Trial attorney Brent A. Turman from Dallas firm Bell Nunnally & Martin, LLP joins the podcast to discuss the value and impact of storytelling in litigation. Brent has a fascinating background that has helped him develop his storytelling skills, which he applies to cases he works on. Brent worked on the “Fifty Shades of Grey” fan fiction royalties dispute case from a few years back and shares background on the case and how he and his team approached the case and structured their argument for trial based on the use of the classic 3 Act structure. He also talks about the importance of thinking about a theme for your case to help figure out what topics you are going to hit on during trial and how to be careful about talking down to jurors when bringing up complex issues.
Full Episode Transcript
[00:00] Steve Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences Inc. and we have an interesting show today. I think you’re going to really like it. It’s going to be a little bit of a deviation from what we’ve talked about before. We have with us, my guest is Brent Turman. Brent is an attorney out of Dallas. Brent, how are you?
[00:25] Brent Doing great. How you doing today?
[00:26] Steve Good, I’m good. And like I said, I’m excited to have you on and hear from you because you have a little bit different area of expertise that you practice in law. So why don’t you go ahead and talk to the audience about kind of what your background is in the legal field?
[00:39] Brent Perfect. So I’m a partner at the full-service firm of Bell Nunnally & Martin here in Dallas, Texas. And I am a trial attorney first and foremost, but I do have a different skill set because of my prior career. Because of that, I also practice entertainment law as well. So before I was an attorney, I was in freelance and then also film and television production. I had the best straight-out-undergrad job ever, hands down. I worked for ESPN ABC College Football going all across the country and then I produced content for a production company here in Dallas I helped own with some other guys and then also a just freelancing out in LA and had a blast. Luckily, I’m, fortunately, still able to do that. Some, it’s not for money necessarily, but I got a short film that just finished the festival circuit shortly before the pandemic ended. We had about 55 film festivals. It was a great excuse to travel and watch movies, right?
[1:30] Steve Yeah.
[1:31] Brent Also, um, I shoot regularly every probably every year so I’ll shoot something for Whataburger. And then also on top of that, um, I was a remote producer for the very, very brief relaunch of the XFL earlier this year or last year, I guess 2020, for Dallas for the Renegades.
[1:49] Steve Very cool. And you actually worked on the 50 Shades of Grey case, right? The case that was involving the dispute over royalties.
[1:58] Brent It was wild and actually you all helped us with it. Um, we were prepping for trial and were instrumental in helping us just have everything tied up and ready to go when it was time for trial. But yeah, if we got a couple minutes I can give you a background of the case, just kind of…
[2:11] Steve Yeah.
[2:14] Brent Perfect. Maybe helpful too for y’all know, just I’ll give you kind of the factual background. This is not the way I would have presented it at trial necessarily, but just you have context so you can kind of see what we did with it. Uh, so first our client, we had two clients, but the main one focus on here today was Jenny Pedroza. She’s a school teacher in Tarrant County, uh, one of the sweetest most genuine people I’ve ever met in my life, which is a pleasure to represent people like that when you have the opportunity to. And she, one of her hobbies was fan fiction. And some of you watching this may be smirking because you know what fan fiction is, but it’s where you take pre-existing body of work, Harry Potter or something like that, and you put them in a different situation. And again, you can look it up on your own time if you want to know what kind of situations those are in.
But Jenny and some other women across the world, this is their hobby and they talk online and she made friends and she spoke with one woman in particular, Amanda Hayward, who was located in Sydney Australia area. And they talked about starting up basically an online forum, an online library where people who love fan fiction can share their work. In addition to both Jenny and Amanda work together on work correctly called Mistakes, which is interesting looking forward, right? Um, so they did as well as another woman in Texas in Waxahachie, another woman in Australia. They were really the ones who put this together and so it started off as a hobby. They’re just sharing things for fun online.
