We all know law school, the prerequisite for becoming a trial lawyer, is a considerable commitment of time and money. It is also a commitment to see and think about the world in a different way. Law students commit to learning an entirely new framework for evaluating things that happen in the world as well as unique ways to write and talk about that framework, adopting unusual terms such as “opine,” “exculpatory,” and “malfeasance,” words the average person may never hear in their lifetime. Indeed, to go to law school to become a lawyer is to embark on a journey to a new world. It is not unlike moving to a new country to learn a new language, culture, and rules of society.
This training serves lawyers well. It gives them the tools to manage the litigation process for their clients, arming them with all the right words and phrases to effectively argue at a hearing before the court or in a written filing. It gives them what we call “lawyer brain,” which is essential for the job. But then there is that 5%–10% of the time that lawsuits make it all the way to trial. There, everyday people who know little to nothing about law school, who do not understand “lawyer brain,” become the critical audience lawyers must communicate with and persuade to vote in favor of their client in the deliberation room. Suddenly, what has worked for lawyers all their professional lives becomes a barrier to achieving what their client needs because they are stuck speaking a language that few if any jurors understand or can relate to.
In this month’s column, we want to talk about breaking out of “lawyer brain” and developing a communication style that resonates with jurors, one that is both persuasive and engaging. It is often referred to as a “folksy” style, but in our combined 40+ years studying juries, the most effective communication style that we have seen and studied relies on a particular set of skills. As with any skillset, it takes time and practice to hone. Here are the common habits of the best and most effective folksy attorneys we have come across.
1. 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. Their style is conversational, like a neighbor or friend telling you about something interesting going on at work, and like that neighbor or friend, they mostly tell stories. One common example relates to issues where lawyers have to address erroneous but common beliefs that jurors might hold. Many attorneys might be tempted to tell jurors why their beliefs might be wrong and educate them, which creates a hierarchy of the “smart lawyer” above the “dumb jurors.” Folksy litigators tell their own story of discovery, revealing how they learned the key issues in the case and how what they had assumed or initially believed turned out to be wrong. This fundamentally changes the dynamic. The folksy attorney is not telling jurors they are wrong. Instead, they are acknowledging that they got it wrong and telling the story of how they learned from their misbeliefs, educating jurors along the way.
2. They speak in understandable language and relate to jurors. Many attorneys might describe their expert by saying something like, “We retained Dr. Smith in this case, and he has opined that…” Folksy litigators avoid this kind of technical speak, instead saying something like, “We sat down and talked to Dr. Smith and here’s what he thinks.” This might seem like a silly distinction but when lawyers speak in language that is uncommon or abstract to jurors, it widens the gap between speaker and audience. It makes it difficult for jurors to identify with the attorney which decreases credibility, likability, relatability, and consequently, persuasiveness.
3. They give jurors personal tidbits about themselves that establish character. Whether they like it or not, lawyers are characters in the story of their trials. The only question is whether they are likable or unlikeable characters. As part of their storytelling style, folksy litigators reveal tidbits about themselves here and there. In voir dire, they might quickly reference how they have two daughters and how they are always disagreeing on some basic issue. In direct examination of an expert, they might quickly reference some common experience they have had to help the expert build on that anecdote in their efforts to explain a complex subject. The key to this strategy is whether its goal is genuine or artificial. If the goal is an artificial attempt to make yourself a three-dimensional human, it often feels disingenuous and falls flat. As soon as you make it a genuine disclosure to encourage interest and reciprocation among your juror audience, you increase your chances jurors will see you as a three-dimensional human being.
4. 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 storyline. Instead, these details help the audience better visualize the story being told. Folksy lawyers do the same. They throw in random details that improve the story even though they may have no effect on the legal argument. We once watched an attorney, who was trying to shift the critical focus to a particular individual in the case, repetitively refer to the blue suit this individual was wearing at a key moment in the case. The fact that the individual was wearing a blue suit had no bearing on the legal issue, but it made it a lot easier for jurors to visualize that moment, which in turn, made that key moment a lot more memorable for jurors. Folksy lawyers grab onto these random details and repeat them over and over again. They help put jurors in the place where the action takes place, and that helps them experience the story and engage with it more directly, breaking down the barrier of lawyer and audience and creating a common experience.
5. 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. Even more important, the “what makes sense” framework simplifies issues by giving jurors an easy way to evaluate them by applying their own common sense and experiences. It also helps to bridge evidentiary gaps and encourage jurors to fill incomplete stories with common sense narratives that can help them see the case from your perspective.
6. 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. They take jurors on a journey telling them along the way why they’re turning here and there. Specific examples include a preview of the main points at the top of the opening statement, and questions in direct and cross examination that are more intended to guide jurors than they are to elicit answers from the witnesses. In opening statements and even in closing arguments, it can mean very literally telling the jurors, “Now I’ve been thinking about this issue and how to better explain what happened, and here’s where I ended up…”
7. 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. Yet, we probably don’t even need to cite research here. Most people intuitively understand that the individual who can acknowledge weaknesses in their arguments (or strengths in the arguments of their opponents) comes across as more reasonable, which ultimately makes them more influential. Folksy attorneys are not afraid to make these concessions because they are confident in the overall strength of their case theory. They understand that the goal is to win the war, not every individual battle.
8. They are helpful and gracious. The world is full of jerks and perhaps even more important, the world is full of people who are fed up with jerks and ready to send them a message. 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. Too often, we take for granted the statement that “lawyers represent their clients.” In trial, they literally do. A lawyer’s personality or actions are symbolic of the character of their client. A lawyer who is uncaring conveys to the jury that their client is uncaring. Folksy lawyers recognize this and work hard to be helpful and gracious. They avoid snark and are kind to others in the courtroom. When issues arise in the court, they offer to help. We recently watched an attorney on the other side of a case struggle with their projector during opening statement. When they paused to try to fix it, our attorney offered to let them use ours instead. This was just one example of the friendliness conveyed throughout trial and it makes a difference in how jurors evaluate the parties.
Each and every one of these skills can be achieved without a genuine motive of connecting with jurors as human beings, but when you are genuinely motivated by curiosity, connection, and kindness, your folksy skills will develop and land much more easily, especially when you’re working hard to escape the “lawyer brain” your law school so effectively trained into you.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO.
