Going all in: The art of storytelling at trial

By Nicholas C. Rowley, Keith Bruno & DK Global, Inc.

Imagine you're a parent driving your nine-year-old, who is in the back seat, to the doctor's office. All you have left is a left-hand turn into the parking lot. You're waiting to make the turn when a big rig smashes into your minivan, blowing out your back window. The impact slams your head into the steering wheel breaking your glasses, rendering you unconscious, and concussing your brain to the point that you are amnestic. You forget the past three days of your life and have flashes of memory moving forward. Moments with your loved ones, your plans for the future, your marriage, the dreams you had, all now sit under a dark gloomy cloud as you walk through life in a fog.

Now, imagine surgeons digging out one of your vertebrae, replacing it with an artificial disc and running wires up your spinal column. You used to run circles around your nine-year-old, but now you hobble with a cane. Light used to be one of your favorite things about life, but now the sun and light glare into your brain causing your head to throb like there is a hammer inside your skull back behind your eyes. You're forced to seek out darkness until the pain subsides and you are able to hear your own thoughts again. All the while, insurance defense lawyers and their hired gun doctors accuse you of exaggerating and playing up your injuries.

You seek help, only to end up with a lawyer who brushes right past the fact that your brain has been injured. Helpless, brain injured, living with chronic pain, and being ignorant in a complex judicial system, you have no choice but to relinquish control of your legal future and hope that you end up with the champion trial lawyers that you need.

Now, imagine you're this woman's trial lawyer. What feelings crystallize within you? How do you value this human's pain? And, how do you convince twelve strangers in a jury box to not only understand -- but to feel -- what happened to the person you are going to introduce to them as your client?

Beyond facts: The human story

The art of storytelling at trial requires that we, as trial lawyers, know not just the facts of the case but our clients' hopes, dreams, and life experiences. We must challenge ourselves to deeply understand and feel the shock, horror, pain, suffering, loss of enjoyment of life, emotional distress, inconvenience, humiliation, disfigurement, and other non-economic damages they have suffered. If we are unwilling to do this work ourselves it's unfair to expect a jury to do it for us.

When a loose support beam fell onto the head of an unsuspecting middle school student, she suffered a second blow to her head when she hit the ground. Laying there on the cold hard floor unconscious, she suffered her first of many brain injury-induced seizures, the last one being during class at the end of her senior year where she urinated on herself and had to be taken out of class in a wheelchair in front of her peers. The school district spuriously tried to claim that the loss of her father six months before her brain injury caused a conversion disorder and that this was the reason for her problems and not the clear and obvious brain injury.

Truly representing this young lady was much more than filing motions and taking depositions. It meant getting to know her, spending time, going on long walks, helping her move into a nicer neighborhood, getting her access to rehabilitative care, and ensuring that she would be taken care of for the rest of her life. Learning her story and having it live in our hearts gave us what we needed to fight for her like her deceased father would have. Without that, the case would never have settled for the $27,500,000 that it did.

To know these stories, trial lawyers must witness a client's day-to-day struggles firsthand. Visiting their homes and meeting their families is essential. Not only do we learn their stories, but we will also earn their trust, which we need in order to turn down low-ball offers and fight to the end to get every penny of justice they are entitled to. Additionally, we uncover small details that sharpen the human story: the addition of handrails in a bathtub, the countertops buried beneath a battalion of orange prescription bottles, the leg casts decorated in loving, supportive messages, the loss of the ability to live happily in the light of this world and having to hide behind tinted prism glasses to avoid squinting, having migraines, and seeing everything in double (diplopia).

It took knowing the man, not his paperwork, to secure a damages verdict of over $60,000,000 against Tesla for a collision that left a single father mentally disabled and with a partially amputated foot. Medical records, police reports, expert opinions, and depositions are unfamiliar and unapproachable documents to most jurors. A diagnosis of "traumatic brain injury" fails to communicate the destructive transformation of a single father and successful engineer into a grown man with only one foot, the cognition of a 10-year-old, and vocabulary of less than a kindergartener. In a single instant, because of negligence, an amazing hard working man's life flipped from father, engineer and provider to dependent and incompetent. Documents and medical records cannot capture the depth of that experience. Only spending time with Chris in his home, and getting to know his mother and daughter, gave us what we needed to truly comprehend their stories.

Show, don't tell

We are our clients' storytellers. When we stand before the judge and jury, it's not enough to tell them how amazing our clients are or explain what happened to them with words -- we must show them. The Courtroom is our stage. Screenwriters and novelists know that the cardinal rule of "show, don't tell" is what sets excellent stories apart from the rest. The greatest storytellers evoke emotion by making the experience of the story tangible, relatable, visceral and real.

In the case of the mother who had been rear ended by the big rig, the defense attempted to paint her as a liar, cheat, and fraud. They even trotted out her own medical doctors to downplay her brain and back injury and to call her an exaggerator. At the last minute, they dropped a new surveillance video they took the week before trial. The "gotcha" footage presented a potential problem, but knowing her story as well as we did and the fact that its reality lived inside of us gave us what we needed to weaponize that surveillance as a spear caught midair that we threw right back in the chest of the defense case where one would expect a heart to be if the defense had a heart.

Getting up before the jury and telling them to believe our client over the footage would have been counterproductive. We needed to show them how ridiculous and misleading the surprise video surveillance was.

We took the surveillance to our friends at DK Global and tasked them with assembling a 3D animation set to the concept and theme song of the 1970s hit TV show The Six Million Dollar Man. The show's premise involves a grievously injured astronaut who has been rebuilt using bionic implants and is now faster, stronger, and better than he was before. Likewise, the surveillance footage of the injured mother walking, contrasted with the animations of the multiple surgeries, insertions of medical devices, wires, and metal plating in her upper and lower spine, put it all into context. The surveillance backfired like a grenade the defense dropped in its own foxhole. The DK Global presentation showed the screws in her shoulder and how she walked with a leg brace. It listed every drug she had to take to live with her injuries and damages. Every injection. Every cognitive behavior therapy treatment. All the brain imaging and damage to her brain. In the end, the jury was able to see in a few minutes all that it took to get this hard-working mother to a point where, years later, she could finally walk 50 yards without a cane. The defense failed to pay a statutory offer to compromise of $6.9 million on this case years before resulting in a check just shy of $35 million being written weeks after the $21.3 million verdict.