Things really turn after awhile. It gets a lot more serious because they talk someone, Ms. Erika Leonard, who you may know as E.L. James, had a serial called Masters of the Universe and it was Twilight fan fiction. You had Edward and Bella and there was a chapter was released, you know, periodically and it’s something exciting. It’s exciting different ways, what happened at the end of every chapter, right?
[3:58] Steve Yeah.
[4:00] Brent So they talked E.L. James into allowing their informal company, The Writers Coffee Shop, to publish it. So they did. They said they’d never published books before, right? So they are doing the ebooks. This is big, it’s very big for this book for obvious reasons. A lot of people don’t want to be seen holding that book up.
[4:17] Steve Yeah.
[4:18] Brent And then also print on demand books, um, and that’s pretty cool where you just, you know, once someone orders it they print that book. You don’t have, you know, a big stockpile full of them. And so with that, they started getting more serious. They, um, she signed a contract, E.L. James did, with The Writers Coffee Shop. This was not a formal entity that all of them were part of. When they had a lot of sales in Texas in America, the two people who were here, Jenny and the other partner, uh, created an EIN for a partnership in Texas and they signed a lot of contracts with that. And there were discussions with Amanda Hayward about who was going to be part of this partnership. One of the partners was concerned it was going to add liability for her. What happens if fill in the blank? She was very concerned about that because she wasn’t wealthy at all. And so with that, they started to formalize it.
Um, Jenny was tasked with creating a formal partnership agreement and i think she went to LegalZoom or something like that. She signs it, the other woman from Texas signs it, and they send it to Amanda and she just kind of disappears. This is the time that 50 Shades has taken off. I mean at one point all three books were on the bestsellers list. And so with that, um, you know, Jenny follows up, “Hey have you signed it?” And Amanda doesn’t say “No we don’t have a partnership,” she says “I’ll get to it.” Soon after that she says “Girls we got big problems. E.L. James wants to sell the movie rights to the book,” which she had for the contract. But the reason that’s a big deal is I mean this was a very small business, right? I mean they, they had a storage unit in the back of Jenny’s house and poor Jenny’s mother, the sweetest woman, um, was taking shipments to UPS every day out in Tarrant County and just getting dirty looks from the people who work at UPS because they know what’s in those boxes.
[5:57] Steve Yeah.
[5:57] Brent Um, so so from there, “We got a big deal, let’s talk about it.” All the partners talk and they agreed to let E.L. James go but for a substantial sum of money that gets, you know, negotiated with the… she ends up going with Random House, massive publisher. So in March of 2012, and bear with me we’re getting there but I’m giving the context here and you’ll see why it’s how we framed it. March 2012 Amanda flies over, goes to New York to, you know, finalize paperwork around Random House and Jenny’s going to go in. And Amanda says “Look they’ve been talking to me, let me just deal with it I’ll get everything taken care of.” At that point Amanda had been the face of the company but she had admitted in board minutes, online, all kinds of things “We all do this together, I have co-founders with this.” Well instead of using the EIN for the American-based partnership when signing the contract, Amanda uses her Australian tax ID number which would be like your my social security number. So she’s basically saying “Look I’m a sole proprietor, this is mine, all the money comes to me.” And that’s exactly what happens.
Now after the fact she sets up a bunch of companies that she couldn’t even explain exactly what they do in deposition and she had Jenny as well as others sign a contract with the new entity that did not exist: TWCS Operations Proprietary Limited. And and Jenny’s like “Well this is weird but I trust Amanda.” They talked about it, Amanda said “Look this is all done for tax reasons, the lawyers and accountants are making me do it. I I don’t like this but they’re trying to help us protect our money.” That does that. And and Jenny sees one um thing in this contract that really she didn’t love and there was a termination clause that she could be terminated without cause. And this is one of the best pieces of evidence, I love this. She emailed Amanda, talked about it, and Amanda said “Look even if I had a massive falling out, I would never do that to you. I swear on my daughter’s lives.”
