The Progressive Lawyer: Telling Your Client's Story at Trial

We are practicing at a time when relatively few matrimonial cases are tried to verdict. Although most cases settle, the vast majority of them do so within the context of a litigated dispute. Since the possibility of trial is always present in this context, coupled with the possibility of settlement, a binocular perspective that entertains and plans for both possibilities simultaneously is by far the best approach, regardless of how the case is resolved.

Every one of our jurisdictions operates under statutory and case laws, which require factual elements to be proved in order to prevail. None of our multi-factor statutes, however, provide specific guidance concerning relative weight, priority and application of their familiar elements. Much is left to the trier of fact and law. Some jurisdictions include juries in the fact-finding process; most do not. The number of jurisdictions that have abandoned, or substantially eroded the concept of marital fault, has increased, but some convene jury trials on issues of marital fault and even moral turpitude.

All matrimonial practitioners share common experiences, regardless of where we practice. We all negotiate. We all advocate. When we negotiate effectively, we teach, and when we teach effectively, we clearly and persuasively explain.

Many attorneys are info-maniacs. Aware of the controlling statutes and case law ' as well as the popular criteria to utilize in a particular jurisdiction or venue, or with a particular judge ' these attorneys hammer away at a set of facts they assume will secure their position and litigation goals, but in isolation from the far more complex stories of the case. “Your Honor ' they've been married ten years with two kids. She's a stay-at-home mom. He earns a ton. It's a permanent alimony case.”

Interestingly, many attorneys actually think that such factual recitations, paired with their preferred conclusions, concisely represent the story of their client's case. This, however, may not be true. Contrary to popular belief, facts cannot speak for themselves. Just as revenge is a dish best served cold, an operative fact is a dish best served through the use of cogent story-telling.

Since most divorce lawyers try few cases, with little, if any, jury experience, few recognize the pivotal importance of being able to articulate the stories that bring their cases to life and make their facts persuasive. Many simply open up the hose and let loose a shower of facts. This conduct can even be seen in the experienced, competent family lawyers among us. There are also those who pepper the air with irrelevancies, interlaced with attorney argument ' not evidence ' and include for good measure content intended to advocate by demeaning or accusing the other side of some wrongdoing. Although moral blameworthiness certainly has its place in many cases, isolated accusations without cogent, appreciable context are tiresome to the trier of fact, at the very least.

We attorneys tend to see our cases from our own point of view. We structure our cases according to our perceptions of what we see and what we would like to say about what we think. We fail for the most part to consider from the start our audience. Our adversaries and judges are not merely audiences for our presentations, however. They are also ' and more importantly ' participants.

Participation is the general role of both our adversaries and judges. Whether we settle or try our cases to conclusion, our presentations must target them and must always honor their respective roles in the process. As with any good story-telling, establishing the setting and then the role of the listener-observer are indispensible first steps.

We enter each of our cases in a disorganized, ignorant state. Unless our client intake process includes a discovery schedule and months of processing time before we even say “yes” to the new engagement, our initial screening of the case can provide only the slightest hint of a usable story line. We need a method of getting from our initial impressions and preliminary fact-gathering to the desired state of preparedness needed to settle or try our cases successfully. This article is meant as a suggested path to better client advocacy.

Our Audience-Participants and the Limits of the
Working Memory

By and large, we tend to accept fundamental assumptions about communication that shape our thinking in varying degrees. This is true whether we think about it consciously or not. If we commonly regard communication in terms of a sender who transmits a message to a receiver, we might consistently assume that we can send information through an unobstructed channel or conduit, and that the receiver will simply comprehend it, fully intact, as if passing through a garden hose.

We assume that we can present the facts of our case in whatever format we like. Using the garden hose metaphor, after we pump our message through the hose, we just assume that its recipients will absorb it like a thirsty garden. We think our work is done. We measure our success in terms of our output alone. If, for whatever reason, the recipient fails to absorb what we presented, we seldom see it as our fault. Our charge, after all, was to put the information out there. We reason that what the recipients do with the information is their problem, not ours.

This misguided assumption leads us to conclude that the judge missed the point, rather than that we failed to make it. The garden hose approach fails to deliver the goods, despite our intuitions, assumptions and insistence.

When we advocate, we teach. For teaching to be effective, there must be learning. There are three possible outcome scenarios resulting from our teaching efforts. The first possible outcome ' the worst-case scenario ' is that no learning occurs. Despite the enormous effort expended in settlement and trial preparation, taken with the substantial judicial investment, no learning happened to make the experience worthwhile.

