Advice from a Trial Strategist: Crafting a Trial Strategy

Illustration by Hanna Barczyk

Part III of our four-part series Advice from a Trial Strategist is on trial strategy. We seek advice from trial consultant Denise De La Rue. If you don’t know Denise, it’s time you get to know who she is. Denise is an attorney, but she has exclusively worked as a trial consultant and strategist for almost thirty years. Denise has consulted on cases throughout the country. She has worked on some of our country’s most high-profile cases. She handles pre-trial research through facilitating focus groups and mock trials, and helps prepare witnesses from defendants in criminal cases, to clients in civil cases, to expert witnesses. She helps attorneys with trial strategy and participates with counsel in the jury selection process during trial. Our hope is that this series provides more comprehensive information about trial consultant tools and resources available to evaluate cases and during trial, aimed at helping us represent our clients more effectively. 

Tell us why an attorney would seek the assistance of a trial strategist to help craft the trial strategy, and when in the process of the case should they do so?

Normally attorneys call me when they're realizing that they're going to try this baby. They may have a lot of facts, evidence, and witnesses that they just aren't sure what to do with honestly. Usually, if an approach that they were coming up with was making sense to them, I wouldn't get a call. Also, some attorneys really enjoy the process of working through the facts and evidence with a consultant and trying on different ways of doing things to seeing which works best. We all know there's more than one way to tell a story. And, I guess I should say for this conversation, when I'm talking about telling a story that may sound to some like making up things that aren't true or telling something that's fiction. Of course, that's not what we're talking about. We're talking about presenting the evidence in our case and realizing that we have different ways to do that. There are different narratives in each case, or story, and we need to decide which works the best for us. That’s what we set out to do. Hopefully, we are going through this process earlier than a couple of weeks before trial, so that we have time to develop some of the concepts that we come up with in our strategy brainstorm and put them into action.

And why do you think an attorney would choose to use a consultant to help in this process, as opposed to developing a trial strategy themselves? Especially a seasoned attorney.

I think it always helps to have another set of eyes and ears look at a case. It's really not that different from the reasons that we do focus groups. We realize that we're in our own echo chamber anytime we look at a case. We aren't unbiased people. We look at it a certain way because it's our case. We're also used to looking at things in a favorable light; that's our job. So, it really helps to have other people look at a case with you. Focus group jurors are going to give you feedback, but they are not going to really help you craft anything. So, I think it helps to have someone who knows something about the law and how you have to present a case in court, and is really willing to get in there, mix it up, and turn it upside down and inside out to see if there are other ways to look at the case. For example, when you put a client on to testify it just becomes second nature to most people to begin with: “Where did you grow up?” We think that we should start at the beginning and try to tell things in a linear way, because that seems logical and mostly attorneys are logical people. Albeit logical, that’s not always the most effective storytelling strategy. Let’s put it this way, if you were going to produce a film, would you call an attorney to say, “How do I start the movie?” Probably not, because that's not necessarily the mindset or the skill set that you want to make those decisions. In some ways, putting on a case is very similar to producing a film, a video, a play, or writing a novel. We’re telling a story that we want people to relate to and embrace. So, having someone with a different skill set look at the case is not a bad idea.

Do you think the fact that you have a psychology background helps in this process?  

I think having a psychology background is helpful, and I think probably even more helpful is being the person who has the interest to pursue that type of education or that background. So, whether it's psychology, sociology, cultural anthropology, or even theater, it helps to have that kind of curious mind brainstorm with you. I wouldn’t have been interested in psychology if I wasn't interested in people and what makes them tick, why they react as they do, why people experience things differently, and what to do with that information. So, it's that same curiosity and interest in motivation, reactions, and why people behave as they do that helps in looking at a case.

Can you help us understand what you see as the difference between trial strategy development versus focus group and mock trial work?

A mock trial is pretty presentation focused, so before you get ready to do a mock trial you would have done your strategic brainstorming and landed on a strategy, because that's what you want to test out. Doing focus group work, where you are getting people's reactions to broad brush stroke issues, could certainly help you form the strategy. If you can afford to do everything, it could be helpful to have done some focus group work in a case before you sit down to strategize. Or you can strategize and then see what a focus group thinks about it. But in general, the goals are partly the same. You're getting people's reactions to the case that aren't you. They don't have an agenda and simply let you know what makes sense to them in their world. But, when you sit down to strategize with a consultant or whoever you're choosing to do this kind of work with you, you're really asking somebody with some refined skills to help you put your narrative together. You want somebody who has some sense of storytelling or of putting together a film or  play and presenting that to a jury.  

