The Art of Storytelling: Using War Stories to Teach Enduring Trial Lessons
Trying cases is the art of storytelling. When we stand in front of juries, judges or arbitrators, we tell our client’s story in the best light and in the most interesting light to hold the decision-makers’ attention, and hopefully lead them to the conclusion we desire even before we say the conclusion out loud.
Learning the craft of trial practice depends on storytelling.
I like to tell a war story I call “A Tree Grows in Paris.” It comes from a 60-day trial way back in the early 1980’s in the Circuit Court of Cook County, Illinois. Shortly after this trial concluded, I passed the Bar and worked for the law firm that won the trial. Soon enough this story was burned into my memory. In telling this story my future partners were teaching us neophytes some invaluable lessons.
The story begins with two burning questions:
Do leaves on trees bloom in spring/summer, and fall in autumn?
Or is it the other way around?
In Dayan v. McDonald’s Corporation, the issue was whether McDonald’s had good cause to terminate the franchise of a seventeen-store operator in Paris, France, on grounds the franchisee had breached the franchise agreement’s requirements for adherence to system standards for quality, service, and cleanliness (QSC). McDonald’s had inspected Dayan’s restaurants in mid-summer, failed them, and gave a 60-day notice of default with the opportunity for the franchisee to cure. In September, after the 60-day cure period had passed, McDonald’s re-inspected, found no improvement, and terminated all 17 franchise agreements.
Seeking to obtain an injunction against franchise termination, the Paris franchisee sued in Illinois because the franchise agreements required venue in McDonald’s home state. The key fact issues were “whether the restaurants were clean, whether the food service was prompt and courteous, and whether the food was prepared properly and with specified products.” These fact questions were sharply disputed. McDonald’s sought to prove its inspections were fair and it was rightfully protecting the public from dirty restaurants. Dayan, the franchisee, argued McDonald’s trumped up the alleged QSC violations as a pretext for reclaiming the lucrative Paris market for itself.
In inspecting and later re-inspecting Dayan’s restaurants, McDonald’s took many photographs, enabling it to present a compelling (and lengthy) case of extensive, uncured QSC violations warranting franchise termination. In response Dayan testified that he, too, had taken many photographs which would show his restaurants met QSC standards. But, alas, Dayan testified his exculpatory photographs had been lost or destroyed in a fire at his office in Paris.
Everyone knew Dayan’s “my evidence was lost in a fire” argument was lame. But when McDonald’s rested its defense, the franchisee’s lawyer rose in rebuttal and made the startling announcement that Mr. Dayan had suddenly located photographs allegedly taken in late August or early September, about two weeks before the McDonald’s re-inspection photographs were taken. These photographs had not been lost in the fire after all. The courtroom hushed in anticipation of the new evidence which, sure enough, showed what appeared to be some nice clean McDonald’s restaurants in full QSC compliance. Had McDonald’s, then the world’s largest restaurant franchising company, stooped to fabricating evidence as the franchisee was arguing? One thing was clear. Someone was lying. Someone had faked their photographic evidence.
Trial counsel for McDonald’s had little time, but noticed something interesting. Plainly visible in both the plaintiff and defense photographs was a tree, standing in front of one of the Dayan restaurants on a tree-lined Parisian boulevard. But there was a discrepancy. In McDonald’s pictures, taken in September, this tree still had its leaves, there for all to see. In the franchisee’s pictures, supposedly taken two weeks earlier, the same tree was barren of its leaves.
How could this be? Did the leaves on a tree in front of the McDonald’s in Paris somehow blossom over the Labor Day weekend? Or to paraphrase Joe Pesci’s memorable cross-examination in My Cousin Vinny on the cooking of grits, do trees in front of your restaurant grow differently than every other tree in the Northern Hemisphere? Had everyone been in wrong in thinking that Paris, France, was north of the equator? Or, perhaps, had a desperate franchisee seeking to avoid the termination of a business that was worth millions tried to fake the evidence?
McDonald’s legal team exercised restraint not seeking a Joe Pesci moment. They committed the franchisee to the claimed dates of the photographs and saved their ammunition for closing. McDonald’s won the case and recovered its attorneys’ fees due to the franchisee’s bad faith.
And so, our story ended. And my work began. My future partners left it up to me to figure out the lessons from their story. Here are a quick handful:
∙ Obtain and present the most persuasive evidence. What we call “evidence” comprises words, documents, or images, which are snippets of real life events or re-creations of those events, strategically presented to persuade that something did, or did not, occur outside the courtroom walls. Words can be contradicted or misinterpreted. Seeing is believing. Our job is always to identify the most persuasive evidence, then build the rest of the case around it.
∙ Take nothing at face value. Stop, look, and listen when examining evidence. Never assume truth. From the proverbial first phone call when a client describes the potential case through the close of evidence, you must constantly ask whether any evidence is believable or proves the point for which it is being offered. In Dayan v. McDonald’s, there were separate moments when both the plaintiff and the defense lawyers held those staged photographs in their hands for the first time. But only one set of lawyers took the time to stop and think.
∙ Be ready to adapt. The evidence you expect to be decisive at the start may not be decisive by the end of trial. Things happen that change the equation: courts may make an unexpected ruling on admissibility; witnesses are impeached; new witnesses or other evidence may suddenly appear. As in war, trial counsel always must be ready to adapt. Be ready to decide in the moment.
∙ Turn the tables. The best evidence often comes from the opposing party. As in Dayan v. McDonald’s, there is no path to victory more swift or sure than to take the opponent’s evidence and use it to destroy the opponent’s credibility. This happens more than one might suspect.
∙ Raise the stakes (carefully). Sometimes evidence is so powerful the other side feels compelled to mount a direct challenge with contradictory evidence. When this is done, the stakes are raised. Suspense is heightened, for now it is clear one side or the other is lying. To challenge directly you better be sure you are right. If you are not close to being 100% sure it is safe to raise the stakes, don’t do it. You can still try to deflect indirectly and occasionally something can safely be ignored. Knowing when to raise the stakes with a direct challenge, and when not to is frequently a game changing decision.
∙ Reductio ad absurdum. Often, there is nothing more effective than to assume the truth of evidence presented by the other side, and then demonstrate that the opponent’s evidence must inevitably lead to an absurd or ridiculous outcome proving that the other side’s claim must be wrong. In Dayan, once the franchisee was asking the court to suspend the laws of nature, Mr. Dayan was doomed.
- Less may be more. In Dayan, the McDonald’s trial team attempted no grandiose Perry Mason moment to expose the fraudulent photography with a witness on the stand. Sitting at counsel’s table, noticing the franchisee’s evidence would contradict established laws of nature, they made what seemed like a routine request to voir dire the witness Dayan had called to authenticate his photographs, to make sure that the witness was committed to her testimony on the alleged date on which the pictures allegedly were taken. That was more than enough to permit McDonald’s to argue based on the laws of nature, the pictures were necessarily false. By saving the coup de grace for closing argument, the defense pre-empted an evidentiary rebuttal, imposed a staggering blow when it would count the most, and deprived the plaintiff any chance to recover. Restraint in cross-examination paid dividends later.
I have not had any trials play out exactly like Dayan v. McDonald’s, but I have experienced countless variations. Lessons learned from war stories, both our own and from listening to others, are the most valuable lessons we will ever receive.
This article originally appeared in the American Bar Association Section of Litigation, Solo/Small Firm Committee, August 20, 2017.