You better believe, we made hay out of that at trial because yet less than a year later she did terminate them. Almost there. So after this is all over Jenny just you know licks her wounds moves on and she um she was fired in the middle of the school year so she had a very hard time getting a job as a teacher because those spots have been filled already, right? And so she um does an article with a very small publication, Fort Worth Weekly, about what she’s doing now. She’s got a business where she’s making soap with someone else and the the author, the journalist, did his research and asked her a question about 50 Shades. She answers them honestly. It doesn’t really say anything derogatory, just like “You know, I made mistakes, I trusted people, let’s move on.” Well in Australia they get Fort Worth Weekly online, they can, they can find it. And uh Jenny Pedroza gets a demand letter, cease and desist letter saying “You better stop talking 50 Shades, don’t want to hear the name Amanda Hayward come out of your mouth in a story.” And she comes to our firm, we talk about it, and you know there’s no formal signed partnership agreement but we tried this case under the theory and under Texas of partnership by conduct. And there’s five factors. If you meet those, even if you don’t intend to be in a partnership, you can legally be in a partnership. So that’s really the background there. Um, and what do you want to talk about as far as trying the case?
[9:02] Steve Well I think I want to, I want to talk about your approach to it. Because you, when you and I talked about it, you kind of laid out the way you took more of a storytelling approach or using your entertainment background and your storytelling background to structure the case in a way that probably other attorneys wouldn’t do. So I I would like to have you talk a little bit more about how you structured that case in going forward with it.
[9:24] Brent Yeah perfect. So I tried this case with Mike Ferris and um for those of you around here and around Dallas for sure know him and he is, after we won this case he is a full-time author now and he was also an author while as an attorney. And there’s several things. First off, just before we even look at the structure, we want to make thing, we don’t want to overcomplicate things. We talked about filing the original petition in state court. We said “Look we got two ways to do this but we don’t want to overcomplicate it. We don’t need to put unnecessary legalese in there.” Mike and I want to make a straightforward petition that anyone without legal education could understand. So if a journalist went and saw it, he or she could read it, write about it, front page of paper. And that’s kind of the approach we had the whole time. We didn’t want to overcomplicate this.
And and so we’re both storytellers, Mike and I, so we want to do the three-act structure here which is so much fun. This is what you learn when you’re structuring things in film school or you’re writing a novel and you gotta have the three-act structure.
So first, Act One, ask the question. The question here is: What happens when these two people join forces? There’s an email… if you don’t mind for the for the viewers uh who watch this on video I’ll pull up just kind of the the three-act structural is that all right?
[10:31] Steve Yeah.
[10:32] Brent There we go. So you got the three acts right there. And we have, uh, of course every time we have something we want to cite to an exhibit, but they joined forces. They were going to start this venture together, uh, and that was the inciting incident. So the inciting incident, you know, something that jumps off the story. So in Jerry Maguire, that’s going to be him, you know, writing his mission statement and leaving the agency with the fishbowl intact and and Renée Zellweger going with them.
From there we’re going to look at Act Two, and that’s where the stakes rise. Here we have the complications. Um, and so from there it’s kind of the point of no return and it leads to the low point for the hero. This was the rise of the company. This is them going from nothing to having three best sellers on the New York Times list. Um, this was an amazing ascent and then it led to the the uh decision to let E.L. James go.
And then we had this phrase that between Act Two and Three—and it gets a little blurry here and you’ll see why once we tell you what we told the jury—we have March 7th through 9th 2012 and that’s the time when they were in New York. That’s the time where the contract was signed with Random House. And this was key because we gave them the structure so they could have a clear line. Because what we said, “Look if there was a partnership by conduct before the contract was signed, that’s it.” Jenny’s entitled to her share as a partner. It doesn’t matter what happened after that date. It doesn’t matter what anyone said after that date. It flat out doesn’t matter because everyone testified the partnership was not wound up. For obvious reasons, defendant Amanda Hayward is not going to testify they wrapped up a partnership that she’s denying ever existed.
Um, and so really there that’s the key. And then we went to Act Three, things spin out of control and then you have a resolution and answer the underlying question: What happens after these friends, you know, started to venture together?
