By Tomas M. O'Toole, Ph.D., & Kevin Boully, Ph.D.
You don’t have time. You’ll lose the audience. You can’t afford it.
You sit at your desk and stare out the window. You contemplate your opening statement, your key witness exams, even how you might handle voir dire (please tell us you think about this before trial!). You’ve spent weeks if not months thinking about your case to this point. You know it inside and out. You know what you want to say and what you want the jury to hear. Why are you considering so many introductory comments and roundabouts? Why wait to give it to them straight?
In this month’s column, we tackle a common question with practical answers. Why and how can you effectively lead with the lead and keep the main thing the main thing? We do so by identifying seven ways trial attorneys bury the lead and what you can do instead.
1. Too Many “Case Abouts.”
Telling jurors what you think the case is about can be powerful and effective if they can use it. Too often trial lawyers tell jurors their case is about a whole bunch of things. Our experience is that you do that because you want to speak to different jurors in different ways. Or you’re hedging your bets. If they don’t believe the case is about corporate racism, maybe they’ll believe it is about greed. If not greed, maybe biased hiring and supervision. But jurors don’t hear options as much as they hear confusion and a lack of clarity. Are you clear? Are you direct? Are you consistent?
First, be intentional and specific and tell jurors what the case is most about.
Second, remember some of the basic tenets of human psychology and decision making, including confirmation bias and the power of primacy. Daniel Kahneman’s Thinking, Fast and Slow discusses a classic study by Solomon Asch to illustrate a powerful concept. Asch asked people to comment on two different people’s personality traits after presenting descriptions of each. The trick is both people had the exact same descriptions presented in opposite sequence.
Alan: intelligent – industrious – impulsive – critical – stubborn – envious
Ben: envious – stubborn – critical – impulsive – industrious – intelligent
As Kahneman says, “If you are like most of us, you viewed Alan much more favorably than Ben. The initial traits in the list change the very meaning of the traits that appear later.” Choose a starting point that best frames and influences what jurors will hear later so they assimilate in your favor.
This case is about a company that failed to treat its employees the way it promised.
2. Ignoring the Elephant.
Every case has an elephant. Many times, the first thing jurors need to hear is your direct answer to the biggest question in the case. Maybe it’s simply to hear you didn’t do the horrible thing the Plaintiff is alleging. Maybe it’s an explanation for why you didn’t contribute to the harm you’re claiming the defendants caused. Too often, trial lawyers strategize their way out of one of the most tried-and-true persuasive tenets—telling your audience what you are going to show them to be true.
ABC Corporation did not discriminate against Mr. Plaintiff. ABC didn’t unfairly fire him. We gave him chance after chance until he showed us we had given him one too many. That’s when we fired him. And his performance is why we fired him. That’s what we’ll prove in this trial.
3. Untimely Context.
We don’t want anyone to tell us how to understand a story. We want the facts and we will figure out what happened. If you can’t present the facts in what feels like a simple and accessible way, resistance builds. That’s human information processing. You have so much evidence and information packed in your heads that it can be difficult to decide what to leave out or when to provide details.
First, don’t tell jurors they need “context.” They hate being told that and they immediately file your “context” into a leaky bucket next to the one labeled “truth.”
Second, only provide extra detail or what you used to call “context” at the moment it becomes necessary and relevant, and not a second sooner. Why? As expert storyteller Matthew Dicks teaches us, you waste precious bandwidth by asking your audience to remember details (names, places, biography, etc.) that bog down a narrative. Don’t introduce the key witness and frontload her entire history, asking jurors to remember it so they can use it later. Tell them at the moment it matters why her history helps contribute to their understanding of your narrative.
She had seen this kind of behavior before, when she worked at BigCorp in Silicon Valley. During her six years there, she will tell you she learned a lot about how employees respond to performance reviews.
4. Exhausting Witness Intros.
Flowing directly from the need to avoid unnecessary or untimely context is the need to provide focused and relevant witness introductions. Too often we still see witness examinations wasting precious time and juror attention with introductions that are both boring and unnecessary.
First, start as many exams as possible by asking a few questions that immediately show jurors you are going to help them get to the bottom of it:
“Why are you here?”
“What can you do you to assist the jury in this trial?”
“Of everything you’ve learned about this case, what do you think the jury needs to hear from you?”
Second, backfill critical biography or other information as it becomes relevant in the remainder of the testimony. If they don’t need a background fact, don’t give it to them.
An exception to this advice occurs when authority or credibility are critical to witness testimony and you must first ask questions to elevate credibility (positive or negative) so the whole of the witness testimony is viewed through that filter, just as our perceptions of Alan and Ben are influenced by the sequence of their personality traits.
5. Too Much Lawyer Talk.
“I will submit to you that we have met our burden.” What? Who talks like that? Today’s jurors do best with a clear and credible translation of legalese that shows you understand them and what they need to do their job.
ABC fired Mr. Plaintiff because of who he is, not what he did. That’s discrimination. That’s enough. We have proven our case.
6. Over-Crossing.
You’ve all heard the advice not to ask “one question too many” in your cross-examinations. Do you follow that advice, or do you find reasons to ignore it? We observe attorneys not only asking one question too many, but often covering three or four topics too many. Just like anything else in life, trying to do too much dilutes the impact of each thing you do. This is most evident in cross-exams where jurors’ expectations are for punchy, dramatic, and case-killing questions and answers. We know that rarely happens in real life, but we also know that fewer cross-topics and a more focused plan of attack is a good way to keep the lead issues in focus and respect jurors’ time and attention. Do less and the lead will stay the lead.
7. Ignoring Jurors’ Job In Closing.
If you read this column with any regularity, you know we firmly believe the closing argument is a key opportunity to teach jurors how to deliberate, including how they can use evidence and talk to each other as they work toward a verdict. This is the central point of closing argument. Avoid lengthy recitations of the evidence. In most cases, organize your argument in a jury-centric format that typically means following the sequence of verdict questions they must answer.
Your job is to discuss this case and answer the verdict questions on this form as the judge has instructed you to do. We want to show you again the evidence and information that bears on your job and why it leads to the conclusion that we have proven that ABC discriminated against Mr. Plaintiff.
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.
