Persuasion 101: Seeing is Believing

 

A few years back, a Brigham City orthopedic surgeon (Dr. Dewey MacKay) claimed that the jury mistakenly convicted him of illegally prescribing medication because they neither understood the facts of the case, nor how chronic pain is managed.

Jurors interviewed at the time, however, said Dr. Mackay’s comments were misguided. The jurors were emphatic that they took every single count one by one and discussed each count in detail. Not only that, but the jurors explained that they used both the chalkboard made available to them as well as multiple sheets of paper to draw things so everything was visual for everyone.

This is not a one-time comment. This is something I hear over and over again both in focus groups and from jurors post-trial.

“So everything was visual for everyone.” That’s the key. That’s how you must be able to present your case if you are to prevail: visually. Regardless of the nature of your case: personal injury, med mal, construction defect, eminent domain, contractual dispute, intellectual property dispute, whatever, you must be able to find ways to translate testimony and facts into visual elements.

That means much more than flashing deposition or other text on the screen. Visual rendition of testimony means coming up with graphics, diagrams, and bottom line charts. It’s answering today’s jurors’ constant need to “see it” before they believe it.

When you, the lawyer, provide the jury with compelling visuals to clarify and emphasize your points, you pave the way for the deliberations to favor your interpretation of the facts. This is far better than relying on the jurors’ ability to render your points visually, for they may or may not do so accurately.

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Create a Trustworthy First Impression

 

Personal experience tells us how powerful first impressions are. Indeed, research reinforces our innate understanding of first impressions. The study suggests it takes just 20 seconds to detect whether a stranger is genetically inclined to being trustworthy, kind or compassionate. That’s less than a minute for you, or your witnesses, to establish a credible first impression with the jurors, one which, once established, will be very difficult to change or alter in any way.

What was it about the strangers that led the study subjects to figure out whether or not the stranger was trustworthy? Very simply, the “trusted” strangers displayed more trustworthy behaviors – more head nods, more eye contact, more smiling, more open body posture.

All of these behaviors are easily accessible to any of us. For that matter, when you’re in a relaxed, comfortable situation with friends or family, you’re likely to display these very behaviors without thinking about it.

Allow yourself to present yourself to the jurors more as who you are with friends – trusting and therefore trustworthy, and encourage your witnesses to do the same. The only caveat is that smiles must be appropriate to the situation, and when in trial, the moments when it is appropriate to smile are limited.

The True Value of Computer/AI Animation In Court

 

Most cases that don’t settle end up in trial because there are grey areas in the case--situations or testimony that can be interpreted in different ways. Computer/AI animation in court is often thought of as an effective, albeit expensive, way to show events. Research tells us, however, that there is a much more compelling reason to use computer/AI animation.

Computer/AI animation makes your interpretation of the event or situation more concrete to jurors. There is always flux and indeterminate issues within any accident or event reconstruction, which the opposing experts will argue at length. But once the jurors see and hear for themselves your version of said reconstruction, they are far more inclined to believe it. Computer/AI animation is an easy, immediately understandable way to present your belief of “what happened” in a way that makes it real.

That being said, the facts must be solidly incorporated into the animation. Jurors will pick out the slightest incongruence between the known facts (skid marks, length of surgical incision) and the animation. If they do, the persuasiveness of your animation will be destroyed.

 

Answer a Primordial Question for the Jurors: Who?

 

The names, acronyms and abbreviations so familiar to you are not to the jurors. You may think that saying, for example, “Acme Building Supply, which we’ll now call ABS for convenience,” is enough to warrant saying “ABS” through the rest of your trial.

But “ABS” has no guts to it, has no uniqueness, no personality. As laborious as it may be for you to repeat the full name, “Acme Building Supply” has a history. It’s associated with events and people--it has a life. “ABS” is just another bit of alphabet soup.

Be sure to use the full names of people, entities or objects throughout your trial. Avoid the use of pronouns or abbreviated references. Jurors often have trouble keeping track of who did what to whom. They will be totally lost if they must also concentrate on which "he," "she," or "it" you are now referring to.

Certainly, well-known abbreviations are acceptable, but generally speaking, abbreviations used too often only serve to confuse jurors. A confused juror is an unsympathetic juror. An unsympathetic juror is the one who could cause you to lose your case.

Explain “Why” to Make Your Case Matter to the Jurors

 

In a courtroom, it isn’t necessarily the attorney with the best facts who wins, but the attorney who best explains the relevance of those facts both to the case and to the jurors.

