Category Archives: Advocacy

PRINCIPLES OF ADVERTISING APPLIED TO TRIAL

I saw an add by Ken Hardison for PILMMA, a marketing firm for lawyers, that made a whole lot of sense to me if I were advertising. As I thought about it, it occurred  to me the same fourteen principles outlined in the advertisement really apply to trials. Here are the principles:

1. Who is your target audience? When we try cases we need to think about who are jurors are and what they want or expect. He says: “research can help.” Certainly we know that focus group research helps and is often essential.

2. You must develop a unique  selling proposition. The ad explains this means you need to figure out what it is about your services stand out among your competitors.  For trial lawyers we need to demonstrate total honesty, trustworthiness and sincerity about our case. We need to stand out as  the person the jury can trust and rely upon . We need to be unique in being totally ourselves and not pretending to be somebody else so that we stand out  as unique in the courtroom.

3.  Brand. The ad says that each ad must have the same logo colors and consistency of brand. What we need to do as trial lawyers is develop a theme that represents the key issue in the case from our perspective that is unique and is consistently followed throughout the trial.

4. Benefits versus features. The ad explains that you must promote the benefits of using your services. It points out that consumers don’t care about you as they have only one burning question in their mind: “what’s in it for me?” The ad says that we must always answer this question first before all else. Many lawyers make the mistake of presenting their case from an intellectual and logical  standpoint assuming the weight of evidence will control the outcome. But, the jurors are consciously or subconsciously asking themselves:  how does this case impact me or those who are important to me?  That’s one of the motivators behind the concept of Reptile, that is if we allow this defendant to get away with this it will affect us in some way.Verdict motivation comes primarily from the belief that the action taken by the verdict will benefit the juror, their family or community.

5. You are not your prospect. The ad points out that one should not make the mistake of believing that because you like  a proposed ad layout that the potential client will like it. When I read that I thought of how many times I have said to other lawyers the worst type of person you can ask advice from about your trial is another lawyer if you are trying to find out what will appeal to the jury. If you want to know how ordinary people on a jury might react to your case ask ordinary people. That’s what focus groups are all about.

6. Create laser focused ads. Mr. Hardison explains that you need to figure out who your target audience is and find a compelling message directed at them. Trial lawyers need to keep  their cases short and simple. Their major points  should not exceed three in number and they should be consistent throughout the trial focused on the theme and issues.

7. There are key questions that must be answered  according to the ad. What is it? What is it about? What do I get? The jurors arrived at the courthouse wondering what is this case about? Why is the plaintiff suing? How much does the plaintiff want? What does the defendant say about? Trial lawyers need to identify the key questions in the minds of the jurors and begin answering them as soon as possible.

8. Headlines are king. Mr. hardison says: “you only have 3 to 5 seconds to capture someone’s attention.” He says that he writes anywhere from 20 to 50 headlines for an ad  before he makes a final decision. He says that the purpose of the headline is to capture the reader. Everything he says about headlines at apply to trial and trial lawyers.

9. Split test when practical. The ad suggests that in order to know if that is working one needs to use two versions with one change and test to see which works. Certainly with focus studies one can present issues, evidence and exhibits in different ways for two different groups to see what works best. The benefit of a focus group is that you can test the marketing of your presentation.These

10. Track your ads results. The obvious point is made that one needs to have a way to check to see whether or not the ad is working. When I read this I thought about shadow jurors. Employing people to sit through at least the early part of trial can give you invaluable feedback as to the results of your work.

11. Testimonials. The end points out that testimonials are the most beneficial ways to advertise. Certainly in trial the impression made by our witnesses is the most important aspect of the testimony presented. The quality of our witnesses and the impression they make reflect and a significant way upon us as trial lawyers and our case.

12. Simple headlines. The recommendation is that: “your headline should be in simple language. Your prospects will not stop to decipher the meaning of an obscure headline.” That thought really flashed out page to me. Our whole goal is to make our communications simple and understandable. Our exhibits must be a “headline in simple language.” We must avoid demonstrating how intelligent we are and how many technical words we know. Short and simple should be our goal at all times.

