There is a very fine line that runs through preparing a client to testify at trial and manufacturing a story for the client. Many times–and I’ve seen this happen–attorneys, who for some reason have this need to control everything, think that the story is one thing, and they try to shoehorn everything into it, and force the client’s answers to conform to the attorney’s story.
The problem with that is it’s the CLIENT’S story, and the attorney is missing something. If there is this struggle between client and attorney as to what the case is going to be, my experience is, the attorney needs to take a step back and gain greater understanding of what his client knows, has experienced, has lived with.
I believe that facts and law really don’t matter in trial. What does matter is the story. A story trumps facts and law every time. I’ll tell you why I feel this way. The decision making process that everyone goes through, whether they know it or not, is based upon the person’s principles and values. They make a decision, and THEN they go looking for facts and law to support that decision.
The Lakota warrior and chief known as Tatanka Iyotake, and as Sitting Bull to the white man, did not display heroism and leadership throughout his life. When he was a young member of the Teton Sioux, he was awkward and bore the nickname, “Slow.” Despite Slow having killed his first buffalo by age ten, he remained a boy because the Plains society required that he achieve success in battle through a courageous act.
When Slow was fourteen, he watched as his father and others left camp to attack their traditional enemies, the Crow. Slow was still small and too young to be skilled in the use of weapons, but he was anxious to win the respect due to a warrior. Deciding for himself it was time to become a man, Slow mounted a pony and pursued the war party. When he caught up, he announced to his father, “Today I will become a warrior.”
Slow’s father, not wanting to restrain his son’s spirit, welcomed him, instructed him on bravery and wisdom in battle, and handed him a coup stick with which he could strike an enemy and gain honor.
The Sioux set an ambush for the Crow. As the Crow party approached, Slow burst from cover and charged the Crow party. The surprised Crows retreated. Slow overtook the slowest Crow warrior, who dismounted and shot at Slow with his bow and arrow. The warrior missed, and Slow hit him with the coup stick, knocking him over. The rest of the Sioux arrived and killed the Crow warrior and routed the other warriors.
Upon returning to the camp, Slow’s father placed Slow on a strong horse and paraded him through the camp shouting, “My son has struck the enemy! His is brave! I name him Sitting Bull.”
The name was not a coincidence. Sitting Bull’s father had encountered a talking buffalo during a hunt. The buffalo recited the names of the four stages of the buffalo’s life, after which the Plains people modeled their own lives. The sitting bull was the first and youngest stage, and a name of great honor. Slow’s father had taken the name Jumping Bull after the experience. The “new name” bestowed on Slow represented that he had passed from boy to warrior.
I want to suggest to you that law school specifically, and society in general, fail to prepare one to step into the courtroom as a warrior. Unlike the Native American culture where major life changes were celebrated through elaborately staged ceremonies marking rites of passage, we graduate law students barely prepared to attend a bar review course and expect them to know how to try a case. Choruses bemoan that attorneys have lost the skills of the trial lawyer when an attorney, particularly in large firms, rarely goes to trial more than ten times during their entire career.
The rites of passage in Native American culture that marked the emergence of the candidate from training and established challenges to prepare him (it was always males) for rebirth as a new person – possessed of a new status, new wisdom, new identity, and a new name, commemorated the birth of a new member of the culture.
I suggest we adopt a changed vision of what trial is, and how we train people to step into the warfare we call trial. We attend law school with law school professors telling students how to try cases by reciting rules born of fear and the need to control: “Don’t ask a question you don’t know the answer to.” “Ask questions that can only be answered ‘yes’ or ‘no’.” “Always appear strong and in control.”
Yesterday, I finished a nine-week legal malpractice trial receiving an 8-figure verdict. The judge, before whom I tried the case taught me an important lesson concerning experts when the defense attorney sought to tie the hands of one of my experts.
Near the end of my case, I am arranging exhibits and demonstratives I intend to use with my valuation expert. He is the lynch pin of the damage verdict I obtained against an attorney who ruined a business that was the first to the American market with an organic tequila. My expert has prepared valuation figures for the business to establish the harms and losses the malpractice caused. My opponent is a wily old strategist who over almost 45 years has established not only a formidable reputation for winning impossible cases, but an almost perfect 155 and 3 trial record.
Defendant’s Attack on My Expert
Before the court room attendant ushers the jury into the courtroom, my opponent rises and argues that my expert, who will deliver the big damage testimony for me, should not be allowed to testify because “There is no factual basis to support the opinion.”
I respond, “Your honor, my opponent is mistaken. The expert has spoken with an officer of the company he has identified as a comparable business. He obtained the information confirming the assumptions he made and testified to during his deposition.”
The attack on this most important witness begins when the defense attorney seeks to prevent his reference to the information from the company officer.
The judge asks, “On what basis do you think I should exclude the testimony of the expert?”