By Dr. Ken Broda-Bahm:
"I have considered giving people popcorn," U.S. District Judge Kathleen Forrest told lawyers in the SEC's fraud case against Fabrice Tourre which headed to the jury yesterday. "I'm going to tell you what I think is obvious," the judge told counsel three days into trial, "We're losing some of the jurors here who are trying -- valiantly, I think -- both to follow and to stay awake." She asked counsel to shorten and focus the testimony, but given the complexity of the financial concepts involved and the difficulty in following a twisted series of transactions, that might not have been enough. With technical detail flying, and jurors being asked to make fine distinctions amid conflicting testimony, the judge has frequently had to interrupt attorneys and witnesses in order to elicit definitions and explanations of financial jargon. Whether the jury has been following is an open question at this point. "While a few jurors have been taking notes, the majority are not" Reuters reports. "One juror has appeared on at least two days of testimony to nod off."
Financial sector cases are notorious for juror boredom, but they are by no means the only ones with challenges in the excitement department. Commercial, patent, product, royalty, and professional malpractice cases -- and most others -- can have jurors reaching for the snooze bar at times. One current case I'm working on, for example, requires jurors to have not just a basic, but a very detailed understanding of the agricultural commodities market, and there are precious few ways to make that truly gripping. So what should litigators do when they know the material is close to coma-inducing for a lay audience? Should you press on, as the Tourre trial teams appear to have done, relying on the jurors' sense of duty and on minor aids such as note-taking, exhibit books, and glossaries of terms? Fixes like that will help the juror who is honestly trying -- and most will honestly try. But comprehension is also the child of motivation. If the information itself isn't interesting, then only the most dogged and dutiful of jurors (or judges or arbitrators for that matter) will succeed in following it all. This post takes a look at how you keep interest when you have neither a Law & Order worthy plot-line, nor popcorn.
If there were just one bad assumption that doomed litigators, it would be this one. When we've put all of this time and energy into putting together a case, we tend to have in mind an audience that is actually paying attention to all of it. But, at least as a default state, they aren't. It is dangerous to believe that a juror's good-nature, oath, or mere presence is enough to ensure that they're soaking in what you're putting out there.
In my early days as a college professor, I frequently taught classes on public speaking. The cardinal rule in that class is to never begin by simply announcing your topic. "Never presume attention," I used to remind my students, "It is never gained until you earn it... and it won't be kept unless you fight for it throughout the speech." I used to talk about the false belief that speakers have an "entitlement" to attention, as in "I went through the hard work of preparing this speech, so the least you can do is watch and listen as I slog through it." But it doesn't work that way. Attention and interest are commodities, and finite ones at that. There is an exchange at work: In order to give something (their attention), they need to get something (a benefit or payoff of some kind).
So what is the benefit or payoff that your jurors or other legal fact finders get when they grant you the scarce resource of their own attention and interest?
Think "Payoffs" to Combat Juror Boredom
No, I don't mean the kind of juror payoffs that would earn you jail time for jury tampering. I mean the kinds of payoffs that naturally tag along with the message itself. Some types of content, or ways of packaging content, reinforce jurors' natural levels of interest. You can think of these types as a kind of tool box to draw from throughout trial. In the beginning and throughout your opening, case, and closing, draw on these time-honored attention-getters to make sure that you're working for their interest and engagement instead of simply presuming it.
Story is a Payoff
I frequently write about story as an effective way to package the evidence and the claims. But story doesn't just matter for those cases that are already blessed with a natural plot line. Especially for those stories that might lack a native sense of drama, the story structure still matters. The basic building blocks (character, conflict, time, and resolution) can be applied to even mundane and abstract fact patterns. Force it into a story model, and it will be much more of a payoff for the listeners to "see what happens." There is even research (Stephens, Silbert & Hasson, 2010) indicating that a kind of "neural coupling" occurs between a speaker and an audience when sharing a story. That is engagement, and the more yawn-inducing the material would otherwise be, the more that engagement is necessary.
