Category Archives: COMMUNICATION


Ashley Parker in the October 5th edition of the New York Times wrote an article entitled Digital Ads Sell Candidates and Causes in 15 second Bursts.” She writes:

“Fifteen seconds is not a lot of time in this world of political advertising to make a compelling statement or share a riveting candidate story. But in the attention – deficit era of politics, with voters consuming more and more news on mobile devices, campaigns and the groups supporting them are devoting significant resources and energy to the micro ads that dominate the digital landscape. The result is an explosion of shorter, attention grabbing spots that have made political messaging all the more blunt and, at times, creative.”

The article points out that on television advertisers have more time to present a “hook” to capture a viewer but in the social digital world it is a matter of milliseconds. Therefore one has to be much more creative visually and with a very tight message with a hook that’s upfront to be successful.

The IAB research Council undertook a study of video advertising campaigns for a national retail brand. The findings of the study include the following:

  • 15 seconds appears to be in operable link for digital video. Five second spots had trouble conveying a message; while 32nd spots risk turning off a viewer waiting to watch something else.
  • 32nd spots too well at conveying a complex or emotionally resonant message, but work best in places where longer messages are appropriate.

The New York Times article says that while there is no single formula for success there is an agreement on several basic rules for grabbing voters attention. First is frontloading the ad by placing the most important message in the first few seconds. It is important that there are dynamic visuals, eye-catching graphics and compelling music to help attract at to and keep attention. The content that works best in shorter form is content that smart, funny and inviting. In addition, just like television, the article points out that content reigns supreme. As one political consultant is quoted as saying in the article: “you can make any 15 second ad you want, but if they’re boring, and people are just overwhelmed with the amount of advertising out there, then they’re not going to stick out. That is part of the blessing and the curse of the actual ad format online. ”

Certainly it makes a difference as to the generation the listener or viewer falls into. The short attention span is most common among the younger generation who have largely abandoned printed newspapers and printed books for all things Internet and digital. They even prefer to watch television not on television sets or large screens but on various digital devices.

However, it seems clear that almost all Americans have come to expect and demand brief to the point information. They want sound bite information. They expect the news headlines to be a minute and a half in length with visual. They want the information upfront in the first paragraph and are not inclined to read the background information.

Retail sellers and politicians are usually the first to realize a change in how to communicate with customers and voters.Those of us in the trial profession seem to be the last to be willing to change our communication style to meet the demands of the people who end up on our jury. We continue to do what we’ve always done which is to talk too much, too long and being too complicated. Applying these lessons of brevity and attention getting opening to communication is foreign to our training and our belief that people are intellectually analyzing the information we are presenting. In the meantime politicians and marketing experts apply the research by accommodating the present demands of their listeners. They do this through communications which attracts attention and appeals to the subconscious impressions that really persuade all of us.

As trial lawyers we need to consider the demonstrative evidence we present to see if it conforms to the expectations of the 15 second digital ad. We need to talk to jurors with these ideas in mind during jury selection and make opening statements that are evaluated from the standpoint of this new information. When we present our witnesses and when we cross-examine witnesses we should have these ideas in mind. Our trial communications should be in conformity with  research about today’s juror expectations in communications. A bored jury is not usually a friendly and generous jury. A bored jury is one that has stopped listening long before the end of the trial.


Projecting Power

In a short piece “how to project power” writer Malia Wollen quotes social psychologist Deborah Gruenfeld at Stanford University: “keep your limbs away from your body.” She says some research shows people posed in expensive postures feel more powerful, exhibit higher testosterone levels and have lower levels of stress. Additional advice: make eye contact while you’re talking, but feel free to look away when others do. This is called by scientist having a high “look – speak to look – listen ratio.” Gruenfeld  has spent decades studying the psychology of power. In 2008 she and a theater instructor began offering a class at Stanford business school called acting with power. Her advice includes: Don’t bother over explaining yourself. Speak succinctly. Take ownership of the space around you, whether it’s a board room or a cubicle. Say to yourself “this is my room. This is my table. This is my audience.” Gruenfeld uses the example of a Queen  who has dignity and respect, makes people feel safe, but underneath her cape is a sword.

This brought to mind the famous TED talk by Amy Cuddy made famous in 2012 and viewed by a record number of people regarding power poses. Cuddy suggests that taking a wonder woman like stance before a tough negotiation or high-stakes meeting can improve how others perceive you, measurably alter the testosterone and cortisol levels in your brain as well as change your and others’ perspective.  Standing with arms on hips and legs spread for a few minutes before the important meeting can boost your confidence and risk tolerance.


In August of this year Joan Acocella writing in the New Yorker discussed what’s behind stage fright and a book review entitled “I can’t go on!” In 2012 researchers at the University of Nebraska – Omaha surveyed some 800 college students asking them to select their three greatest fears from a list that included such things as heights, flying, financial problems, deep water, death and speaking before a group. As has been the case in other research, speaking before a group beat out all the others including death.stage fright has been described as “self poisoning by adrenaline.”

