Here are some basic principles for communication all trial lawyers should be aware of and practice.
What are the “unspoken” questions. Well, the primary one is set out below, but throughout the trial issues come up that jurors don’t always write out in their questions when they are allowed to use questions. Think like a juror. Talk to your paralegals and others in attendance each day to see if they have questions not answered in the case. In major cases I always had several people who were paid to attend the first week of the trial and would be debriefed each break and at the end of the day for their impression and unanswered questions that likely in the juror’s minds. We often think we have made things clear when we haven’t.
Remember at all times the juror views their role in the case and the outcome from a personal interest standpoint. That’s why self protection and self interest issues activate the primitive brain without conscious awareness. We need to show jurors that the case has an important purpose in setting standards that benefit them. The failure to label negligent conduct harmful puts them in danger.
The case story can be told from a variety of points of view: from your client’s, the defendants, or a third party observer. It can be told from the manufactured defective product or the family of the client. Decide, but be very careful starting with a description of the injured client. There is a psychological bias where we automatically think we would have avoided they injury or never have done what they hear about event.
Human beings have always learned and communicated through stories of one form or another. Before the invention of writing story telling was the primary method of teaching, remembering and learning. Always present your case as a well told story. Learn the basic of a good story and apply it to your case.
People have primary listening bias. The majority of us learn easiest from visual prompts. The second most common is speaking communication and the third is experiencing or feeling. We need to keep this in mind with exhibits. We should use communication that has this in mind as well. For example, for visual people one might say “I hope you can see this from the client’s point of view.” For verbal oriented people, one might say “I’m sure you can hear how wrong this was.” Or for sensory people “I think you know how that must feel.” The important thing is to use all three means of communication.
We often forget the importance of making our case a complete story with beginning, middle, end and most important, a motive. See your case as a complete story and motive for the wrong actions. Do not view it as collection of facts and details like a chronology. See the case as a big story and stick with it throughout the trial.
You case should have a central theme, like an advertising slogan. One that captures the essence of the entire case in a simple and understandable sentence. UK’s Margret Thatcher used this in her campaign: “Don’t just hope for a better life. Vote for it.” Find a theme that fits your case.
In addition to the primary theme, you can have up to three sub themes. More that that, loses the advertising impact you want for short but effective themes. Make sure they all support each other.
If your case is just to get jury to benefit your client it will not have the appeal for a great result. It lacks a motive that a case with a higher purpose has. If the case is about things more important than this client it is more likely to motivate the jury. Make it about protecting the jurors and everyone else.
If you don’t believe in your client’s case and aren’t totally motivated to helping them, it will be obvious to the jury. You can’t conceal the true relationship between client and lawyer very long.
Tell your story, whenever you can, as it were happening now. That’s what good story tellers do and makes the story real.
Research has clearly proven no decisions are made without an element of emotion. In fact, the decision process starts with emotion first, followed by understanding and only then a response. Trials are battles of impression and not logic.
Non verbal communication is powerful. In fact, when you words and your non verbal actions conflict the non verbal will prevail in the jurors mind every time.
Human beings have a bias for simplicity. Research demonstrates that when faced with a simple explanation and a complex explanation, people choose the simple one. In general simplicity works in favor of the plaintiff’s case and confusion from the complex favors the defendant. Since trial is a struggle for general impression, the majority of which occurs subconsciously, persuasion favors the simple over the intellectual. If you want to show how intelligent you are, become a law professor. If you want to win cases make it simple.
When it comes to communicating ideas, research shows human beings are programed to process information through pattern recognition. To communicate effectively, the pattern needs to be as small as possible. The Rule of Three is pervasive throughout history because it has demonstrated that the perfect number to accomplish this is three. In fact there is a Latin phrase “omne trium perfectum omni” which means everything that comes in threes is perfect. “The rule of three” is effective because it is short, memorable and powerful. Examples include Newton’s three rules of motion in physics as well as other examples in writing, music & science.
Since the majority of people process information visually, as well as to reinforce the point being made, make it a custom to use one visual for each key point.
We all know about hindsight bias, the ego centered idea (once we know the whole story) that we would not have done the same thing were made same mistake. As soon as we present facts of our case the jurors immediately began to process it as a story. As that story unfolds, they are biased in their minds to believe that they would have known better and would not have done the same thing. If we start our client story with the clients behavior, that’s exactly what the jurors will think. Those conclusions favor contributory negligence. But, if we start the story with the defendant’s behavior those conclusions will favor negligence. Start the story with the defendants conduct and not the plaintiff’s.
Considerable amount research has proven the power of metaphor in communication. See the book Metaphors We Live by George Lakoff for example. They make the complex simple and present a clear picture of your point. Use good and powerful metaphors for every major point.
If the juror doesn’t understand they can’t be persuaded. No matter how bright and intelligent we think we are, we are poor trial lawyers if we don’t have the intellectual discipline to make ourselves understood by the simplicity of our communications. If, like too many lawyers, we are ego driven to demonstrate how much we know about a subject or how bright we are, the only one who will be impressed is ourselves. Meanwhile, the plain speaking opponent who keeps his or her communication at about an 8th grade level for the jury will be successful. Don’t assume people know the meaning of acronyms or are familiar with concepts you happen to understand. Make it understandable, simple and brief.
These are a few basics about communication. It’s important that we as trial lawyers remember that just because we have great legal knowledge and the legal skills to put an outstanding case together means nothing if you don’t know how to present it to a jury. We are in the business of persuasion and communication. We need to develop the skills required to be great communicators as well as outstanding legal professionals. Never stop learning.