Attorney in direct examination: Can you take us to a time when you last saw your mother?
The client starts breathing heavily. You can hear his throat rattling, and it sounds like he might hyperventilate. He squirms awkwardly in his seat and lets out a loud, jarring moan.
The defense attorney has suggested that the client's mother, who was suffering from a severe infection, just had a bad fever. But after watching your client reenact his mother's last moments, the jurors no longer believe this. They now know that septic shock is much more than a bad fever. This is the power of action and storytelling in the courtroom.
John Steinbeck once said, “If a story is not about the hearer, he will not listen.” We are all made up of pieces of stories, so when we hear a story being recounted, our minds wander to our own memories. This means that jurors do not have to live through your client's experience to understand what he or she was feeling. When your client reveals feelings of helplessness, guilt, or anger, jurors can more easily relate to him or her.
When your client takes the stand, go beyond the usual line of questioning. Try asking questions that will transport jurors to the event. Ask: “Can you take us to a time when you saw your mom and you knew she was really suffering?” Force your client to tell a story rather than simply recount events.
Once your client establishes the memory, guide him or her through the details by invoking the senses: “What did you hear?” “What did the room look like?” “Did it have a smell?”
These details help to paint a vivid picture. The client might describe seeing his father holding his mother’s hand at her deathbed, hearing him whisper to her, “You’re going to be all right. Don’t worry. I love you.” He could hear his brother behind him crying. He could hear the sounds of the machines beeping and the nurses rushing around.
The story also can help you combat defense arguments that your client was old, sick, and going to die anyway. The defense may plant the seed that whatever happened should not matter because your client had a poor quality of life. While such claims should have no bearing on the depths of the person’s pain and suffering, they are persuasive, and you must take them on at trial.
In the example above, I asked the client during direct exam to take us to the last time he saw his mother—who was suffering from dementia before she died--really enjoying her life. He talked about his mother and father at their 60th anniversary party, held just two months before his mother became acutely ill and ended up in a nursing home.
My client described a large, loving family gathering. People flew in from all over the country to celebrate the occasion and to honor his mother, who never missed a family event. The client explained that she beamed as she floated around the room, greeting all her guests. When she and her husband danced to their wedding song, there was not a dry eye in the house.
This story shows the jury that an elderly person can have a functioning level of dementia. While the mother had memory loss and confusion, this party scene reveals that she still had a high quality of life, a strong spirit, and much love to give and receive. The defense would be hard-pressed to convince a jury that terms such as “dementia” and “Alzheimer’s disease” truly describe her life.
A reenactment is a good way to tell a story because it awakens the courtroom. Had my client simply said, “My mother was breathing really fast, and she looked very uncomfortable,” the jury probably would not have fully appreciated the depths of her suffering.
You must prepare your client to reenact a scene, but reenactments should not appear rehearsed. Going over it once before trial can help your client get ready and still retain some spontaneity. Help your client understand that phrases like “everyone loved her” and “she seemed really uncomfortable” do not affect the listener much.
Reenactments can bring your client’s feelings to the surface. Guide the process by asking how the client feels as he or she reenacts the scenes. This will help the client become comfortable with this method of storytelling and, more important, help reenact the event in a heartfelt manner. You don’t want jurors to feel manipulated.
Not every story will call for reenactment--the family party story probably would not--but consider reenacting such scenes during trial preparation anyway. Doing so can refresh the person’s memory of the event and tap into the feelings behind it, so those feelings can shine through when he or she describes the scene during direct examination.
We ask a lot of clients when we tell them to relive painful moments, like a deathbed scene, in front of a courtroom of strangers. How can we ask our clients to do this if we are not prepared to go there emotionally as well?
Be mindful of your own body language. Are you recoiling from your client? Are you looking down at your pad for your next question? These responses to witnessing a person express strong emotions are normal. You may be afraid to lose control and show your own vulnerability to the jury.
Such body language alienates you from your client and the jury. Instead, stay in the moment. Let the story guide you to your next question. If you are connected with your client, you are likely connecting with the jury as well, allowing them to trust you—and believe your client's story.
Deborah Gough is the founder of the Gough Law Firm in Hackensack, New Jersey.