Using the Client’s Story to Prepare for Motions, Trials and Sentencing or

Whose Story Is It, Anyway? Craig Mastantuono and Sam Benedict State Public Defender Trial Skills Academy May, 2001 Great speaking and storytelling depend on good stories.

As a

trial lawyer, you are subject to the same limitation as any other performer: you're only as good as your material.

Lawyers

bear the responsibility for writing the stories they tell.

The

material that you use as the author of the story comes from the client.

Speaking skills and courtroom polish during a trial or

court hearing won't help a lawyer who has not established a relationship with the client, and who has not broken through the barriers to finding out the truth about the client. is it? I.

Whose story

It's the client's story, and the good lawyers find it.

Combating the Snapshot - Responding to the Criminal Charge. A.

When

the

prosecution

puts

a

criminal

case

on

a

defendant, it is a photo, a still shot, of your client at a terrible moment in his or her life.

This photo

is placed in a file and sits before the judge during every stage of the case.

The defense must fight this

constant image of the client. To do so effectively, the defense lawyer must put other images before the judge

and

jury

–

to

show

judge

and

jury

that

the

client has better photos to offer, and that his entire life

is

not

defined

by

the

prosecution's

snapshot.

These

defense

images

must

be

integrated

to

form

a

consistent theory of defense. B.

The theory of defense is not an elusive concept; it flows from the discussions with the client and the defense

investigation.

Presenting

the

theory

of

defense – the client’s story of what happened and who the client really is – is the way to present other images in court. C.

There

is

a

difference

between

storytelling

technique and telling the client’s story. about you, the lawyer!

as

a

It’s not

The theories and themes you

use must be built around the client’s story and must be consistent with who the client really is.

Before

the lawyer can tell the client’s story in court, the lawyer

must

uncover

the

story

out

of

court.

The

defense lawyer must first learn about the client and then tell the client’s story in a way that will take control of the agenda. D.

The client’s story is not static.

The real truth of

what happened, why it happened and who was involved, can’t be discovered or told in a single exchange or interview.

It is an evolving and fluid concept.

The

truth, and the details and dynamic of the client's situation,

will

reveal

themselves

in

layers

of

interaction and investigation. II.

Working with the client - What are we looking for? A.

Most

cases

involve

intentional

conduct.

Cases

are

rarely about whether or not a specific event occurred. More

commonly,

feelings,

ideas

the

issues

and

involve

motives

2

of

the the

experiences, client

and

witnesses.

That is the story that needs to be told in

the courtroom to make the client’s truth believable. B.

The client frequently does not know his own story. 1.

Clients are not often good storytellers.

2.

Clients

are

important.

unsure

about

what

facts

are

Clients may not be aware of what is

relevant or helpful. 3.

Clients may not trust the lawyer enough to reveal their

truth

people,

about

especially

relationships witnesses

with

and

other

victims.

Relationships involve feelings and clients may be very guarded about sharing their feelings with their lawyer. C.

Despite

the

interview,

the

initial client

limitations needs

to

be

of

the

viewed

client

not

as

a

barrier to preparing the defense, but as the fountain of information and creative ideas. D.

Building the case without the client’s testimony does not mean building the case without the client’s story. A decision to keep the client off the stand is not an excuse

to

prepare

the

defense

case

without

the

client’s story or input. III. Getting at the story – Interviewing. A.

Clients must trust and respect the lawyer before they can reveal their story. of the client.

Lawyers must earn the respect

Establishing some connection between

lawyer and client is essential.

Lawyers can’t rely on

one formula for all client interviews because then it becomes about the lawyer and not the client. B.

Allow the client to reveal and discuss their agenda without yielding control of the interview. 3

Consider

asking the question, “What do you need the most, right now?” C.

Going through the Criminal Complaint - Pros and cons. At some point the client needs to be informed about the accusation.

But, reading the criminal complaint

to the client can take an accusatory tone and can shut down the client interview.

Consider asking for the

client version first or ask the client what he/she knows about the charge. D.

Learn about the client’s family.

People are often

defined by their relationships with their family.

Who

are the parents, children and significant others of your

client?

Who

are

the

allies

and

who

are

the

enemies? E.

Where does the client live? home

or

residence.

Learn about your client’s

Understanding

how

your

client

lives reveals the client in an important context. F.

Putting

the

testimony story.

client

is

a

on

the

critical

spot.

component

of

telling

for the

Use techniques that will take the surprise and

fear out of testifying in court. that

Preparing

will

put

the

client

courtroom witness box. cross-examination.

on

Practice situations the

spot.

Stage

a

Use other lawyers to practice Ask

different point of view.

your

client

to

take

a

Be careful to avoid over

preparing. G.

Group interviews.

Interacting with other witnesses

and supporters. Throw them all in one box. style is to separate and interrogate. more like the family dinner style.

4

The police

Real life is

People talk and

remember events in groups and refresh the story and others' recollections. H.

Connecting there? skips

the

unrelated

topics.

How

did

we

get

A real case is not like an action movie that from

things

one

or

explain

moment

circumstances

how

bedroom.

dramatic

we

get

from

that

to

another.

connect

the

chase

Those

the

scene

action to

the

It is in the seemingly mundane moments of

life that we can understand the drama that follows. 1. Humanizing the client.

What events or situations

make our client’s story ring true? 2. The truth is in the details. Ask for them! I.

Why

did

you

do

it?

The

question

for

sentencing.

Sometimes the question we don’t really want to ask, but everyone must answer at sentencing.

“I don’t know

why” is not good enough.

Help the client find the

real

be

answer.

This

can

a

difficult

process,

involving debate, confrontation, and analysis with the client. IV.

The story in action. Persuasion and storytelling are defined and limited by the media in which they are presented.

Cases are no different:

the client's story is presented differently in the various courtroom

hearings.

The

lawyer

who

is

aware

of

the

dynamics and limitations of the medium and the audience makes effective presentations. A.

Motions.

Seizing control by revealing the client’s

version of relevant events.

Taking the risk, the leap

of faith. 1.

Motions in limine – Your version of the evidence you want in, and the evidence you want out. 5

2.

Motions for disclosure of Confidential Informant – Your version of why the informant is a crook.

3.

Suppression wrongful

of

evidence.

government

The

action.

injustice

of

Understanding

the

context for cross or putting your client on the stand. B.

Trial. 1.

Multiple story lines and players.

2.

Different plots and interweaving characters.

3.

Scripting combined with spontaneity.

4.

The jury – active participant in the story, not passive recipient.

C.

Sentencing. client’s

vulnerabilities,

strengths. court,

Stripping the client naked.

Showing the

character,

faults

and

Breaking down the false decorum of the

grabbing

the

judge’s

attention

and

bringing

human issues to the front. 1.

Making

the

testimonial

work.

Stories

and

examples are more persuasive than superlatives. 2.

Allocution is not enough – the lawyer must speak for the client, in the client’s words.

V.

Avoid the Lawyerly Myths. They are simply excuses for failing to make the connection. They

are

barriers

relationships

with

to

real

clients.

communication They

don't

work,

and and

assume that all cases and all clients are the same. are some of the common ones: A.

I never put my client on the stand.

B.

I never ask them if they did it.

C.

I always leave the last question for later.

D.

I always control the client interview. 6

real they Below

E.

I always interview my client alone.

F.

I never ask personal questions.

G.

I don’t answer calls from my client’s girlfriend or family members.

H.

I'm just doing my job.

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