Eric Oliver is a nationally known trial consultant and communications expert. He has lectured and written extensively. His company publishes a newsletter I look forward to receiving: http://www.eric-oliver.com/publications.html His latest book is entitled Persuasive Communication and is available from Trial Guides publications: http://www.trialguides.com/ I’ve known Eric for many years and worked with him on cases. Over the years I’ve saved some thoughts of Eric and here are my interpretations of them. I don’t claim they accurately reflect what Eric taught or wrote, but only they are how I chose to record them.
SEQUENCING & PRIMACY
- The principle of primacy deals with the importance of what we hear first as influencing us. Sequence deals with the order of hearing things. The sequence of proof strongly influences decisions. Therefore, the first witness is most important. This is the witness that should connect facts, give them meaning and influence decision makers. This is your story teller who can give the big picture in the best possible light.
- Primacy and sequencing go hand in hand. Sequencing is about the order of topics in a story, not the order of facts. Presenting evidence strictly in the order of when facts occurred can result in a disjointed and hard to understand story. Topics or subjects, on the other hand tell the big picture as they are related.
- So, how should the story be related? Here is Eric’srecommended order:
(1)Step one: How could it happen? (Reasons)
(2) Step two: Who, What, When, Where and How?
(3)Step Three: The Consequences
CLOTAIRE RAPAILLE CONCEPTS
Long before I read anything of Clotaire Rapaille’s research and writing, Eric had long beensaying essentially the same thing about decision making occurring at a level we aren’t really aware about. Eric was fond of saying "humans are primates" and drawing the comparison between human behavior with primate behavior. He long has taught that people don’t know why they do many of the things they do, but will always offer a rational reason for doing it. Here are a few of Eric’s observations as I interpreted them:
- when you ask a direct question about someone’s mental process…expect to get a direct lie back
- People can’t tell you networks of thoughts, feelings, emotions linked to experience because they don’t have access to them. It’s like asking them what’s going on in their pancreas. Their happy to give you theories, but they don’t really know and, on top of that, don’t know that they don’t know.
- Remember this fact when someone is asked to "set aside" attitudes. That’s like asking them to tell you what’s happening in their pancreas. They simply aren’t capable of doing it, so don’t bother to ask. As Rapaille research confirms, artfully asked indirect questions are the only way to get true insight into motivations.
- For example, Rapaille talks about a survey asking people what they wanted from airlines and got back the answer "cheap" tickets. However, further research revealed the underlying desire was for more room and comfort.
With the above in mind Eric has views about how to conduct focus group studies.
- You must be able to summarize the full version in five minutes. If you can’t, you aren’t ready to influence jurors. The inability to do that is proof you do not have a grasp of the essence of the case nor the version you should present. Presenting five minute versions to focus groups is a very good way to get gut reactions to the basic facts. You should, however, be able to answer the question "What’s is all about?" in no more then thirty seconds.
- Instead of asking a focus group to take a position on the outcome ask them to explore how many different ways they can frame events in order to know what version should be adopted.
- Don’t ask "what if" questions of the focus group, i.e. "what if the facts were________?" That’s because once people establish a conclusion, viewpoint or perception in their mind they aren’t able to revise their position. They simply find reasons to be consistent or ignore facts to do so.
Eric has also written about researchers Paul Eckman and John Gottman who have been studying facial expressions for true reactions even when they are brief or mere flashes. People have been trained to observe those instantaneous flashes of expression on the face of people which reveals what is really happening deep within them and which they themselves most often aren’t aware about.
FIND THE BEST VERSION AND STICK TO IT
There is usually more then one ways of viewing an occurrence or set of facts. We should stop calling the facts a "story" or "case" because there is more then one viewpoint. Instead, we look for the best "version" and are consistent in presenting it.
- Know the basic elements of the case
- Consistency is essential Stick with one version]
- Terms of art need to be put in English. Get rid of the technical jargon which you use just to show how smart you are. Talk basic English. Simple, brief and clear.
- Invite the jurors to form their own conclusion instead of telling them. "You may learn" is a lot better then "you will be convinced."
- Rhetorical questions tend to reinforce ideas. They can be used as a form of cross examination: For example to a doctor on cross: "Tell us how that choice was a reasonable effort to protect a patient from harm"
Eric has long taught about themes in trial. But, when he uses "theme" he has a different idea in mind then most lawyers do. Eric says a theme of a case is not really using selected words to describe a slogan for the case such as "Safety first." Instead when we think about a theme for our case we are not thinking of finding words to string together like a safety slogan. Rather the theme should be words which describe the essence of the basic issue, idea or concept that describes the version you are presenting. It tells what the case is all about factually. For example here are some themes which capture the essence of the facts you want the jury to have in mind.
- tobacco: "legal product, illegally sold
- many warnings, long ignored
- too busy, too big
- if it doesn’t fit, you must acquit
- not what she has, but what she lost
- what they revealed & what they concealed
The experts are almost unanimous that left to their own devices, all listeners, including jurors, will quickly decide what the theme for the facts is and once they have done it they will change their thinking very little if at all. So, there is a theme in every story. It’s either the one you offer them or one they create themselves, but every trial has a theme in the mind of the jurors.
A theme is each juror’s private compass pointing to the direction the juror’s reasoning should travel. Juror’s deliberate in themes. We must provide them an idea, image or concept of what the case is all about before they begin to hear the story unfold. If you don’t do this, they will quickly do so on their own.
On the other hand, Eric says, a story line is not a theme. A storyline answers the question: "What happened here?" It’s the ten word telegram that describes the version you are going to consistently present. It tells them why it is important for your side to win and why these facts are really all about you and your benefit.
So, those are some thoughts about communication and how people think which I originally "borrowed" from Eric and have roughly translated here. I hope you found this helpful.