Constantine Stanislavski refers to “The Magic of If” in his classic book “An Actor Prepares. Here Stanislavski instructs acting students to put themself into the emotion of their part by imagining what it is like “if” they (are in the same situation their part places them in). Thus, if an actor is playing the part of a former soldier who has had his leg amputated Stanislavski teaches to imagine what it would be like to live life with a missing a leg. This allows a natural emotional spontaneity to emerge as the actor places himself into the action aspect of the part with his leg missing.
Recently, I came across an excellent article in the King County Bar Association Bar Bulletin: Daniel Dugan, The Turning Point (March 2015) at 14-15, where Duggan a Trial Consultant discusses his concept he terms “The Turning Point.” Duggan teaches “The Turning Point” is a story telling technique using “counterfactual thinking.” “Counterfactual thinking is a technique where you ask a person to describe the opposite of the situation they are in now.” Id. at 15.
A counterfactual question “elicits rich responses revealing motivation, emotion and a glimpse at a person’s view of fate or destiny.” Id. Duggan goes on to reason that counterfactual reasoning by jurors allows them to see our case from our client’s perspective.
To illustrate Duggan suggests we invite the jury to imagine how our client’s life would be if her injury had not occurred. “Well to understand this ladies and gentlemen you will hear from Katie’s [lay witness] who will tell you Katie’s life would be… .” This allows for two story lines-one life as a result of being injured, and the second one with a life cruising along without injury. “The gap between these two story lines will now appear huge and graphic.” Id.
And the jury goes from the typical mindset of does Katie deserve X amount of money to I get it X amount of money will get Katie’s life back on track. The jury’s verdict becomes the “tool that jurors use to make one life out of the two paths that lay before…[Katie] at the time of [her injury.]” Id. Although her injury forced Katie down her life changing path, the jurors can get Katie back on track because “they understand what it will take to do that.” Id.
Combining Stanislavski’s “if” with Duggan’s “counterfactual thinking” allows for our jurors to have a unique perspective and gives them the tool of the gap to fill in the difference between the two lives.