Vol. 54 No. 1

Trial Magazine

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Through a Child's Eyes

When representing a child who has been wrongfully injured, you must craft a compelling story for the jurors so they understand the child’s point of view.

Bobby DiCello January 2018

I walked into my waiting room to meet an 11-year-old girl, Amanda Brown,1 and her parents to learn how the police arrested her on false allegations that she raped her three 11-year-old girlfriends. I hear how a detective subjected Amanda to a two-hour interrogation and ignored her denials and the inconsistencies in her three accusers’ stories. And through her mother’s tears, I hear that no investigation was done or warrant issued before the detective cuffed Amanda, charged her with three counts of rape, and drove her to jail—where Amanda spent her first four nights away from home.

After Amanda’s three accusers recanted their accounts, the juvenile court judge eventually tossed the charges against her. But her family hired me to bring suit against the officers who put Amanda through this ordeal. Her case is currently in federal court, where the defendants’ summary judgment motion is pending.

A mentor once told me that doing a month’s worth of good work for a traumatized child takes more out of a lawyer than a whole year’s worth of other litigation. Why? Because the most effective lawyers become emotionally invested in the case—even if becoming close to a suffering child causes them pain. Although a law professor once advised that being emotionally detached from a client was best for the ­attorney-client relationship, I have found his advice to be out of step with the fact that humans are not solely rational beings.2


Stories are a way of structuring information that creates context to engage listeners, enhance memory, and establish relevance and meaning.


As a plaintiff attorney representing a traumatized child, there’s a practical reason to consider emotion. Being vulnerable to your client’s life experience, putting away any tendency to tell people how to fix things, and listening until you really understand what happened to your client will help you use the most powerful form of communication and persuasion: ­storytelling. It is a way of structuring information that creates context to engage listeners, enhance memory, and establish relevance and meaning.

But when representing traumatized children, you must be proactive to create a compelling story. These stories do not tell themselves—nor are they found in the medical records.

Get Away From Your Desk

To find the story, you must get to know the child. That doesn’t mean a visit for an hour or two once or twice a week before trial—it means meeting frequently enough to become familiar with the daily rhythms of your client’s life.


To tell stories about your client in the real world, you must be able to present the whole story of the child's experience..


For example, you need to see how the family interacts with the child—how each member works with or looks after the injured child. You need to be there when the child receives medical care or psychiatric care to know how to speak about the child’s pain and injuries. But most of all, you have to be there when the child laughs or plays.

This information is invaluable to jurors, who often hope the child will endure and thrive. To tell stories about your client, you must be able to present the whole story of the child’s experience—the good and the bad—through personal and inventive ways.

One particularly useful approach to presenting a child’s story involves using photographs, without words, in your opening statement. I call this the “silent opening.” From my time spent with the family, I gather many photos and videos, and the family gives me insight into choosing the most important moments.

Then, during opening, I show the pictures—marked as exhibits and previously approved by the court for this phase of the proceeding—starting from when the child was a baby and up until the weeks, months, and years after he or she was injured by the defendant. The silence at this point is invaluable.

One by one, the pictures tell the story—and I have heard jurors reacting to them. Nothing detracts from or competes with the boundless information jurors receive from seeing a once happy child who has been transformed by the defendant’s wrongdoing.

When the silent presentation ends, I return to the front of the jury box to remind the jurors, “All of the evidence in this case, including the pictures you just saw and will see again, will be invaluable to your understanding of how the defendant damaged this child.” The rest of my opening focuses on exactly why the defendant’s conduct must be stopped.

Give Life to the ‘Menace’

You must name the person, thing, or condition that harmed the child and focus your case around it. In Amanda’s case, the menace was an inadequately trained, reckless detective. But it can also be a harmful policy or practice. For example, when a police chief encourages, demands, or even applauds the use of unconstitutionally excessive force against arrestees, the policy itself can be personified and revealed to be a menace, let loose on the community by deliberately indifferent department leadership.3

In other contexts, the menace might be revealed as apathy, the disregard found in the negligent care provided by the doctors or nurses who were supposed to care for your client. The point is: Whatever harmed the child, think of and refer to it as the “menace” in the pretrial work-up of your case. It will focus and clarify your efforts against the defendant.

