Presenting a live 90‐minute webinar with interactive Q&A

P i  E id  U i  N iPresenting Evidence Using NarrativesDeveloping Narratives, Using Experts to Tell the Story, and Minimizing Discoverability Risks and Daubert Challenges

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, JULY 31, 2013

Today’s faculty features:

David Darden, Partner, Parker Hudson Rainer & Dobbs, Atlanta

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Th U f N tiThe Use of Narratives In AdvocacyIn Advocacy

By David B. Darden

Parker, Hudson, Rainer & Dobbs LLP285 P h C A N E

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285 Peachtree Center Avenue, N.E.1500 Marquis Two TowerAtlanta, Georgia 30303(404) 523-5300ddarden@phrd.com © 2013 David B. Darden, Esq.

What is a narrative?

• NOT (always) a sequential recitation ofNOT (always) a sequential recitation of events

• It's telling a story

• Or placing ideas in a larger context

• It's something that generates and fosters thought in the listener

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g

What is a narrative?

• It places individual points of data or information p pinto relation with one another using language

f− Note that this is fairly accurate and precise, yet still a little difficult, because it is not a narrative!narrative!

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Why are narratives important?

• Human brains are wired to view the worldHuman brains are wired to view the world through narratives− Human brains are NOT wired to process− Human brains are NOT wired to process

pure data− If we are not given a narrative we will inventIf we are not given a narrative, we will invent

one− Invented narratives may not be correct, norInvented narratives may not be correct, nor

consistent with all available data− Heat versus Spurs finals coverage…

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Why are narratives important?

• If forced to choose between an abstractIf forced to choose between an abstract concept and a narrative, most people will choose narrativeschoose narratives

• The drive towards a narrative is hard to resist for those who know about theresist for those who know about the phenomenon, and virtually impossible to avoid for those who are not aware of itavoid for those who are not aware of it

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Kahneman's narrative

• Simple and coherent account of people'sSimple and coherent account of people s actions and intentions

• Causes readily matched to effects• Causes readily matched to effects• Behaviors are manifestations of general

iti d lit t itpropensities and personality traits– So powerful, "propensity" evidence restricted

• Creates sense of inevitability– Of course that happened!

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pp

Why are narratives important?

• Narratives can offer explanations as toNarratives can offer explanations as to WHY something happened, not just WHAT happenedWHAT happened− Reading novels (narratives) activates parts

of the brain used to determine others'of the brain used to determine others motives

− Is motive ever important in your cases?Is motive ever important in your cases? Intent? Subjective reasonableness?

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Examples of narratives

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Examples of narratives

• Hypotheticals used to explain legal concepts

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Examples of narratives

• Parables or myths used to explain a moral precept

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Examples of narratives

• Stories of experiments to illustrate a law or formula in physics

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Narratives in court

• People need narratives, and will invent them if they aren't provided

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Narratives in court

• Plaintiff's lawyers understand this− Gerry Spence book

• Good plaintiff's trial lawyers are tellingGood plaintiff s trial lawyers are telling stories – narratives – to the jury

• Defense lawyers often think like• Defense lawyers often think like engineers or technicians, trying to match evidence to elementsevidence to elements− Without a narrative, the jury may not process

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Lawyers and narrativesLawyers and narratives

• Legal training teaches precise thinkingLegal training teaches precise thinking– Lawyers look for elements of claims and

standards of proofstandards of proof– Lawyers look for distinctions and similarities

• This precision helps avoid mistakes that• This precision helps avoid mistakes that come from over-reliance on narrativesH l f t h• However: some lawyers forget how important narratives are to listeners

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The narrative's advantage - this:

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Versus this:

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Narratives in court

• If you are providing information and your y p g yopponent is providing a narrative;

• And we know that people need narrativesAnd we know that people need narratives to make decisions;

