CREATING TENSION: Making a jury care about what happens nextAuthor(s): JAMES W. McELHANEYSource: ABA Journal, Vol. 74, No. 6 (JUNE 1, 1988), pp. 84, 86Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20759957 .

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Making a jury care about what happens next ABAJ/John Schmelzer

BY JAMES W. McELHANEY

It was easy to tell what was wrong. The jury was just not inter ested in what the lawyer was saying. They were looking out the window, staring at the ceiling, or studying their hands and feet. One or two were looking in the lawyer's general direc tion, but no one made eye contact with him.

It was harder to know what to do about it. The lawyer could not think of anything, except to finish what he was saying as quickly as he could. But when he sat down, a terrible sense of self-doubt came over him. "My God," he said to himself, "I am a droner."

When you think of droners, you probably picture someone so dull that no one can listen to him for more than a minute or two without suffering an attack of narcolepsy.

But that is not all there is to it. What is said is just as important as how it is said. Style is not the only ingredient to a gripping story. And style has had more than its share of attention in recent years. So we are

going to set it aside for now and con centrate on content.

That means we are concerned

with the role of the trial lawyer as author or playwright. That, inciden tally, is not a bad way to look at our work. Obviously we cannot invent facts or create witnesses, and there are sanctions for lawyers who do not understand that. But within the lim its of relevance and the constraints of ethics, the lawyer as playwright de cides whether and how the trial will be a fascinating experience that will keep the judge and the jury on the edge of their seats, or a turgid, stul tifying affair that will leave everyone in a stupor.

"Wait a minute," you say. "Some

James W. McElhaney, the Jo seph C. Hostetler Professor of Trial Practice and Advocacy at Case Western Reserve University School of Law, is a senior editor and col umnist for Litigation, the journal for the ABA Section of Litigation.

cases are just inherently interest ing?rape, murder, awful injuries? but not mine. Mine are inherently dull. I try commercial cases. Nothing short of new facts could make them interesting."

Wrong. And to prove the point, I want

you to do an experiment. Imagine yourself at a table for one at an ele gant restaurant. Undistracted by a dinner companion, you eavesdrop.

Listen to the talk at table one: "William Paxton Malloy, how are

you? Glad you were able to make it." "My gosh, Barney, it's been five

years." "Or more. Bill, I think the last

time we talked was when you were still at IBM."

"You're right. That was a long time ago."

"Okay, Bill, bring me up to date. How is everything? Are Mary and the kids all right?"

"Couldn't be better. Sandy is in the fifth grade and has started taking clarinet lessons."

SOMITHINO FISHY If you haven't done it already, let

your mind wander from table one and listen to what is happening at table two:

"Would you like to order now?" "Yes. I think I'd like to have the

swordfish with lemon butter." "Pardon me, sir, but I cannot

recommend the swordfish tonight." "Really?" "I really shouldn't say anything

about this, but the chef and some of the waiters are having a disagree

ment, and some unusual things have happened to the swordfish."

"Good grief, are you serious?" "I'm afraid so. I just don't like my

customers to be disappointed." "I'm glad you warned me. How

about the stuffed flounder?" "Caution suggests you avoid all

the seafood tonight, sir." "What on earth is going on back

there?" "I wish I were at liberty to say.

May I recommend the pasta?" Even if you loathe seafood, the

chances are you are more interested in what is going on in the kitchen than in the domestic details dis cussed at the first table.

Why? Surely the reason is not that dead fish are more interesting than live people.

The secret is tension. Tension comes from conflict. It says some

thing is going to happen, and it makes you worry or wonder what it is going to be. In an article on writing dia logue, Gary Provost said that tension "makes the reader concerned enough or curious enough to keep reading

84 ABA JOURNAL / JUNE 1, 1988

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Litigation

even when the actual spoken words are mundane. Remember, if the

reader doesn't care what happens next, the dialogue is not working."

For the lawyer as playwright, tension means making the jury care about what happens next. Tension is an essential part, not only of dia logue, but of the entire trial. The question is how to create it.

Start with the opening state ment. You have a lot to accomplish in a short time. You want to explain the case, make the jury identify (or at least sympathize) with your client, establish yourself as a credible source of information, and make the jury find in your client's favor.

But nothing is going to work un less you make the opening statement interesting. One of the best ways to do that is to start with a crisis. Does it work? James W. Jeans of the Uni versity of Missouri at Kansas City says that novelist Louis L'Amour used to introduce his characters in the first chapters of his Westerns and would not get into any real action until about the third chapter. It was a log ical way to write, but sales were lack luster.

Then L'Amour changed his ap proach. He began writing the third chapter first, so the story would start with a crisis. Sales skyrocketed.

Every case, no matter how mun

dane, has its crisis. A breach of con tract is the broken promise that shuts down a production line and puts men and women out of work. Patent in fringement is the theft of another's work. Breach of fiduciary duty is an act of treachery that commits eco nomic murder.

Tension explains why cross-ex

amination is inherently interesting. Cross-examination supplies its own tension in a contest of wills between lawyer and witness. Besides keeping the cross-examiner out of trouble, tension is another reason why the techniques of witness control are so

important?they heighten the sense of tension and make the jury pay at tention. But be careful. Do not rely on technique alone to create tension. Content is essential. If you try to cre ate an unjustified sense of conflict, the jury will find you out, and the cost to your credibility will be high.

If opening statements and cross examinations are opportunities for tension, then direct examination

must give you a chance to ease up, right?

Not necessarily. First of all, re member the lesson of the waiter and the swordfish. The tension does not have to be between the two speakers for it to work. It does not even have to involve either speaker. In other words, the witness does not have to be a party or even a participant in the events to have his testimony filled with tension.

But there is a special kind of ten sion that does involve both the law yer and his witness, and it is one of the signs of a superior advocate. It is used when the direct examiner chal lenges the witness with a difficult or embarrassing question.

Why would you do that? Do not think that if you avoid a

difficult area on direct examination the cross-examiner will oblige you and stay away from the subject as well. The witness will have to face the question sometime, so it might as well come from you. You should steal your opponent's thunder if you can. One effective way to do that is with the challenge.

For example, suppose you know that your witness is going to be cross examined about his failure to get substitute performance when he learned the seller would not deliver in March as he agreed.

Q: Who told you this? A: Mr. Donaldson.

Q: Just what did he say? A: He called me in February and

said that Midwest Conveyor would be about two months behind in its deliv ery schedule.

Q: Did you do anything about that?

A: Well, in June I contacted an other company to see if we could use their conveyor system.

Q: June? Why didn't you do something right away?

That question has some bite to it. It challenges the witness. But it also gives him a chance to explain. It is like a fast ball that the pitcher throws right down the middle and which the batter knows is coming. It is an op portunity for him to hit it out of the park.

A: Because Mr. Donaldson prom ised me that even though they would be late, they would deliver the new conveyor system no later than May 30?and I believed him.

86 ABA JOURNAL / JUNE 1, 1988

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