Much more typically, the target audience remembers only bits and pieces of the settlement presentation or trial, because only fragmented learning occurred. Within that second scenario, at least the audience remembers some things. Unfortunately, we have no control over what was actually learned. The successfully conveyed fragments could be any pieces of information among many, and we do not know which ones failed to make the cut.

Ideally, the target audience remembers precisely what we intended from our presentation. Within this third and best case scenario, meaningful learning takes place. This is what any attorney advocate hopes to achieve. To convey meaningful learning more successfully, however, we must change the way we think about human communication. We will also need to change our metaphor.

Consider the presentation of a case at trial. During the trial, the judge's memory is the critical human element that determines how well new information is received, processed, and stored. The teachings of neuroscience help to understand further the workings of our memory. It is generally accepted among neuroscience researchers that there are three types of human memory: sensory memory; long-term memory; and working or short-term memory.

Sensory memory is the part of the mind in which we briefly store our initial impressions of sights and sounds as we take in the environment around us. Although sights and sounds might persist in sensory memory for less than a second, our sensory memory is of potentially unlimited capacity.

Long-term memory is the part of the mind in which we store information over an extended period of time. This can last from as little as 30 seconds to as long as an entire lifetime. Like sensory memory, long-term memory is also potentially unlimited in its capacity. In the trial context, this is where we would prefer our judge to store any new information we intend to impart. To improve our chances of success at trial ' particularly given the prevalence of noncontiguous trial dates often spanning many months ' we need to go beyond the objective of instilling memories recoverable on the day the learning was initially imparted, and on to the more practical goal of achieving long-term memory access for application at the case's conclusion.

Working or short-term memory is where we hold information for examination. In simplistic terms, working memory provides a temporary holding area for information. Just as sensory memory briefly stores sights or sounds, working memory then pays attention to some of these stimuli, holding them for a matter of seconds while it works to integrate them into long-term memory.

Although both sensory and long-term memory have potentially unlimited capacity, working memory is severely limited in its capacity to process new information. Cognitive psychologist George A. Miller, in his widely acclaimed paper, “The Magical Number Seven, Plus or Minus Two: Some Limits on Our Capacity for Processing Information,” Psychological Review 63, 81-97 (1956), observed that we have the ability to hold a small number of mentally constructed “chunks” in what is currently understood as working memory. Depending on the type of information, the chunk capacity for most people was originally thought to be around seven. The working memory's new information capacity is now estimated at three or four chunks, according to a recent reconsideration of Miller's classic paper by working memory expert Nelson Cowan.

While the limits of working memory have been acknowledged for over 55 years, the concept of chunking capacity has never been fully absorbed or integrated into our day-to-day practice and understanding of human communication. The garden hose paradigm is wrapped so tightly around our collective consciousness that we have effectively resisted the adoption of the research that condemns it. Convenient as it may seem to persist in our belief that there is a direct, unimpeded data link between sender and receiver, neuroscience teaches that the limits of the working memory sharply crimp our metaphorical hose. In order to align our own assumptions about communication with what researchers accept about the way human memory actually works, we will need to drop the old garden hose metaphor and pick a new metaphor, like the one that follows.

New Metaphor

We know that we have a potentially unlimited amount of new information ' an entire pot of coffee ' that we could expose to someone's sensory memory. We want the new information to be retained in long-term memory ' a coffee cup. Now, set the cup down and place a donut on top, like a lid.

To get into the long-term memory, fresh data ' the coffee ' must pass through the working memory ' the donut. The working memory is so constrained in its capacity to process new information that it limits the flow of fresh data to that which can pass through only a relatively narrow passage ' the donut hole. This extremely small portal through the working memory constitutes the most formidable challenge we face as trial attorneys.

This new metaphor visually explains why judges may only be experiencing fragmented strategic learning at the conclusion of cases where we do not believe our client's case was adequately understood. If we present the working memory with more new information than it can handle, the coffee splashes on the donut, rather than passing through the hole, overloading working memory. Consequently, only some information will be successfully processed and integrated into long-term memory; only dribs and drabs of our entire case presentation. What a colossal waste!

Lesson Learned

In order for our judges to grasp the new information we present at case management and settlement conferences, in motion practice and at trial, they will never end up where we need them to be without our helping that information to pass through the donut hole properly. Studies measuring retention ' the ability of target audiences simply to recall presented information, and transfer ' the ability to apply the new information creatively ' have provided us with research-based evidence to support the saying, “Less is more.” The less we overload the working memory with extraneous information, the more learning improves.

