Taking a jury back 50 years in time
Every trial lawyer has their own way of going about preparing for opening. Sometimes methods shift depending on the case. This is one that has been nothing but shifts.
Marvel at the thought of preparing opening way way way in advance. Of practicing it aloud. Timing it. Perfecting it. That is not remotely possible when key evidence rulings still hang in the balance. Or when your brain works the way mine does. Knitting things together in its own mysterious way.
Well – you should have a theme says every trial consultant ever. And indeed we should. But does that mean we disregard how voir dire went. That we stick with a plan that may not be resonating – or isn’t the main thing on everyone’s mind.
And thus we enter the flip flop phase of trial life at least for this trial lawyer. Because number one focus is on presenting a message that will make sense. And following voir dire, the thing that most people are concerned about isn’t the childhood sexual abuse in all its awfulness. No. They’ve been told it happened. It is a fact. That the case is about whether DSHS is negligent – not whether the foster parent’s abuse occurred. The thing that is the most amazing to all of the jurors – is how old this case is: “How can we sit in judgment on a situation where we weren’t even born yet.”
We need to show the jury that what happened 50 years ago was so basically and fundamentally wrong – that time makes no difference in the outcome. It was wrong then. It is wrong now. So we build a time capsule over the weekend. I go to Value Village. Mo goes to Goodwill and hits up his friends who are “collectors.”
Monday set up two camping tables and a wooden captains chair on the “stage.” A box full of collectibles placed on the floor next to them.
All the pieces are placed in a box. Am going to build the scene as part of opening.
Judge takes his seat. Jurors enter. Judge instructs. Turns the floor over. The jury watches.
Take off jacket. Pull the paisley dress on over top and slacks. Careful not to dislodge the glittering dangly earrings. Mom’s jade piece that she used as a magical pendulum around my neck. Set up the typewriter. Can’t figure how to get it out of its steel box. So leave it in. Prop giant wall mount telephone at an angle on a big file of old high school papers so the receiver will stay in place. Stapler. Staple puller. Rotary pencil sharpener. Place placard that reads “Ms. Smith - DSHS” on the desk. Narrating the whole time as the stage is set: Jimmy Carter is president. Bruce now Caitlyn Jenner just won the men’s decathlon gold medal in the summer Olympics. The Vietnam war has ended. Jaws is a box office success. Microsoft filed its corporate papers in New Mexico.
The rest flows out of me like lava. As I dial the phone and have one way conversations. Type memos to the file – rat a tap tap tap. Read from Manual G which is in an orange folder that dad had kept my gradeschool papers in.
After the verdict , the first questions the jurors ask - did you used to be a professional actor.
Photo: by Mo of me right after opening