When putting a case together for trial the most important thing is to have a clear, objective view of the strength of the evidence. To help me stay objective I follow a ranking system. The system ranks the evidence based on source and strength as follows:
Stipulated facts are the strongest kind of evidence. The parties agree that these facts are true and the jury must accept them as true (or may in a criminal case). Any inference that you draw from these facts will rest on an unmovable foundation. Any trial story that contradicts a stipulated fact is bound to fail.
Undisputed facts are the next best thing to stipulated facts. These are the kind of facts that while the parties may not agree to stipulate to them, the evidence makes clear that they are not subject to challenge. Maybe all the witnesses agree that the events happened at a certain time. Maybe there is a video showing a part of the events that gave rise to the lawsuit. Whatever the case may be, undisputed facts are a strong foundation of a winning trial story. Build your trial story on the stipulated and undisputed facts and your audience will follow.
Talk is cheap, physical evidence is king. Jurors love physical evidence. DNA, video, fingerprints,etc is all a hundred times more persuasive than the most persuasive speaker. If you have the physical evidence in your favor make sure to make it a central part of your trial story. If the physical evidence is against you make sure to create a story that adequately explains or spins the physical evidence in your favor.
Facts Consistent With Human Truth
Most facts in a lawsuit are not undisputed or stipulated to, and most of the time the events are not caught on tape. The great majority of trials are made up of facts that can be disputed one way or the other. But which are the strongest facts in the sea of disputed facts? The strongest facts among disputed facts are those that are consistent with people’s expectations. For example if someone was shot it would be expected that he or she would be in pain. The fact that the person was in pain due the gunshot may not be stipulated to or undisputed, but you better believe that most people are willing to believe that that’s the truth. This is because human experience tells us that if you have been shot you are likely to be in pain.
A trial story that accepts facts consistent with human truth will be more likely to succeed than a trial story that disputes them.
Facts Contrary To Human Truth
The weakest kind of evidence is that which is inconsistent with human reality. In every case you’ll have some of these. The Plaintiff may say that he was under terrible pain after the accident but did not call the ambulance, did not tell the police he was in pain, and went on his way to work at the steel mill. Is it possible that the Plaintiff is telling the truth? Sure. Is his reaction consistent with what the great majority of people would have done if he was in fact in pain? Absolutely not. A story that has as its foundation facts that are not consistent with human truth is not likely to succeed.