 By Michael Johnson

 How does a judge/jury decide a case? o Factual content o Legal requirements o Just result

 Factual Theory o What happened? From whose perspective is the story told? o Who are the actors? Witnesses Victims Defendant o Who is to be believed? Credibility o Why did it happen? Motivation

 What are the legal requirements? o Elements of charge/allegation  Who has the burden to establish the elements? o State o Plaintiff o Defendant--if it is an affirmative defense

 Why should you win?  Moral Imperative  Judge/Jury wants to do “what’s right”

 What is the case about?  Combination of the three theories—  Emphasis on the Persuasive Theory  The “bumper sticker” slogan o “If the glove doesn’t fit, you must acquit”

 Opening remarks o Preview the case What has to be decided? o Identify and signal the critical evidence o Tell the story in a compelling and interesting way

 Primacy and Recency o Start with something important o Deal with the weaknesses in the middle o End with something important

 Thematic o “It was the best of times, it was the worst of times…” First the colors. Then the humans. That’s usually how I see things. Or at least, how I try. Here is a small fact: You are going to die.

 Topical o What impact does the part of the story have on the audience? o Move from important topic (primacy) o To another topic etc. o End with a important topic (recency)  Chronological o Is the order in which things took place important to the decision?

 Choice of witnesses depends on story organization  Order of witnesses depends on story organization

 Primacy/recency  Headline topics  Use conversational language  Let the witness be the focus point  Listen and progress the story without unnecessary repetition  Repeat key phrases/words/concepts  Loop for emphasis

 Looping, not leading When you saw the jar on the desk that said “ashes of problem employees“, What did you think? How did you feel? What did you say?

 Their witness, your organization o Primacy/recency o What was important to the other side is not the same for you  Content is based on the theme of your case  Know your closing argument/recommendations to the court  If it isn’t worth arguing the to jury/court, don’t ask about it!

 Omit unnecessary detail o Anything that does not advance your theory of the case o Does it-- Contribute to the persuasiveness of your story? Supply a reason for the way someone acted? Make an important fact more or less likely? Affect the credibility or authority of this witness or another? Enhance the moral value of your story?