In this week’s episode of “Bull,” Dr. Bull and team are representing Trent Bolton, a retired FBI-agent-turned-bounty-hunter whose first gig goes wildly off the rails: He finds his mark, threatens him with a gun, knocks him unconscious, zip-ties his hands and tosses him into his trunk for a secure delivery to the bail bondsman. Unfortunately, the guy in the trunk—Michael Cole—isn’t the actual target. Oops.

Dr. Jason Bull sitting at counsel table with his client.

Upon learning of his mistake, Bolton takes the unconscious Cole to the ER and slips out the door.

Bolton gets caught and faces up to 30 years in prison for a litany of criminal charges. Of course, Dr. Bull thinks he can persuade the prosecutor to cut a deal, but this time, he’s up against a hungry, albeit brand new, ADA who feels her case is on solid ground.

This week’s episode (“Bounty”) provided a special treat: Most scenes take place inside the courtroom (Yay!). And the producers gifted us with a story line that left Bull feeling something he doesn’t usually feel: discomfort and insecurity. “I hate this feeling of going to court every day and not getting anywhere,” he said. “I feel like I’m being schooled by that—child. How old do you think that ADA is? 11?”

I usually focus on Dr. Bull’s role as a jury consultant, but this week I want to focus on Helen Conway, the young-but-tough ADA who held her own against the blustery Bull.

Never Let Them See You Sweat

ADA Conway may be young and inexperienced, but she’s no wallflower. Bull approaches her early on to encourage a “hypothetical” plea deal (which by the way, since Dr. Bull is not a licensed attorney, I would not expect him to be having that type of conversation with the government). He touts experience, the unpredictability of juries, and suggests that a civil courtroom would be the more appropriate venue for righting the wrongs against the victim.

For all we know, the ADA was secretly shaking in her boots during this conversation, but she presented as a poised, confident woman who not only knew the law, but was more than comfortable challenging a man who was likely 15-plus years her senior. She stood up to Bull’s attempts to (kindly) bully her into doing what he wanted. And if she was shaking in her boots, she never let it show.

Takeaway: Youth can be both a blessing and a curse in the world of litigation, especially when it comes to settlement or plea negotiations. If you’re a newly licensed attorney, or just getting your feet wet in the courtroom, stand your ground if you truly feel the ground is worth standing on. If opposing counsel has a few years under their belt, or insinuates that you’re making bad choices, don’t automatically give them space inside your head. Step back. Regroup. If possible, treat the discussion as you would a media request and buy yourself a little time to respond. Consult with your peers. Seek out someone with more experience and ask for their feedback. Then reevaluate your position. Is the ground as firm as you initially thought, or are you heading toward quicksand?

Choose a Theme that Works for You and Against Them

ADA Conway pays careful attention to the questions Benny Colón, lead defense attorney, asks during jury selection and concludes that the defense wants to sell a story that, in certain circumstances, it’s okay to use any means necessary to get the job done. And sometimes, mistakes happen. In fact, she passes Dr. Bull in the hallway during a break and says, “Frontier Pragmatists? Huh…” and keeps on walking. Needless to say, Bull is a tad freaked out because he was just talking about pragmatism with Benny before voir dire. How on earth does this young newbie attorney know his jury selection strategy? And it gets better. She presents an opening statement designed to undermine the persuasive power of Bull’s expected “mistakes happen” defense.

In the right case, we jury consultants often encourage our clients to remind jurors that they don’t have to check their common sense at the door. And that’s just what the ADA did:

“We can’t permit whatever excuses and explanations are offered up to cloud our thinking. To distract us from what our common sense tells us is unmistakably true. We should be able to live our life without fear that strangers will attack us, knock us unconscious and hold us against our will. It’s just common sense. I’m going to present evidence, but I don’t really need to because the defendant has already made admissions. The defense will tell you that sometimes it’s OK to strike a stranger, knock him unconscious and throw them in the trunk of a car. They want you to ignore your common sense. Don’t let them.”

Takeaway: Not only did the ADA emphasize the importance of common sense, but she wove in elements of morality, social norms and expectations of personal safety. All persuasive elements within a trial story. In addition, she likely minimized the points she expected defense counsel to make by sharing that the defendant had already admitted to the acts, and that those acts—whether a mistake or not—fail to meet our expectations of safety. Hello, reptile theory.

A word of caution: When crafting your opening statement, avoid making any promises or inferences that you may not be able to deliver. If in doubt, don’t. It’s horrifically awkward to sit at counsel table while the other side points out all of your broken promises during closing argument, and juries rarely award points for failing to do what you said you’d do.

Be Strategic with Sequence

I am often asked to review draft witness outlines to help counsel maximize the impact of key evidentiary issues, and to help fill in gaps that may need additional context in order for jurors to appreciate the point counsel hopes to make. Often, there is so much focus on the content that sequence is completely overlooked. Many times, the order in which you present the content is every bit as important as, and often more persuasive than, the actual content.

During the ADA’s questioning of the victim, Michael Cole, she paints a picture for the jury. The witness walks the jurors through the night he was attacked and tossed in a trunk, how he feared for his life, and how he has been struggling with the psychological demons that now haunt his days. She is developing a narrative that enables jurors to put themselves in his shoes and feel what he experienced.

The witness mentions that he had asked for a month leave of absence from work to try to sort things out. Only then does she ask what he does for a living, because she appreciates how powerful the answer will be. Knowing the jurors all reside within New York City, what’s the one profession jurors would immediately and universally admire and respect? If you guessed firefighter, you nailed it. In her final question, she asks: “And what do you do for a living, sir?” Talk about a punch to the gut for the defense.

Starting the line of questioning with Mr. Cole’s occupation would still have covered the evidentiary bases, but I doubt the impact would have been as powerful. Ending with such a simple question not only enabled the ADA to cultivate a connection between the jurors and the witness, but knowing how New Yorkers felt about the FDNY, she was also confident that it would be a memorable denouement to the testimony.

Takeaway: Content always matters, and evidence is king. But the sequence of how you present that content should not be overlooked. Good evidence can become even more powerful if the messaging flows, fosters a connection with jurors, and occasionally jolts the listeners with an unexpected surprise or two. Unpredictable moments are sometimes the ones jurors remember most.

A Fluffle of Rabbits

Despite the ADA’s masterful performance, Bull turned things around and saved the day for his client, because of course he did. He didn’t just pull a rabbit out of his hat; he pulled a fluffle of rabbits out of his hat.

Turns out, the sympathetic firefighter who was tossed in the trunk was also an MMA fighter trained to take (and avoid) a punch; he was an MMA buddy of the bounty hunter’s true target; the bail bondsman was paid millions by the target to orchestrate a fake tip so he could sneak out of the country (on a dead guy’s passport, no less); and the firefighter had a $250,000 deposit to his bank account the day before his so-called “abduction.” In summary, the bounty hunter was intentionally set up to fail.

Ultimately, Bull convinces the ADA to drop all charges and encourages her to file criminal charges against the bondsman and the fireman, suggesting they might provide info on the bail-skipper in exchange for a plea. Which, Bull implies, could result in a highly coveted conviction of a serial criminal and catapult her career. 

ADA Helen Conway didn’t prevail in the courtroom this time around, but, predictably, justice did.

 

This article was originally published by Texas Lawyer on April 17, 2019. Reprinted with permission. © 2019 ALM Media Properties, LLC. All rights reserved.

 

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