The difference between trial strategy development and focus group work is the difference between creating the movie or novel and getting someone’s reaction to it. When people come to a focus group, they share their reactions. They can say, “I'm looking at this movie trailer and I don't like it”, or “I do like it, or it makes me want to see the movie.” But they can't help you create the movie trailer to show them. They don't know how to do that. On the other hand, when you're working with a consultant or working with somebody on the strategy, they really are somebody who is a creator. They are helping you to create this finished product or versions of the product. You may go back to the editing room and edit again, but you're going to show it to those focus group folks to get their reaction.

Let’s go through some of the framework of your work to develop a trial strategy.  Can you explain that to us?

If I'm going to come and help attorneys strategize how to present their case, I just want a dump of as much information as you can give me; as much of the discovery, witness statements, and material your investigator has gotten. To a lesser extent, motions, but it helps to have some motions that have been filed so I understand some of the issues of the case. Basically, everything that's raw that I can read to understand what's going on in the case. And then we get together, usually in a conference room or somebody's living room or wherever we do it and start by taping a piece of paper on the wall to start listing the characters – the people involved in this story. When we look at the characters, we're looking at who are the good guys and who are the bad guys. And it's so much more helpful if we have bad guys on the prosecution team in our story, but things aren’t always that clear cut. Even if they're a bad guy, what testimony can we get from them that helps us and when are we going to try to elicit that. You know the saying, “You have to cross the pond before you tickle the alligators.” We have to figure out when we're going to bring that stuff out. And if the prosecution witness, or character, is a bad guy but they were close with us, why was that? Were we bamboozled? Was that not the best chapter in our life when we were yachting with that bad guy? What do we have to explain there? And what's the motivation of all of these people? Everybody has a motivation which explains a lot. It's not just what they were doing, but why they were doing what they were doing. If somebody doesn't have a motivation to lie but we call them liars, that rings kind of hollow. Maybe they're lying to get a deal, but is there more to the story? Those are the kinds of things we've got to work out with all of the characters, the players in the story.

We block out different scenes that we know are going to exist, for example when they met in a parking lot to plan the bank robbery. Or it may be when a memo was written and delivered and marked confidential in a white-collar case. Whatever it is. Things that we know the jury is going hear about. We talk about facts, such as facts beyond change. A fact beyond change is not about perspective; it’s a fact that really did happened and both sides would agree with that. We know this is coming in. That’s not to say we don't shed a perspective on it, but it is a fact. And then we start talking about the facts in terms of, for lack of a better word, is that a good fact or a bad fact? Or does it go in both columns? And you'd be surprised how many times when we start looking at what we thought we knew was a bad fact or a good fact, and we start, you know, rolling it around and talking about different ways that we can present the case, that one might move from one column to the other. And so, we realize there's a lot more double-edge sword stuff going on in our case then we realized before. If something's just bad, what are we going to do about that? We always have bad facts, or we wouldn't be in court. The answer is to never run from it; we're going to embrace it and deal with it and move on or embrace it and make it ours. Next, we start to take a run at telling the story. Maybe we don't come out with a right version of the film on the first try, but we might see more clearly where the best place is to start the story or start telling the story of our case. What brings us to court? That's what we're talking about. Right? Why are we in court? And usually, the best place to start the story is not at the “beginning.”

Next, we discuss which parts of the story are best to tell and from what point of view. If you think about how a film is made, almost every scene is filmed from different perspectives. Most movies are only filmed with one camera – so each scene is filmed three different times from different perspectives. It’s not like we're changing a scene or doing some trick to switch it up. But it looks different whether it's filmed from my perspective, your perspective, or the perspective of someone else in the story who doesn't know either of us or understand why we're doing what we're doing. It helps us understand from whose perspective we want to address this part of the case or the story. All of these are things to think about and choices that we have to make, so it gets to be very rich when you look at a case that way. 

