repetition, they actually enjoy it, because each new version is interesting. Your jurors feel the same way. They don’t mind hearing the same information a second or third time, just so long as you hold their attention.

The importance of repetition during trial can’t be overstated. Jurors may miss an important point the first time it’s presented, so it’s usually essential to repeat the point a second or third time. However, you can’t afford to lose the jury’s attention by mindlessly repeating the same information over and over again. But if you vary how you repeat the information, improve each repetition, and keep things interesting, your jurors will remember all of the important details in your case.

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