Today I am reviewing a collection of trial materials that I have collected over the years and which I began by storing in indexed notebooks long before the start of the digital age. Here are three examples.
WRITING ON PAPER
When I first began the practice of law court rooms were virtually devoid of any visual aids, no paper and not even a blackboard. In fact, a blackboard was considered a unique device to use in a trial and one you had to provide yourself. The blackboard was first used by the great Los Angeles trial lawyer Earl Rogers in the early 1900’s. He not only used blackboards, but used anatomy models, demonstrative evidence and re-created entire scenes in the courtroom. By the way, it was Rogers that Clarence Darrow hired to defend him in the famous 1912 bribery charge against Darrow.
But, this was unusual and, in fact, when easels, with large sheets of white paper, began to be used in courtrooms (originally using crayons) that was considered a cutting-edge idea. Today, while in most courtrooms, the large paper easels have been replaced with more electronic and digital aids, there is a largely unrecognized, unconscious benefit to writing and drawing on these paper pads. We know that when we write on those pads of paper we have the jurors entire attention. Every time we flip the page over, to write on a new page, there is an anticipation on the part of the jurors about what we are going to write. A sort of curiosity to see what happens next. It is somewhat like turning the page of a book to read the next page. Attention is focused on the process. It has a far more unconscious impact then putting up PowerPoint slides one after the other. The writing and turning process has its own unconscious attraction.
In addition to that, think about the image that’s created when we stand at the paper pad, talk and write. That’s the picture of a teacher; someone who is an authority. We assign credibility to that kind of person. There is an unconscious pupil to teacher relationship. Remember how as students we would often be prepared to write down what the teacher was saying because we regarded it as important. As we know, a trial is a struggle for impression and the unconscious mind assigns the role of leader or teacher to someone who creates that kind of image. They become an authority figure. Witnesses who step to the paper and draw or write while explaining have everyone’s attention and create the same impression. I’m not suggesting that we abandon I-Pads, videos PowerPoint or digital aids in trial. I am suggesting that at particular times during a trial, the use of old-fashioned pads of large paper can have a significant favorable unconscious impact on jurors.
Many great trial lawyers believe they create a more favorable impression by avoiding all but the most egregious reasons for objecting during a trial. They also believe that in most jurors minds if an objection is made and it is sustained, the judge has certified that something was done wrong. These lawyers re-frame the idea of objections to make their reluctance to object a good thing and the opponent’s objections as hiding the truth. One way this is done is by how objections are characterized. For example, one can ask the jurors if they will have an unfavorable view if you only object when you are compelled to do so because you don’t want to have anything hidden from the jury. That you believe in the jury hearing all of it. If done properly the re-framed impression is that when the other lawyer objects it’s because they are hiding something from the jury, not that you have done something improper.
This idea of objections can be emphasized by the way in which the lawyer deals with an objection that is made and sustained. By artfully restating the question that results in another objection, the focus is on the lawyer objecting. What is he or she trying to hide? For example suppose a question is asked, an objection is made and the judge sustains it. The lawyer says “well then” and restates the same question in a different way, which results in another objection and is sustained. The lawyer responds with “let me rephrase the question then,” and again in a different way which is objected to and sustained. The lawyer looks at the jury knowingly and says “Well OK let me move on.” I’m not suggesting questions or conduct which will result in a contempt citation nor flagrant ignoring of the judge’s ruling. I’m suggesting that if done correctly, repeated objections to your questions can unconsciously suggest to the jury that your opponent is trying to hide something provided you have previously laid the foundation for that idea with them.
JOINING THE TRIBE
Lastly I want to share some research about creating favorable impressions with the jury in jury selection. The jurors are immediately evaluating the lawyers to decide how credible and trustworthy they are and have a large amount of cynicism about it. With our limited time for jury selection, in those jurisdictions where it is allowed, we don’t have the leisure of creating a favorable impression by our words and conduct in a lengthy voir dire. The process of creating a favorable begins immediately. We do that by creating with the jury a common bond or rapport through talking about our mutual values, and mutual concerns. We have to step completely out of the jurors stereotype view of what they expect a plaintiff’s lawyer to be and act like. We do that in part by making it clear that we will sincerely listen to what they have to say no matter how negative their views might be. We create discussions with the jurors, not lecturing or advocating our case, but by good eye contact and total listening. We are not judgmental about their views but understanding and confirming many other people agree. We communicate about how “we” should go about doing the right thing, and important thing and something they will be proud about doing. That favorable impression has to be maintained throughout the trial. We cannot present one impression of who we are and then turn around and show that it wasn’t genuine throughout the rest of the trial. We need to be totally authentic open and truthful. We also need to involve the jury through eye contact throughout the trial, not just in jury selection, opening statement or summation. We need to create a bond and rapport with them; to join them and become one with them.
As an example of creating a bond with jurors values or beliefs, Gerry Spence, in a civil trial involving a claim of civil rights violations by the police detectives, first started out identifying with them. He was confident they all supported the police generally. So, he began with “I am a law and order guy, always have been and because of this I have a bias in favor of the police. When I was a small child in my hometown of Laramie, I was taught by my parents that the police were my friends, and that has stayed with me to this day. I trust them. So, I’d like to ask: How do you feel about the police – do you trust them?” He then had a discussion about the police, trusting the police and the role of the police. This created a bond of belief in favor of the police.
Next he asked “Can you make room for the possibility that in this world of good and honest cops, there are a few that aren’t honest, that abuse the great power we gave them? Can you make room for that possibility? That was then followed by a discussion of the fact there are some bad cops who abuse civil rights and aren’t part of the general population of good cops. By then he had created a bond with their beliefs and values about the police. As Gerry puts it he had “joined their tribe.” In addition, they all agreed there was a large group of “good cops”, but there was also a small minority group of outsiders who were “bad cops.” This resulted in a situation where jurors may be reluctant to punish the good cops who are members of their own tribe, they are predisposed to attack those who have betrayed the values of the tribe of good cops. The same concept can be applied in lawsuits involving other defendants including corporations.
Nothing profound in this discussion, but some thoughts to reflect upon.