In response to stress, the adrenal glands pump a hormone (adrenaline) into the bloodstream causing the body to shift into a state of high arousal. Muscles tense, sweats and shakes, heart pounding, mouth goes dry, trouble breathing, nauseated or dizzy,  constricted throat and a voice rising in pitch. This is all from the “fight or flight” response. It all originates from a feeling of exposure. Actor Stephen Fry says that stage fright means the audience sees “the shriveled penis in your head.” Actor Daniel Day Lewis playing in the production of Hamlet in London’s national Theatre turned on his heel in the middle of a show and walked off the stage never to return. In the 26 years since then he has acted only in movies.

Cicero, ancient Rome’s acclaimed orator, said “I turned pale at the outset of a speech and quake and every limb.” Thomas Jefferson, who was said to of been mortally afraid of public speaking. As president, he gave only two speeches, his inaugural address twice. Gandhi was terrified at having to speak to a group: his vision would fog over; he would fall mute. Barbra Streisand is well known for her problems in that regard. There are numerous examples: Ella Fitzgerald, Luciano Pavarotti and Mel Gibson.

There are various ways of dealing with the problem. One is drugs, notably beta blockers which interfere with stress hormones. There is a wide range of behavioral and mental exercises including yoga and meditation. I have no magic formula. However we all know that the most powerful force we have is what we say to ourselves and believe. The first thing that happens with becoming stage fright struck is that we focus on us. We see everybody as looking at us and we are looking at ourselves as well magnify all things out of proportion. In fact, it is the ability to step out of ourselves view the situation as if we were in another part of the room seeing the entire picture. In addition, the visual image we put in our head is key here. Visualizing slow calm confident words and demeanor creates reality for our subconscious. Playing it as a movie in our mind as realistically as possible with color and sound makes it reality in our subconscious. It goes  without saying you have to know the material, you have to be prepared, you must have reviewed everything in your mind well enough to avoid as many surprises as possible. In the end, it’s a matter of having the courage to stand and deliver in spite of fear. After all dignity is grace under gunfire.


I was recently sent an article about the effect of apology by a journalist from the BBC which was interesting. The failure to make an apology has as  serious consequences as making one does. For  example, a bad, or delayed or non apology can cause a great deal of harm. I think the biggest violators of  basic correct apology are politicians and corporations. After all, their attitude is “being powerful means never saying  you are sorry” and many operate on the proposition don’t ask permission, just do it.  

For the U.S. the classical illustration of  how not to make a corporate apology was Tony Hayward’s apology for the BP golf spill which to this  day is an underlying  reason why there is continued resentment and distrust of BP plus ongoing litigation.

The psychology involved is very  interesting. See recent NY Times  article: In my trials I have capitalized on the corporate reluctance to  apologize. It is human nature to not want to say you are sorry and in legal settings seen as inadvisable by many lawyers. Here are some thoughts about apologies:

Benefit of Apology

Dr. Jennifer Robbennolt, a University of Illinois law professor has written an article Apologies and Medical Error Some 550 people were surveyed about their reaction to apologies offered during settlement negotiations in a hypothetical injury case study. Her findings suggest apologies can actually play a positive role in settling legal cases. The studies showed that statements acknowledging an error and the consequences, while communicating regret for having caused the harm can decrease blame, anger, and decrease the risk of litigation.

The article cites another study where patients were asked to evaluate a number of scenarios describing medical errors from the perspective of the injured patient. 98% indicated that they expected a physician’s acknowledgment of the error. In another study 88% of the people wanted the doctor to tell them that they were sincerely sorry for what happened. Focus groups have indicated similar preferences.

Robbennolt’s studies indicate that patients who file lawsuits are motivated to find out what happened and to prevent future injury. In another study surveying medical malpractice claim to determine the motive for filing a malpractice case 90% indicated they wanted to prevent the same thing from happening to somebody else and to receive an explanation for what happened. Yet in a study of physicians about disclosure of problems to patients, 57% referred to the event as a “complication” or “problem” Fewer than half of the surgeons offered some expression of apology or regret and only 8% assured the patient the error would be

The reluctance to apologize is largely based upon the fear of risk of litigation. However Robbennolt indicates that empirical research has demonstrated that most injured patients do not file lawsuits and that physicians substantially over estimate the risk of being sued. Further apologies tend to diminish blame and make patients less likely to sue.

Effective Apology

Studies have shown not any statement will suffice as an effective apology. In an article 8 essentials of an effective apology– of–an–effective-apology/  The article suggested that there are eight essential elements of an effective apology

Accept responsibility for your actions.

  1. Pick the right time to apologize
  2. Say “I’m sorry,” not “I apologize”
  3. Be sincere and express empathy for how you hurt the other person
  4. Don’t use conditional language
  5. Don’t offer excuses or explanations
  6. Listen figure 8 commit to not repeating the behavior.


As of January 2009 apology laws had been enacted in 36 states. (Does Sorry work? (Benjamin Ho Cornell University and Elaine Liu University of Houston abstract October 2010) their paper concluded that “we find that in the short run the law increases the number of resolved cases while decreasing the average settlement payment for cases with more significant and permanent injuries. Our findings suggest that apology laws reduce the amount of time it takes to reach a settlement in what would normally be protracted lawsuits, leading to more resolve cases in the short run. In the long run, the evidence suggests there could be fewer cases over all.”

Washington has adopted a statute, RCW 5.64.010 which makes apologies and conciliatory efforts in a malpractice case made within 30 days of the event inadmissible as evidence in a later malpractice trial.