Dr. Frank Luntz is a nationally known communication expert and an adviser to the Republican Party.  His book Words that Work was an encyclopedia of the importance oof framing and the words we used to present issues. His book Win: The Key Principles to Take Your Business From Ordinary to Extraordinary also has communication principles which are applicable to us in our trial work. Here are  a few of them for your consideration:

  • adversity:  Notre Dame football coach Lou Holtz has said “I don’t think God put us on this earth to be ordinary. Life is 10% what happens to you and 90% how you respond to life. Show me someone who has done something worthwhile and I’ll show you someone who has overcome adversity.” He says that it’s up to you and not someone else because  “remember most people don’t care about your problems, and the rest are glad you have them.”
  • First  words impressions: The first words you speak are a large part of the first impression people have. However, you only have a few precious seconds to make that impression by the words you choose. For example, “it was the best of times, it was the worst of times” and “I’m dreaming of a white Christmas.” These words are powerful, concise, and visual statements that grab your attention. In choosing the opening words, when we start with facts or figures everybody agrees upon they are attention getting.  The words or  phrases we choose breakthrough the distraction and grab the attention immediately. Second, make sure you a enumerate plainly. It’s important to enumerate your points as you make them. This accomplishes two objectives. First, it builds your credibility and second, it holds your audience’s attention as a way to hear your next point.
  • Confidence  Successful people demonstrate confidence in themselves and in the product they are selling. Their message is focused on results and solutions to problems that need solving. There is always a clear call to action at the end for what you want them to do.
  • Enthusiasm  Enthusiasm is important, but don’t mistake volume for enthusiasm. Shouting, out of control behavior  and  aggressive demeanor do not demonstrate passion or enthusiasm. Nobody wants to be yelled at, even when they agree with you. People are turned off by aggressive or dramatic behavior. The most passionate and persuasive people speak with softness when it matters the most. Remember passion and clarity must go hand-in-hand. Clear, concise communication will instill more passion than confusing technical terms.
  • Listening  Be a good listener. Don’t look away. Don’t fold your arms. Looking at your watch is rude. Maintain constant eye contact until the speaker has finished speaking. Be people centered: I’m listening; I hear you; I get it; I respect you; you are in control; you are the one who must decide.
  • Yield control with a positive statement. Address people’s fears in a positive way with the phrase “No one knows better than you.”  For example “No one knows how to spend your money better than you”  or “No one knows what’s right for your family better than you” or “No one knows how you should live your life better than you.”
  • Words of principles  use language that demonstrates principles and values people agree about. These are powerful words of common value everyone agrees upon. Use them in support of your position:
  1.  “accountability”
  2. “strict standards”
  3. “moral compass”
  4. “social responsibility”
  5. “objective and unbiased”
  6. “uncompromising integrity”
  7. “the simple truth”
  8. “say what you mean and mean what you say”

When we realize the overwhelming importance of unconscious impression over rational and intellectual reasoning, these ideas are of particular significance. If we communicate from primarily an intellectual and logical standpoint we will too often wonder “what happened” when the verdict is returned. Focus on rational analysis and then communicate with the focus on the proven process of almost all decision making: the unconscious mind impressions.

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STORY TELLING AS PART OF OUR TRIAL TOOLS

Over the past few years we have been continually reminded of the importance of telling a story in presenting our cases to jurors. Most of us do not need any convincing in that regard. There are lawyers, however, that assume it is a simple concept, but do a poor job of implementing it. Here’s a refresher on  the art of story telling.

