The Jury-Swaying Power of “Little” Words

You’d think a little word like “a” or “the” wouldn’t have any importance, when you’re crafting your opening or your closing. And yet . . .”a” and “the” are powerful ways to focus the jurors’ attention where you want it. Not where the jurors’ attention will roam, left to its own devices.

“A” refers generically to an undefined object. “The” refers specifically to a defined object. “Did you see a man with a limp?” does not focus the jurors’ attention in the same way as “Did you see the man with the limp?” does. The use of “the” presupposes that the man exists, the limp exists, and thus that the only thing in question is whether or not the witness saw the man. People will search their memories more assiduously given the subconscious message that the man with the limp exists, than they would if asked whether they saw “a man” with “a limp” – which contains no such subconscious assumption.

Similarly, notice the differential impact of such words as “frequently,” “occasionally,” “sometimes” and “often.” Studies have shown that when people were asked if they had headaches “frequently,” they answered, on average, “2.2 headaches per week.” Whereas if asked if they had headaches “occasionally,” they answered, on average, “0.7 headaches per week.” Such is the power of “little” words! Use them wisely.    

Help Your Witness Past an Angry Knee-Jerk Response

Witnesses may be angry for a variety of reasons. Regardless, an angry witness rarely testifies convincingly at deposition or trial. When dealing with such a witness, start by acknowledging that your witness’s anger is understandable and legitimate, but unfortunately, detrimental to effective testimony. Remind your witness that you are the advocate, ready, willing and able to be righteously indignant, angry or whatever else is appropriate when it is appropriate. Then work with your witness to assure solid testimony.

With the aid of video-taped role play, drill your witness on the critical “Answer the question asked.” The higher the emotional stakes, the more important it is for your witness to really listen to the question, and respond appropriately and dispassionately. As best you can, replicate the stress of cross-examination to help your witness learn how to maintain their composure during deposition or trial.

One way to do that is via the “breathe” technique, whereby your witness learns to breathe, as in take a deep breath, before attempting to answer an emotionally charged question. If necessary, to then ask to have the question repeated, which again, buys the witness time to settle his/her emotions, such that the response is more reasoned and level-headed.

Define the “How” and “Who” of Your Case in Story Form

Human beings across the globe are riveted by stories. Jurors are no different. Regardless of the nature of your case, find the story within it. The drier your case, the more important it is to do this.

            Be sure your story has elements of conflict or intrigue. Think of a good mystery or detective story: the story is either about “Who done it” or “How they did it” and sometimes both.

            For example, if your case theme is “greed,” tell the story of how the greed unfolded. Ask yourself continually “And then what happened?” Tell the story of the events to yourself by answering that question again and again. No matter how complex or business-oriented the case, there is always a sequence of events that can be told.

            Good stories have clearly defined heroes and villains. Describe the conflict between the parties as a human conflict between heroes and villains. Your “hero” may be flawed, but he or she must be presented as a hero if you want the jurors to root for your side.

            Show, for example, how your client is upholding a culturally approved goal or value. Even if your client is the victim, show not just that he/she was damaged, but that he or she upholds worth goals, such as the right to proper care, the right to expect safety in operating a vehicle/machinery. Too often we forget that jurors need someone to root for, not just someone to pity.