Strategic Tip

Although working memory has only limited capacity to handle new information upon its arrival, it also has the unlimited capacity to pull in existing information from long-term memory. This important factor leads to the essential role that story structure plays in optimizing case presentation.

Returning to the research of scientists like Miller and Cowan, working memory has been tested by presenting subjects with an array of random numbers, such as “4975702395.” The capacity of each subject's working memory is then calibrated in terms of the number of individual chunks of information a given subject can recall. Absent any kind of collateral association, this capacity is disappointingly limited. Thankfully, most people can remember more of the same set of numbers when working memory pulls a previously known structure, or schema, from long-term memory. This organizes the new information into meaningful chunks that hold the same information in a more memorable way, such as “497-570-2395,” similar to the structure of a telephone number. “Chunks” are therefore defined by the subjects, as they apply a meaningful structure from their long-term memories to new information.

Based upon this theory, it is foolish to assume that we can present our cases any way we please, and just assume our judges will understand case facts the way we would like them to. Within the context of the poorly-formed garden hose metaphor, our trial presentation exists in a vacuum, independent of the judge who is trying the case. The lawyer whips out the hose and lets it rip, illogically assuming that the judges' minds are passive receptacles.

Researchers have long known, however, that the mind is not a passive vessel in the process of learning, but rather an active participant. The minds of our judges are left to create understanding from new information they process in working memory. We are then presented with the opportunity to play an important role in helping our judges create strategically advantageous understandings by designing our trial presentations in specific ways that focus the attention of working memory on the most important visual and verbal information.

Structure the Information

To succeed in the goals of client advocacy, we must always ensure that there is an accessible structure to tie the entire collection of relevant proofs, argument and testimony into a coherent whole. Conscious effort must, therefore, be made to introduce a familiar framework that the judge already has in long-term memory to guide working memory toward making the desired sense of the new information. A “story structure” with a beginning, middle, and an end provides such a framework.

In the next installment of this article, we will discuss the application of the classical elements of storytelling, first recorded by the Greek philosopher Aristotle over 2,400 years ago, to the successful and strategic presentation of case facts at trial.

Curtis J. Romanowski, a member of this newsletter's Board of Editors, is the founder of Romanowski Law Offices, Brielle and Metuchen, NJ.

We are practicing at a time when relatively few matrimonial cases are tried to verdict. Although most cases settle, the vast majority of them do so within the context of a litigated dispute. Since the possibility of trial is always present in this context, coupled with the possibility of settlement, a binocular perspective that entertains and plans for both possibilities simultaneously is by far the best approach, regardless of how the case is resolved.

Every one of our jurisdictions operates under statutory and case laws, which require factual elements to be proved in order to prevail. None of our multi-factor statutes, however, provide specific guidance concerning relative weight, priority and application of their familiar elements. Much is left to the trier of fact and law. Some jurisdictions include juries in the fact-finding process; most do not. The number of jurisdictions that have abandoned, or substantially eroded the concept of marital fault, has increased, but some convene jury trials on issues of marital fault and even moral turpitude.

All matrimonial practitioners share common experiences, regardless of where we practice. We all negotiate. We all advocate. When we negotiate effectively, we teach, and when we teach effectively, we clearly and persuasively explain.

Many attorneys are info-maniacs. Aware of the controlling statutes and case law ' as well as the popular criteria to utilize in a particular jurisdiction or venue, or with a particular judge ' these attorneys hammer away at a set of facts they assume will secure their position and litigation goals, but in isolation from the far more complex stories of the case. “Your Honor ' they've been married ten years with two kids. She's a stay-at-home mom. He earns a ton. It's a permanent alimony case.”

Interestingly, many attorneys actually think that such factual recitations, paired with their preferred conclusions, concisely represent the story of their client's case. This, however, may not be true. Contrary to popular belief, facts cannot speak for themselves. Just as revenge is a dish best served cold, an operative fact is a dish best served through the use of cogent story-telling.

Since most divorce lawyers try few cases, with little, if any, jury experience, few recognize the pivotal importance of being able to articulate the stories that bring their cases to life and make their facts persuasive. Many simply open up the hose and let loose a shower of facts. This conduct can even be seen in the experienced, competent family lawyers among us. There are also those who pepper the air with irrelevancies, interlaced with attorney argument ' not evidence ' and include for good measure content intended to advocate by demeaning or accusing the other side of some wrongdoing. Although moral blameworthiness certainly has its place in many cases, isolated accusations without cogent, appreciable context are tiresome to the trier of fact, at the very least.