To start with, why storytelling? Because our brains are formed genetically in a way in which telling stories is the chief method of learning as well as communication. Some scientists believe that listeners enter a trance like state when being told a story. They say people suspend awareness and concerns as they focus on the tale being told. They are touched at the deepest level causing emotional responses on an unconscious basis. Storytelling is a powerful tool because it is compelling. Not only that, it is difficult to grasp abstract ideas. The surest way to keep interest is to tell a story, not report facts, narratives or chronologies.  Our human history has involved storytelling, cave painting and song singing as the primary means of communication before writing. While we may not tell stories sitting cross legged in front of the fire, our brains still respond to stories. In the past, we passed our ideas and historical information from generation to generation by written stories. It’s part of the human race and it’s evolution. In 1986 Gerry Spence published an article in the American Bar Journal in which he wrote:

“Of course, it’s all storytelling – nothing more. It is the experience of the tribe around the fire, the primordial genes excited, listening, the shivers racing up your back to the place where the scalp is made, and then the breathless climax,  and the sadness and the tears with the dying of the embers, and the silence – the jury wants to hear a story. They are hardwired for it”

Elbert Einstein once observed that “imagination is more important than knowledge.” A trial is a struggle of impression and not a struggle of logical thinking. Successful trial lawyers are masterful storytellers who engage jurors on an emotional, imaginative level through the magic of storytelling. That’s the real level people decide all important issues and reach opinions. In fact, we know jurors immediately begin telling themselves the story of the case as soon as the trial begins. They add to the story missing information and once they form an impression of what the story is about, they filter out conflicting information.

So, the question is, how do you tell a compelling story? Louisiana trial lawyer Russ Herman is a gifted storyteller who has written and lectured extensively about the subject. He refers to what he calls Cicero’s six maxims of persuasion which he explains as these:

  1. What reaches the mind moves the heart. When we cause the mind to imagine something it connects with us at an emotional an unconscious level. Passion as well as reason is needed in good storytelling.
  2. Motives explain human behavior. The story should involve the wrong motives behind the defendant’s actions or conduct which cause the harm. Simply describing the wrong or negligence without the motive behind it does not engage an emotional response.
  3. Stories should move from specifics to universal truths. This is the step that empowers the jury to take action. The story has to be more important than just the individual parties involved in the case. There has to have social importance or personal interest for the jurors in the outcome.
  4. Tell the story in a way that engages the listener. This is often best done by telling the story in the present tense, is if the jury were watching a movie of the events unfold in front of them. That draws the audience into the story itself at an imagination level. A  chronology or narrative of past facts cannot do the same.
  5. Inoculate and point out the negative issues in the defendant’s case. Melvin Belli was fond of saying “a trial is a race for truth.” We need to be the first ones who describe the negative aspects about our case in the best possible light as early as possible. That will inoculate the jury against the drama when these facts come out later in the trial. In addition, a trial is not only about the positive issues in our case, but about the negative aspects of the opponent’s case. Our story must tell about both.
  6. Tell the story with passion and logic in words the listener understands. Communication is not what we say. Communication is what our listener heard and understood us to say. We need to say things simply,briefly and at about an eighth grade level to ensure our story is understood.Otherwise, the listener will first struggle to understand and follow; then become frustrated and upset. However, not upset at themselves, but with the lawyer telling the story.

A lot has been written about the outline of a good story. The most often cited authority, Joseph Campbell, outlined 12 aspects in his book a Heroes Journey:

