WHY STORY TELLING IS SUCH A POWERFUL TRIAL LAWYER’S TOOL

By now every trial lawyer has been told or has read about the importance of storytelling. Too often this kind of advice is the sort of thing we hear and read about repetitively but don’t internalize or accept as being as important as it is so we continue to do what we’ve always done: talk in narratives and as a chronology to the jury. Eric Oliver is a jury consultant of many years. (eric@eric-oliver.com)  His company Meta Systems publishes from time to time a newsletter and since Eric and I have worked together on my cases he’s kind enough to send me a copy.  his winter 2016 addition has an article by Leo Widridge “The Science of Storytelling: why telling a story is the most powerful way to activate our brains.”

He makes several important points worth repeating.  Storytelling has been the process by which mankind has communicated and passed on knowledge. 27,000 years ago stories were told by paintings and caves  which is how we are still communicating with each other and to ourselves.

He says that when we are being told a story, things changed dramatically in our brain  as to what parts are activated. The part that is activated during storytelling is the same area of the brain we would use if we were actually experiencing the events being described in the story. If we listen to a PowerPoint presentation with bullet points the language  processing part of the brain is activated, not the storytelling area. Science has shown that evolution has wired our brains for storing telling.

The author says that a story in its simplest form is a connection between cause and effect as if it were happening. Research shows that we make up stories in our heads for every action and conversation. We spend much of our time telling  or listening to personal stories about ourselves and others.

Another important aspect of storytelling is that when we hear a story we want to relate it to one of our past experiences. We search for a similar experience in order to connect it and make sense of it. That’s why metaphors are effective because our brain is searching for a cause and effect relationship of something we previously experienced as we hear the story and metaphors serve as a shortcut.

It turns out that when we are trying to convince people we are more successful if we tell them a story why it is the best thing to do because it activates the person’s brain in an area that turns the story into their own idea and experience. Even in legal writing storytelling is a more persuasive way of presenting an idea.

The more simple the story the more successful. To put it another way the more complicated the story the less successful the goal of persuasion. We too often, as lawyers, see things in a complicated, detailed manner. However, the listener has great difficulty with a story or presentation of that kind. The simpler a story, the more likely it is to be accepted and remembered. Simple language and low complexity are the best ways to activate the brain regions that make us connect with the story.

Another point of the article is that overused phrases and words that may have been effective in storytelling of the past have lost their effectiveness. Figures of speech like “having a rough day” are so familiar that they are treated simply as words and no more without any connection to the brain. We need to employ fresh phrases and words to activate the part of the brain we are trying to reach.

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WHAT TRIAL LAWYERS CAN LEARN FROM DONALD TRUMP

No, I’m not talking about politics. I’m talking about communication tactics employed by Donald Trump.

Omaha Nebraska jury consultant David Clark and I have engaged in an exchange of emails over a  long period of time about the general subject of communication and in particular techniques taught at the Spence Trial College. However, since the presidential campaign has become active, our communications have focused upon Donald Trump and his communication style. Not because we are particularly interested in his political positions but because we both recognized that he employed significant communication techniques most people ignored. While most people regard him  with intellectual distain and are  appalled by his verbal conduct, we believe there is a substantial amount of unrecognized communication tactics being used either knowingly or not. These are some significant techniques that we all should evaluate.

Most recently David shared with me some YouTube videos about communication in general. One video not involving Donald Trump I found particularly fascinating. It analyzed the powerful eye contact demeanor of Bill Clinton. https://www.youtube.com/watch?v=0o_EK4EjuEY This short video carefully analyzed why Pres. Clinton had such charisma in his eye contact with other people. I have observed too many lawyers, particularly in jury selection, who do an abysmal job with eye contact while talking to jurors. While the juror is still talking they are looking down at their notes and violating other basic rules of good eye contact. This video, however, analyzes what makes good eye contact with  illustrations of President Clintonhttp://Lessons from Donald Trump for Trial Lawyers and is worth taking the time to watch.

Regarding candidate Trump, David referenced two other videos I recommend. These deal with an analysis of the subtle but powerful techniques employed by Donald Trump and illustrates them in the videos.  One of them is https://www.youtube.com/watch?v=9LR6EA91zLo. The other video can be found at: https://www.youtube.com/watch?v=MvVfj0ov8k8. I believe both of these are worth the time to watch them.

There are a number of blogs and websites that discuss candidate Trump’s communication tactics as well.  Michael Maslansky has written an interesting analysis in this regard. It can be found at: http://www.prdaily.com/Main/Articles/Communication_strategies_from_Donald_Trump_20052.aspx he suggests that candidate Trump has used these five strategies to his advantage:

  1. He has a clear narrative, a master story that he sticks to
  2. He understands and taps into simple, emotional truths
  3. He speaks the language of his audience
  4. He reframes every debate question into language he prefers
  5. He is deliberately, decidedly different from his peers in both his style and approach.

Let’s look at a few of these. The master story he has created and continuously repeats is the slogan: “Make America great again.” That’s his master story and he consistently repeats that message.

The author says very correctly: “elections aren’t fought using reason; there fought using emotion.” I would insert trials are not about logic; they are about impression. The author says that the way to persuade people is to tap into what matters to them emotionally and Trump does that persistently.

