August 2015 Bar Bulletin
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August 2015 Bar Bulletin

Screenwriting and Trial Strategy: Common Principles and Practices

By Thomas M. O'Toole


The prosecutor lays out the simple facts. The jurors do not even bother with poker faces. It's a small town that believes in swift justice. These men were guilty before they even allegedly commit the crime. The judge seems to agree.

Vinny Gambini nervously stands for his opening statement. He's in over his head. His clients are most likely going to jail. He decides to cut to the chase and tell the jurors the unbridled truth about what they just heard. "Uh ... everything that guy just said is bullsh*t. Thank you."

This is an incredibly well-written line. In 10 words, the audience learns a lot about Vinny Gambini and, frankly, I am not sure I have seen 10 words that better encapsulate the fundamental and most important message of any defense opening statement.

This is the core principle of screenwriting, where an audience's attention span is limited. Writers are forced to find a way to say the most using the fewest words. According to industry research, the average camera shot in an American movie is 2.5 seconds, down from 12 seconds back in 1930.1 While that just refers to camera shots and not scenes, it still highlights the need to keep things moving.

I consider this a fantastic lesson in the economics of storytelling, not just for screenwriting, but also for storytelling within a litigation context where lawyers regularly bump up against both implicit and explicit time limitations. Whether it is a limitation on pages in a brief, time for opening statement or the simple reality that even when time limitations are not explicit and mandated they are still present in the form of the judge's or jurors' attention spans, attorneys often have limited space to accomplish their task.

I have been fortunate in recent years to have a side job as a writer for a late-night comedy show that airs mostly in the Midwest. During that same time period, my co-writers and I have been asked to submit television pilots to some of the national networks. While I have yet to achieve any success that would lead me to quit my day job, my study of screenwriting has had a tremendous amount of influence on my jury consulting practice.

The purpose of this article, keeping with the theme of this month's Bar Bulletin, is to highlight key lessons from screenwriting that might help attorneys with their litigation story development.

Robert McKee is the go-to authority on screenwriting. He is well respected and has published extensively. In his book Story, McKee introduces his concept of the "Controlling Idea." Here is what he has to say about it:

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