Certainly, you need solid evidence, but here we’re talking about what you need to do to get the edge. What, given the usual state of affairs by the time a case gets to court where both sides believe their evidence is strong enough to prevail, can you do to give you the advantage over your opponent?

Explain why. Why does your interpretation of the facts make sense? Why should the jurors care that their verdict favors your client? Why should this matter to the jurors? How does it impact their lives (work, family, children, safety, etc.), preferably in an immediate and direct way?

Explain through your experts, your lay witnesses, and most importantly, your closing argument, and of course your opening to the degree allowed.

We invest in the personal, in that which strikes home. That’s why stories have such an impact. They touch the personal. So too with explanations. Make your case matter, not just to your client, but to the jurors. 

A Mind-Boggling Social Experiment Proves the Importance of First Impressions

 

If you ever wondered just how important the jurors’ first impressions of your client and witnesses are, here’s a mind-boggling social experiment, posted on Facebook.

It shows people walking right past well-known and loved family members, not recognizing a single one of them, when the family members were dressed as homeless individuals, sitting as the homeless often do, on the sidewalk by a building.

Now, if dress and body posture can fool a daughter into not recognizing her mother, or parents into not recognizing their own children, imagine how critical the attire and body language of your client and witnesses are. The jurors can easily be misled as to the credibility and sincerity of your witnesses, strangers as they all are, at the beginning of trial.

In jury debriefings, it was found, for example, that a neurosurgeon who wore a black shirt under his expensive dark suit, was labeled “Mafia Doc” by the jurors when nothing could have been farther from the truth. A handsome thirty-year-old CPA, who persisted in running his hand through his stylish somewhat long locks, was dubbed “Player” by the jurors, and his testimony deemed suspect: “Nobody who looks like that could ever be serious.”

First impressions matter. From the moment your client/witness steps into the courtroom, all juror eyes are upon them. And jurors judge everything they see according to stereotyped definitions which unfortunately hold great power. Even as the trial unfolds, failure to attend to your witnesses’ self-presentation can mar otherwise competent testimony.

Don’t Undermine The Value of Your Focus Group

 

A focus group has many benefits, among the primary being the opinions the mock jurors offer on the case—the strengths, weaknesses, validity of themes, etc.  However, focus group jurors can only provide opinions when asked the right questions. Too often, lawyers ask focus group jurors to deliberate and discuss only the verdict questions. This is a woefully inadequate use of the focus group.

Don’t rely solely on verdict questions to elicit opinions. Develop a list of questions that target your areas of concern. Every single one. It is far better to develop too many targeted questions and have whoever is facilitating the juror discussion eliminate them as necessary than to develop too few questions and miss hearing valuable juror opinions.

If the target questions are well designed, the juror discussion will reveal the weaknesses in the lawyer's presentation of the case. Too often, lawyers will interrupt juror deliberation to respond to juror criticisms with a vigorous “Yeah, but..." defense of their position. This response entirely undermines the value of the focus group. Why should an attorney ask for mock juror opinions if the result is to tell focus group members that the lawyer is right and they are wrong?

You will gain the most by embracing criticism, looking for its benefit, and not trying to defend against it. Lawyers who dismiss the focus group's criticisms and opinions and fail to incorporate them in their trial strategy might as well not conduct a focus group at all. Lawyers who do not mind losing the focus group to win the trial are the lawyers who will profit most from the process.

Your Client, Expert and Witness E-Impressions Matter! Manage Them Well

 

What is written has more weight than what is said. Always. That is why, when something is important, we write it down. That is why, in any courtroom, jurors will believe documents over witness testimony.

Unfortunately, clients often forget this, if they even ever stopped to think about it in the first place. And the handy “delete” button on our various devices leads one to believe that whatever is written in emails or texts, or posted on social media doesn’t really exist in the same way a written document does. We now know all too well the inaccuracy of that belief.

Educate your clients, experts and lay witnesses. E-impressions are just as important as the impression your client, witness or expert makes on entering the courtroom. You need to know what e-impressions already exist, should damage control be required, and emphasize to your clients, experts and witnesses the absolute necessity of being vigilant about how they are perceived online.

The same goes for your team. They must manage their online presence with the same care they manage all other aspects of their practice.

There is nothing evanescent about virtual reality; in a certain sense, it is, or certainly can be, in perpetuity. Poster beware!