We also pick a point of entry, and usually, it's not at the very beginning because that's usually not the most enlightened or beneficial way to begin a story. And it may not be focused on or even involve our client. One mistake that a lot of attorneys make is to start the story with their client because they're the most important to us. What we know from research is that the sequencing of a story is very important, and people look to who they hear about first to attribute responsibility for an outcome. For example, in a case involving a car accident, if you start by discussing what Joe does on his way to work every morning, even though Joe's is the victim in the accident, people are going to go out of their way to attribute the accident to something Joe did. Therefore, although it's not intuitive, we may not want to even have our client be a part of the story until Chapter 3 if that's the most beneficial to us. So that is why it is really helpful to turn the case inside out and look at the different choices that we have because they are there in every case. 

You just blew my mind. I have been doing this work for almost 28 years, and I don't think I've ever heard that you shouldn’t start the narrative with your client.

They did this research with a plaintiff’s case and opening statements. The presentation started by describing that every morning Joe gets ready for work at 7:15, leaves the house at 8:00, stops by the Donut Shop, and takes the same route to work and arrives at 9:02. One particular morning, Joe's wife’s car was in the shop, and she needed to borrow Joe's car. Joe’s wife got back late, so Joe went a different way to work to try to avoid traffic. When he came to a four-way stop sign, he stopped, looked both ways, and kept going. A drunk driver then barrels through the stop sign, T-bones Joe, and now Joe's a quadriplegic in the hospital. The researchers gave people a sentence to complete, for example, “If only …,” and the top three responses were: 1.  If only Joe had gone to work the same way that morning, 2. If only Joe's wife hadn't needed the car, and 3. Something else about Joe. Most people attributed the outcome to something about Joe. The study shows it's just human nature to look at who we hear about first in a story to explain why something happened. We were already invested in that story about Joe. It’s pretty powerful when you consider this research.

Can you explain what a double-edged sword fact is?

Well, a double-edged sword fact is one that cuts both ways. It's a fact that helps you but also has a downside. There are many facts like that, and we have to try to put them more in our column, and explain what helps us, and not ignore what doesn't, but find a way to address it.  

It's always tricky when you have a witness whom you want to argue is both a truth teller and a liar at the same time. What are your thoughts on that?

That is really tricky. But can’t we all think of examples that each of us is both?  We would like to think that we mostly tell the truth and most of us strive to, but aren’t there times when our judgment is dim, and so what we think is truth really isn't the truth. There are times when we're blinded to certain things. We can only tell what we know, so someone can truly think they are saying something that is true, but with the benefit of additional knowledge or hindsight it is not. Sometimes someone is fooling themselves when they are saying something which isn’t true, but it is not necessarily a lie. Or there can be other motivations to say something that is not true simply because one can't face the truth. There are many ways to go about exposing what a witness is saying that's not true, besides just saying, “You're a damn liar.”  

So, you're saying that you don’t need to approach witnesses and facts as black and white – that you can embrace the grey in those double-edged facts and witnesses?

You have to, right. I mean, to be believable, you've got to. If the witness is our witness, these factors may go to the decision of whether to call them. For example, this is such great stuff, I want to call this witness, but they have this other baggage or they're going to say this, or this is going to come out on cross. That's our choice, right? We may decide if things are going well, we're not going to bring in the downside that we have to explain because it's not worth the risk. But, if it's the prosecution's witness, we have no choice. We want him or her to be believable when they say the good things about us, but we have to explain and make them very human about why the other things they're saying aren't true. Many times, it is because they're a damn liar just trying to help themselves. But probably more times than not there are other factors involved.

You have already expressed one significant misconception that lawyers bring to the process, can you share other misconceptions lawyers bring to brainstorming a trial strategy?

I think you just hit an important one. We have to embrace the grey areas of the case. Most people think life would be so much simpler if it were black and white, and lawyers love, love things to be black and white more than anyone. But we've got to be interested in, not afraid of, even enamored with the grey areas of our case, and all the different areas of grey that there are. That’s where the texture is in any case, and that's where the interest is. Being willing to discover that is so important. It is a mistake for lawyers to approach this process with an attitude of having from 10 to 3 on Friday to brainstorm so they can check it off a list. That is another misconception, that this work can be rushed and that it's not a process that evolves. Even after putting in the time, we may come away with a game plan, but if we present that game plan to a focus group they may say, “Well this really jazzes us, but this other part, we’re not so sure about.” So, we may have to go back to the editing room. You have to be willing to tweak your strategy. Approaching the process as something we don't enjoy or are not willing to take some time with, I think is a mistake.