We attorneys tend to see our cases from our own point of view. We structure our cases according to our perceptions of what we see and what we would like to say about what we think. We fail for the most part to consider from the start our audience. Our adversaries and judges are not merely audiences for our presentations, however. They are also ' and more importantly ' participants.

Participation is the general role of both our adversaries and judges. Whether we settle or try our cases to conclusion, our presentations must target them and must always honor their respective roles in the process. As with any good story-telling, establishing the setting and then the role of the listener-observer are indispensible first steps.

We enter each of our cases in a disorganized, ignorant state. Unless our client intake process includes a discovery schedule and months of processing time before we even say “yes” to the new engagement, our initial screening of the case can provide only the slightest hint of a usable story line. We need a method of getting from our initial impressions and preliminary fact-gathering to the desired state of preparedness needed to settle or try our cases successfully. This article is meant as a suggested path to better client advocacy.

Our Audience-Participants and the Limits of the
Working Memory

By and large, we tend to accept fundamental assumptions about communication that shape our thinking in varying degrees. This is true whether we think about it consciously or not. If we commonly regard communication in terms of a sender who transmits a message to a receiver, we might consistently assume that we can send information through an unobstructed channel or conduit, and that the receiver will simply comprehend it, fully intact, as if passing through a garden hose.

We assume that we can present the facts of our case in whatever format we like. Using the garden hose metaphor, after we pump our message through the hose, we just assume that its recipients will absorb it like a thirsty garden. We think our work is done. We measure our success in terms of our output alone. If, for whatever reason, the recipient fails to absorb what we presented, we seldom see it as our fault. Our charge, after all, was to put the information out there. We reason that what the recipients do with the information is their problem, not ours.

This misguided assumption leads us to conclude that the judge missed the point, rather than that we failed to make it. The garden hose approach fails to deliver the goods, despite our intuitions, assumptions and insistence.

When we advocate, we teach. For teaching to be effective, there must be learning. There are three possible outcome scenarios resulting from our teaching efforts. The first possible outcome ' the worst-case scenario ' is that no learning occurs. Despite the enormous effort expended in settlement and trial preparation, taken with the substantial judicial investment, no learning happened to make the experience worthwhile.

Much more typically, the target audience remembers only bits and pieces of the settlement presentation or trial, because only fragmented learning occurred. Within that second scenario, at least the audience remembers some things. Unfortunately, we have no control over what was actually learned. The successfully conveyed fragments could be any pieces of information among many, and we do not know which ones failed to make the cut.

Ideally, the target audience remembers precisely what we intended from our presentation. Within this third and best case scenario, meaningful learning takes place. This is what any attorney advocate hopes to achieve. To convey meaningful learning more successfully, however, we must change the way we think about human communication. We will also need to change our metaphor.

Consider the presentation of a case at trial. During the trial, the judge's memory is the critical human element that determines how well new information is received, processed, and stored. The teachings of neuroscience help to understand further the workings of our memory. It is generally accepted among neuroscience researchers that there are three types of human memory: sensory memory; long-term memory; and working or short-term memory.

Sensory memory is the part of the mind in which we briefly store our initial impressions of sights and sounds as we take in the environment around us. Although sights and sounds might persist in sensory memory for less than a second, our sensory memory is of potentially unlimited capacity.

Long-term memory is the part of the mind in which we store information over an extended period of time. This can last from as little as 30 seconds to as long as an entire lifetime. Like sensory memory, long-term memory is also potentially unlimited in its capacity. In the trial context, this is where we would prefer our judge to store any new information we intend to impart. To improve our chances of success at trial ' particularly given the prevalence of noncontiguous trial dates often spanning many months ' we need to go beyond the objective of instilling memories recoverable on the day the learning was initially imparted, and on to the more practical goal of achieving long-term memory access for application at the case's conclusion.

Working or short-term memory is where we hold information for examination. In simplistic terms, working memory provides a temporary holding area for information. Just as sensory memory briefly stores sights or sounds, working memory then pays attention to some of these stimuli, holding them for a matter of seconds while it works to integrate them into long-term memory.

Although both sensory and long-term memory have potentially unlimited capacity, working memory is severely limited in its capacity to process new information. Cognitive psychologist George A. Miller, in his widely acclaimed paper, “The Magical Number Seven, Plus or Minus Two: Some Limits on Our Capacity for Processing Information,” Psychological Review 63, 81-97 (1956), observed that we have the ability to hold a small number of mentally constructed “chunks” in what is currently understood as working memory. Depending on the type of information, the chunk capacity for most people was originally thought to be around seven. The working memory's new information capacity is now estimated at three or four chunks, according to a recent reconsideration of Miller's classic paper by working memory expert Nelson Cowan.

