Category Archives: COMMUNICATION

BRIEF THOUGHTS ABOUT JURY COMMUNICATION

For many years jury consultants  Starr & Associates,  http://starrandassociates.net/ published  Insights a newsletter with information about communication with jurors. I saved an article from 1991 entitled: “television has changed the way jurors learn.” The points that were made then are still valid today.

The article pointed out that jurors learn the great majority  of their information from TV. Roughly 80% of all Americans get 90% of their information from television. The problem is that communication in the court room and communication through television are vastly different and in fact in some cases conflicting. The differences are illustrated by the examples of trials on  television where the examination of the witness is two or three minutes long and final argument is about the same length. A very different situation from the  courtroom where there are long delays without anything happening involving the jurors and the information is lengthy, complex and boring.

The article says: “television has four primary axioms of communication: brevity, simplicity, entertainment and visualization. An attorney who applies these axioms to the court room will be a more effective teacher and thus more persuasive.” It goes  on to discuss these.

Brevity: Most news stories last no longer than 25 seconds without interruption and the news broadcast itself is interrupted every 7 to 9 minutes with a commercial break. This rhythm changes the attention span of the TV watcher. As noted in the article by contrast the Lincoln – Douglas debates lasted, on average, seven hours per debate. Lawyers like Clarence Darrow would argue for as much as eight or more hours to a jury. Today’s jurors do not tolerate repetition and boredom on the part of the lawyer and reflect this by turning off as well as by adverse verdicts against the offender.

Simplicity:  Complex issues and big words result in a perplexed receiver of the information. If it happens on television they change the stations. In the courtroom they simply stop listening and begin thinking about other things. Furthermore almost everything on television is already reduced to its most basic form without argument or the need to think about it. Television results in people who don’t want to explore issues in depth. They want the bottom line and they wanted simply as well as briefly.

Entertainment: When a program is dull on television people stop watching and change channels. They expect entertainment. The television journalist looks for compelling story lines and visuals that are entertaining and captivating. Networks are aware of pace and tempo as well as action and suspense. The presentation needs to be entertaining if  you want the jurors  to listen.

Visualization: Television has taught the viewer to expect  proof and not have to take anyone’s word for it. They want pictures and they want document proof. That’s what they get on television and they expect it  in court. That’s why documents, visuals and compelling witnesses are so critical.

The publication also notes that their findings on survey which showed that as jurors people have certain expectations about how to establish facts in a lawsuit. It turns out that they want it  in “black-and-white.”  For example, 94% expected proof to be by documents and eye witnesses. 79% expected the proof to be by pictures or hard evidence.

Let’s consider some of the other basics of communication. We know that communication is not what we say, but rather what is heard. President Franklin Roosevelt sent ambassador Winant to meet with Russia’s Molotov during World War II. In presenting Roosevelt’s message he opened with a few words of his own. He said he was going to “talk turkey on this issue.” Molotov interrupted with: “Turkey? What does Turkey have to do with the Baltic states?” The ambassador tried to explain patiently that “talking turkey” was merely an American expression meaning to talk seriously, but the suspicious Molotov could not or would not understand, and the meeting ended without any useful discussion of the presidents message. The ambassador never regained Roosevelt’s confidence after that. Communication is not what is said, it  is what is heard. We need to employ the most fundamental principle of advocacy which is simplicity and clarity and brevity.

The use of metaphors or analogies is often a persuasive communication tool. In a trial which was then America’s longest civil trial, the issue involved whether or not dioxin which had spilled from a railroad car in Belleville Illinois was the cause of injury to people in the nearby town. Closing arguments took 6 1/2 days. The plaintiffs asked for $35 million in actual damages and 100 million in punitive damages.

The defense was simple and brief: there was not enough dioxin to hurt anyone and no one was really hurt. The defense used this as their key point about this issue during argument  by saying:  “ladies and gentlemen of the jury, if you had one ticket and sat in one seat in  Bush Stadium that is one part per 50,000. So, what is one part per trillion? Well, one part per trillion would be if you had one seat in 20 million Bush stadiums. That’s one part per trillion.”

There was a defense verdict. When jurors were interviewed afterwards they said the one thing they remembered from the arguments was the comparison involving the baseball stadium that proved to us there wasn’t enough dioxin to hurt anyone. Analogies and metaphors are powerful. 

To remind me of  these communication principles I prepared a one page sheet which I kept in front of me during trial. There is an example following, but I would also add to this sheet three principles or themes I wanted to emphasize throughout the trial. Striving to put on another single letter size sheet all of  the themes, defenses and issues in your case is a great way  to force you to see the case as a big picture and simplify the issues.

BE BRIEF, BE SIMPLE & GET TO THE POINT

1.       Be Calm -   Stay calm & confident

2.    Be Slow  -  Pace & timing: “One thought per juror”

3.   Be Nice    -  Always professionally

David’s advice to Solomon:

“Be strong and courageous, and do the work. Do not be afraid or discouraged”     Chron 28:20

   

 

         

 

 

 

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  1. 1.       Be Calm -   Stay calm & confident
  2. 2.    Be Slow  -  Pace & timing: “One thought per juror”
  3. 3.     Be Nice    -  Always professionally

STAND STRAIGHT           SLOW DOWN           SMILE

SOME THOUGHTS ABOUT GOOD COMMUNICATION

Good clear communication involves a great deal of factors. Here is a refresher of ten primary rules of high-quality communication.

