By Carmen Caruso
The following was published in The Franchise Lawyer Vol. 13 N. 2 Spring 2010 edition, a publication of the American Bar Association Forum on Franchising. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
In a word, winning at trial requires preparation. Weeks before trial you know every document, transcript and point of law, and you have outlined every examination and argument. You know the case better than your client does and certainly more than your opponent ever will. If these things are not true, then you are not ready for trial.
Visualizing the trial began when your Forum friend introduced your new client, who explained a business problem and sought solutions. You listened carefully. Then you explained that the only way—repeat, the only way—to win in negotiations is to demonstrate your capacity and willpower to win at trial.
Knowing your client is the first essential step. Will your client wear the white hat? Keep in mind that this case is a close call. If it were one-sided, it would have been settled or decided by motions.
As Lincoln used to say, where is the rub? What evidence will sway the decider(s)? How much of the opposing case must I concede? Where do we draw the line? What’s our fallback? How many different ways can the other side try to surprise us?
Grand questions of strategy are important. Talk the case through with other lawyers as well as with your clients, and
then do it again. These discussions are essential. Your gut feeling that persuaded you to take the case ought to stay solid, but your tactics and strategy must constantly evolve. Who testifies and in what order? Which witness introduces what evidence? These decisions are always reviewable. The fittest survive because they adapt.
Intellectual preparation is not sufficient, for true persuasion must combine logic and emotion. Going to trial is like playing an accordion. Your case is filled with a universe of information, just as the accordion must first be filled with air. Now you place your fingers on the keys and squeeze. Like music, your case must emerge as organized sound.
I like the music analogy. Music we enjoy sticks with us, changes our mood, and influences our behavior. I want my trial to have rhythm and flow, from opening statement (an overture), the presentation of evidence (the lyrics), a dominant theme (the chorus), and of course my closing argument as the grand finale. I want the jury to be humming my case on their way home and when they wake up the next day.
Different cases make different music. Cross-examining the defendant in a plaintiff’s fraud case might start softly, and then, the big bang. If that same defendant is relying on exculpatory contract language, its witnesses on their direct exams might sound quite folksy, with a chorus built around the no reliance clause.
Your music is your trial theme. Pick it carefully. If you are representing a franchisee or a dealer, don’t over-play the violins of sympathy. Chances are, every client made some mistakes. If nothing else, maybe they were too trusting. Outwardly at trial, you seek your opponent’s condemnation. Quietly, you are also seeking redemption and possibly forgiveness for your clients.
Now add the visuals. You pick your exhibits wisely from a million documents, from the FDD and the franchise agreement, and all those emails, to the numbers in financial statements. You know your melody, so now you know when to present your evidence in exactly the right sequence.
The importance of visual evidence cannot be overstated. We create charts and summaries to argue from. We pick our colors carefully, edit and re-edit because less is more. We aspire like Spielberg to achieve maximum impact from every visual image, synchronized to our stirring soundtrack. We engage our clients in this process because they know their brand and we want harmony between our exhibits, our client, and our winning theme at trial.
But again, if the paper trail was so darn clear, the case would never have reached trial. Witnesses will have the opportunity to explain the contract language or the smoking gun email with their spoken words at trial. The jury will consider everything including the additional images created by facial expressions and body language.
Victory comes from the music. Done right, cross-examination and closing argument, the highlights of every trial, are especially musical. With a week to go you, take a night off and visit the opera. Your case on trial is the evening’s performance. Start singing the case to yourself and your team. Bring your client in on Sunday when the office is quiet and do a ruthless cross-examination, but in a teaching way. Make sure your client likes the music.
Rehearse your questions endlessly, to cover every possible answer, every twist and turn the case might take. Give a hundred different versions of your closing, one for every possible mood in the courtroom at the close of evidence. Do as much preparation as you can out loud, on your feet, and then keep it going in your mind, every waking moment.
Get a good night’s sleep. When you enter the courtroom, and you hear the music, you will know that you are ready for trial.