To successfully communicate this menace to jurors, describe it accurately in the way that it appeared to your young client. To the child, for example, a police officer who arrives at his or her home is a strange figure who appears in the driveway after dinner. Rather than using legalese, such as “language control techniques were applied,” consider describing it as, “The officer yelled at the child in the same way a schoolyard bully would.” You don’t need to do this in every instance, but you need to do it often enough to convey to the jurors what the child saw, heard, or felt.

In court, these techniques aren’t born of creative whimsy or poetic attempts to stir emotions. They’re grounded in the evidence, and they’re legally important because they add meaning and persuasive context to the evidence. They’re also scientifically important—the current research into how we process information tells us that “our ordinary conceptual system, in terms of which we both think and act, is fundamentally metaphorical in nature.”4 This is because “the essence of metaphor is ­understanding and experiencing one kind of thing in terms of another.”5

Make it your practice to avoid phrases that simply summarize your client’s painful experiences or moments of fear.6 For example, instead of stating, “My client suffered when Officer Smith seized her,” describe what caused your client’s terror: “The uniformed officer grabbed 11-year-old Amanda and locked her in a cold, windowless room where she was unable to see or hear her parents.” Use your knowledge of the facts and the evidence to stop telling, and start showing.

Expose the Menace

The use of evidence-rich language doesn’t stop with how you depict the menace. You must expose it by using witnesses and facts to detail situations in which the menace—in Amanda’s case, the arresting detective—made conscious choices that eventually harmed your client. The police cruiser, police station, interview room, and police academy are prime examples of where you might find the source of the menace in police misconduct cases. They are the places in which someone chose not to prepare, train, care, or consider how to properly interact with your child client.

For example, you might depose a fellow officer or, better yet, a training officer who attended the police academy with the detective who arrested Amanda. The officer will be able to describe what the academy looked like, what classes the detective took, and give details down to where the detective actually sat in class. Contrast the content of those classes—intended to teach future law enforcement officers how to protect people—with the detective’s harmful choices, and create a vivid picture of the detective’s bad decisions and deliberate rule-breaking.

Through the witness, show the proper take-down techniques to demonstrate why using force on a child was excessive or even unnecessary. Ask the witness to explain the proper way to talk to a child, and contrast that with the way the defendant intimidated your client. When a policy of rule-breaking or poor training is at issue, show the many opportunities the department’s leadership had to address the problem.

Also include physical evidence of the tools that caused harm. What did the detective use? Handcuffs? A closed door? A gun? Refer to these things as the detective’s property. This focus turns the notion of harm to your client from a theoretical concept to an evocative experience. Showing, not telling, gives your case authenticity.

You’ll know whether you’ve given the jurors a chance to fully understand the menace. Their heads will nod in agreement, and their voices will murmur when the defendant speaks. But if you are not seeing that during trial, don’t worry. Keep your focus squarely on the defendant, and let each and every witness reveal a new aspect of the menace’s tendency to cause harm—not only to your client but to the entire community.

For attorneys who represent traumatized children, be mindful that these cases require giving a child—and his or her family—the time it takes to understand how they were ignored, scared, and hurt. Spend that time to search for the powerful, persuasive story that truly captures your client’s experience.


Bobby DiCello is an attorney with DiCello Levitt & Casey in Mentor, Ohio. He can be reached at rfdicello@dlcfirm.com.


  1. Names have been changed. 
  2. Annette Simmons, The Story Factor: Inspiration, Influence, and Persuasion Through the Art of Storytelling, 55 (2002) (“There is ample research to document that decisions are based more on feelings than rational, logical thinking.”).
  3. See Comfort v. Town of Pittsfield, 924 F. Supp. 1219 (D. Me. 1996). 
  4. George Lakoff & Mark Johnson, Metaphors We Live By, 3 (2003).
  5. Id. at 5. 
  6. Kendall Haven, Story Smart: Using the Science of Story to Persuade, Influence, Inspire, and Teach, 164 (2014) (In advising why we must use language that anyone can follow, Haven suggests if you wouldn’t talk that way to neighbors over the backyard fence during a weekend barbecue, don’t do it when you tell a story.).