The King County Bar Bulletin, publishes a column by Thomas M. O’Toole, Ph.D. & Kevin R. Boully, Ph.D, trial consultants. A recent issue featured their ideas in a column titled Escaping “Lawyer Brain” in Jury Presentations. It dealt with “developing a communication style that resonates with jurors, one that is both persuasive and engaging.” I thought it made excellent points and should be shared. What has that got to do with the title I chose? Well, I thought about the country Western star, Tom T. Hall who recorded a song “The Cowboy and the Poet.” The lyrics of the song involve a poet who says he is looking for the truth and asks an old cowboy what he has learned about the mysteries of life. The old cowboy spat between his boots and told the poet: “”It’s faster horses, younger women, Older whiskey & More money” That’s an illustration of plain, down to earth communication. One may not agree with the answer, but it has all the requirements of clear communication which are: simplicity, clarity and brevity. I agree with the writers that too many lawyers communicate intellectually in language jurors do not identify with. The writers suggest lawyers who do communicate well have these characteristics:

“They speak in stories and have a conversation with the jury rather than lecture them or tell them what to think. Jurors don’t want to be lectured or told what to think. The best courtroom litigators we have seen feel like they are talking with you, not at you.“ Lawyers tend to be annoying “know it all’s.” They are used to telling people what they should do or not do. You know the saying: “A man convinced against his will, is of the same opinion still.” Great trial lawyers lead people to a conclusion they make for themselves and is not dictated to them. That’s done by compelling recitation of facts leading to only one logical conclusion and not by telling someone what they have to think.

Great trial lawyers are great story tellers. Their trial presentation whether in opening statement or witness examination consists of a story – the story of their client’s case. Stories draw the listener in and motivate action. Teaching the jury through stories and not lecturing is crucial to persuasion.

“They speak in understandable language and relate to jurors.” The fundamental logic of this characteristic of great trial lawyers is indisputable. The single failure of many trial lawyers is their inescapable need to demonstrate to everyone how intelligent they are. They use technical and scientific descriptions no one understands just to show how much they know. The throw out acronyms few people understand without bothering to translate into ordinary English. Some lawyers seem to be incapable of learning how to talk in ordinary language the average person relates to instead of “legalize.”

They throw in random details that are memorable but not essential to the legal issue. The best stories are the ones that incorporate interesting and memorable details, even though those details may not be essential to the overall story line. Instead, these details help the audience better visualize the story being told.” This is simply a principle of good storytelling. However, what too many lawyers do is to totally fail to identify the relevant and helpful facts from the unnecessary detail. Too often, lawyers seem to want to show the enormous amount of information they know about the case or simply lack the skill to separate the needed from the boring. Just ask some lawyer what their case is about and if they can tell you in a few brief words or it opens a flood gate of facts that make you sorry you asked the question. Great trial lawyers understand the power of simplicity and the ability to communicate with story telling skill.  

They focus jurors on what does and does not make sense in the big picture. Folksy litigators tend to care more about “what makes sense” than what the evidence actually proves. They know what makes sense is more compelling to jurors than what the evidence shows if the two are in conflict. Ev

“They tell jurors what they are doing. Folksy lawyers are fantastic at providing jurors constant roadmaps for what they are doing, which ensures jurors are always on the same page. They do not leave jurors behind. They take them by the hand and walk them through the boring and the complex.” This is an important concept. Lawyers often have spent so much time on a case they know it through and through. This causes them to act as if everyone does as well. They don’t  walk the jurors through the story at a slow pace. They don’t stop and make clear the significance of facts  or evidence. Instead, they act as if the jurors were as familiar with the case as they are. 

“They acknowledge the weaknesses of their case. Research has repeatedly shown that acknowledging weaknesses in arguments (or strengths in the opponent’s arguments) enhances the speaker’s credibility as well as the persuasiveness of the message.” The most powerful weapon we have as a trial lawyer in persuading jurors is the truth. Honesty is a powerful and essential force in a trial. Lawyers who try to conceal or avoid significant negative issues or facts in their cases are not great trial lawyers

“They are helpful and gracious.  The data is clear. Jurors are angry and distrustful. They are tired of unwarranted rudeness and aggressiveness, and they will hold it against lawyers who engage in it.” Great lawyers are professional and courteous while being strong and determined. They treat court personnel with kindness and thank them for their assistance. They do not interrupt the judge or opposing counsel. They remember they are being watched at all times by the jury, even outside the courtroom. During arguments with opposing counsel, they wait calmly while the opponent is speaking, no matter how wrong or offensive it might be. When finished, they allow a pause before responding  in a calm demeanor. What could be worse, then when an opponent finds they can deliberately create a reaction from you by triggering it. That means you have transferred control to the opponent. Stay calm. Maintain a professional demeanor no matter how you feel inside. The jury is always watching. When you do not respond to an offensive opponent or even a difficult judge’s conduct, you are rewarded by the jury reaction.

Conclusion These observations may strike you as obvious and simplistic, but I challenge you to honestly review your own trial conduct as to each aspect. Often we think we are doing a good job because we intellectually know the basic rules for good trial conduct while unaware of our violating them.


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