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 ensure 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.

Studies consistently reveal 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 “bullet points,” but with far more effectiveness than the usual list of bullet points since images are easily and often forcefully, remembered.

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

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 internationally acclaimed show “Undercover Boss” revealed 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.

Address Your Jurors’ Overriding Concerns: Safety & Trust

 

Did you know that the United States is near the top of all countries in terms of anxiety? The U.S. comes in a close second behind Greece in adult stress levels—55 percent according to the Gallup World Emotions Report. This number is 20 percent higher than the global average.

We live in one of the most affluent societies in the world, and yet the majority of our population does not feel safe. Safety is, put bluntly, Americans’ overriding concern.

How does this matter to you? Whether you are plaintiff or defense, you must take into account how your jurors will perceive the safety factors inherent in your case. This does not merely apply to product liability, medical malpractice or personal injury cases, where safety concerns are usually obvious. This applies equally to business contract cases, disputes over IP, even eminent domain.

Safety, you see, isn’t just about physical safety. Safety is also about emotional safety, the ability to trust--to trust self and others, to trust those we deal with day to day, be they drivers or doctors or everything in between, to trust businesses, corporations, and other institutions. When you can’t trust someone or something, you don’t feel safe.

Americans’ overriding concern is safety. Your jurors’ overriding concerns revolve around safety. Pay attention to the safety and trust issues in your case, and address them appropriately.

Who Has The Longer Attention Span? Your Jurors or A Goldfish?

 

--The average attention span of a human being in 2000: 12 seconds

--The average attention span of a human being in 2023: 8.25 seconds

--The average attention span of a goldfish: 9 seconds

Do I have your attention now?!

This is the unfortunate reality you are up against in the courtroom. A goldfish has a longer attention span than today’s average juror . . .

Our attention span has shortened as our world has become more complex, faster, more demanding, and more bite-sized. This is not a put-down of jurors or anyone else. It is simply a reality that is best dealt with, not avoided.

Short sentences, introducing a single idea in a single sentence, pausing between short paragraphs--these are techniques that will serve you well in assuring you retain juror attention.

Beyond that, use visuals. We have become a visually-obsessed society. We are geared to paying attention to visuals, rather than words. The good news is that when well-designed and executed, visuals can encapsulate lengthy explanations that the jurors can grasp in those critical 8 seconds, whereas the verbal explanation--albeit still necessary--may take hours to thoroughly present.

A Dynamite Persuasion Technique: “But You Are Free”

 

We live in the “land of the free, home of the brave.” As a people, we cherish freedom, but it’s something lawyers do not always factor into voir dire and closing arguments.

And yet, 42 psychological studies on 22,000 people has shown that the single most powerful persuasion technique is to give people the freedom to choose. In other words, when you ask someone to do something, make sure to add to your request, “but you are free” to do otherwise.

The exact words don’t matter, for example, the phrase “But obviously do not feel obliged” worked as well as “but you are free.” What’s important is that people resist being forced to a singular choice. When you give them the option to choose, people are more amenable to being persuaded by you.

The used-car salesman who says “But of course, you’re free to compare the price with other dealers” is more likely to make the sale than the salesman who hammers a “this deal is the best deal you’ll ever get” approach.

However you phrase it, whenever possible, give jurors a “but you are free” option: free to choose as their conscience dictates, free to come to some other conclusion--all the while putting your choice forward, leading them to it rather than corralling them into it.

Photo Credit: Brandonrush, CC0, via Wikimedia Commons

Use Repetition to Drive Juror Acceptance of Your Case

When the jurors troop into the jury room for deliberations, every litigator’s dream is that each of them would, individually, spout your case theme/key points so that group consensus in your favor is inevitable.

But how do you get them to do that? By presenting a targeted, credible and compelling case. That’s a given. In addition, put the power of repetition to work for you.

Research by K. Weaver and colleagues shows that repetition, even by the same person or organization, is highly impactful: “…when an opinion is repeatedly broadcast at us by the same organization--think of a particular media conglomerate or an advertiser--we’re likely to come to believe it represents the general opinion. That’s despite the fact it is analogous to the same person repeating themselves over and over again.”