Regarding the language of the people, this candidate ignores the complexity of political conversations and uses every day talk people understand. I would point out that it’s the role of the trial lawyer to eliminate big words, acronyms and complex sentences with short and simple communication.

As  to putting things  into language  he prefers, we all know the need to frame issues  correctly  and  put them into language  that favors our position.

Consider the idea of being decidedly different from his peers. We know  that in trials the first lawyer who looks,  sounds  and  acts  like a sterotyped lawyer loses. Our  job  is to be part of the tribe of  ordinary people on the jury and unlike our opponent.

The creator of the cartoon Gilbert, Scott Adams has an educational background in psychology and communication. He has written a very insightful article analyzing this subject involving Donald Trump. http://www.inc.com/peter-economy/the-6-persuasion-secrets-of-donald-trump-according-to-dilbert-s-scott-adams.html  here are some of his points:

  1. People are not primarily rational but “irrational” in their thinking process. As Adams points out people are not wired to be rational but rather have evolved in order to keep us alive.
  2. This fact is directly related to the power of appeal to emotions. Adam says that Trump completely ignores reality and rational thinking in favor of emotional appeals.
  3. Adams observes that when you appeal to emotions, the facts don’t really matter. He says:

“Trump knows psychology. He knows facts don’t matter. He knows people are irrational. While his opponents are losing sleep trying to memorize the names of foreign leaders in case someone might ask, trump knows that that is a waste of time. No one ever voted for President. based upon his or her ability to name heads of state. People vote based on emotion, period.”

  1. He has mastered identity politics. Adam says that when you are identified with the issues of Americans they are committed to you. Adam says that: “identity is always the strongest level of persuasion.” I would note that when we connect our case to the strong value systems and underlying driving issues in the case we have captured the jurors involved.

I  think you will find the videos beneficial and I recommend the next time you decide to watch Donald Trump do so with these observations in mind.

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THE POWER OF VISUALIZATION

In 1960 an American plastic surgeon wrote a book he titled Psycho Cybernetics. It was a long time bestseller and influenced over the following years many other motivational writers and others to follow his recommendations and teachings. The premise of the book was that in spite of his surgical improvements he found that even after successful cosmetic surgery patients did not always have a  new and improved picture of themselves. In spite of the correction of the cosmetic defect there  was no change of attitude. His conclusion was that our self image determines how we see ourselves no matter the actual physical appearance or facts. Therefore, he argued, it is not enough to change externals. One has to modify one’s attitude and mentally change our self image.

His book explained techniques for this change and was based upon research which demonstrated that the mind cannot tell the difference between vivid imagined events and actual experience through action. Vivid imagination and visualization has the same impact on the mind is if the activity had actually occurred. He concluded that by visualizing success you can change self-image and achieve goals.

This concept was then  adopted by athletes and trainers for competition in sports. Visualization techniques became part of their training for competition. The process has been called “guided imagery, mental rehearsal” and a variety of other things. The process generally speaking involves creating the mental image of what you want to happen and rehearsing it mentally. In Maltz’s book he describes a research project involving three teams of basketball players. One team actually practices shooting a specific number of  foul shots. The second team does not practice. The third team does not practice but mentally rehearses the same number of foul shots by visualizing clearly standing at the file line and repeatedly shooting the ball successfully making every shot. When all three teams are then tested the team that mentally visualized the process scored as well as the team that actually practiced and the team  that did nothing the worst. Maltz’s conclusion was that the “theater of the mind” allowed one to improve performance by mentally seeing themselves doing the activity perfectly because the subconscious is unable to tell the difference between vividly imaged events and physically performing the events.

This has led to athletes and trainers applying the same principle by visualizing  repetitively and perfectly doing the performance. The more vivid the image, the more successful the process. The Soviets made it popular in the 1970s in training their  athletes. Tiger Woods employed the technique and  Jack Nicholas has said: “I never hit a shot, not even in practice, without having a very sharp in focus picture in my head.”

Being able to visualize in my mind has always been easy for me. Early in life I decided that what I didn’t have in skill I could make up for by hard work and practice. In that process I discovered the benefit of mental rehearsal regarding my activities as a trial lawyer. There were few important  legal procedures that I didn’t thoroughly rehearse in my mind before they ever happened. That includes the practice of how to handle something that suddenly took a wrong turn. For major motions, legal arguments depositions and every other aspect of trial practice I always rehearsed repeatedly in my mind doing it perfectly. But, I also practiced how calmly and  well I would react to whatever went wrong. I practiced my jury selection, opening statements direct and cross examinations and final arguments exhaustively in my mind with vivid visualization on a repetitive basis as part of my standard preparation.

My experience was when I had mentally rehearsed how I would handle every conceivable disaster including an angry judge, and off-the-wall response from the juror or witness and a variety of other potential disasters, I was much better prepared for them when they took place. I also found that vivid visualization rehearsal made me more confident and calm when I actually performed the action.

This is not just a unique experience for me. It is consistent with the experience of athletes who have employed this technique as well as actors and everyone else who practices doing it correctly. The more detail, color and sounds you can create in  your mind, the better the visualization and impact. See Neuro Linguistic Programing techniques for this as well.

Practice improves  the ability to visualize. I recommend you try it yourself, because  as someone has said: “seeing is believing.”

 

 

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