• Who is going to win?• Who is going to win?• GIVE THE JURY A COMPETING

NARRATIVE!NARRATIVE!• Not just an un-narrative

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How juries use narratives

The Hastie and Pennington Model

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Predictable narratives

• People expect stories to be in genres• Genres are not just subject matter

− They tell us what to expect in terms ofThey tell us what to expect in terms of structure, content, sequence

− They tell us what to pay attention toy p y• We look for clues in mysteries, the turning point in

a conflict drama, the acquisition of knowledge or i h i ti ipower in a heroic action movie

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Predictable narratives

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Previewing narratives

• Legal audiences like the same thing• Legal audiences like the same thing• Tell them, in short form, what kind of

narrative to expectnarrative to expect• Expectations influence understanding

− A narrative that is wholly unexpected is like eating something you cannot see

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Easy narratives

• One witness• Chronological• Easily related to daily experiences ofEasily related to daily experiences of

jurors• Motives for everyone obvious• Motives for everyone obvious• "What happened next?"

− "And then?"

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Harder narratives

• Information spread over several witnessesp− Try to find points of overlapping testimony in

order to anchor/orient audience• Out-of-order presentation

− Court may need key concept first or witnessCourt may need key concept first, or witness availability may require sub-optimal sequence

− Ask "navigation" questionsAsk navigation questions• "So this was three years after the accident?"

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Harder narratives

• Out of audience's experiencep− Corporate boardroom− Operating roomOperating room− Cockpit of an airplane− Ask questions to establish what "normal" isAsk questions to establish what normal is,

what participants' roles are, what motives and purposes are at workp p• May need more "why?" questions

• Unpopular or "unjust" narratives

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p p j

Harder narratives

• Explanations of decision-making− Even scientists are struggling with questions

about how human beings really make decisions− Basis become "assumption" in cross-p

examination− Focusing on goals and motives can allow

audience to track decision-making process moreaudience to track decision making process more easily

• Even harder than explaining a decision is explaining a non decision!explaining a non-decision!− Again, a focus on where attention was directed

by talking about goals may help

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y g g y

Overcoming challenges

• How do you create and convey a narrative in challenging circumstances− Lawyers can do it in opening, closing, and

h iperhaps in cross• If in opening, at least jury can plug into a framework• But credibility with jury is low• But credibility with jury is low

− A savvy fact witness can try to do it on direct• But getting beyond their core knowledge exposes g g y g p

them to cross, and may harm their credibility on critical fact issues

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Using experts

• Experts can be a narrative vehicle− They can have a broader view of a big case

than any single fact witness− They can bring an outsider's perspective,

and more credibility than a lawyer− They can synthesize multiple concepts, data

points, or events into a coherent narrative− Some of them are just good storytellers

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Using experts

• Experts can connect highly abstract concepts to what happened in a particular case− Highly underrated use of narratives at trial

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How to do it

• Takes a good deal of work and collaborationcollaboration

U f t t id ti ill• Use of experts to provide narrative will always be highly case-specific

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Picking an expert

• Do your homework• Get prior reports, publications, testimony

• Even seminar materials• Talk to lawyers involved• Look for prior Daubert challenges and case

outcomes• Don't rely solely on credentials

• They don't grade on storytelling in CPA, PhD, or engineering programs, either

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Case studies of expert narratives

Example 1: Commercial defective goods p gcase alleging that fiber optic cable supplied to contractor was "brittle"

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Fiber optic case

• Plaintiff had ready-made narrative of yfrustrating installation experience− Testimony of field technicians strugglingy gg g

• Defendant had tested returned samples and determined all within technicaland determined all within technical specifications− Lots of test resultsLots of test results

• Setting up as lab-coats-versus-hard-hats

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Fiber optic case

• Defendant(s) hired expert from nationally-known testing laboratoryknown testing laboratory− Unbiased, but still a lab coat

• Began by generating more data of standards• Began by generating more data of standards-compliance via testing− First added narrative of more and more testingFirst added narrative of more and more testing,

trying to induce failure of the product to no avail− Then added contextual narrative explaining that

FO i t ll ti i t i k d blFO installation is tricky and problems are common• Also explained that entire industry regarded standards as

definitive, effectively equaling non-defectiveness

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Case studies of expert narratives

Example 2: Federal government proposes to dam a river• Interest group files a lawsuit to enjoin g p j

installation of the proposed dams, claiming harm to species protected by the g p p yEndangered Species Act

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As though the bears aren't bad enough?

