TWO SUGGESTIONS ABOUT BEING A BETTER TRIAL LAWYER

For some years I  collected and saved in a notebook ideas I heard or read about relating to  communication and advocacy. Here are   two of the items I saved  and which you may find  of interest.

In the 1970’s actor James  Garner was featured in a TV series The Rockford Files.  In an interview  he related how  the English actor Charles Laughton had said to him:  “Jim, your problem is that you’re afraid to be bad.” Garner said  “He was right – I was so worried that the audience wouldn’t like me  that I was bland and innocuous.  Laughton told me, ‘Don’t worry about the audience. Just go out there and take the risk of being bad! I suppose that applies to life – you have to take the risk. You may fail,  but at least you’ve given it your best shot.” It seems to me that lawyers can have the same problem.  They are too nervous about failing and worried about how  they look instead of being open and real. That makes  them guarded  rather than open  and authentic. If you’re not willing to take the risk  of revealing who you really are in an honest way  to the jury, you will never  have  the relationship of trust and credibility that’s essential to successful trial. If you aren’t willing to risk possible failure or looking foolish by trying new ideas or presenting yourself honestly to the jury you will never be a great trial lawyer.

The American Research Group, Inc. once  published “Ten Rules for More Effective Advertising.”  I saved it because I realized almost  every one of them directly applied to trying cases. That’s because the publication dealt with selling and we are in the profession of selling our client’s case to the jury.  Here are the rules which I’d like you to  think about as  rules for effective communication.

  • Does the ad tell a simple story, not just convey information? A good story has a beginning or a sympathetic character who encounters a complicating situation,  a middle where the character confronts and attempts to resolve the situation, and an end where the outcome is revealed. A good story does not interpret or explain the action in the story for the audience.  Instead a good story allows each member of the audience to interpret the story as he or she understands the action.  This is why people find good stories so appealing and why they find advertising that simply conveys information so boring.
  • Does the ad make the desired call to action a part of the story? The whole point of the story, in advertising, is to effectively deliver the desired call to action.  If the audience does not clearly understand the desired call to action after seeing the ad, then there is no point in running the ad. (Note: You need to make clear what you want the jury to do and that is especially true of the verdict amount you want)
  • Does the ad use basic emotional appeals? Experiences that trigger our emotions are saved and consolidated in lasting memory because the emotions generated by the experiences signal our brains that the experiences are important to remember. There are eight basic universal emotions – joy, surprise, anticipation, acceptance, fear, anger,  sadness, and disgust. Use one or more of these in your appeals.
  • Does the ad use easy arguments? Easy arguments are the conclusions people reach using inferences without a careful review of the information. Ads should make arguments that are simple and easily understood. (Note: Think of Donald Trump’s solution to the complex immigration issue: “Build a wall.”)
  • Does the ad show, and not tell? “Seeing is believing” and “actions speak louder than words” are two common sayings  which reflect  human bias and preference. You should assume audiences are skeptical about any advertising  that tells but does not show. (Note: I was always impressed when teaching at the Spence Trial College that when someone was trying to explain an idea Gerry would say “Show me. Don’t tell me” because he said that’s the best way to communicate.)
  • Does the ad use symbolic language  and images that relate to the senses? Life is experienced through the senses and using symbolic language and images that express what people feel, see, hear, smell or taste are easier for people to understand, even when used to describe abstract concepts. (Note:  People have different preferences for communication. Most are visual people, some are auditory and some through feeling. Appeal to all of these senses in trial)
  • Does the ad match what viewers see with what they hear? People expect audio and visual messages to be coordinated in order to understand them. Audio and visual messages that are out of sync may get attention but they make audiences uncomfortable. (Note: Be sure the exhibits and non verbal communications in trial are always congruent with the words or ideas being expressed.  For example, a witnesses words must be totally congruent with their body language in order to be believed.)
  • Does the ad stay with a scene long enough for impact? People have limited mental processing capacities. It takes people between eight and ten seconds to process and produce a lasting emotional response to a scene.  Quick cuts two different scenes require people to devote more of their limited resources to following  and list resources to processing the scene. (Note: This is why repetition of important points and exposure to important exhibits is critical in trial.)
  • Does the ad  let powerful video speak for itself? The processing capacity of our brains is limited and words may get in the way of emotionally powerful visual images. When powerful visual  images dominate – when “a picture is worth 1000 words” – let the image do the talking. (Note: For the same reason illustrative slides should have limited words)
  • Does the ad use identifiable music? Making  music  and identifiable aspect of advertising signals the audience to pay attention for more important content. (Note: Think of anchoring in this regard. Music in ads  are a form of anchoring sound to an idea,  product or image. Use anchoring in trial by connection a theme, an admission or an event to the outcome you want)
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