Theatrical Litigation – How to Win a Tough Texas Case By Being Interesting
This may sound counterintuitive, but I believe that a Texas law firm is more likely to win a given case if the presentation is more interesting and theatrical. I say this with an extensive background in litigation and have battled some of the largest law firms in the United States. I’ll add to the list some marvelous boutique law firms, as well. The point here is that beautifully educated Texas attorneys who are experienced in their area will typically raise the same claims and defenses and develop facts accordingly. Assuming the Texas litigators are equally matched, and the odds are close to 50-50 in a given case, the use of dramatics in the presentation can often make the difference between losing or winning.
A ubiquitous example, of course, was the trial of O.J. Simpson where the defense attorney, Johnnie Cochran, brilliantly stated, “if the glove doesn’t fit, you must acquit”. I don’t remember much about that trial but will never forget the image of O.J. Simpson futilely attempting to put on gloves that did not fit. The defense won the case at that point.
When it comes to a typical Texas commercial law case when lawyers are battling over the arcane language of a Texas contract or the extension of intellectual property principles, the subject matter may seem interesting to practitioners, but it is deadly boring to a jury. It is in these situations that any use of theatrics is a huge benefit. Consequently, in our litigation preparation for any case, particularly in front of a Texas jury, we do discuss how to make the presentation more interesting as a story complete with high-tech and low-tech illustrations. Both work. I want my litigators to be excited about the case and use as many metaphors as possible to get the point across.
I do point out in my biography that before I attended law school, I was a playwright and producer-director in New York at the off-Broadway level. I have an extensive background in theater arts. I would even add that as recently as 2010 before I started the Moster Law Firm after selling my interest in a prior firm which was started in 1996 in Austin, I served as a producing director of a multimillion-dollar theater. I am thus a trained director and have a sense of what is necessary to present a compelling story.
The ability to bring these theatrical skills to the fore is a critical asset when the odds are close in the case or even if there is a differential of a substantial amount. You can win over a stray Texas juror or work your way towards a Texas unanimous verdict. What makes this easier is that most Texas lawyers are incredibly boring and live in the universe of monotone delivery. This makes it even easier to put on an interesting presentation that can potentially take your client over the edge to victory. Ask OJ about that one.
I make these observations not to minimize the necessity of excellent preparation and skill. However, if you’re counting on an adversary who will put on an interesting story, you are betting on the wrong horse. When interviewing a potential litigation attorney, watch their body language and see if they are animated and interesting. That might give you the winning edge in Texas litigation.
