Persuasion Matters

Dr. Jason Bull and his team of trial consultants on CBS' Bull.

Black Widows and Hypotheticals Rule the Day

Dr. Jason Bull and his team of trial consultants on CBS' Bull.Well, Dr. Jason Bull has done it again. He’s managed to snag a high-dollar client without trying, solve a mystery mid-trial, maneuver the person on trial into pleading the Fifth Amendment, and have a romantic rendezvous with his married ex-wife, all within a single episode. This guy needs a nap.

This week’s episode, “Prior Bad Acts,” has a few sub-plots, which makes it kind of fun to watch, but harder to critique. For those who don’t (or won’t) watch the show, here’s a quick synopsis (WITH SPOILERS) before I address a few takeaways:

The legal story involves the death of a technology billionaire, James Weeks, who owns one of the biggest tech companies in the world. He’s the king of germaphobes and is rarely seen without his trusty hand sanitizer. Mr. Weeks has a little office sex with his girlfriend one evening, which causes a bit of chest pain. He takes a nitroglycerin pill and falls over dead within minutes.

The tech tycoon’s grieving brother hires Bull and his team (with a $1 million retainer, no less) to sue the doctor who prescribed the medication. Seems fairly plausible so far, right? Oh, wait. It’s Hollywood.

Within moments, the trial team manages to conduct a secondary autopsy during which the doctor determines the death was no accident. He was poisoned! How, you ask? With nitroglycerin hand ointment.

Fast forward a little more, and we watch a scene where the office-sex girlfriend, Carolyn Kelly, steps off the elevator into the heart of Bull’s Trial Analysis Corporation (TAC) office in her shiny outfit and haughty attitude. The entire team is waiting, along with pictures of Carolyn and prior husbands all over the big screen. Guess that million-dollar retainer helps with digging up dirt on people: Carolyn Kelly is a black widow. She has a history of (allegedly) killing her love interests for their estates, then changing her name, and moving on to the next target. James Weeks was victim #3, and losing him was – according to Carolyn – the “3rd worst day of her life.” Naturally, Dr. Bull serves the widow Kelly with a wrongful death lawsuit.

A trial ensues, people testify, Benny gets cross-haired with the judge, and with some orchestrated Q&A, Benny corners the black widow – who by the way, is a civil defendant on trial for wrongful death – to assert her 5thAmendment right not to testify. Not only does Team Bull practically get a murder confession out of a civil defendant, but with one simple phone call, Dr. Bull convinces the FBI to re-investigate the murders of her two prior husbands.

So, what are this week’s takeaways?

#1 Pretending to be a Practicing Attorney Is a No-No

I’m 99.999 percent sure everyone reading this article is well aware of this, but apparently Dr. Bull is not. Oh, let’s be honest: He knows, he just doesn’t care. During his initial meeting with the decedent’s brother, he is faced with having to chair the meeting without Benny – their one and only lawyer on staff (that we know of). Rather than being honest with the potential client, Bull introduces Chunk-the-Witness-Whisperer and Taylor-the-IT-hacker as attorneys he has “worked with quite a bit.” Um. Okay? Not only does this likely violate ABA and state bar ethical guidelines, but it has potential criminal implications, too. Fortunately, the only true “lawyering” we see is from Benny, who is actually licensed.

#2 Bull’s TAC Team Wears Many, Many, Many Hats

Dr. Bull and his staff are definitely on the short list of folks who do it all. And I mean, Do. It. All. His small team has skills that, collectively, are a powerhouse mash-up of private investigators, law enforcement, technology hackers, psychologists, medical experts, forensic investigators, accounting gurus, litigators, jury experts, and generally, protectors of the world. Who are these people?

I’m fairly certain that even with a $1 million retainer, most (dare I say, all) trial teams simply could not pull off the miracles that Bull’s team does week after week. And certainly not in the short time frame in which they seem to operate. Hollywood somehow avoids rules of procedure, long discovery periods, and scheduling conflicts.

#3 Using Hypotheticals to Make Your Point

During the trial, Benny Colon attempted to discredit the black widow’s testimony by using a “hypothetical.” I use quotes because his hypothetical was technically a testifying narrative with a few leading questions, but the use of a hypothetical during litigation is one worth discussing.

Hypothetical questions are most commonly used with opposing experts, and most are savvy enough to navigate the hypothetical without losing their shirts. However, occasionally, a witness who is not quite that savvy or is a lazy listener will commit to an answer that – when drilled down further – hurts his own position. Pick your battles though. There’s nothing worse than trying to create a “gotcha” moment that falls flat on its face.  (And yes, that goes for impeachments, too.)

During the Bull episode, Benny was using his “hypothetical” to teach the jury about the concept of shorting stocks, and to plant seeds that his witness did just that to profit off her boyfriend’s death. The challenge is coming up with an example that not only fits the evidence and makes sense to jurors, but also has little downside. If you’re considering using a hypothetical in trial, always play devil’s advocate and ask your peers to rip your own hypothetical to shreds during trial prep. If it survives the attack, then it’s probably a good one. But know that the most experienced witnesses will try to take your hypothetical reasoning and use it to promote their own adverse assertions.

Personally, my favorite use of hypotheticals occurs during the voir dire process. Many state courts will allow counsel some leeway on such questioning so long as the issue is not too close to the case issues and facts. Jurors enjoy the real-life scenarios (as opposed to boring legalese) and tend to participate more actively. And that’s a win-win because it’s impossible to know how your jurors feel if they’re just staring at you or counting the ceiling tiles.

As usual, “Bull” resembles no real-world law office or courtroom I’ve ever been in – and I’ve been in A LOT – but the sensationalized version of litigation nevertheless offers some lessons for regular trial practitioners. And a bit of sheer entertainment for those of us who crave something mindless for an hour.

 

This article was originally published by Texas Lawyer on February 7, 2019. Reprinted with permission. © 2019 ALM Media Properties, LLC. All rights reserved.

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