What the Trix Cereal Cartoon Rabbit Can Teach Litigators

So you thought cutesy cereal boxes were designed just to capture your innocent toddler’s rapt attention? Not only . . . In a recent Cornell University study, researchers manipulated the gaze of the cartoon rabbit on Trix cereal boxes and found that adult subjects were more likely to choose Trix over competing brands if the rabbit was looking at them rather than away. “Making eye contact even with a character on a cereal box inspires powerful feelings of connection,” according to Brian Wansink, professor at Cornell’s Dyson School of Applied Economics and Management and director of the school’s Food and Brand Lab.

But there’s more: according to research conducted at Northwestern University’s Feinberg School of Medicine, when doctors make more eye contact with their patients, those patients enjoy better health, comply with medical advice more often, and are more likely to seek treatment for future problems. In other words, these patients listen to and follow the advice of their doctors. Precisely what you need your jurors to do.

Eye contact engages us. Eye contact facilitates communication. Eye contact influences others. Eye contact is persuasive.

When you are conducting voir dire, make eye contact as often as possible, especially when listening to a response, or asking a question. If you need to glance at your notes, do so after a response, before your next question.

Throughout the trial, take advantage of the persuasive power of eye contact to look at jurors whenever you are making an important point. Encourage your witnesses to look out at the jurors, especially during direct.

Marketers have billions on the line; where the rabbit looks is of vital importance. You have just as much at stake, if not more, every time you walk into the courtroom. Where you look is of vital importance.

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