August 2005
The Theory of the Case: Why a Strange Story Is Better Than None at All
by Stone Grissom
One of the basic and all too often axioms of trial advocacy is that in order to be effective at trial, you need to develop a clear, simple theme and theory. Consider two fact patterns. Fact pattern one: A local police officer (let’s call him Jonathan Doe IV) arrests a male college student after being dispatched to a residence, because of a noise complaint. The next day, the officer returns to begin a sexual relationship with the arrestee. Two months later, the young man is found in the front yard of his apartment with his throat cut. Four days after the crime, an anonymous crime-stoppers’ tip reveals that the victim was involved with a married cop. Immediately, the gay community begins a proactive campaign to find the killer, and information begins pouring into the police department. Eight days after the crime, Jon Doe’s name is linked with the victim. It turns out, Officer Doe was even one of the responding officers to the crime scene. Suddenly, a bright and uncomfortable spotlight is turned toward the police.
Jonathan Doe IV is quickly arrested and charged with the murder. The problem is that there’s no confession, no murder weapon, and the case is entirely circumstantial at best. The state’s theory is that the cop murdered the college student to keep his own sexual orientation a secret from his cop buddies and to conceal his betrayal from his wife and four-month-old baby. At trial, the only evidence against the accused is the illicit affair and skin-cell DNA evidence under the victim’s right fingernails matching the accused and only confirming the already admitted relationship. In fact, the state’s own timeline almost precludes the opportunity for Mr. Doe to commit the murder and still make it home to give his newborn his early-morning bottle. Despite the overwhelming reasonable doubt that abounds in this case, a Missouri jury, after only six hours of deliberation, convicted Jonathan Doe IV of first-degree murder and sentenced him to life in prison without the possibility of parole.
Now consider fact pattern two: A young soldier recently stationed to Ft. Lewis (let’s call him Christopher Doe, because Baber is too on the nose) gets mixed up with a group of self-proclaimed para-military vigilantes calling themselves “The Federation” and spouting off libatiously induced ideas of violently stamping out the undesirables in our society. (They also have plans on invading Cuba, but that’s for another article.) The leader of The Federation (let’s call him Jeremy Doe, because Miers is also too much on the nose), however, has his sights set on eliminating something or someone a little closer to home. Jeremy somehow convinces the naive Chris that the Florida sect of The Federation has a “hit” out on Jeremy’s wife, and that it is necessary to fake her death in order to throw them off the track.
After a failed attempt involving an off-duty correctional officer and some dirty dancing in an empty warehouse, the three of them (yes, the wife is even involved) decide that a mock robbery/strangulation is the best way to proceed. They drive to a secluded spot near the Tacoma waterfront and begin staging the scene. Jeremy’s wife helps place a bungee cord around her own neck for effect; while Jeremy produces a “magic potion” for her to drink that will simulate death. However, as in many ill-conceived plans, things don’t quite work out as expected, and, instead of simulating her death, someone got the bright idea to actually pull the cord until the wife turned blue and eventually died.
It gets better. Within a couple of weeks, Chris is arrested and confesses to the crime — not once, but twice, on tape and after Miranda warnings were properly given. Then, against stringent advice from his attorneys (let’s call them Stone Grissom and Ann Stenberg), he writes 48 letters to his girlfriend from jail detailing his thoughts about the crime and how remorseful he is for being involved. All of this evidence is neatly gathered, Bates-stamped, and presented to the defense by the state in discovery. Oh yes, and if the prosecutors didn’t already have enough evidence to support the large smirks on their faces, they have the full cooperation of the U.S. Army’s special investigations unit.
Unlike fact pattern one, any reasonable doubt seems to be well hidden by the overwhelming evidence pointing toward the guilt of Christopher Baber (I mean Doe). However, after an almost seven-week trial, the jury needed only one extra hour than their Missouri counterparts in order to find Chris not guilty of murder and not guilty of conspiracy to commit murder.
A theory for the defense
Why the two seemingly conflicting results? As eloquently stated by the brilliant, albeit fictional, character Sherlock Holmes, the answer is elementary. Christopher’s attorneys had what John Doe’s attorneys did not — a developed theme and theory of the case.