Not only should you, the trial attorney, repeat your themes and key points throughout your opening, examination of witnesses, and close, but all your witnesses, expert and lay, should be encouraged to include case themes and key points in their testimony.

Repeat, repeat, repeat! When you and your witnesses are consistent in broadcasting the same message over and over again, jurors are far more likely to accept it as the general opinion and adopt it as theirs.

 

Pressuring Potential Jurors in Voir Dire Can Backfire at Trial

 

Time after time, what I discover in jury debriefings is that jurors don’t like being “interrogated” during voir dire. They don’t mind being questioned, but they heartily dislike attorney attempts to force answers out of them and especially resent being pressured into a “yes” or “no” response.

Now this wouldn’t be so critical if it weren’t for the fact that people who feel pressured into a position, retaliate by disliking the person who pressured them. Cornered animals bite. So do jurors.

As tempting as it is to finally get that unqualified “yes” or “no” from a juror, be aware of the consequences. A juror who doesn’t like you will be far less susceptible to your arguments, and may very well damn you during deliberations. Not only that but the unqualified “yes” or “no” is often the juror simply trying to wriggle free from your unwanted persistence.

You may receive a sufficiently truthful and more accurate response by framing your question differently such that it doesn’t antagonize your juror unnecessarily: “Is it more likely that you would . . .” People respond well to choice, as well as to the word “would,” which is experienced as non-invasive.

Win Your Case by Winning Client Cooperation!

 

It’s often said that the practice of law would be great if it weren’t for clients. Clients, of course, are what drive your business, so like it or not, part of a successful practice is learning how to deal with difficult clients.

Most clients don’t set out to be difficult, but in their frustration, anxiety or fear, they are difficult. Given that understanding, one way to assure easier interactions with your clients is to tell them upfront what to expect. This will allay their fears to some extent, which in turn will usually make them less difficult to deal with.

Let your client know, at the beginning of the relationship, that the unexpected will crop up as you handle their case. This isn’t a maybe, it’s a guarantee. Every case has its unanticipated events. Sometimes that unexpected situation will be to your client’s advantage and sometimes not. Let your client know that you will promptly inform them of the bumps and hurdles as they come along and how you expect to deal with them.

Ask your client how they prefer to be informed: by email, phone, never on a Friday, only in the afternoon, whatever. Don’t assume that the way you like to communicate is satisfying to your client. Respect their preferences. Your client may not like what they hear from you, but they will feel kept in the loop in the way they like to receive information. This, in and of itself, will often soothe a fitful client. You will have acknowledged and respected their wishes, which in turn is likely to make things a little easier for you through the life of the case.

Want to Win? Start Off On The Right Foot With Prospective Jurors

 

When prospective jurors walk into the courtroom, they only know one thing for sure: the courtroom is His/Her Honor’s private reserve, and the Judge’s word is law. Everything about the physical layout of the courtroom says “In this room, the Judge is Top Dog, and whatever they say is set in stone.” The Judge sits higher than everyone else. All must rise upon the Judge’s entrance, and may only be seated when told to do so. And whatever the Judge says, however erudite or nonsensical it may seem, becomes “what is” in that Courtroom.

So, imagine my surprise when I observe lawyers go directly against a Judge’s “what I expect in my courtroom.”  I know, from years of experience, that jurors, whether prospective or empaneled, ding any lawyer who fails to respect a Judge’s stated orders. The most common failure is the failure to respect time. For example, the Judge says “Your mini-opening will be two minutes, no longer.” The lawyer launches into their mini-opening, the two-minute mark is hit, the Judge cuts the lawyer off – sometimes, mid-word. The lawyer, hurt and surprised, sits down. The prospective jurors look coldly at the lawyer. They heard the rule, why couldn’t the lawyer obey it?

You see, prospective jurors MUST appear when summoned, MUST be on time, MUST turn off their mobile devices, MUST sit where told to sit, and the list goes on. When the Judge tells you what you MUST do, you’re well advised to do it. Failure to do so makes you disrespectful in prospective jurors’ eyes, and less worthy of their consideration. Much harder to convince.