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River damming case

• Not what happened, but what will happen: pp , pp• Habitats required for three fish species • Current status of the species in the river• Current status of the species in the river • Projected adverse effects on the Chinook

l t lh d d tsalmon, steelhead, and green sturgeon populations if the river is dammed

• Recommendations for modifications that would minimize these effects

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Lessons learned

• Application of well-understood general pp gprinciples to specific scenario− Prepare for resistancep

• See South Yuba River Citizens League v. Nat'l Marine Fisheries Serv 257 F R DNat l Marine Fisheries Serv., 257 F.R.D. 607 (C.D. Cal. 2009)

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Case studies of expert narratives

Example 3: Mother and infant sue fireplaceExample 3: Mother and infant sue fireplace guard manufacturer under a failure to warn

theorytheory

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Fireplace guard case

• Mother and infant retain an expert witnessMother and infant retain an expert witness to testify about the adequacy of the glass fireplace guard's warningfireplace guard s warning − Cautionary tale− Expert over extends and lacks adequate− Expert over-extends and lacks adequate

foundation for testimony

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Narrative

• Not what happened, but why people act certain ways: pp , y p p y• Manufacturer's warnings were inadequate because a

permanent warning should have been placed on the front of the glass to continually remind the consumer that the fireplace casing is a thermal hazard.

• Rational people would touch the glass in the absence• Rational people would touch the glass in the absence of such warning because they assume that the glass panel is there to protect them from the intense heat.

• Infant's burns could have been prevented had parents seen a warning on the actual glass.

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Lessons learned

• Bolstering the narrativeBolstering the narrative − Expert's testimony was excluded because there

was no study or other objective supportive t b l t th ti t tisource to bolster the narrative testimony

− "Because the expert thinks so based on experience" is just not enoughexperience is just not enough

− Have a study or other objective supportive source ready to bolster your narrative testimony

• See Santoro v. Donnelly, 340 F. Supp. 2d. 464 (S.D.N.Y. 2004)

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Challenges of using expert narratives

• Requires collaboration with, but not q ,control of, expert− Lots of talk, brainstorming− Must respect and protect independence− Begin early!

• Must pass Daubert or similar challenges− Foundational studies, research, experience− Needs to "fit" case

• Remember what questions jury will actually face

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Challenges of using expert narratives

• Some experts really are techniciansp y− Sometimes you can get them to take a different

approach• Give them permission to be humans!Give them permission to be humans!

− Have to decide how far out of their comfort zone you can take them

D t f t d t• Do not forget data− Need box score and article− Consider using charts graphs animatics orConsider using charts, graphs, animatics, or

other visualization to enable narrative presentation

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Challenges of using expert narratives

• Educating expert− Sometimes documents sufficient

• Pleadings, motions, transcripts can give expert orientation to issues in caseorientation to issues in case

− May need direct contact with witnesses/employees

A i t i d it• Arrange interview and its scope• Let expert run to preserve independence

• DiscoverabilityDiscoverability− Less risk in Federal court now− State courts can differ

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Testing narratives

• Mock trials and jury studies• Compare effectiveness of narratives• Adjust narratives

• Talk to non-lawyer friends• "Cocktail party" storyCocktail party story

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Importance of narratives

• Human brains run on narratives.Human brains run on narratives.• Win the narrative, win the case.• Not all cases have easy

narrativesnarratives.− If all cases were easy, nobody would

need lawyers.

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