  1. THE ORDINARY WORLD.  The hero, uneasy, uncomfortable or unaware, is introduced sympathetically so the audience can identify with the situation or dilemma.  The hero is shown against a background of environment, heredity, and personal history.  Some kind of polarity in the hero’s life is pulling in different directions and causing stress.
  2. THE CALL TO ADVENTURE.  Something shakes up the situation, either from external pressures or from something rising up from deep within, so the hero must face the beginnings of change.
  3. REFUSAL OF THE CALL.  The hero feels the fear of the unknown and tries to turn away from the adventure, however briefly.  Alternately, another character may express the uncertainty and danger ahead.
  4. MEETING WITH THE MENTOR.  The hero comes across a seasoned traveler of the worlds who gives him or her training, equipment, or advice that will help on the journey.  Or the hero reaches within to a source of courage and wisdom.
  5. CROSSING THE THRESHOLD.  At the end of Act One, the hero commits to leaving the Ordinary World and entering a new region or condition with unfamiliar rules and values.
  6. TESTS, ALLIES AND ENEMIES.  The hero is tested and sorts out allegiances in the Special World.
  7. APPROACH.  The hero and newfound allies prepare for the major challenge in the Special world.
  8. THE ORDEAL.  Near the middle of the story, the hero enters a central space in the Special World and confronts death or faces his or her greatest fear.  Out of the moment of death comes a new life.
  9. THE REWARD.  The hero takes possession of the treasure won by facing death.  There may be celebration, but there is also danger of losing the treasure again.
  10. THE ROAD BACK.  About three-fourths of the way through the story, the hero is driven to complete the adventure, leaving the Special World to be sure the treasure is brought home.  Often a chase scene signals the urgency and danger of the mission.
  11. THE RESURRECTION.  At the climax, the hero is severely tested once more on the threshold of home.  He or she is purified by a last sacrifice, another moment of death and rebirth, but on a higher and more complete level.  By the hero’s action, the polarities that were in conflict at the beginning are finally resolved.
  12. RETURN WITH THE ELIXIR.  The hero returns home or continues the journey, bearing some element of the treasure that has the power to transform the world as the hero has been transformed.

Adopt your case story around these factors in order to create a compelling, emotional story. Other factors are important too.  Most lawyers cannot restrain themselves from injecting into their story excessive details of dates, names and other information that distracts the listener from the central story. A good story is a big picture story. It has an attention grabbing introduction, a curiosity factor to hear the rest of the story and a conclusion with an objective for action. People generally are visual and the introduction of attention attracting visual aids can be important in storytelling. Other basics include  a central theme and the use of  mnemonic devices such as the “the rule of the three P’s.” For example, “they failed to plan, prepare and prevent.” There is also a well-established rule of three. When we list items we should not list more than three at a time. Research indicates that lists of three are remembered most easily. Storytelling should involve as many of the senses as possible in order to create a mental  connection. For example, describing the sound of the shattering of glass or the squeal of tires can make the situation real if done with sincerity.

Our story should conclude  with something powerful. In May 1912, after a three month trial where Clarence Darrow was accused of attempting to bribe a juror, he argued on his own behalf and concluded  with these words:

“I have friends through the length and breath of the land and these are the poor and the weak and the helpless  to whose cause I have given voice. If you should convict me there will be people who will applaud your act, but if in your judgment and your wisdom and your humanity you believe me innocent and return a verdict of not guilty in this case, I know the tens of thousands of the weak and the poor and helpless throughout the world will give thanks to this jury for saving liberty and my name.”

The newspapers reported that the judge and several of the jurors were weeping when he concluded his argument. It took the jury 34 minutes to return with a not guilty verdict.

This is a classic example of a powerful conclusion by a masterful storyteller. This is also what we must learn as trial lawyers. Storytelling is a return to our roots. It is the basic way in which we should communicate when we want to capture the minds and hearts of others.  Learning to be a great storyteller should be the goal of every trial lawyer who wants excellence.

 

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OPENING STATEMENTS THAT WORK

In spite of all of the writing and seminars on the subject of opening statements, too many trial lawyers maintain a wrong and overly simplistic view of this important step in the trial. Remember, the opening statement is the critical first impression with the jury about the case. Too many lawyers take the easy road of telling a chronological narrative is if it were a police report instead of a compelling emotional story.

Opening statements are important. That’s when most jurors take sides and start telling a story about the case. We know that jurors don’t make judgments by abstract reasoning but according to their life experiences and whether the story fits their inner scripts of experience and values. Practice reducing your case to a 30 second statement. That’s in order to clear out details that aren’t relevant. When you insert too many details the real story gets hidden in a swamp of useless information. When you practice reducing the case in that way, you are better able to identify the big picture issues the jury would find important and craft your opening statement around those.