13. Don’t sell, educate. He points out that people love to buy, but hate to be sold to. That is equally true with jurors. They will resist your attempts to sell. They will however hang on to the conclusions they arrived at themselves because you educated them to make the decision. Like all good sales professionals our job is not to pressure, but to lead people to their own conclusions. Their conclusions they will own and will defend.

14. Repeat your winners. The ad says that when something works you should not change if what you’re doing works. While we as trial lawyers must always be open to learning and modifying for improvement, we must guard against adopting approaches that are not consistent with who we really are. The basic principles of being genuine truthful and sincere are still the winning   combination for trial lawyers.

I haven’t used the services of PILMMA, but this  is an excellent summary for marketing and if were looking  I would check with this company. I think we are in the sales profession every time we go to court and we should study ethical principles of persuasion and sales.

MORAL OUTRAGE & JURY VERDICTS

We are back from Europe and while suffering from jet leg here are some thoughts you might want to consider.

Jurors construct their own story out of the evidence they are given, evaluate that story and then select an outcome that best fits their version of the facts. They apply their own values as well as their perception of the community attitudes in coming to their decision. “Your group’s values are threatened by actions like this. You or your loved ones could be harmed if this is allowed to happen,.” Juries will use these factors in deciding if the the proposed damages are low or high.

So, given this process, what about moral outrage effecting verdicts? Liana Peter-Hagene has written an interesting article The Emotional Components of Moral Outrage and Their Effect on Mock Juror Verdicts. While the article is focused on criminal cases it has many consistencies with what is taught by Gerry Spence regarding the significance of betrayal in civil cases. As the article points out, generally speaking, the more moral outrage jurors feel the more harm they perceive was done and the more punishment necessary to counter  the harm and restore the balance of justice. 

In civil cases just proving a mistake was  made isn’t enough for a substantial verdict and in medical malpractice cases is seldom enough to win the case. We forgive mistakes. What we don’t forgive are actions that require punishment. In fact, conservative jurors  are far more likely to impose more punishment where they feel moral outrage than are liberal jurors. When jurors see behavior which they perceive as moral transgressions, they react with moral outrage. Laws are supposed to represent what society views as right and wrong. When broken there is a need to punish.  When conduct amounts to a betrayal of trust and of what is right  there is a corresponding need to punish. What is clear is that the legal system’s ideal that judgments are based only on rational thought and without emotion is simply contrary to ordinary human nature and impossible to achieve.

Aristotle taught that pathos i.e. emotion, was a crucial component of persuasive speech. Moral judgments  are the product of non conscious automatic intuitive processing. Only after that does conscious reasoning take place to justify whatever has been presented to the conscious as a non biased objective decision.  Given this truth plaintiff lawyers should always be more concerned in discovery for the reasons behind the mistake that was made than proving the mistake exists. It is not just showing the car went through a red light, anyone can make that mistake – it is showing that the reason was the driver was texting, which is a total betrayal of the trust we put in other drivers to drive with reasonable care for  our safety.

We lawyers are trained to look for the evidence which shows a negligent act happened so we tend to quit when we have exhausted that area of inquiry. What we must always  do is to to explore for possible moral outrage and  facts  of betrayal behind the mistake.

 

TRIAL LAWYERS AND STORYTELLING

Philip N. Meyer is a professor  of law at Vermont Law School.  He Emailed me about a book he has written, Storytelling for Lawyers published by Oxford Press. I have not had the opportunity of reading his book, however the table of contents shows a comprehensive list of subjects about storytelling. I recommend any well written book on this important  subject.

