Quick! What is Stormy Daniels’ lawsuit against President Donald Trump about?
You’d be forgiven if it takes you a minute, or even if you had to Google it. Daniels’ attorney, Michael Avenatti, has been so skilled at creating a circus around the case that it’s easy to forget the suit is an attempt to invalidate a nondisclosure agreement the adult film actress signed regarding her alleged affair with the President.
The attorney’s public comments and the news coverage of the Daniels case are about everything but that. Instead, the talk is about the $130,000 in hush money funneled through a shell corporation, the FBI raid of Trump attorney Michael Cohen’s office, Cohen’s questionable business dealings, a thug threatening Daniels if she didn’t stay quiet, and so forth.
While none of those salacious details have anything to do with the actual case, Avenatti has succeeded in portraying the entire affair – and Cohen in particular – as undeniably shady, a perception that prospective jurors may bring with them into the courtroom (if it ever gets that far).
We’ve seen similar tactics in our own, decidedly less titillating cases. Some skilled attorneys – particularly on the plaintiff side – excel at making trials about something bigger and sexier than the relatively mundane matter at hand. It’s about race, it’s about a big corporation taking advantage of its employees, it’s about healthcare for the uninsured or for poor single mothers. Those subjects excite, incense and engage jurors, far more than dry discussions of the standard of care or the statutory definition of an exempt employee.
Yet you don’t have to cede the narrative ground to your more sensationalist foe. Just because you’re not going to grandstand about injustice doesn’t mean you can’t frame your case with a story that focuses the jury on what the case is really about. Above all else, jurors want to be on the side of fairness, and it’s your job to create a narrative in which a verdict favoring your client isn’t just what the law requires – it’s what fairness demands.
Every case, regardless of the complexity or the client, needs a one-sentence story – your version of an elevator pitch. Examples: “This is a case about a midwife who has delivered more than 2,000 babies and did everything you would want a midwife to do for Mrs. Doe and her baby.” “This case is about a man who built his business from the ground up, and the actions of one vindictive, low-level supervisor shouldn’t be allowed to destroy that.”
We’ve sometimes encountered, during our initial conference call about a case, lawyers who seem at a loss to summarize a case for us because “it’s just so complicated.” From our perspective, if you can’t distill your case into a one-sentence or one-paragraph story, you have little hope of prevailing at trial. That story, of course, isn’t going to contain all the important information you’ll present at trial, but it can serve as a framework to keep you focused so you don’t lose sight of the big picture – always a risk in a complicated case with lots of moving parts.
Just as important as presenting your story to the jury is reminding them what the case is not about. It’s not about race (except when it is, but that’s a different story), it’s not about curing society’s ills and it’s not about fixing “the system.” Any case is only about these individual plaintiffs and these individual defendants. Don’t be afraid to challenge the tactics head on and point out to the jury how the opposition is trying to mislead and distract them. No one likes to be pandered to or misled, and exposing your opponents’ scurrilous strategies could cause them to blow up in their face.
Our focus group process is excellent for helping you test the power of your opponent’s distracting narratives, as well as for honing your own succinct story. To learn more, contact Senior Vice President/Partner Claire Luna at cluna@juryimpact.net.
