Clarity Over Complexity At Trial (Podcast)

In this episode of "The Trial Lawyer's Handbook," litigation attorney Dan Small explains why simplifying a complex case is essential to persuading a jury. Recalling the federal prosecution of U.S. budget director Bert Lance, Mr. Small describes how large investigations can produce lengthy indictments that confuse rather than convince, and emphasizes that focusing on clear, provable charges can strengthen a case. He outlines the risks of overcomplication and the importance of telling a straightforward story that a juror can follow.

Listen to more episodes of The Trial Lawyer's Handbook here.

Mr. Small is also the author of the American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.

Podcast Transcript

Daniel Small: As trial lawyers, we believe in our cases and we immerse ourselves in the documents and the details. As it should be. The bigger or higher profile the case, the more time and effort we spend diving into it. As the size and profile of the case increases, so does the size of the trial team. This can result in a massive, detailed, carefully organized civil complaint or criminal indictment.

And therein lies the problem. The more material we throw in, believing it's all important, the more likely we are to generate confusion, not outrage. There are various versions of the old saying, "When everything is important, nothing is important." Juror #6 needs to be convinced by as clear and simple a story as possible, not overwhelmed by a tidal wave of complexity. What I call the "task force phenomenon" often means too many people adding and no one subtracting.

In every case, there comes a time when you have to go through the painful process of going at your masterpiece with a meat axe to reduce it to its persuasive essence. But who wants to be the one to cut out that one critical piece of evidence? If things go badly, a minor detail viewed in hindsight can be seen as the missing smoking gun. How could you have taken that out? Worse still, who wants to be the cheap shot artist? The lawyer who ignores the "important issues," so called, to just pick the low-hanging fruit and collect a quick stat. But when I hear a trial lawyer brag about winning every case, I always wonder, does that mean they're exceptionally good, exceptionally lucky or exceptionally afraid to bring tough cases?

The need to simplify your case to tell a story that Juror #6 will understand, does not mean cutting the heart out of your case. It means figuring out how to cut to the heart of your case. I was fortunate to learn those lessons in the first months of my career, in the prosecution of U.S. budget director Bert Lance that we've been discussing in some prior episodes. I wasn't involved in the case until well after the indictment, so I don't mean to be critical of the great team that put it together. The investigation was a complex one. The government team worked for months gathering facts and documents. At some point, in this and almost any investigation, you come to a fork in the road: Do you choose the big picture or focus on specific criminal actions? In that kind of task force environment, everyone convinces each other that everything is important, and no one wants to be the one to hoist the meat axe and start hacking.

The result, not surprisingly, was a lengthy, complicated, 12-count, 50-page bank fraud indictment brought in Lance's hometown of Atlanta. There were a few kernels of simplicity. For example, there were some clearly false statements to a bank in Chicago that could have been charged as felonies in Chicago separately, away from the complexity and away from home cooking. Whether or not that was ever considered, it didn't happen, and the decision was made and approved up the line to bring the complex case in Atlanta.

The defense, of course, took full advantage of that complexity. They chipped away at the indictment and pretrial motions. And at trial, they framed it as a battle between bureaucrats with their overly technical regulations and their "country banker" client and his deserving customers. The simple false statements got buried in the complexity. All of which paved the way for their "country banker" to take the stand in his own defense and introduce Spot the cow.

Bert Lance took the stand and was at his friendly, folksy best. He said he became a banker to help people. His daddy had taught him that character was more important than collateral, pride was more than paperwork, and that's how he had always done it. He would always remember one of his first loans to an elderly local farm woman, Ethel, to buy a cow. Ethel fell behind on her monthly payments on the cow, and one day, when Lance was at his desk at the bank, Ethel walked into the bank pulling the cow behind her.

"Ethel?" Lance asked. "What in the heck are you doing?"

"Mr. Lance," she replied, "I don't have the money for this month's loan payment, so I brought you Spot the cow."

Lance thought about it carefully, he testified, and said: "Ethel, you take Spot home. You need that cow for milk. I believe in you, and I know you'll pay the loan back when you can."

And sure enough, Ethel did.

How do you fight Spot the cow with a 50-something-page legalese indictment? We tried valiantly, but it wasn't enough. After a lengthy deliberation, the jury acquitted Lance on nine of the 12 counts and remained hung on the others. One of the counts they were divided on: false statements to a Chicago bank. To this day, I remain convinced that if the government team had chosen the other fork in the road, a simple false statement case in Chicago, Lance would have been a convicted felon.

It's not about missing key pieces or gutting key parts of your case, it's about simplifying. Paring a case down to its essence. Telling a story that's simple enough that Juror #6 can understand it and care about it. Believe in your case, certainly, but don't let that belief interfere with crafting an argument that is simple yet powerful enough to persuade Juror #6. He or she will appreciate your having done so, and you're far more likely to appreciate the result.

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