It’s not enough to just say to the jurors that the prosecution can’t meet its burden or argue that because there is certain evidence presented, it doesn’t mean guilt. You must also have an actual “theory” of the case. If you don’t, you will lose. It’s that simple.
For Chris, it all came down to a 2001 movie called Spy Games. I don’t know if you’ve seen it, but it’s a pretty good flick — Brad Pitt, Robert Redford, a classic Porsche 911, and a bunch of high-speed chases and special effects. However, the blockbuster film’s opening scene also answered one basic question that had been gnawing at us since the beginning: Why would a seemingly intelligent young man, who had scored rather high on his military entry tests, believe in some magic potion that can be found only in such children’s tales as Snow White and Rip Van Winkle? (Yes, Romeo and Juliet has the same reference, but we weren’t going there in this trial.)
The movie begins with Brad Pitt’s character (a cool and hip CIA operative with an impressive military background as a war-time sniper) sneaking into a Chinese prison in order to rescue his love interest, a peace activist with a checkered past involving a bombing of a Chinese Embassy. How does our hero pull off his entry into the heavily guarded fortress? You guessed it. He uses special military technology in the form of a pill that, when used in conjunction with a heavy electrical shock, simulates death by temporarily stopping the heart.
It sounds crazy, but imagine you’re a naive 18-year-old follower who has never been away from home and you find yourself in an overwhelming situation as a U.S. military recruit in basic training. Now, imagine during your training meeting several well-traveled and self-confident associates of a secret organization charged with the duty to stamp out all that is evil in the world and who are willing to bring you onboard as a full-fledged member. Additionally, imagine a self-proclaimed leader of this organization taking you under his wing to ensure your acceptance and safety. It’s not hard to make the leap from there. We learned that Jeremy and Chris had spent hours watching the opening scene to Spy Games — a fact indirectly confirmed by the victim’s own family, who found the VHS tape in Jeremy’s apartment after the murder. A theory was born.
With every direct and cross-examination, our story stayed simple and consistent. By closing arguments, the prosecution was no longer arguing their own theory — they were arguing against ours. We won the trial because we controlled the story being told to the jury. We could have gone into the courtroom and simply argued that the multiple confessions from our client were coerced or “didn’t mean guilt.” However, if we had, we’d currently be in the process of turning his files over to his appellate attorneys for review. Instead, as weird as it was, we decided to embrace the client’s story and, in turn, we embraced our client. Our theory of the case was certainly out there, but it was also honest, it was real, and it offered a clear, independent story as an alternative to the state’s case.
What happens when you don’t have a theory
In contrast, police officer Jonathan Doe’s attorney, in a brilliant display of mediocrity, stood up and simply stated that just because the accused’s DNA was under the victim’s fingernails, it evidenced only an affair and not murder. Then she sat down. Wow! In one sentence, she not only validated the state’s theory — her idle counter-argument wholeheartedly embraced it. There was no discussion of the fact that the reason the accused was sitting in court was because of a rush to judgment. The police department had been hammered in the press and had a tremendous amount of pressure on them to make an arrest. (I see a theme and theory developing here.) There was no discussion of the several leads about mysterious cars parked in front of the victim’s apartment the week before the murder that were never followed up on, or the fact that the victim had made many enemies in the community because he was so politically active. None of that. All she said was that DNA doesn’t prove guilt. Setting aside the obvious O.J. comment, that doesn’t even pass the giggle test, and it’s not a theory of the case.
Whether it is a criminal or civil case, a good theme and theory help create a clear, simple story of “what really happened” from your side’s point of view. It’s not only important, it’s critical. It allows you, as the advocate, to tell the jury your story through every direct and every cross in the trial, and should be developed as early as the beginning of the discovery process. Without a theory of the case, you’re just . . . arguing. For example, during poor Mr. Jon Doe’s trial, I sat through an hour-long cross of the medical examiner regarding whether a couple of drops of blood found on a Coke can near the body was a result of blood spatter or flies. It was effective. By the end, I was even confused as to how the blood got on the soft drink receptacle. However, it was also a distinction without a difference, and it did nothing to aid the client’s fate before the triers of fact. Jonathan Doe’s attorneys were not arguing a theory. Instead, they were simply arguing any point that could be argued. It was as if they had conceded the loss before the trial began, and were only going through the motions in order to do their jobs and save themselves from a reversal for ineffective assistance. That type of burned-out attitude screams for a career change.
