Building Effective Phraseology for Your Jury Presentation
A recent text from a friend tried to capture “all corporate jargon in one paragraph”:
“Let’s circle back and blue-sky this paradigm shift by leveraging our bandwidth to drill down on the low-hanging fruit, but only if we can move the needle without boiling the ocean. At the end of the day, we need to disrupt the synergy of our core competencies and pivot the deliverables into a thought-leadership ecosystem that aligns with our key performance vegetables.”
Most folks have no idea what that paragraph actually means, yet it immediately evokes a clear image of corporate life and for most, a visceral reaction of one kind or another. We have all heard at least a few of the phrases in that paragraph and can visualize a boss, client, or colleague using them in a recent meeting. Perhaps it was one of us, or even you, who threw them out in a recent meeting. Regardless, the point is this kind of phraseology is powerful because it immediately connotes familiar ideas about the world. It sets the scene and conveys narrative through its reliance on common tropes.
Attorneys should focus on this kind of phraseology as they prepare their case presentation for trial. A simple, memorable, and compelling phrase can lock the audience into your client’s narrative structure and make it difficult for the other side to shake the audience free of those ideas about the case. We saw this several years ago in a case on behalf of a plaintiff accusing a corporate defendant of fraud. In discovery, the plaintiff found the defendant was conveying certain accounting information to some people (including the plaintiff), while internal communications showed that same accounting was inaccurate and emails showed various alternative accounting numbers. In our case strategy development session with the client-plaintiff, we suggested the client adopt the phrase “two sets of books” to describe what was happening with the corporate accounting. In reality, there were not two actual sets of books, which was the client’s initial concern: Is this technically accurate? But we did not need it to be literally true. The phrase is powerful and memorable, and immediately conjures corporate duplicity and misconduct. We had enough to clearly establish that there were different sets of numbers, and we could show that only one set of numbers was shared with our client while all the other numbers were kept internal and never shared. The “two sets of books” stuck. In our mock trial research, the defense simply could not shake itself from the narrative conveyed by this simple phrase used repeatedly throughout the plaintiff’s presentation.
The “two sets of books” highlights the first function of effective phraseology at trial. It evokes narrative that speaks to jurors’ everyday understanding of the world. It draws on ideas they have about the world that favors one side and invites them to apply those simple and compelling narratives to the case at hand. Put another way, effective phraseology can be a shortcut to establish a persuasive narrative at trial.
Another function of effective phraseology is to convey organization or hierarchy. Perhaps the most popular phrase across all the mock trials we have conducted over the course of our careers is “captain of the ship.” As deliberations begin, the mock jurors try to identify who they believe is the “captain of the ship.” We’ve seen them engage in all sorts of fascinating analysis to reach those conclusions, sometimes in a spectacularly erroneous fashion. But once they’ve found their “captain of the ship,” the hierarchy and organization of the case and parties is established and that becomes a filter for how jurors evaluate everything, with the “captain of the ship” most often bearing the bulk of the blame for what happened. In the famous words of Spider-Man’s Uncle Ben, with great power comes great responsibility.
Interestingly, we worked on a maritime personal injury case a few years back where the plaintiff was literally the captain of the ship. He alleged the large corporate defendant who owned the ship had been negligent in creating a safe environment on the ship (and that the ship was not seaworthy), which resulted in his injury. Notably, the captain was away from the helm at the time of his injury, leaving it unmanned while he carried on casual conversations with deck workers. Highlighting that the plaintiff was the “captain of the ship” helped the defense in many ways. First, it made it easy to convince jurors the plaintiff was negligent since he had abandoned the helm, which jurors thought no captain should ever do (their images of a captain always at the helm of a ship were too difficult for the plaintiff to shake). Second, the jurors concluded that it’s the captain’s duty to assess the seaworthiness of the ship before taking it off the dock. Consequently, the defense focus on the plaintiff as “the captain of the ship” caused his seaworthiness claim to backfire on him. Finally, we found that jurors simply held the plaintiff to a much higher standard than they likely would have had the plaintiff been a deckhand rather than the captain.
