We are honored to offer Courtroom Storytelling, a new book from Trial Guides, now available in paperback and ebook (hardcover coming Jan. 2024). Here, Jim summarizes his illustrious career and draws from earlier works—including Winning with Stories—to create a polished series of lessons and exercises that help attorneys succeed in trial.
Through practical examples and proven techniques, Perdue guides readers through cases ranging from auto and trucking to product liability, nursing home, and medical malpractice. Perdue deconstructs his winning cases stories, taking his readers through each part of the trial. He shows how to deliver an effective case narrative that will touch the hearts—and stick in the minds—of your jurors.
Below is a short excerpt from Courtroom Storytelling. The content has been edited for space and continuity.
Almost forty years ago, I began writing and speaking on using the narrative as a holistic approach to trial advocacy and persuasion. In other words, all parts of a trial from voir dire, opening statement, and evidence presentation to closing argument were ornaments on our story tree. It was with extreme modesty that I accepted introductions to speaking events as the “Father of Modern Courtroom Storytelling.”
Case Study: Walker v. Conkle (Trucking/Wrongful Death)
Trucking companies normally carry what is termed layers of coverage. Various insurance companies cover the companies at various levels. Often this can involve up to three different insurance carriers. There is a primary carrier whose liability limit may be relatively small or up to several million dollars. Above that, the secondary carrier’s coverage comes into play. It is only after the primary carrier’s coverage has been exhausted that the secondary carrier enters the picture for the purpose of paying a judgment or negotiating a settlement.
Often, when pretrial settlement negotiations occur, the secondary carriers do not have the in-depth understanding of the case and the potential liability presented by a trial on the merits.
That was the situation with this tragedy involving the loss of a young son. Mediation was unsuccessful, and we were ordered to trial. I have settled more cases for eight figures in trial or at mediation than I obtained by jury verdict in trial. Those were all situations involving competent and experienced defense counsel with carriers inclined to follow their lawyer’s advice.
In the Walker case, the defense attorney understood the exposure and the risk, but the secondary carriers were so blind they could not see the big picture. They refused to make any settlement offer during mediation.
After mediation efforts failed, the defense attorney made a novel proposal: he would have the claims manager for the excess carrier from out of state attend the opening statements. So, I found myself addressing a fourth audience. We always have three audiences—our jury, our trial judge, and whatever appellate judges may hear the appeal. But in order to do justice for this family, my charge was to convince a fourth audience—the claims manager for an international insurance company.
My defense-attorney friend told me the carrier’s hang-up was that they didn’t see value in the case because of the son’s personal and medical history, and what they perceived were weak liability facts.
Identify the Flaws in Your Case
At the time of his death, Eric was twenty years old. He had lived apart from his parents for a time. He developed some major medical problems that resulted in his being hospitalized for several weeks. Some of his treating physicians were of the opinion that the symptoms were consistent with the early onset of multiple sclerosis. Upon his discharge from the hospital, Eric returned to his parents’ home. He graduated from high school but was never gainfully employed before his fatal accident.
Eric Walker was driving one of the cars involved in a major multi-vehicle accident that happened on the east side of Houston three years earlier. The five-vehicle collision occurred in the westbound lanes of Interstate 10. The Texas Department of Highways had initiated a program for major improvements along the I-10 East Freeway. Those of us who live in this fastest-growing city in the nation know our freeways will never be completed. Construction on them is never-ending. Even today, Houstonians do not consider our hometown as any other than “a city still being built.”
The state hired a construction company to widen I-10 and improve the exit ramps. Eric Walker’s fatal accident occurred in an area where a construction company had undertaken this work.
The city of Baytown is approximately thirty-five miles east of downtown Houston. Between Baytown and Beaumont, Interstate 10 is relatively flat with few elevated overpasses. The area between Baytown and Houston, being more populated, has more exits and more elevated overpasses.
The accident occurred west of the Sheldon Road overpass when a truck, owned and operated by Poole Truck Lines, rear-ended a Datsun pickup and then crashed into the side of Eric Walker’s car. Another car received minor damage.
Identify Your Weaknesses
The defense trucking company contended that their driver could not see the traffic just over the crest of the Sheldon Road exit that had backed up due to the construction activity along the freeway. For reasons that were never completely clear, the investigating officer issued no traffic citations following the accident.
After Eric’s car was struck, it caught on fire, trapping him inside. Passers-by rescued him, but only after he had been severely burned. The Life Flight helicopter transported Eric to the John Sealy Burn Center in Galveston. Despite the doctors’ heroic efforts, he died eight days later.
The plaintiffs, Eric’s parents, faced more than the usual problems in a wrongful death action involving the loss of an adult child. We had only one true eyewitness to the collision, and her version conflicted with some of the findings the investigating officer made. In other ways, however, her testimony was completely consistent with physical facts and photographs taken of the scene. The defense contended their driver had acted prudently and that if anybody was at fault, it was the construction company.