  1. It has been said that the eyes are the windows to a person’s soul. When we like things, our pupils dilate. When we dislike things, our pupils contract. Eye contact is one of the most important parts, if not the most essential, part of communication. In ordinary conversation it’s been determined that we maintain eye contact about 50% of the time while we are speaking and about 80% of the time when we are listening. If we are attempting to dominate the conversation or the individual we maintain eye contact 100% of the time. Jurors determine if we are listening to them on the basis off whether we maintain eye contact with them while they are speaking. We share, during trial, with the jury by involving them with eye contact. We show by eye contact that we are always aware of them and their  involvement in the case. They are made part of our  team through eye contact.
  2. Every person has  zones of social space that have psychological importance. These include public, social and  personal space zones. The space zones vary from culture to culture. Someone in Great Britain probably has a larger zone of privacy than someone in Mediterranean countries. The person from London expects you to stay further away than the Spaniard in our normal conversations.  This zone, in which we allow our closest friends people and those close to us, is up close at 1 to 3 feet.The social zone includes people we shake hands with and are carrying on conversations. It is generally 3 to 4 feet. The public zone for strangers is around 4 feet.This fact is important when considering where to place yourself in relationship to jurors and with respect to witnesses. When first dealing with juries a distance of 10 to 12 feet is probably advisable at least until the jury has become comfortable with you. Putting material on the jury rail and leaning over the jury while talking to them  is obviously offensive unless there are special circumstances which would permit it. On the other  hand, avoid using a  podium in trial if you can because it is a barrier to personal connections. Being conscious of these zones is important in communication.
  3. Image and impression are of great importance in most affairs of life but especially in trials. Trial is a battle of impression and not one of intellect. Small things enter into an impression we create of someone else. For example before the advent of I-iPads and  digital equipment court, I always used a pencil to take notes in the courtroom instead of an expensive pen or even a ballpoint pen. I wanted to show I was an ordinary person like they were. We all know the importance of first impressions. However, first impressions are long-lasting and will influence future perceptions about the individual. As a general rule conservative and professional images should be maintained with neutral clothes with  moderate hairstyles and lack of jewelry.It is not surprising that research shows jurors increased their identification and liking of both client and attorney who project and appealing image to them and vice versa.
  4. Max Lusher was a famous Swiss psychologist who studies involved color psychology and have been employed around the world. He found that each color had the same psychological effect on people generally. Colors had a direct effect on the on the anatomic nervous system. In general dark colors, blue and green,  slow down our heart as well as lower your blood pressure. Lighter colors have the opposite effect. The four primary colors are a basic primitive part of the brain’s evolutionary development. They are important in visual presentations.  Lusher found that the color red promoted activity and excitement. Yellow is the most active, free and liberating color. Blue i calm and orderly activity. Green is a darker calming color  but has more rigidity and less compromise than blue. People who prefer green tend to be independent. Colors have been shown by research to be important in visual presentations. Advertisers and human factors experts know that colors like yellow, black and red when used in signs correctly have a significantly different impact than other colors.
  5. Americans of today are the most visually oriented people in our history. They tend to rely more on what they see rather than what they hear. Since trials are visually  oriented visual aids should be utilized whenever possible. The use of video, PowerPoint, pictures and other visual exhibits are the  essential parts of every trial.
  6. Opening statements for most jurors should be organized around three main issues which you want the jury to remember throughout trial. We know that after 20 minutes memory recall drops significantly. Television has used this fact for years in deciding when to insert commercials during a program. The first 20 to 30 minutes therefore are essential learning periods that should not be wasted.
  7. We have known about the principles of  primacy and recency for years. Primacy means that the facts we hear first will tend to influence our interpretation of future facts. Recency means of facts we hear last are remembered the best. When we organize our case around three key points and talk about them both at the beginning of our opening statement and at the end we have used principles of  good psychology. Referencing them throughout the trial and repeating again and argument satisfies the rule of recency.
  8. Some of the basics of an opening statement are: (1) speak plain English (2) be brief and concise (3) summarize the main ideas  and (4) Under state rather than overstate your case.
  9. Remember that a person’s demeanor typically represents at least 60% of the total message communicated to others. When the verbal message is in conflict with the message given by demeanor credibility is greatly impaired. You must be congruent in both  words and deneanor
  10. If you want to make a favorable impression don’t quarrel with your opponent. The jurors find legal disputes tedious and boring. They tune out and resend. When there is  quarreling between counsel the jury regards it as unprofessional. When opposing counsel objects don’t look at them. When you do you give too much importance to what is being said. Look only at the judge. When you respond do not talk to the other lawyer, only speak to the judge. Make the response professional and not whining.

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.