8 Basics 4 of 8 - Scenes

Welcome to We Win. Things Change.

Trying your case is like recreating scenes that show, rather than tell, your story. Think of your trial as a series of sequential story boards. Pictures on those boards created with words and witnesses and voicemails and emails and papers and ledgers and medical appliances and policies and procedures and demonstratives discovered to recreate your client’s story and get your jurors excited about helping you right a wrong.  

After you find your story (see JHPII Talks re “Story”), visualize your story from beginning to end. See it playing out. Take notes. See the witnesses you’ll use to recreate what happened. Visualize your trial too, from jury selection to verdict. Include the verdict amount. Visualize those pictures – your story boards – you’ll use at trial to get that verdict. Paint those pictures in your mind for yourself, first. After you have that idea in your mind of what you want your trial to look like . . .

Beginning - Background

Start with your background. Use what we call JHPII’s “3 Rules for Nearly Everything” here. 1) Lead with your lead (Never, ever bury your lead). 2) General to specific. 3) Facts (Not conclusions See JHPII Talks on Facts). Chronological too (most of the time). What’s your most critical moment? In 10 words or less. (See JHPII Talk “10 Words or Less”) Use your creativity. Start here. 

After you decide on your cases most critical moment, decide where your story starts. To decide where your story starts, work backward form your critical moment asking yourself “why.” For instance, does it start 8 years ago when the hospital company began overcharging the government? Working backward asking why, it more likely begins much earlier, perhaps at a meeting where the decision to overcharge the government was made? Working backward still, where did that idea originate? Whose idea, was it? How did he/they rationalize their decision to defraud the government? 

Another example. Does the story start a year ago when the hospital company approved that policy and procedure? Working backward, “why did the policy change at all?” Did the government require it? Did advances in medicine require it? If so, how was this policy changed? You get the idea. Work backwards asking “Why?” until you find the start.

Another example. Does it start the night the nurse noticed her patient in the fetal position doubled over in pain vomiting blood? Her patient crying out for help. Or when the hospital employed the nurse without a proper background check? Did the hospital use a service with a black box warning requiring the hospital to verify criminal records? Why the lapses in the nurse’s licensure? What happened at the nurse’s previous hospital that never made it into her employment file? 

Once you decide where to start and make these calls, flesh it out. Recreate scenes. Paint powerful pictures that recreate your story. For instance, breathe life into important policies and procedures. It’s not just a policy and procedure – to most jurors that doesn’t mean much. People walk by thick, dusty notebooks at work every day filled with policies and procedures they’ve never thought about reading. This is not that.  Make these polices meaningful. When it’s critical to your case, show how 8 highly educated professionals with decades of experience - physicians and physician’s assistants and nurses and hospital executives and administrators - poured over medical treatises and textbooks and peer reviewed articles and drafts of this policy for days before finally approving that policy. Afterall, it’s a matter of life and death. Why did they have to do that? Where did the meeting take place? When? Who was there? Why those people? Explore potential backdrops for everything, especially something seemingly as dull as a hospital policy and procedure.  

Ask yourself too - why is it important to your story - your scene. Are you showing jurors that tremendous work went into this policy because it is a matter of life and death? And that nevertheless, someone knowingly violated that policy. Why it was important that it be followed? Why it’s used at over 130 of this company’s hospitals? How it would have saved her husband’s life? Or . . . are you showing why it’s critically flawed? And still it’s used at over 130 hospitals? Why the flawed policy cost a man his life? Why other lives have been lost because of this flawed policy too.

You can speed up and slow down these scenes by adding details to critical facts. You may take several minutes to explain in detail portions of your story that lasted only seconds. Too, you may take only seconds to breeze by years that contribute little to your story. Focus on what matters while breathing life into your case.

Once your background is complete, move on to your subject, your client . . . 

Middle – Bring Your Client into the Story

Your background complete, it’s time to bring your client into the picture. Using the same techniques, you used to create your background, narrow your focus to your client and her case. What’s important here? What happened here? As importantly, why did it happen?

Who was your client? Where is she from? What did she most love to do? Where did she live?  What was her life like? Why does she come into the picture? What brought her to this hospital? To this doctor? What happened? Who is she now? 

One way to incorporate your client into the story is to add detail by showing what’s experienced through senses, hers, and the defendants.  Use all senses. What in those moments does she see and hear and smell and touch and taste and feel? For instance, a tiny portion of a defendant doctor’s cross may look something like this.

Q You look over?

Q You see [your patient]?

Q You can hear the Code over the loudspeaker?

Q You hear people running down the hall?

Q It’s loud

Q You reach for your patients’ wrist

Q You look up . . .

Q . . .

What is the defendant doctor experiencing? What is she thinking? Write down what comes to mind. What interests you. What propels your story forward? Include it all to start. Then cut what doesn’t move your story (see JHPII Talk – “Less Is More”). Include in your witness kits everything you need to paint your picture and tell your story

End - Foreground

We Win. Things Change.  

Like a movie, your trial has a beginning a middle and an end. Like that movie, your trial is about what it spends most of its time on. Same for your opening, every cross, and closing. Tell jurors throughout your trial why you are here.  What you want to see happen here. Beginning with jury selection. What your client wants to see happen here. What jurors can do about what’s happened here. Why they should. What difference that will make. What’s now before the jurors. Show them what you want them to do and why they must do it.  

Cross examinations (see JHPII Talks on Cross) are one of the best places to create scenes that dictate change. Show jurors what happened, what needs to change and why it needs to change with their witnesses. Call your jurors to action. 

Let them know throughout that it’s time for them to change things. For your client. For the rest of us too.

Next up in 8 Basics, “Senses.”

Until next time,
James Hugh Potts II
We Win. Things Change.