By Thomas M. O’Toole, Ph.D.
For courtroom-drama lovers, Netflix’s Making of a Murderer is a must-see. I say this knowing that the number of “must-see” shows these days goes far beyond the available free time of just about any trial attorney. Whether it’s Breaking Bad, Homeland, Last Man on Earth or countless others, everyone seems to have a show at the top of their list that I haven’t had the chance to see. I’m just not a binge watcher, so I’m always left behind.
Making of a Murderer is the exception. I can’t recall another show in recent memory that led me to question just how much sleep I really needed as I stayed up late watching it. It is a totally riveting documentary series about Steve Avery, a Wisconsin man who spent 18 years in prison for a crime he didn’t commit, sued the County police that put him there for $36M, but found himself accused of being at the center of a heinous crime before the lawsuit could develop past the stages of the shocking depositions given by the key police officers. Was he framed? Did he commit the crime? Trying to answer these questions is like riding that roller coaster that’s just a little bit scarier than what you’re used to riding.
The producers of the series clearly have an agenda, which is to bring the “was he framed” question to the forefront. Consequently, it focuses more on some things that are helpful and less on things that are not helpful. However, this provides a great opportunity to look at what was effective and how it can be used in a lawsuit, so I’ll focus this blog post on a few of the lessons that this documentary can teach lawyers about trying cases. Here are three quick lessons from Making of a Murderer.
1. Deposition clips make a big difference. One of the things this series does very well is use carefully-chosen selections of deposition and trial testimony video clips to make the key points. If you have read many of my other publications, you know that I believe that attorneys do not use deposition clips enough at trial, particularly in their opening statements. We are a “see it for myself” culture and it is so much more impactful for jurors to see and hear the actual testimony rather that have the attorney simply describe it. Obviously, this limits the choice of clips to the parties in the case, but that is where many of the best gems usually come from anyway.
2. The facts are the centerpiece of the presentation. The facts in this series are astonishing. It is incredibly powerful to see the picture of the blood vile with the needle puncture in it. Simply describing that this happened would not have been nearly as effective. This may seem like splitting hairs, but there are many days where I think that attorneys do not understand the difference between facts and their take what the facts mean when it comes to opening statements and closing arguments. An email where the opposing party writes that they are not going to tell the client about a key problem is a fact. The statement that the opposing party intentionally hid important information from the client is a just that…a statement. Jurors prefer facts over statements or, to be more accurate, facts followed by statements, but too often, they are only give statements in opening statements and closing arguments. In short, show jurors the good stuff. Let them see it with their own eyes rather than rely on an attorney’s description of it. After all, keep in mind that jurors expect attorneys to exaggerate or misstate things. Consequently, a mere description in opening or closing may be met with skepticism even if jurors saw the evidence or testimony during trial. Sometimes, they simply do not remember even though it was a big moment in trial for the attorney and client.
3. Motive is critical. Motive cuts both ways in this series. In fact, in many respects, the whole case discussed in this series swings on the motives of the police department. If you believe Steve Avery was innocent, you probably tend to focus on the lawsuit against the department as the motive. If you think Steve Avery is guilty, you probably think something along the lines of (even though it is more complex than this), “no police officer would ever go as far as killing another person.” It doesn’t matter whether it is civil or a criminal case. The motive has to be there. The jury instructions do not say this and the law does not require it, but jurors need it. In order for jurors to embrace something that is true, they have to understand why it would be true. Mere evidence that it is true is not enough. I have seen so many mock trials where jurors simply dismissed key facts because they could not make sense of why those key facts would be true. This is where motive comes in. Every good story establishes the motives of the characters. Help jurors understand why the opposing party would engage in the conduct that you allege. That is the only way they will actually believe it at the end of the day.