Jim McElhaney was one of my favorite legal writers. For years he published a column in the American Bar Association Journal. I saved most of what Jim wrote because it made such good sense. In 2008 he published an article about telling a good story to the jury in your opening statement. Here are some of his thoughts.  He recommends that we should not talk about this part of the trial as a “opening statement” because it is a story and not a statement. The first step, he says, is to “clear out the clutter” by removing unnecessary issues facts and needless words. He makes the obvious point that we should never start the opening statement with a lecture about how what is about to be said is not evidence or waste the golden opportunity of first impression. He correctly recommends that we tell the story of the case and not the story of the trial. We should be telling the jury what happened and not who we are going to call as witnesses or what they’re going to say. Not only is it boring, but it does nothing to help your case, especially if you later decide not to call one of the witnesses or there is a failure to say what was promised.

McElhaney argues that the job of the lawyer is not to tell the whole story but rather to create a curiosity to make the jury want to hear the details and fill in the blanks during the trial. There are several ways to do this. One of them is to start with the end of the story. His example of doing this  in the article was:

“There is a tall, white building downtown on school Road. Every morning at 8:15 a city bus stops in front and a woman wearing a plain cloth coat gets off the bus. She goes inside the building and takes the elevator to the eighth floor. She walks to the end of the hall and stops in a closed door. She knocks on the door but no one hears it. She opens the door and turns on the light, but the man on the bed doesn’t see it. She walks over to the window and opens the curtain, but the man doesn’t notice. She kisses him on the four head, but he doesn’t feel it. She sits next to the bed and takes his hand but he doesn’t react. She tells him how the children are doing in school and what is going on in the neighborhood, but he doesn’t respond. She says a little prayer and kisses him goodbye, but he doesn’t move or even smile. Then she leaves the room, goes down the elevator out of the building and goes to work. Who is this man? How did he get that way? Who is responsible for? That’s what this case is all about.”

Another example of creating a “hook” or curiosity is this example he gives: “Ladies and gentlemen, this case is about a young woman’s eyes” and pause before proceeding. One has the juries full attention before proceeding with the story.

Another is to use an introduction which keeps their attention like this example McElhaney has written about: “This case is about an agreement Mark Willis made to buy lumber from the Tri-City lumber company. They gave him their word. They promised they would deliver all of the wood he needed at a price of $3.5 million. Mark believe them. He trusted them. He counted on them. He went out and hired the three extra building crews he needed to do the work. They dug basements for 12 houses; poured 12 foundations installed water mains and power lines. Then they  waited for the lumber.” This kind of an opening involves curiosity and anticipation for the rest of the story. One can also use this approach: “Ladies and gentlemen, you are standing on the corner of Ninth and Broad Street in Cleveland Ohio. You are about to see a city bus run down a little girl who is gotten away from her mother while they are crossing the street.”

Another example McEheney recommends is to create questions, as in this example: “One of the questions you’re going to have to answer is whether the drug company adequately warned people about the new weight loss drug side effects. We need to look at three things: What the drug company knew,What they said and What they told the doctors and the FDA as well as the public as well as What they did when they marketed the drug.” As this is being discussed, write them down on the board. By the time you’re halfway through the list the jury has already answered the questions in your favor.

A general outline of content involves the following elements:

  1. Significant time facts
  2. characters
  3. conflicts
  4. consequences
  5. analogies are metaphors.

The basic rules for opening statement are:

  • Tell the story in the present tense
  • when possible tell the story in the first person
  • talk about sequence of events and not facts
  • simplified language by aiming for an eighth grade level.
  • Avoid the word “client”  every time you use the client word it says that your lawyer getting paid for standing there talking about your case. Instead use names and touches of humanity that are relevant to make individuals real people.

These are some basics for opening. The primary rule for me is that it must be a compelling, emotional story and not an outline of facts, but told without unnecessary details.

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