Vision is a Payoff
We like to not only listen but also to look. Apart from the specific message that is being conveyed visually, there is also a value simply to engaging that channel. Language that calls up imagery will always be more engaging than language that doesn't, and a story that invokes its own pictures will also be a better payoff. Our own research shows that communication is more comprehensible and more credible when it engages both the visual and the language centers, and that means that a well-designed PowerPoint (using imagery, spare but effective titles, and no bullets) is going to better motivate your audience to follow along and to stay engaged.
Surprise is a Payoff
Brains love patterns, but patterns can also lull brains to sleep. According to some theories, the reason that music works to keep us engaged is because it is continually setting, and then breaking, the patterns: We enjoy being surprised. In a persuasive context, there is solid evidence that these kinds of pattern disruptions can be quite powerful, especially when it comes to talking people out of a belief to which they're already committed. Psyblog calls it "the single most effective method for influencing people fast," a "disrupt then reframe" approach means first violating expectations, then seizing the opportunity to give your listeners a new way of thinking about something that may have been automatic. In the classic study (Davis & Knowles, 1999), someone who doesn't give to panhandlers is initially surprised by an odd request ("do you have 37 cents") and the unexpected amount in that request disrupts their patterned and reflexive ways of acting, and they're more likely to give. Surprise brings attention, and attention brings at least the possibility of a fresh thought.
Motivation is a Payoff
The most reliable method of grabbing and keeping attention is by speaking to what makes the fact finder care. When you're able to touch motivation, then the jurors aren't working for you, or for your client. They're working to uphold a principle, moral, or societal value that is at stake. We've written in the past about the important ways that motivation drives reasoning as well as argument in deliberations, and even a judge's reasoning from the bench. So the question for all litigators at all points in the process, is "what would make my decision makers want to listen, understand, and agree?" Instead of just helping one of the parties (low motivation), perhaps they are helping keep themselves and their community safe (high motivation), or perhaps they are taking a stand on the principle that frivolous lawsuits can't be allowed to hamper professionals in their work (also high motivation). The belief that they're helping to make a point serves as the payoff.
Power is a Payoff
Nothing focuses attention quite like a sense of power. When jurors are reminded of the influence they're able to exercise through their role and their verdict, that sense of importance can help get them through what would otherwise be a boring case. Juror power itself is a constant -- they have whatever influence the court allows them -- but there are several factors that mediate whether that power is salient or not to the jurors themselves as they hear the evidence and prepare to make a decision. Reminding jurors of what is in their hands is a way to instantly make whatever they are hearing more consequential and important. For example, the Oregon jury that just awarded a woman $18.6 million based on Equifax's continuing failure to fix her credit report must have felt that kind of power. The case was doubtlessly financial and complex. But jurors weren't just resolving the specific case, they were sending a message to reporting agencies and others who trade in a consumer's financial information.
This list could go on, adding many other factors that mediate interest and attention. But one critical factor in whether jurors will be bored or not transcends the case facts and the evidence, and goes straight to the litigator.
You can't be interesting, unless you are interested.
Nothing is worse than attorneys who don't buy or aren't enthusiastic about their own cases. The best litigators I've known -- whether they have the most compelling personal injury case, or the most banal of contract cases -- are genuinely enthused about the case from start to finish. Getting and maintaining that attitude through an extended trial schedule makes it much easier for the litigator to draw from the full range of tools needed to keep boredom at bay.
Other Posts on Listening and Attention:
- Beware of the Jury's "Filter Bubble"
- Don't Panic Over Distracted Jurors
- Remember, Jurors Are Always Forgetting
Davis, B. P., & Knowles, E. S. (1999). A disrupt-then-reframe technique of social influence. Journal of Personality and Social Psychology, 76(2), 192.
Persuasion Strategies: Visual Persuasion Study (2011). www.persuasionstrategies.com
Stephens, G. J., Silbert, L. J., & Hasson, U. (2010). Speaker–listener neural coupling underlies successful communication. Proceedings of the National Academy of Sciences, 107(32), 14425-14430.
Photo Credit: ginnerobot, Flickr Creative Commons