Overcoming the Death of Facts at Trial, Part 2


I wanted to begin this column with the observation that the election is finally over, but your perspective on that probably depends on your political affiliation. Setting aside the outcome, it is notable that more people voted in the 2020 presidential election than in any other presidential election in United States history. While Biden received the most votes of any presidential candidate in history, Trump received the second most in history. What we learned most from this election and the continuing aftermath is that we are a deeply divided nation that can look at the same facts and arrive at wildly different conclusions.

In fact, it seems silly to even talk about “facts” anymore. Afterall, what is a “fact” these days? The best definition I can come up with is that a “fact” is something those who disagree with me think I made up to distract from the obvious point they are trying to make. In many respects, “facts” are totally useless. They don’t necessarily educate. They don’t seem to change minds anymore. They barely even provide moments of pause these days. Yet every day in courthouses across the country, hundreds of millions of dollars lie on the line in a process that puts “facts” at the forefront.

My colleague, Jill Schmid, recently wrote an outstanding blog identifying some strategies attorneys should consider as they cope with the death of “facts” at trial. This week, I expand on her post a bit to discuss what this specifically means for developing the theory of your case. If the trial process is designed to be a fact-finding endeavor for the jurors, what does it mean when “facts” do not matter anymore?

Any judge will tell you that jurors take their job very seriously, which might falsely reassure you that your fact-centric case presentation is the right way to go, but whether or not jurors take their job seriously is beside the point. Voters take the election seriously; that doesn’t change the diminishing role of “facts” in our national politics.

In her article, “How Trump Changed America,” Clare Malone wrote, “The great lesson politicians of all stripes have taken from the Trump era is that you can have all the policy ideas in the world but they don’t matter if you can’t convey a resonant enough message to a broad enough swath of people. Of course Mexico wasn’t going to pay for the border wall, but what a triumphant idea to grasp onto. What a succinct articulation of a set of cultural, racial, economic and political values.”

I have seen more and more cases in recent years where the “facts” were on our client’s side, but my first reaction after reading case documents was that the client stood a good chance of losing the case. The reason is almost always the same. The “facts” require explanation and understanding, for which jurors more and more lack the energy, ability, and/or motivation. We are all cognitive misers who will take the easy way out if given enough temptation to do so. Usually, not that much is required. If you give someone two choices where one seems to make sense and the other is difficult to understand, the first choice will almost always win out, even if it is the wrong choice and ends up having tragic consequences. Sometimes we are aware that this is happening. Often, we are not.

Take your typical corporate defendant in a product liability case. The plaintiff’s theory is that the corporate defendant put profits before customer safety and rushed its product through production, resulting in a dangerous defect that the defendant refuses to acknowledge because the profits are simply too great. Right out of the gate, this theory sounds plausible, even if I have never heard of the defendant and know nothing about their product development process. The defendant now has to educate me. It has to explain the design of product, which is probably confusing. It has to explain its production process, which is probably confusing. It has to explain its safety testing process, which is probably confusing. It has to argue that it cares deeply about the safety of its customers, which is hard to believe because that is just not how corporations tend to operate in the cultural narrative we have created about them. The corporate defendant will probably throw all sorts of “facts” at me, falsely believing that those “facts” are much easier to understand within the larger context of the case than they actually are. In the end, I will forget most of them (90% according to some studies), and I will probably confuse the rest of them. For the defense, the “facts” simply won’t matter in the face of a case theory for the plaintiff that just seems right and asks very little of me.

What all of this tells us is that, as we move on from the election into 2021 and beyond, it is so critical for trial attorneys to provide jurors a simple vision of the case, a succinct articulation of the reality that jurors want, not the reality that is, or the reality that the attorneys want. The more you ask of jurors, the less you will get. This is especially true in pandemic times. Jurors are ending 2020 mentally, emotionally, and physically exhausted. Decades of research on decision-making tells us that this means they are so much more susceptible to shortcut-taking. It’s no different than the person on the diet who has had a long, exhausting day at work and grabs fast food on the way home. It’s not that they don’t take their diet seriously. It’s not that they don’t want to lose weight. It’s not that they don’t want to make the right decision. It’s that moments or periods of exhaustion lead to impulsive decisions that provide immediate gratification or resolution.

The (sad) message for 2021 is: don’t get lost in the “facts” of the case. They may not matter if you put the work in and have enough anecdotes in the case to paint a reality that your jurors want, even when it is not necessarily a reality that is “true.” You can wrap a dozen different stories around any one set of “facts,” each of which becomes a filter for whether or not your jurors will accept or reject those “facts.” I can take the story of Rudy Ruettiger (aka Rudy of Notre Dame fame) and draw two radically different conclusions. I can see it as an incredible story of hope about a man who chased his dreams and, through hard work and determination, finally fulfilled them. Or I can see it as the story of an overhyped man who was not good enough to play football, barely smart enough to even be in Notre Dame, and was thrown in the last game of the season at the last minute because his fellow teammates took pity on him. I can prove either of these stories and conclusions with the exact same set of “facts” and Notre Dame fans would call me crazy if I went the latter route, while those who dislike Notre Dame might argue I’m crazy if I went the former route.

Rather than letting the “facts” drag you down, put to the time in to develop the compelling vision of the world that your jury wants and then find the “facts” in your case to bolster it. Consider some jury research as a test for your vision and the anecdotes you have chosen to support that vision in order to confirm you are on the right track. This can often be a difficult and time-consuming task, but the time you put in will pay off exponentially.

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