The science behind a workable theory at trial
If you can’t answer the basic question, “I win because . . .,” then you’re not ready to pick the 12 people who are probably already preconditioned to find your client guilty of whatever charges are brought by the prosecution. Why spend so much time during voir dire on keeping an open mind only to contradict your efforts with a non-theory at trial?
All too often, even seasoned trial attorneys walk into courtrooms arguing nothing more than “just because the cops found A + B, it doesn’t necessarily mean that C is involved.” Come on! Of course C is involved. What you need to do is educate the jury on why C is either not liable or being falsely accused, not the statistical improbabilities of three being the sum of one plus two. It can be as simple as flipping through Aesop’s Fables to find an analogy that mirror’s your argument. It is the small amount of extra effort that distinguishes between attorneys who lose 90 percent of their trials, and those who win 90 percent.
Juries don’t want to hear the attorneys split hairs about proof and evidence. They want to hear a story of intrigue and suspense that captivates their attention and allows them to rationalize their verdict. It’s not enough to say the other side is wrong — you must also say why your side is correct. For the past 50 years, behavioral science studies have shown that most jurors employ affective reasoning (right brain) in the courtroom. In other words, they see trials more like human dramas than legal disputes, and are more prone to be persuaded by a dramatic and emotional portrayal than by a dissociated review of the evidence. Lawyers, on the other hand, are taught from day one in law school to use cognitive legal reasoning when approaching a case. Strict interpretations of the law and technical applications of precedent usually take up the bulk of pre-trial motions. As important as such maneuvers are to litigation, we must also remember to always view the case in the light most favorable for being presented to a jury. Every decision should be weighed against the ultimate trial presentation. Before writing any request for admission and any motion in limine, we should be asking ourselves: How will this play in front of the jury?
Additionally, studies have consistently revealed that the average person maintains a high level of concentration for only about 20 to 25 minutes before levels begin dropping at varying rates. Any advertising executive will tell you, he’d rather place his ad on a half-hour program, because viewers tend to change the channel before the hour is up. That means attorneys are wasting precious time fighting over the minutiae. Your jurors are more apt to remember the big picture over the details. That’s why litigators who adhere to the trial technique of primacy, recency, and repetition using a good theme and theory seem to almost mystically command the courtroom. It’s not magic — it’s a time-tested preparation and a keen awareness of how we as human beings process information.
It is certainly true that DNA under the victim’s nails doesn’t necessarily mean the accused is a killer, but without a coherent theory, there’s no story to tell. If there’s no story to tell, there’s no reason to listen to your side. A trial is more than two sides airing a dispute before a citizen jury. It is an artistic presentation and the ultimate play, each act outlining two opposing scripts of true-life human conflict and experience. The effective trial advocate sheds his lawyer’s skin in order to stand against opposing counsel and become a competing director of the action as it unfolds. Working with the judge as producer, our job is to creatively present this living drama because, at the end, it is the jury who gets to write the conclusion.
If life is truly nothing more than “a tale told by an idiot, full of sound and fury, signifying nothing,”1 then the last thing needed at trial is a stiff, over-educated lawyer arguing minute details that have very little to do with the ultimate question. Instead, jurors need a simple storyteller who can speak not only with the clarity of a child, but also with the flair of a Shakespearian actor. Those are the stories remembered and retold throughout the ages, and those are the stories that will invoke the type of responses that resonate throughout the deliberation room. You don’t need to actually represent a Lady Macbeth to win at trial. However, you do need to do some pre-trial preparation to bring your client’s story alive with the same unique and personal visual concepts that were represented by her festering and prophetic wound. That’s what will be remembered above everything else, and the extra time exerted before you step into the courtroom will assuredly pay off when it is time for you and your client to leave.
Stone Grissom is a civil rights attorney and former co-chair of the Trial Advocacy Committee of the Washington State Bar Association. Additionally, he is a national legal commentator and author of numerous legal publications.
NOTES
1 William Shakespeare, Macbeth, Act 5 Sc. 5.