We institutionalized the corporate negligence by emphasizing the corporate conduct, encouraging speeding by the way they structured wages, over that of the driver.
Prepare to Inoculate against the Flaws
We told the story in the present tense, after setting the scene. We noted that others faced the same traffic conditions that the defense wanted to claim were responsible for the wreck without incidence. We used optics (photographs) and vivid words that appealed to all the senses to describe the wreck, along with the reptile appeal to stress the importance of holding those guilty of corporate policy and vehicular malfeasance accountable.
The primary challenge was to convince the defendant’s secondary carrier of its significant exposure for damages in excess of the primary coverage, even though the plaintiffs’ deceased son had a serious underlying medical condition. The corporate defendant could also fairly contend that the son and the parents were not close since he had left home and had lived apart from his parents while he was in high school. The opening statement would have to inoculate against these defense arguments.
We believed a major component of our recovery would be the conscious pain and suffering Eric experienced before his death. While he survived for only eight days, the evidence of his injuries was graphic. We held back from the jury the gruesome photographs showing the nature and extent of Eric’s burns taken at the burn institute. We chose to stress in opening statement the hours of torment that Eric knew before his death. Juries understand the unique agony that burn victims experience. Some of the largest personal injury verdicts in Texas have been burn cases.
Build a Closing Statement
The following steps outline how I recommend building your closing argument throughout your case.
- Begin preparing your closing argument when you are conducting discovery.
- Use the results of your focus group in jury selection. A carefully researched and concisely worded written juror questionnaire can give unique insight and assistance in jury selection.
- Maintain a list of all defenses presented during every stage of the trial—a defendant who chooses to defend on several alternative defenses loses credibility as you destroy each of their alternative theories. Never refer to the defense contentions as defenses; they are excuses. Prepare an excuse chart for closing argument.
- Use demonstrative evidence where you can but respect the sensitivities of your client when demonstrating their injuries.
- In rebuttal, do not offer a recitation of facts and evidence—tell a story.
- Use all the persuasive and rhetorical techniques of storytelling in your closing argument.
- Incorporate a case theme (the essence of what the case is about) and an empowerment theme (why the verdict is important to the jury).
- Never refer to special damages as economic damages.
- Challenge the defense on your well-proven special damages.
- In cases involving catastrophic injuries, use the two-futures argument—compare what the plaintiff’s life would have been without the defendant’s negligence and what it will be like now.
- Preempt any idea that you are appealing to sympathy.
- Conclude by emphasizing that only the jury has the power to right the injustice.
A High-Low Offer Is Rejected
The defense’s first move was to offer a high-low proposal. These have become fairly common in recent years. (High-low agreements work this way: If the plaintiff loses the case and would normally recover nothing, the defendant is still obligated to pay the “low.” On the other side, if the jury returns a favorable verdict and awards damages greater than the “high,” the plaintiff is obligated to settle for the “high” regardless of the amount of damages the jury found. If the jury finds damages higher than the low but less than the high, plaintiffs recover that amount.)
Defendants try to sell these proposals on the ground the plaintiff can’t lose. But when the prospects for a favorable, substantial verdict are good, the plaintiff loses the opportunity to recover the full amount awarded by the jury.
In Walker, the low would have covered our expenses, and the client would have recovered little. The proposed high capped a case at a figure that was about 30 percent of what I believed the ultimate damages award would be.
We turned down that proposal.
Further negotiations that evening resulted in a settlement in the mid- to low-range seven figures.
The other backstage development involved the Walkers. In a not-uncommon development in cases involving catastrophic injuries or death, following the conclusion of the case, the Walkers divorced after twenty-five years of marriage. The loss of their son became the insurmountable wall of torment that separated one of the finest couples I ever knew.
Because my goal [for the Walker case] was to startle the defendants’ carriers into serious settlement negotiations, you will find more advocacy and emotion then I would normally bring to my opening narrative. If it were not for those considerations, I would not have used the [graphic] photos of Eric in my opening. That kind of graphic optics in the usual context would be best left for the evidence stage of the trial. Even then, while I might (using Dr. Herndon) have them qualified, marked, and admitted into evidence, I might not publish them to the jury. Then during closing argument, I would ask the jury not to look at them until after they had determined the defendant’s liability. In this manner I avoid the tendency to overplay, and thus lose, the emotional impact of one of my strongest pieces of tangible evidence.
I would not have developed the emotional component of the parents’ grief and mental anguish, instead reserving that for rebuttal. Also, I would not have spent as much time as I did on what I anticipated by way of witnesses and their testimony. In the usual environment, your opening should be constructed in a way that gives the jury a clear picture of what the case is about. As Joe Friday on Dragnet would say, “Just the facts, ma’am.” But for the most part, I do tell the story of the case, not the story for the trial.