Trial theory and blind poetics

Every successful case starts with an act of imagination. Before the first motion is filed and well before the first witness testifies, a lawyer must begin to develop a comprehensive and persuasive story. The story has to be factual and logical, of course, accounting for the known facts and leading to the right conclusion. But it also must do more than that. A winning story must have strong visual qualities that will allow the judge or jury to envision the facts and events as counsel and the witnesses describe them. It also needs to make a powerful moral claim that can convince the decisionmakers that they are doing the right thing. Conceiving such a story is not simple, and it cannot be done piecemeal. The best approach is holistic rather than incremental-imagining a broad outline and then adjusting and shaping that outline to fit the specific facts as they are discovered. No story is ever set in stone. Even the most compelling story must be constantly revised as the case proceeds, or perhaps even abandoned in light of new information, in favor of an alternative. The key, however, is to imagine the story all at once, as a whole concept, rather than as the combination of distinct parts. That way, each favorable witness, each cross-examination, each item of evidence, and each argument of counsel can be measured for its contribution to the story's impact. THINKING LIKE A BLIND POET There is no way to escape the central dilemma of litigation: Memory is visual, but communication is verbal. A witness does not remember events in words, but rather in images that cannot be transferred intact to the factfinder. Instead, witnesses must first put their recollections into words, in the hope that listeners Qudge or jury) will visualize the same scenes with some degree of accuracy. When the language used is artful, it is possible-though far from certain-that the jury will reimagine the events consistently with the witness's own vision. Often, however, there will be gaps in communication, as the listeners interpret the testimony in light of their own background and experiences. To take one mundane example, a witness might refer to a "large boat," thinking of the biggest sailboats on a nearby lake. To a juror who grew up by the ocean, however, a "large boat" might be an automobile ferry that dwarfs the local sailboats. In this case, the lawyer would be sure to have the witness provide a fuller description (if the size of the boat is important), but the possibility of miscommunication can never be eliminated since words can never fully capture the rich complexity of real life. In short, a jury's comprehension depends on revisualization, and yet this process can never be complete or completely reliable. No matter how many facts are "proven," each juror still will place them in an imagined context that is derived from his or her previous encounters in the world. Every trial, therefore, becomes a battle for imagination, as each side attempts to influence the way that the jurors envision the key events. The goal of a trial lawyer, then, is to use words to evoke the desired visions, which may lead in turn to understanding (and a favorable result). This is a familiar task in every culture, and not only for lawyers. It is also the work of storytellers and poets (as well as novelists, journalists, and historians), who use language to create a shared understanding of distant, unseen events. Think of the Trojan War, an epic conflict in the dimmest past that still holds a place in the popular imagination. Nearly every image we have from that heroic age-the Greek armies massed on the beach, the towers of Troy, the enrapturing beauty of Helen, the glint of Achilles's shield-derives from the poetry of Homer, who never saw the events he described. So vivid are Homer's descriptions, in fact, that many scholars believe that his blindness is only a legend. But even if he could see, the Trojan War occurred many centuries before Homer's birth, in a land he never visited. …