We knew, no matter what we said about the technology at issue in our case, there was little chance the jurors would understand any of it. Even if, by unlikely miracle, a few of them understood some of it, they certainly were not going to be able to effectively talk about it in deliberations. The topic was obscure, the facts were dense, and it was a patent infringement claim, the type of case most foreign to jurors’ everyday lives. Yet over $400 million was on the line, making this an absurd situation.
How do you spend two weeks trying a case you know your jury will not grasp? You probably start by asking the judge for more trial time based on the belief that more facts, more explanation, or more exhibits will help. Then you probably imagine how long your opening statement must be and how you will cover all the pertinent issues with your rockstar expert. If you are on the clock, this can be a stressful task, leaving you with the constant feeling that you simply do not have enough time. This is also an excuse litigators use so easily that we hear it on a weekly basis.
The amount of information you can provide the jurors is not the problem. More information and longer presentations are rarely the answer to your challenges and are, most often, counterproductive to persuasion. If the problem is the case issues are too much for jurors, the answer is not to give them more. Consider, for example, a 2019 study conducted by data scientists at Johns Hopkins University involving millions of social media users. Examining the persuasiveness of social media messages, the researchers found that concise messages are, on average, more successful than their longer counterparts when they are up to 30%-40% shorter. Many other studies have produced similar findings. In fact, there are studies going back to the 1970s and ‘80s that have repeatedly shown the persuasive advantage that brevity brings to the table. In litigation, more information usually drowns out the important stuff, increasing the chances jurors will decide the case on something other than what you and your client hoped.
In our patent infringement case involving complex technology, our research made it clear that the side that provided jurors with something easy to understand about the case was going to win. It was that simple. Give the jurors something they can understand, even if it does not capture the reality of the case. The jurors desperately needed a shortcut in the case, and they were going to find it one way or another, which meant our priority was to find a compelling shortcut we could offer them instead of allowing them to come up with their own, which could lead to a totally unpredictable outcome.
Our case involved a 2005 patent for mobile phone technology and allegations that our client’s 2018 products infringed that patent. The one consistent theme in the mock jury deliberations was jurors talking about how much cellphones have changed during their lives. In fact, we found the mock jurors loved talking about what mobile phones were like in the old days, and the topic of changing mobile phone technology gave them the ability to have those conversations. Even better, as we went down this path, we highlighted the fact that the first iPhone was released in 2007. While the iPhone was not actually an issue in the case, the launch of the first iPhone symbolically represented a point at which everything changed with mobile phone technology. Mock jurors naturally understood this shift, even if they had no understanding of the actual technological changes. Fortunately for us, the plaintiff’s patents came before the launch of the iPhone, and our allegedly infringing product came long after it. Drawing on this, we narrowed down the entire case to a simple question for jurors: Do you really think 2018 mobile phones relied on old and antiquated ideas from more than a decade earlier? The obvious answer was “no,” and jurors did not need to understand anything about the patents or technology.
This focal point significantly narrowed the case for us, allowing us to give a 30-minute opening, although we could have just as easily gotten the job done in 20 minutes or even 15. To date, our shortest opening statement or closing argument is a 12-minute closing argument in an employment case with seven-figure exposure. In that case, the jury matched our brevity, finding in favor of our client in only 40 minutes of deliberations.
Despite these successes, it is very difficult to convince attorneys to give short opening statements or closing arguments. There are several reasons for this. First, it is scary to be brief and may even feel like professional malpractice. Not using the time available can feel like you have missed or failed to adequately explain something, particularly on the defense side if the crux of the message to jurors is some variation of “but you have to understand.” Consequently, a 12-minute closing argument probably sounds absurd to most readers. Many attorneys think the opening statement should be at least 30-60 minutes and closing argument should be at least 60 minutes. In fact, it is very common for attorneys to ask us how long we think the opening or closing should be before we have even started writing it, highlighting the priority of length over substance. Regardless of how long their openings and closings end up being, we often tell attorneys that if you can’t effectively explain it in 20 minutes, you are not going to get the job done in 60 minutes.
The second reason it is difficult to convince attorneys to give short openings and closings is the mistaken belief that jurors will actually remember what the attorney says. There are a variety of studies on information recall, and our favorite is the famous DuPont study that found people recall about 10% of what they hear three days later. And that stat is not specific to the incredibly boring environment of the courtroom where attorneys spend seemingly endless time doing boring things like laying foundation. If jurors are only going to remember a fraction of what you say, the more you say and the more information you provide only increases the chances that what they remember will be something other than what you deem most important.
A third reason it is difficult to convince attorneys to give short openings and closings, particularly in high-exposure cases, is that too many cooks are in the kitchen. We have seen this play out so many times. The opening draft gets passed around the law firm, and the client and everyone has ideas about what will most persuade jurors. One partner recalls a case they tried 10 years ago where the jurors did not like the theme they used, so now they insist that this theme can never be used again, even if it works in the case at hand. A young associate eager to impress cites something they learned in law school as the reason why a new section needs to be added to the opening. The end result is a bloated and lengthy opening full of ideas that appeal more to the unusual and disparate minds of attorneys than the average juror.
There are plenty of other reasons, but the key question is, how can attorneys effectively shorten their opening and closing? Here are four practical steps for brevity.
- Use a concise narrative framework. One of the most popular parts of our strategy sessions with clients is the development of no more than a 10-point story of the case. In this exercise, we try to outline the entire case narrative in 10 or fewer chapter headings, each chapter heading thematically capturing that component of the story. It can be a tough exercise because it will force hard decisions. But if everything is important, nothing is important. Effective brevity starts with a concise narrative framework. Many times, the fewer chapters the better, if you can make courageous cuts.
- Write a 5-minute opening or closing. It is an artificial, but invaluable exercise. Assume you have five minutes to explain your entire case theory and write that opening. This exercise will force you to reduce the case to the absolute essential points, which will provide you with clarity. It is akin to the quote famously attributed to Mark Twain where he apologized for the length of the letter, but he did not have enough time to write a shorter one. Cutting things down is hard, but it is also necessary. Too often, we watch attorneys pursue arguments that, while potentially helpful, are not essential to winning. Everything you add in this regard is a potential distraction. Perhaps jurors assumed your added peripheral argument is your central argument in the case and focus their energy there instead of your primary argument. We have seen this happen so many times in our mock jury deliberations.
- Avoid padding strong arguments with weaker ones. Every issue trial lawyers raise creates opportunity for wins and losses (and resulting momentum shifts) in the deliberation room. Pursuing an inessential argument risks your advocates on the jury losing that argument in deliberation and losing momentum in the process. A poor argument makes an easy target for your resistant jurors. Perhaps the juror advocating for you is embarrassed by the loss and simply chooses not to advocate any more in deliberations. These momentum shifts can be devastating, especially knowing they were entirely unnecessary.
- Ask a friend or neighbor to summarize your case for you. It is not unusual for attorneys to bounce their case off a colleague, family member, friend, or neighbor. They want reactions, and this is an easy way to get them (though we recoil when we hear trial attorneys’ overreliance on a close friend or family member’s “analysis” of the case). However, the more valuable exercise is to explain the case to them and then ask them to explain it back to you. They will not be able to explain everything you told them. Instead, you will quickly learn what is most memorable and what is easiest to re-articulate, the latter of which is an essential element of any successful case presentation because jurors must debate the case in deliberations.
Thomas M. O’Toole, Ph.D., is president of Sound Jury Consulting in Seattle. Kevin R. Boully, Ph.D., is senior consultant at Perkins Coie in Denver.