And with that, what I love we did here was we left it off. So first we have um March 7th through 9th and then shortly after that Amanda Hayward um tells one of the marketing managers who’s going to talk to the Wall Street Journal, “The only thing you need not tell them is that Jenny and I are partners. It will mess things up for tax reasons.” So before that, no one ever mentioned this. And so we talked about, and I don’t know if it was closing or openings, said, “Now at that point when that happens, if this was a film, that’s where you hear the ominous music in the background, right? And the score.” Um, and with that we we had to pay off at the end where Amanda sets up these new companies, our client gets next to nothing and gets fired. Um, it’s it’s a sad story but we said “Here’s the good news ladies and gentlemen of the jury, you get to write the ending of this.”
I thought it made it just a fun way for them to look at it and in a way to empower them but also make it interesting. I mean a lot of trial can be mundane and boring especially when jurors are used to seeing CSI and legal drama and all these fireworks and things wrapping up within you know what 48 minutes of content in an hour with commercials. I mean that’s what they’re used to. So so we thought that was a very compelling way to do it. We had a couple of things that were great. We had some memorable moments which you always want. For example if i if you watched the original movie Fargo, when i hear the word Fargo in the context of the film i think of one scene uh with the wood chipper.
[13:46] Steve Absolutely, yeah exactly right.
[13:48] Brent So we had some things like that. We had the “I swear on my daughter’s life.” Um, we, uh, I had actually that that line came up in deposition and the court reporter, we heard her gasp on the record on the videotape depo with other ones as well. Um, and talking about characters real quick, um, it’s very important to have a protagonist and have them be likable or at least less unlikable on the other side. But a very important character in every story is going to be the antagonist. Um, and we definitely had one that fit the bill here. And I can talk about other things as well, but really the overall the three-act structure is what we went with. And we, um, I can show you each one, we don’t go through the points, but we had all these bullet points. And it’s great when you show this in closing argument because you know some of these jurors will be writing down “Okay that day look at Exhibit 18, that date look at Exhibit 14,” trying to give them ammunition um when they went to the jury room since they probably wouldn’t remember it.
[14:44] Steve And I think the way we, the way you did that is great. When you think about it from a jury psychology perspective, we see so often that jurors when we do you know mock trials or we talk to them in post-trial interviews and stuff that when they don’t get all the information or when they don’t get it in a straightforward way, they want to formulate narratives. They want to create stories. When they don’t get that, they start filling in gaps with information that may or may not be true. They start you know… I don’t know how many times I’ve heard where jurors will try to chase down theories that don’t exist because they have these wild theories about what happened because they didn’t have the information and it wasn’t put together in a cohesive narrative.
So I think it’s great the way that you did that because like you said, jurors want to have stories told them. That’s why we read books, why we watch movies and stuff like that, right? Those ones that win awards and win Oscars is because they have a really good story draws readers in, draws viewers in and allows them to stay with the characters, feel for the characters and stuff like that. And I think that the way you did it was great how you brought that entertainment, the storytelling perspective, brought it more into the courtroom. And I know a lot of times attorneys talk about doing it but I don’t know how well they really actually do. It’s more or less “here’s the evidence” and then they piece it together as just chunks of evidence and then hope that jurors will be able to assimilate it together by themselves, which we know is not really the case.
So I’d like if you could, if if there are people out there who you know some tips and tricks that you could give them as far as how they could better storytell or how they could better put their case in a way that fits more with the way jurors think.
[16:16] Brent Well one thing, and this is sometimes easier said than done, a lot of times lawyers are just trying to get everything done and check the boxes, right? But the earlier you can think about theme, um, the better because that’s going to dictate where you go. And you don’t have to be glued to it but but that can change. But to have a direction going with, and it can be as simple as starting with buzzwords. Um, “What happens in the shadows?” right? Or “Greed and corruption.” That’s not a story but that tells you some things you’re gonna hit on. That that’s really big and that helps you think about how to tell a cohesive story and not just a standard timeline A to B, right? You want to have something a little more exciting than that.
