Use Visual “Bullets” to Bring Home Your Salient Points

You spend hours, if not days, honing your opening,  crafting your expert examination questions, drilling down your closing arguments.

As well you should, for there’s nothing like diligent preparation to insure solid trial work. However, as important as your preparation is, how the jurors are going to receive the result of all that intense prep is equally important.

What a recent study reveals (Begelo & Poremba, 2014), is that people forget most readily what they hear. Memory is far better for things that people see or touch. So it’s not only what has long been established - that people absorb communication better when it’s visual as well as auditory - but also that words are too easily forgotten.

And if there’s anything you need when those jurors go into the jury room, it’s for them to remember your salient points.

The temptation is to reproduce on PowerPoint or other visual media, lots of text, so that jurors both see and hear relevant testimony. That’s certainly useful, but you might also consider taking a page from Steve Jobs’ presentations. Regardless of what one may think about the man or his product, Jobs’ presentations are universally considered among the most compelling ever.

Jobs mastered the art of a single image capturing the essence of his point. Sometimes a single word, or a single number. These are the visual equivalent of the “bullet point,” but with far more effectiveness than the usual list of bullet points, for such images are easily and often forcefully, remembered.

Help your jurors take your salient points into the jury room - with visual “bullets.” 

Expert Under the Gun of Cross? Multi-sided Response to the Rescue

For your expert witnesses under the gun of cross-examination, usually the most problematic answer is a flat “yes” or “no.” Science holds few absolutes to be true, thus most scientists (which is the majority of your experts) are uncomfortable with an uncategorical “yes” or “no” in response to many of opposing counsel’s questions.

Yet opposing counsel has one goal in mind: get that expert to say “yes” to certain questions and “no” to certain others.

A useful technique is to suggest to your expert that he/she respond with a qualifier in front of their “yes” or “no,” such as: “In this situation, yes.” “Under certain conditions, no.” “When X is detected, yes.” “In the presence of Y, no.” And so on.

These responses open the door to asking your witness later, why he/she qualified their answer in such a manner.

Now, here’s where it gets really interesting: the results of meta-research on 107 different studies conducted over 50 years on persuasion and sidedness* show that two-sided arguments are more persuasive than their one-sided equivalents, as long as counter-arguments are raised when presenting the opposing view.

So, in telling the jury the rationale behind the qualifier, the expert can present his/her thinking as, for example; “It could be said, as opposing counsel’s expert stated, that …, however, studies show that …, which is why my opinon is …” which format serves to present the two sides of the argument, and raises the counter argument.

According to the meta-research, not only is such an approach more convincing, it also boosts the speaker’s credibility.

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*Daniel O’Keefe, 1999, Communication Yearbook, 22, pp. 209-249

The Question’s Not the Problem: The Answer May Be

How many times in your youth, were you told by a benevolent, or at the very least, good-hearted, coach or teacher, "There’s no such thing as a stupid question." You’ve probably said that very phrase to your children as well.

And yet, when jurors ask during deliberations to have something explained to them, or ask a question that clearly reveals their lack of understanding, lawyers will frequently roll their eyes and mutter about "the decline in average intelligence" or mumble about the impossibility of getting “bright jurors” on the panel.

Similarly, in focus groups, when it’s obvious the mock jurors have completely missed a lawyer’s point, the lawyer will often blame the jurors for their stupidity . . . which drives me absolutely berserk.

Jurors are people who are good at what they do! Whether that’s repairing cars, or managing a convenience store, or cleaning houses. And just like the show "Undercover Boss" reveals the inability of most bosses to accomplish the mundane tasks of their employees, I defy any attorney to walk in the shoes of any juror and accomplish their tasks in life, from bus driver to pediatric nurse, with the same level of expertise as said juror.

There are no stupid questions. There are simply different arenas and levels of experience in the world. Run your cases by focus groups whenever you can to ferret out what are the issues critical to your case that jurors are likely to misunderstand, or fail to comprehend.

Then do all that you can, with the aid of visuals whenever possible, to clarify matters for those who will be your "real" jurors.

There are no stupid questions. But there are some mightily confusing, obfuscating answers.