Since your jurors are within that pool of prospective jurors, abiding by the Judge’s edicts right from the git-go is the easiest, quickest way to get their approval.

Start off on the right foot with your jurors, and you have a much better chance of ending on the right foot.

How Your Emotions Can Help You Win Your Case

 

The question of whether to trust our logic or trust our emotions is rarely brought up in the context of legal matters, at least not from the lawyer’s point of view. Certainly, we discuss endlessly how this or that prospective juror’s mindset (highly emotional versus highly rational) might impact our case, but not usually how the lawyer’s emotion would.

However, research by M. Pham, L. Lee and A. Stephen provides interesting insights into the positive impact lawyer emotions might have in winning cases.

Their study showed that people who were more likely to trust their feelings were also more likely to accurately predict the outcome of a particular event. The researchers call this phenomenon the “emotional oracle effect.”

How does this apply to winning your case? Tune in to your emotions. If, when preparing a witness, you sense that something is “off,” don’t dismiss that because your logic tells you all is well. Trust your emotions enough to say something like “I notice that . . .” or “I’m wondering if. . .” which is a non-threatening way to probe further and take a look at whether or not what you sense with this witness has some basis in reality.

The more you practice listening to the guidance of your emotions, the more you will be able to discern which to trust.

Similarly, you can review the demographics of your prospective jurors all you want and weed out the obvious “bad apples,” but when it comes down to that moment in voir dire when you’re between “keep Juror A versus Juror B,” tune in to your emotions. Listen inside yourself for that intuitive hit and go with it.

Your mind is bigger than your analytic prowess. Use all of it, rational and emotive, in the service of your success.

Get Those Undecideds On Your Side: With Jury Instructions

Despite the best efforts of all involved, jury instructions remain obscure and confusing to all but the most legalese-savvy jurors. Cases should be won or lost on their merits, but too often, cases are lost (or unsatisfactory verdicts obtained) because the jurors either did not understand the jury instructions, or how those jury instructions should be specifically applied to the verdict form.

Clarifying jury instructions so jurors can make their way through the verdict form fully understanding what their vote means, is important. That’s step one. But then it’s critical to move on to step two: letting the jurors know during closing argument not only how they should vote (according to you), but why.

It’s the “why” that is often left out. You need to arm the jurors already decided by your arguments with sufficient ammunition to convince the undecideds – reiterating the evidence/testimony simply isn’t enough.

“Why” consists of firmly tying specific evidence supporting your case to specific verdict questions, preferably in bullet form, which is easier for your decided-jurors to remember and use in their “Here’s why” during deliberations.

Undecided jurors are your “make it or break it” jurors, and they only make up their minds during deliberations. If you don’t give those jurors already on your side the information they need to swing the undecideds over, you leave the verdict up to chance. Or worse, up to ill-formed, confused, half-hearted attempts, for in the absence of solid rationale, what else can your decided-jurors argue?

Want Powerful Testimony? Adopt the Power-Sit

 

Witnesses are nervous enough already at the thought of testifying. Being loaded down with 10 body-language directives from well-meaning attorneys doesn’t necessarily enhance their testimony.

I have found that one simple directive ‘fixes’ a whole host of body-language problems. That is the “Power-Sit.”

Simply put, the witness sits with their rear planted firmly in the “L” of the chair, which assures good posture without having to think about it. They then are asked to avoid leaning to the left or right and to keep their back in contact with the back of the chair at all times. That the more nervous they get, the more the witness can press their back into the back of the chair. It becomes their ‘secure’ or ‘safe’ place.

The impression jurors receive from the “Power-Sit” is that of a confident, straightforward, credible witness – one whose testimony is far more likely to be believed than the testimony from a witness who slumps, or leans to the left or right, or aggressively forward, to give but a few examples.

What a platform for effective testimony! Without your witness having to remember 10 different directives, they only have to focus on one. Now you are free to focus on the substantive issues in your witness’ testimony, knowing their body language won’t be contradicting the testimony.