And then attorneys also tend to, at least their first couple times doing this, want to get to the reasons why something won't work too quickly. I may say, “I love this part of the case,” and I am met with a reaction such as, “Forget it, that’s not coming into evidence because it’s not relevant.” My reaction to that is to encourage lawyers to stop editing. Let's put up the story we want tell. Let's not talk about evidentiary rulings right now. I am not denying they exist but let's talk about ways to make it relevant, right. So besides just saying, “That'll never come in, that's not relevant,” we can figure out why it's relevant if it's needed to tell our story. If it's needed to tell why our client did a certain thing, we have to go through what is possible first, and then figure out if there aren’t ways to make it possible, and more times than not, there are.  

In one particular case, I had a great time going through this exercise with some lawyers who had already tried the case. There was some evidence relating to the principal testifying witness against the client which involved a previous business transaction between the two (the testifier and the defendant) a long time ago that didn't go well. This evidence didn’t really make the defendant look so good. It wasn’t his best day, so the lawyers understandably had filed and then won a motion to suppress this evidence. But without the history between these two people in evidence, there was no real motive for the witness testifying against our client to come in and lie. It was somebody who was like his cousin or something like that. Why is one cousin coming in and dropping the dime on the other cousin if there's no history between the two? So, after looking at all that dump of information that I got, I said to the lawyers, “What about this part of the story? We've got to tell this as part of the story,” and the lawyer said, “We won a motion to suppress to keep that out.” I felt like the Grinch because it’s so rare that we win motions to suppress. I told them, “I know it’s amazing you won this motion to suppress, but I'm begging you to bring it in, because it's needed to understand the story. This is a nice guy up here. Why is he lying? We have to tell that story. We'll deal with the fact that our guy's not a boy scout. He doesn't have to be a boy scout. He just has to be not guilty.” The second go-around, they went into court and, much to the prosecutor's surprise, told a very different story than the first time they tried the case. It was ultimately successful, and they obtained an acquittal for the client. The moral to the story is you really do have to be willing to turn things upside down and not simply go with your original impression of the facts of the case.  

Typically, when you work with lawyers to develop a strategy how long does that process take?

Well, you certainly want to devote a day to it. A weekday or a weekend if you are too distracted with other work during the week. It can be in somebody's office or it can be in somebody's house if they're less distracted, but the bottom line is that you have to be committed to that time, not to be constantly checking your texts or returning calls. It can certainly take longer, but it needs to take at least a day, and then you need to build in some time to check back and see how it's going – not just exchanging emails but set aside another couple of hours or half a day to dig back in and assimilate what you've learned. You will leave with some marching orders after your first day, such as I’m going to do this now that decided that. So, you need to set aside time to check back in to see how it’s going. You will have to periodically tweak and adjust your strategy, so you have to really commit to the process and not approach it with a check it off your list mentality. 

What’s the ultimate goal? What are you trying to achieve in coming up with this story or narrative? 

You are trying to win the freaking case. Jurors have got to relate to what you're saying. If it's just the facts, most of the time we're not going to win, because they're problematic, and the other side usually has the law on their side. It’s really important to get in there and get jurors curious and interested and not looking at you with the stereotype they have when they walk in the courtroom. Nobody's looking at the defendant saying, “You're sitting there because you did absolutely nothing wrong” – quite the opposite. The presumption of innocence is a myth. They are also not looking at defense counsel saying to themselves, “I hope my child grows up to be somebody who's defending this criminal.” So, we've got to shake that up as soon as we can in the courtroom to get people's attention and make them curious about us and wonder what we have to say. The ultimate goal is that. But, as important as that is, it’s also really about connecting the lawyer to the case in order to make that happen. It's coming up with a story that you want to tell. You know, too often, lawyers are like, “Can I tell this with a straight face?” and if your narrative doesn’t match that straight face it comes through. You know, you can't sell what you wouldn't buy. That's just reality. So, it's getting the lawyer in touch with the case, interested in the case, motivated by the case, and coming up with a story that he or she wants to tell, and a novel that the jury would want to read or a movie that they would want to watch and one in which they can identify with our client over. Understanding the “whys” enough to give us the benefit of reasonable doubt.