Um, and something else too, I think it’s important to get different perspectives because as litigators sometimes it’s easy to fall in the trap of drinking the Kool-Aid, right? I mean because you live in these facts and you’re advocating ferociously for your client, you’re going to want to believe everything you say. But here’s the deal, so mock juries, mock trials. I love that when it fits the budget of the case, right? This case was not that. Here’s what I did. I got people I know um from different very different walks of lives, ages and professions. Went over to someone’s house and i gave them a three-hour mock trial. What I did was i um bought them Mexican food and beer, had them come over. That was their their compensation. And I had video clips about 15 minutes max of each witness. I gave an opening statement and a closing and what did I learn from that?
It didn’t make a break case but one thing that was that was great is we were pushing hard for punitive damages in this case. I still believe they are 100 percent warranted but I’ve also been swimming in the facts for months by the time I’m ready for trial, right? Other people see it they they may give the defendant the benefit of the doubt. But getting their perspective was great because we got to back off of that. We still, you know, that was in the jury charge, they asked, we asked for it. We didn’t push as hard because if we push that hard we lose credibility with the jury on other aspects. Um, so definitely you definitely want to bounce things off of people and get different perspectives because it’s easy to get tunnel vision for sure. And you you can connect the dots in your head at times that other people can’t connect because they don’t have the underlying knowledge base.
[18:33] Steve And you don’t do just primarily though what in this case you were you were on the plaintiff side but you don’t necessarily do all your work is on the plaintiff’s side correct?
[18:41] Brent Oh correct. Yeah we do a lot of defense work as well. And this that was a unique case that when I was at a prior firm was a contingency case. Uh yeah a lot of our work is defense work and we still try to use this even if it’s… for example i had a patent litigation case and this is this is not a three-act structure but this is a theme. We had a pretty complicated patent. Complicated for someone who is not you know deep into patent law and you know these jurors are not going to be deep into that all right even though we’re in Eastern District Texas up in Texarkana. And so with that we had we had to make it simple to where they could understand um the patent at issue and it was this is how simple it was: Plaintiff’s product, they wanted to make that part of the product thinner and weaker. We wanted to make ours thicker and stronger. And that’s it. That was easy. Now the danger with that when you try to over… we try to simplify it is you don’t want to dumb it down because that can definitely um not end up well and not hit the mark and have the jurors maybe resent you if they think that you’re dumbing it down because they’re idiots.
[19:46] Steve Yeah and that definitely especially in IP cases is where we see that, right? That’s where you really have to walk the fine line in comparison to other types of cases because it’s the material is so complex and so new to most of these jurors that like you said you run the risk of making them feel stupid or that you’re trying to make them feel stupid.
[20:05] Brent And but with that too we made sure those kind of phrases came out of other witnesses’ mouths and it was memorable, it stuck with them. And talking about speaking down to them, the other side, um, they had a PowerPoint with some very cheesy clip art and i felt it was a little demeaning personally. Some of the jurors may have loved it but I I don’t think they did.
[20:23] Steve Yeah right. Well I appreciate it Brent. I appreciate you coming on. I think it was good to hear your perspective and like I said that what you brought to the table can be used both for plaintiff attorneys and defense attorneys. I think it’s pretty universal across the board as far as an approach to use and one that’s, you know, you found to be successful and one that we’ve seen from a jury psychology perspective to be successful. So I appreciate you coming on. If people want to get a hold of you, if they have questions, if they have other issues that they want to talk to you about, how can they get a hold of you?
[20:56] Brent Yeah you can always find me on LinkedIn and then my email address at work is bterman at bell like you ring a bell nunnally—N as in Nancy, U, double N, A, double L, Y dot com. And you can also find us on the Bell Nunnally website.
[21:13] Steve Great. Well I appreciate it. Uh, this is another podcast. I’m Steve Wood from Courtroom Sciences and we will look forward to seeing you on another edition. So goodbye.
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