Clearly storytelling is an essential tool for trial lawyers.  The  Spence  Trial College teaches storytelling http://www.triallawyerscollege.org/. Learning  how to tell stories about the facts of a case is a tool every lawyer needs. I’ve spent some time studying script writing as a means of  learning about storytelling. My wife and  I sponsored an informal class  with actor Tom Skerritt and other  professionals from the Seattle Film School for a small group of trial  lawyers &  friends because of the importance learning how to create and tell stories. I’ve published before on this subject, but Professor Meyer’s new  book inspires me to post about it again.

Why Storytelling? 

None of us need to be reminded that the way to capture attention with children or adults is through storytelling. Lately literature about the skill of trial has been full of articles about becoming story tellers in trial. It is not just Native American culture that traditionally was oral. All mankind’s history has involved storytelling.  Alex Haley in Roots reviewed the African oral tradition as well which has many similarities to the Native American. Scripture is replete with examples of storytelling as the chief means of communicating. We were brought up with storytelling either by our parents or in the books we read or the old radio programs and now by television or the movies. How many times have we heard someone say “did I ever tell you about the time…”?

Some therapists believe that listeners routinely enter a trance like state when listening to a well told story. This has been explained as being mesmerized by the unfolding story. People suspend outside awareness and concerns as they focus on the story. This allows them to be touched at the deepest level resulting in emotional responses including even tears. Story telling is a powerful tool.

Why are stories so compelling? Look at the parables of Jesus in scripture which are in story form. We see that one important fact about this form of communication is that they always make truth concrete. It is difficult to grasp abstract ideas. Most people think in pictures. Parables make truth into a concrete picture people can see and understand. Further, all great teaching begins from the here and now in order to get to the three and then. If you are going to teach about things people don’t understand you need to begin with things they do understand. Parables involve things every person understands from their own experience and from there lead to things which they need to understand. Most important, parables compel our interest because they are stories. The surest way to get interest is tell a story. The parables allowed people to discover truth for themselves. They all contain the question, what does this mean to you? Some things are best left to be discovered and stories allow you to create that in the listener. Note also that the impact on the people hearing the parable was immediate. It was spoken not read. It made truth flash upon a person with immediate truth. But also note that parables only had one point to make. They were simple and they were very understandable.

Throughout history we have communicated our heritage by telling stories and singing songs. While today we may not tell stories sitting cross legged in front of a fire or around the kitchen table, we pass on our visions and ideas from generation to generation by written stories, radio, television and movies all by storytelling. 

Gerry Spence emphasizes story telling at the Spence Trial College. He has argued that the most important trial technique is to transfer one’s case into a story because people are used to storytelling and because it is an effective technique of persuasion. Your client’s story should be featured in all aspects of the case: jury selection, opening, direct, cross and closing. It is in the repetition of your client’s story that will persuade the jury.

In an article published in the American Bar Association Journal April 1986, Spence wrote:

“Of course it is 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’re hard wired for it.”

The importance of storytelling in human understanding is underscored by the high intensity of communication. We must simplify and communicate in ways that will be heard in order to get through all of the information being thrown at us daily. Peter Large in The Micro Revolution Revisited says more information has been produced in the last 30 years than in the previous 5,000 years. About 1,000 books are published internationally every day and the number of books in top libraries doubles every 14 years.

Since words alone play such a minor role in communication we need to think in terms of storytelling for full impact. We know that what is said counts for only part of what is understood. Our vocal message (inflection, resonance etc) accounts for a  large portion of the understanding. But, a very important part of the understanding is nonverbal. Therefore, storytelling is of great importance in our efforts to persuade.

Storytelling simplifies and focuses attention for the listener. When people receive random, unstructured information they become anxious and soon stop listening completely. This happens when information does not tell us what we want or need to know. Henry David Thoreau said it takes two people to speak the truth – one to speak and another to hear. What counts is not so much what is said, but rather what is heard or thinks was heard.

Albert Einstein has rightly observed that “imagination is more important than knowledge.” Since a trial is a war of impression and not logic successful trial lawyers must become masterful story tellers who engage jurors on a visceral level with the magic of storytelling. It is at that level people decide all important issues and reach opinions.