Category Archives: COMMUNICATION

David W. Mykel published an article in March that discussed the importance of visual evidence. He says that almost 70% of the population are visual learners with some 49% of the people getting their information from the internet. He suggests that we are dealing with a different kind of audience, one that embraces technology. People spend a considerable amount of time in front of a television and online.  We should consider how we are presenting our evidence in court. While PowerPoint  can be abused and exhibits overdone, we err too often on the side of not accomodating the need of so many jurors  to  see  it before they believe it. I recommend simple focus studies  where the only issue is a review of the proposed exhibits  you intend to use and the manner  you plan on using to do so.

The Harvard Business Review published an article “The Visualization Trap” in which they discussed the well-known phenomenon of hind sight bias – the belief that past outcomes were predicable. In a study participants were given written diagrams and a description of how an accident occurred. Another group was given a computer animation of the accident. The groups were surveyed as to how predicable the result was from the information given them.

The group that watched the animation was more than two times confident the outcome was predicable than the other group. The animation group was even more confident than actual witnesses who were asked if they had seen it coming. When subjects were given photographs to go through at their own speed of a traffic situation they were surveyed on the same issue with another group who had seen an animation of the same situation. The results, regarding hind sight bias, were the same. Researchers concluded that movement is a critical factor in creating the effect.

Computer animation can purport to make sense out of highly complex information and influence conclusions about predictability. Today, we can  create animations much  more cheaply than in  the past. Simple animations can make a large difference in perception. A  series of photos moved one by  one with illustrations and labeling can be more  effective that a still photo in that regard. Think about this in cases  where high sight bias could be an issue and in cases where you need to  make something simple.

In his book The Social Animal, David Brooks offers insights as to how the human mind works. One thing he points out is that in persuasion, instead of telling the other person what you are offering, ask them what they want. Ask what makes them unhappy, keeps them up at night and what part of their job they like. Your message should be: “It’s all about you and not about me.”  Have you considered asking a jury panel what they would want to have  presented on an issue in your case. For example, where credibility  is a critical issue, “How do you  tell when someone is not tellling the truth?  What would you want to know about that issue in making up your mind?” Or, perhaps “What evidence would you want to have in order to decide……?” Certainly, spending time talking about  the juror is more rapport building than lecturing them about your case.

Brooks also writes  about he influence of “priming” on our thought processes. When subjects were given a test with a series of words vaguely related to elderly people, after the test, researchers  observed them moving more slowly.

When subjects were given a test with a series of words relating to aggressive behavior and annoying conduct, they found, afterwards, the subjects were much quicker to interrupt someone and act more rudely. Likewise, a group who was  given stories of high achievement performed at a higher level on tests than those given stories about failure.

In another situation involving priming, a Brunswick pool table store did an experiment in sales. One week the sales people showed customers the lowest priced tables first and then the more expensive. The next week, they did the opposite. They showed the most expensive tables first and then the lower priced ones. The result was that the first week customers spent an average of one half of what  customers  spent the second week. The customers who were first shown high priced pool  tables felt  the prices for the lower priced tables were more of a “bargain” due to the previous prices by comparison. They same thing has been done by successful real estate sales people in showing more expensive homes first.

Have you considered the influence on the jury by discussing large numbered things in comparison to your request for damages? What  about asking about excessive verdicts using examples of very large verdicts?  It raises questions,  as  well, about suggesting a verdict number to the jury in voir dire or opening as a priming effect. Think about this in connection with the idea of framing. As  an example, a surgeon who tells patients there is a 15% failure rate communicates something different than when he tells them there is an 85% success rate. Trial lawyers are supposed  to be word masters. We need to study these important ideas about how we express  ourselves during trial.

There is so much information available to us about improving our skills as trial lawyers. Hundreds of lectures, videos, books and articles can be accessed. Our challenge is to keep learning and never assume we have reached a point where we can just do what we have always done. The courage to take risks to try new ideas, or at least ideas that are new to us, and the curiosity to continue to search for improvement are needed if we are to become great trial lawyers. Here are a few examples of some ideas worth thinking about

GEORGE SPECKART

Dr. Speckart is a jury consultant who has published about communication and trial persuasion. Here a couple of  thoughts I’ve summarized from his writings.

1. In terms of jury psychology, the question put to the witness itself is often is more important than the answer because the question represents evidence for the juror no matter what the judge tells them.
2. Demeanor is critical. One should “kill with kindness” if the attorney is abrasive the jury will assume that the sustaining of objections is because serious transgressions have been committed. However if the lawyer is likable, gracious and refined the jury sees the objections and rulings as technicalities that have meaning only to the members of the legal profession. 

FRANK LUNTZ

Frank Luntz is a nationally known expert on communication. He has published widely and written books on the subject. He has been an advisor to national political parties and candidates. Here is my summary of some of his materials 

1. You only get one chance to make a good impression. Your first sentence, first thought, first idea, is the most important.
2. Be a good listener. Don’t look away. Don’t fold your arms. The people centered: I’m listening; I hear you; I get it; I respect you; you are in control; you decide.
3. Phrases that work are: first principles, first things first, prevention and protection, getting our house in order, if you remember one thing, a straightforward approach, optimized – efficient and effective.
4. Words of passion are: imagine, let me fight for you, believe, celebrate, freedom, life is an adventure – we you join me.w
5. Words that demonstrate principles are: accountability, strict standards, moral compass, social responsibility, objective and unbiased, uncompromising integrity, the simple truth, say which you mean and mean what you say.
6. Words that work: prevention, protection, accountability, compassion, the right to, patient centered, and balanced approach.

TRIALMAGAZINE

In an article published in Trial Magazine entitled  “Motivating Jurors” March 2008,  Wenner and Cusmano made some excellent points. Here are two that I have summarized

1. People are reluctant to change the status quo. Jurors perceive the status quo as the position of the parties at the time the trial begins. Jurors, particularly those who feel victimized by large jury award awards, will have an unconscious preference for the status quo – a defense verdict which leaves the parties as they perceive them to be when the trial started. There is a defense verdict bias by jurors. To overcome this you need to frame a defense verdict as a change in the status quo that creates a loss for the jurors. Research shows people are more motivated to avoid losses than they are to obtain gains. If jurors perceive a defense verdict is a personal, family, or community loss, they will be inclined to decide for the plaintiff.
2. The verdict should be framed in a malpractice case as a protection against the defendant who threatens to eliminate safe medical practice. Frame a verdict for the defendant as lowering the standard of care and eliminating safe healthcare. People are reluctant to give up what they already own. Framing the defense verdict as a loss of safe healthcare unconsciously motivates the jurors more than the prospects of gaining better or safer healthcare. 

 DON KENNAN

Everyone knows plaintiff trial attorney Don Kennan who has lectured and published with trial consultant David Ball about Reptile concepts and trying plaintiff cases. Here is one thought I think we all can benefit from knowing and ties into the idea from the Trial Magazine article.  

1. The conservative is deeply resistant to change. Establish that the rule the defendant broke was long-standing and why it was important. Show who follows rule and who ignores the rule. Instead of a “set the standard” argument, which involves changing the status quo, argue, “enforce existing standards.” The argument should be it  is “it is up to you to enforce the standard. It is up to you to decide how far a company can go in hurting someone by violating long-standing  safety rules.”