While the limits of working memory have been acknowledged for over 55 years, the concept of chunking capacity has never been fully absorbed or integrated into our day-to-day practice and understanding of human communication. The garden hose paradigm is wrapped so tightly around our collective consciousness that we have effectively resisted the adoption of the research that condemns it. Convenient as it may seem to persist in our belief that there is a direct, unimpeded data link between sender and receiver, neuroscience teaches that the limits of the working memory sharply crimp our metaphorical hose. In order to align our own assumptions about communication with what researchers accept about the way human memory actually works, we will need to drop the old garden hose metaphor and pick a new metaphor, like the one that follows.

New Metaphor

We know that we have a potentially unlimited amount of new information ' an entire pot of coffee ' that we could expose to someone's sensory memory. We want the new information to be retained in long-term memory ' a coffee cup. Now, set the cup down and place a donut on top, like a lid.

To get into the long-term memory, fresh data ' the coffee ' must pass through the working memory ' the donut. The working memory is so constrained in its capacity to process new information that it limits the flow of fresh data to that which can pass through only a relatively narrow passage ' the donut hole. This extremely small portal through the working memory constitutes the most formidable challenge we face as trial attorneys.

This new metaphor visually explains why judges may only be experiencing fragmented strategic learning at the conclusion of cases where we do not believe our client's case was adequately understood. If we present the working memory with more new information than it can handle, the coffee splashes on the donut, rather than passing through the hole, overloading working memory. Consequently, only some information will be successfully processed and integrated into long-term memory; only dribs and drabs of our entire case presentation. What a colossal waste!

Lesson Learned

In order for our judges to grasp the new information we present at case management and settlement conferences, in motion practice and at trial, they will never end up where we need them to be without our helping that information to pass through the donut hole properly. Studies measuring retention ' the ability of target audiences simply to recall presented information, and transfer ' the ability to apply the new information creatively ' have provided us with research-based evidence to support the saying, “Less is more.” The less we overload the working memory with extraneous information, the more learning improves.

Strategic Tip

Although working memory has only limited capacity to handle new information upon its arrival, it also has the unlimited capacity to pull in existing information from long-term memory. This important factor leads to the essential role that story structure plays in optimizing case presentation.

Returning to the research of scientists like Miller and Cowan, working memory has been tested by presenting subjects with an array of random numbers, such as “4975702395.” The capacity of each subject's working memory is then calibrated in terms of the number of individual chunks of information a given subject can recall. Absent any kind of collateral association, this capacity is disappointingly limited. Thankfully, most people can remember more of the same set of numbers when working memory pulls a previously known structure, or schema, from long-term memory. This organizes the new information into meaningful chunks that hold the same information in a more memorable way, such as “497-570-2395,” similar to the structure of a telephone number. “Chunks” are therefore defined by the subjects, as they apply a meaningful structure from their long-term memories to new information.

Based upon this theory, it is foolish to assume that we can present our cases any way we please, and just assume our judges will understand case facts the way we would like them to. Within the context of the poorly-formed garden hose metaphor, our trial presentation exists in a vacuum, independent of the judge who is trying the case. The lawyer whips out the hose and lets it rip, illogically assuming that the judges' minds are passive receptacles.

Researchers have long known, however, that the mind is not a passive vessel in the process of learning, but rather an active participant. The minds of our judges are left to create understanding from new information they process in working memory. We are then presented with the opportunity to play an important role in helping our judges create strategically advantageous understandings by designing our trial presentations in specific ways that focus the attention of working memory on the most important visual and verbal information.

Structure the Information

To succeed in the goals of client advocacy, we must always ensure that there is an accessible structure to tie the entire collection of relevant proofs, argument and testimony into a coherent whole. Conscious effort must, therefore, be made to introduce a familiar framework that the judge already has in long-term memory to guide working memory toward making the desired sense of the new information. A “story structure” with a beginning, middle, and an end provides such a framework.

In the next installment of this article, we will discuss the application of the classical elements of storytelling, first recorded by the Greek philosopher Aristotle over 2,400 years ago, to the successful and strategic presentation of case facts at trial.

Curtis J. Romanowski, a member of this newsletter's Board of Editors, is the founder of Romanowski Law Offices, Brielle and Metuchen, NJ.