It is a sunny morning in the mountains and an aerial camera pans to an overhead shot of a Lincoln SUV humming through a curve on an empty highway. Matthew McConaughey’s unmistakable Texas drawl rolls in: “I’ve been driving a Lincoln since long before anyone paid me to drive one. I didn’t do it to be cool. I didn’t do it to make a statement. I just liked it.” The sun glistens off the SUV as it zooms toward the horizon and the commercial ends.
Our favorite moments often exist between the words. Whether you are watching a commercial, reading a book, or listening to a friend tell a great story, the parts that resonate most are often those that generate the strongest reactions from our inside out, not from the outside in. Put another way, the words you see and hear do not create your most important reactions, you create them by what you do before, after, and between the words — by what meaning and imagery you put on them. We often love the main character in our favorite book much more than we love the same character in the movie version of the same story. We never forget the song whose lyrics take us back in time to a moment when the song meant something to us.
When a voice as recognizable as Matthew McConaughey’s tells us why he drives a Lincoln, we create all sorts of meaningful associations that change the words he uses and create meaning in the message. You, like jurors, judges, and all other humans, can encourage shared meaning in your audience by being strategic about the gaps you leave for them in which they can create the most powerful meaning from your message. You have the power to choose what words you do not say and those are sometimes more important than what you actually say.
It has been a while since we focused on key tenets of jury economics and applied them to your strategy. In this column, we turn back to the central elements of jury decision making and how your litigation and oral presentation strategy can trigger your audience’s egocentric, economical, and symbolic processes to your advantage. In this column, we talk specifically about three ways your choices about what not to say can help increase your persuasion in the courtroom.
(1) What Not to Say — Microstories
Microstories are those short, pointed stories of key moments in your case that help to illuminate a witness backstory, highlight a key symbolic moment in the case, or illustrate how and why the people in the case did what they did. They don’t have to be long and don’t have to be fully developed but they can and should take jurors to a place and help them understand human behavior. Microstories are perfect fodder for strategic decisions about what you could say and what you could leave up to jurors to say and do for themselves. For example, let’s assume a commercial litigant is telling the story of how two people decided to enter a contract at the heart of the lawsuit, with the goal of making Perri appear to have more power and control than Eron:
The details and extra language you don’t need can dilute or obscure your message. In this case, Perri is the actor and agent of action. Perri is the character with the knowledge, the point of view, and the power. Speaking in present tense helps take the audience to the scene. The audience can understand and complete the conflict, the motivations, and the details, and when they do so, the impact is much greater. Less is more. Respect the jury and they will help you complete the story.
(2) What Not to Say —
Opening Statement
The perception of jurors’ waning attention spans is growing more and more common and, consequently, trial lawyers must be focused and efficient. You need to be increasingly decisive about what to say in an opening statement and what to leave out. The macrostory of your case presentation can and should include gaps that you will fill in during your case-in-chief and cross-examinations, with additional microstories, visuals, and other elements that jurors can piece together on their own. If the opening is the framework upon which to build your entire case, you can and should have gaps.
How do you decide what to leave out of the opening and what to keep in?
What to keep in:
- The most powerful symbolic facts and moments that symbolize your overall narrative.
- The smallest number of story chapters to complete the narrative arc of the overall narrative. Many opening statements can be effectively told in just three to five chapters.
- An introduction to only the key characters that drive the story forward and serve as the key antagonist and protagonist. Too many characters (i.e., “witnesses”) dilute the importance of the key characters.
- An introduction to only the most powerful and accessible rebuttals to the opponent’s strongest points. Trial lawyers too often want to address or inoculate details that neither advance the opponent’s case nor effectively advance their own trial story.
- An introduction to only the most critical technical or complicated details. These are perfect “finer points” to fill in later with evidence and testimony that will hang in the right location of the framework if you have established the macrostory effectively.
What to leave out:
- “Extra” themes, language, or demonstratives that do not directly support your controlling idea or a critical chapter of the narrative. This extra “stuff” often gets into the opening because of compromise or indecision and it too often has a diluting or negative effect.
- Detail or technical complexity that does not directly support your controlling idea or a critical chapter of the narrative. Sure, the jury needs to understand the evidence and trial lawyers often underestimate their ability to grasp complexity, but the mantra for opening is to give what they need to understand why the complexity matters and acknowledge the jury will most likely comprehend the true complexity much later in the case.
- Characters or witnesses who do not need to be named or understood for the jury to understand your controlling idea or a critical chapter of the narrative. Too often litigants want to introduce witnesses or name all the people in the case in the hopes it will keep things clear during the evidence. Meeting the characters can and should include naming and understanding of the fewest number of main characters and providing only a general understanding of the roles and motivations of all the other players.
- Too many graphics. You should have a strong and immersive visual presentation but you should not dilute your three or four most important visual concepts by trying to out-graphic the other side. Like any effective narrative, your visual presentation should have arc, pace, and variability. Some slides should be simple and quick. Others should be more sophisticated and comprehensive. Each should ultimately make one single point.
- Too much rebuttal or inoculation. As discussed above, a blow-by-blow attack is not effective and plays on your opponent’s turf. Tell your story and build rebuttals and inoculation into it.
(3) What Not to Say —
Cross-Exams
The classic advice of not asking one question too many is consistent with the overarching goal of letting your jury reach the conclusion on their own, without you cramming it down their throat. In cross-exam, we still find far too often that trial lawyers want to ask the extra question or worse, ask about topics and areas of inquiry that dilute the overall effectiveness of the exam.
During cross, pick your topics and areas of focus wisely and with discretion. There are few occasions a “scorched earth” approach is warranted and far more times when the most economical and effective approach is to be surgical, targeting those key areas where the cross-exam can score simple, direct, useful points. A few criteria to consider for what not to say in cross-exams include:
- Does the jury need the answer or its implication to make their decision? If not, you probably don’t need it.
- Does the jury know how the answer fits into your overall trial message? If not, you may not need it or you may need to make it more clear before the jury can use it.
- Will the jury receive the answer as consistent with the witness message? If the jury feels you want them to trust the witness on some things, but not others, you may need to pick an approach and stick to it.
- Has the jury heard the same thing from another witness already? If so, you may want to consider whether the answer creates a positive cumulative effect (i.e., carries the power of multiple voices) or creates unnecessary repetition (i.e., feels redundant).
Have the courage to be decisive about what not to say and what to leave out of your case presentation at these key moments. These approaches empower the jury to reach their own conclusions and use their own experiences and perceptions to fill in the gaps you leave for them. These approaches appeal to the egocentricism of processing information through their own lens (which they can engage in the gaps you left for them), their penchant for efficient and economic decision making, as well as symbolic processing that is often based on the scenes, moments, and events that you give them the freedom to envision and complete.
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.