The third function of a compelling label is to establish the basic rules that apply to the issues in the case. There are many in the plaintiff’s bar who have adopted this as an essential component of their case strategy. Seattle trial attorney Rick Friedman wrote a book about this that has led many plaintiff attorneys to adopt the strategy, though the concept is certainly not limited to plaintiffs’ cases. We can only imagine how many defendants in pedestrian injury cases have argued the importance of “looking both ways before crossing the street.”
Phraseology that establishes the rules that apply to the issues in the case can be particularly effective in complex cases. Years ago, in a case involving price-fixing and collusion claims against our client, we found our defense arguments were too complex for most jurors. Even if they understood them as our attorneys spoke, it was unlikely they would remember the necessary details and/or be able to re-articulate them in the deliberation room. Consequently, we reduced the defense to two simple rules that became our repetitive phraseology throughout trial. The first rule was that “the cost of making a product can never exceed the price we sell it for.” The second rule was that “supply should never exceed the demand.” The attorneys used these simple phrases repetitively throughout their presentations. These two rules were simple, easy to understand, and came across to jurors as painfully obvious principles that should drive the decision-making of any business.
The fourth function of a compelling phrase is to help soft-sell an argument that might otherwise be difficult for jurors to digest. We once worked for a defendant in an outdoor recreation case involving highly sympathetic parents as plaintiffs who had lost their young child. The evidence showed the defense had grounds to factually argue the parents were at least partially to blame for what happened to their child, but it was also obvious this kind of finger-pointing ran a very high risk of causing juror anger and backlash. As we discussed the case narrative and themes with our client, we came up with the phrase, “an overwhelmed family in an overwhelming situation.” The facts in the case were that this family had never engaged in this outdoor recreation activity and when they showed up that day to do so, they brought the family dogs and a host of other things that were not necessary for the activity. The facts that provided grounds to put blame on the parents were just that: they made a series of decisions that made the situation so much more overwhelming for them than it otherwise should have been. Consequently, we adopted this repetitive phrase about “an overwhelmed family in an overwhelming situation” as a way for jurors to reach the conclusion on their own that the family had made some poor decisions without our client ever having to directly point the finger at the plaintiffs and directly blame these grieving parents for the loss of their child. The soft-sell phrase was effective. This is exactly how a couple of the jurors described the situation after they rendered a complete defense verdict.
Finally, a compelling phrase can quickly reframe the case for jurors. We worked on a qui tam case for a defendant accused of fraud and the evidence definitively showed that some key projections were wrong. We had no way around these terrible facts until we adopted the simple, repetitive phrase that “failure is not fraud.” Consequently, we embraced failure as a key theme, which the client had previously been reluctant to do. Afterall, who would ever think “failure” would be an effective way to describe a defendant’s actions at trial. However, the “failure is not fraud” phrase resonated with several jurors who successfully reframed the discussion about the erroneous projections.
As you try to identify effective phraseology, there are a few things you should consider. The first is obviously familiarity. An effective phrase immediately encapsulates something jurors already know and understand about the world. Ideally, it should be a phrase—or a simple turn on a phrase—that jurors already know. Second, it should be simple and easy to digest. If it requires cognitive effort on the part of jurors to make sense of it, it is not an effective phrase. This is why so many metaphors used by attorneys fail. They often require too much work to make them fit. Third, effective phraseology is memorable. If you were to ask mock jurors after your presentation to write down everything they remember from that presentation, your phrase should be one of the first things they write down. An effective phrase should stand out from everything else, remaining salient in jurors’ thoughts about the case days or weeks later. Finally, effective phraseology should evoke compelling narrative. Your phrase should immediately call to mind a narrative that resonates with jurors and is easy for them to project on to the case.
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.
