How deep is juror distrust today? When we asked a recent set of focus group jurors to reveal their first impressions after hearing a defendant had admitted liability, their immediate reactions were telling: What’s the catch? Damage control! I waited for the other shoe to drop. They’re trying to pay the least amount possible. And more. At the same time, 100% of the participants believed the Defendant was liable whether it was admitted or not. You can’t even expect jurors to trust you when you tell them you were wrong.
Our experience and research shows litigants (and witnesses including expert witnesses) should acknowledge weaknesses as a way to strengthen their overall positions. In fact, recent research studies on two-sided persuasion (i.e. persuasion where the speaker acknowledges strengths in opposition arguments) shows it can be much more effective than traditional one-side persuasion, especially in today’s world where trust is in rapid decline.
In this month’s column we tackle one part of the interesting and challenging issue of dealing with weaknesses, which in today’s persuasion climate means appreciating juror skepticism and delivering something they do not expect: genuine honesty.
A few years ago, a persuasive plaintiff’s attorney delivered a strong and passionate opening statement right here in King County. It had critical elements you look for in a strong argument. It was emotional. It was clear. It was compelling. It was supported by evidence. But it was one-sided. Almost immediately the defense opening statement exploited the argument jurors just heard because it did not acknowledge or attempt to address the plaintiff’s primary weaknesses. What initially felt like a comprehensive and compelling story suddenly had holes. And jurors took note. The plaintiff began its case-in-chief climbing out of those holes in an attempt to get back to neutral. In the post-trial interviews, the jurors confirmed their belief that the plaintiff failed to prepare them for the other side’s counterarguments.
That particular plaintiff’s attorney delivered what researchers call a one-sided argument: an argument that focuses only on one side of a position. In this case, it focused only on the positive evidence and arguments in support of plaintiff’s position. This has long been a feature of trial advocacy, with some believing strongly that advocacy for “your side” requires a one-sided approach. Research tells us one-sided arguments are most effective in limited circumstances — when the audience is made up of “true believers” who already favor the position being advocated. Research on political persuasion and advertising helps tell this story. No doubt, you recognize what happens when a partisan person hears arguments consistent with their partisan views: Agreement. But what happens when a partisan person hears arguments at odds with their partisan views? Polarization. They go deeper to the extreme end of their existing views and persuasion attempts are futile.
Two-sided arguments can help address this phenomenon and are more effective in situations where the audience is mixed or has conflicted feelings about the issue. Two-sided arguments still aggressively advocate for the affirmative position and can provide every bit of the evidence and appeals that a one-sided argument contains. But two-sided arguments add a layer. They include an acknowledgement or recognition of the counterarguments, with the best two-sided arguments focusing on those areas the audience is likely to perceive as a clear weakness when they hear it. Effective two-sided arguments identify the counterargument, and address it: “We did the right thing here and when they try to tell you we failed, they are wrong because…” Research clearly shows that two-sided arguments are stronger when the audience does not have a strong initial preference for the advocacy position, the two-sided approach is relevant in almost every aspect of litigation and trial practice — where close calls and contested issues predominate and unanimous opinions are rare.
How should you acknowledge weaknesses in trial? Here are a few guidelines based on our research and experience.
(1) Take a real look. As the case unfolds and you begin to learn your areas of weakness, lean into them. Take a real, genuine look at those areas and have your fact and expert witnesses do the same. Have open conversations about them and what they might mean, if anything, about your ultimate positions in the case. Develop discovery including deposition testimony of your own witnesses, if helpful, to build evidence. Then, tell jurors in trial that you looked hard at the issue and give them honest answers from your perspective and that of the key witnesses. Be transparent and show your transparency via the discovery evidence. This gives you and your witnesses the honest ability to say:
“When I was learning about what happened in this case I wondered about that issue. I looked hard at it and in the end, I agree that one fact tends to support the other side’s case. Here is what else I learned about that issue…”
(2) Triangulate. A three-legged stool can still stand strong. If a weakness chops one leg of your case, you can still build a strong base around it. And you can overtly tell jurors the result of all the evidence is a firm position with multiple sources of clear support.
“They say it’s our own fault because we did not follow every instruction in the product manual. Yet, they ignore the clear reality the product box, packaging insert, and online videos provide different instructions and we followed them all.”
(3) Surprise. We have written before about the value of surprise. The expected is now worse than boring when it comes to juror persuasion. Jurors expect strategy and even manipulation and they love feeling they have spotted it and resisted it. When jurors spot attorney tactics, they resist and argue others should as well. How can you effectively surprise jurors these days? Here are three ways, including a preview for a topic we will cover in a column-to-come.
First, deliver timely news of something they haven’t heard. Particularly when you’re trying to address a weakness the jury has already heard about, you will frequently be arguing there is more to the story than meets the eye. Keep this zinger for the perfect time, then show them and let them connect the dots. This means being ready to tell a brief story and visually illustrate the punchline that proves there is important and relevant evidence the jury has not heard. Then, leave it and move on so they will hold it tight and argue it for you. We’ve seen this done perfectly with key emails or documents that can be read quietly by jurors with little or no attorney argument. When well-timed and effectively set up, these can be powerful.
Second, when the weakness genuinely hurts your case or a witness’ credibility, let jurors know it. Tell them directly you wish the facts were different because it makes your job more difficult, but the facts are the facts, and you still believe in your position. This can work because jurors expect you and your witnesses to minimize weaknesses, to put lipstick on the pig and try to manipulate the circumstances to be somehow helpful. Give them a real weakness that hurts and let them know it does not deter or change the fact your ultimate position is a winner.
Third, consider a postmodern wink. The postmodern jury expects persuasion, strategy, and tactics. They are on the lookout, and they are ready to resist. Advertisers have recognized this reality with consumers and some of the most successful recent ad campaigns openly acknowledge to consumers that they are advertising and trying to win customers, poking fun at the idea and winning viewers in the process. In this age of persuasion resistance, you may benefit from a similar postmodern wink in the courtroom (more on this in a future column):
“You know why we’re here. We disagree with the other side. We see the case differently and my job is to persuade you. So, I understand you would be skeptical of me and what I have to say. That’s reasonable, and I get it. But in this case, the truth is that when you get your own look at all the evidence, you’ll see that while our case isn’t perfect, we have the evidence to prevail.”
In the end, you must acknowledge that your case — in nearly every single scenario — has weaknesses that the other side will exploit. To act like they do not exist or the jury will not appreciate them is to ignore reality.
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.
