Category Archives: Opening Statement

May 2, 2016

Stop Introducing Your Defense Case By Asking Jurors to Set Aside Sympathy

By Dr. Ken Broda-Bahm: 

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It is easy to imagine what you are likely to hear in the first few moments of the defense opening when the case involves a serious injury or death: 

Ladies and gentlemen of the jury, everyone here knows the pain and loss that Ms. Smith has experienced. It is a tragedy and it is only human for us to feel some sympathy when we hear her story. But your decision in this case needs to be based on the evidence and the law, not on emotion. So I need to ask you to set aside any feelings of sympathy you may have for Ms. Smith as you hear our side of the case.

That is a cliché, but the general request is a pretty common way for defendants to begin. Even as it feels a little trite, defense attorneys usually believe they need to do it. On the heels of the plaintiff’s emotional opening, it is understandable that defense attorneys would try to clear the decks of that emotion and get the spotlight to focus on the facts and the law instead. But even as the attorney’s motivation makes sense, the standard admonition has a very low likelihood of being effective, and a very high likelihood of preventing a better introductory message. In this post, I will share some reasons why “Set aside sympathy,” isn’t the best way to begin, and share some ideas for changing that message. 

Three Reasons Not to Lead with ‘Set Aside Sympathy’

It’s Ineffective

There is a psychiatric term for people who don’t feel anything for others, so in making the standard request to set aside sympathy, you are essentially asking your jury to become sociopaths. Most other humans will feel some sympathy, and asking them to bracket it out presumes that biases are known and subject to voluntary and conscious control. But here’s what the social science tells us: They aren’t. Instead, biases are built into the way we see the world. Jurors who are moved by sympathy aren’t likely to see it as “sympathy,” but will instead use it to filter their view of general responsibility, specific liability, or damages. If they dismiss it as “sympathy,” chances are they’re already on your side. 

It Signals Worry and Weakness

A big part of conveying confidence is starting strong. And a plea for jurors to not be moved by the human side of the case just isn’t starting strong. On the contrary, it signals that you are concerned about that part of the case, and you suspect that this jury might be the kind of people who would put emotion over the law. Appealing to sympathy is itself a “low-power” strategy, meaning that it is a tactic more likely to be used by, and useful to, the party who is otherwise losing. By the same token, attempts to insulate yourself from sympathy also feel like a low-power strategy: It asks for protection instead of sharing confidence in the case. 

It Avoids the Better Option

Your jury is never paying more attention to you and your case than they are in the first few moments of your opening statement. What is presented first tends to be impactful not only at that moment, but will also be remembered longer. This “primacy effect” suggests that you should front-load your best and most effective appeal right out of the gates. Instead of wasting those prime moments by making a weak and ineffective request for your jury to set aside their sympathy, begin by cutting straight to the chase with a “silver bullet” introduction that economically conveys a theme addressing your case’s biggest weaknesses and leveraging its greatest strengths. 

Here’s a Better Approach on Sympathy

Don’t Ask Them to ‘Set It Aside.’ Instead, Ask Them to Avoid Making it Decisive

Social science suggests that the request to “set aside” an attitudinal bias is at least difficult, if not impossible. At the same time, the goal of at least not allowing sympathy to function as an explicit argument in deliberations or a conscious rationale for a verdict, is a little more realistic.  So, once you reach the point where you want to deliver that message, let jurors know: It is totally okay to feel sympathy and even to discuss it. But it is not okay to let that sympathy become a reason or a basis for your decision

Don’t Lead Off With the Request for Sympathy Protection. Instead, Introduce it Only After You’ve Given Jurors Something to Replace That Sympathy With

Beginning with the sympathy request is not only a lost opportunity to begin with something better, it is also a premature request. If jurors aren’t to base their decision on sympathy, then what are they to base their decision on? Hopefully for your case, they should instead be basing that decision on the facts or the law. And once they know what facts and which law, it will be easier to rely on that instead of relying on sympathy. 

Make it a Legal Request, not a Personal Request

It is not that you need them to avoid sympathy as a basis for decision, it is that the judge and the law requires it. So any request to jurors addressing sympathy should be couched as a legal and not a personal request. As long as you can do so while staying on the right side of any restrictions your judge has placed on discussing the instructions in opening statement (restrictions that have never made sense to me),  it helps to give a preview: The judge will give you instructions on the law, and those instructions will tell you that while the law recognizes that sympathy is human nature, the law also asks you to not allow that sympathy to be the reason or the basis for your decision. And all of the parties here, as well as the judge, agree on that point: You should follow the law. 

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Other Posts on Sympathy: 

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Image Credit: 123.rf.com, used under license, edited. 

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March 24, 2016

Practice

By Dr. Ken Broda-Bahm: 

16526904_sIn anyone’s preparation for an oral presentation of any kind, there is a gap between the time when you know what you want to say, and the time when you’re really ready to get up and say it. During that gap, the greatest imperative is to make yourself comfortable and familiar with your material. Assuming that you don’t plan to simply read from your notes or to fully go off-the-cuff, you need a way to commit your content to memory in some way or other. Experienced speakers have their own ways of doing it, but there are some tried and true ways of creating that familiarity. One good rule of thumb is that the more active you are at it, the better. For example, one study (Grilli & Glisky, 2012) looked at subjects with and without memory problems and found that for both, the best way to remember new content is to imagine oneself acting it out. That step of mental rehearsal actually triples the average person’s ability to remember. So, in other words — no big surprise — what works best is practice. 

Whether preparing for opening or closings, oral arguments, mock trial summaries, or CLE presentations, practice is what gets you from the stage of just having good content to the stage of also having effective and comfortable delivery of that content. That lesson isn’t novel, of course, but busy litigators will often implicitly or explicitly counter that they don’t have time to rehearse. I would argue instead that they don’t have time to not rehearse. In my experience working with myself and many busy lawyers, one hour spent in either on-your-feet or focused mental practice is generally more useful than two hours spent reviewing your notes or slides. In this post, I will share ten of my favorite practice tips for getting comfortable with your content once the outline or slide deck is done, or mostly done.  

1.  Talk to Yourself 

Giving a presentation isn’t the same as composing a brief or a blog post. It is oral and it is an interaction between you and an immediate audience. For that reason, your preparation can suffer if too much of your work is done on paper. Talking to yourself as you prepare and as you practice can help to keep you grounded in oral style, which means shorter and simpler sentences combined with a greater need for signposting and repetition. A full on-your-feet practice session can also be beneficial even if you’re by yourself.  

2.  Reduce (then Eliminate) Your Notes

As you complete your content development phase, you might find yourself with a script or an overly detailed outline. In that case, you will need to pare it down. To do that, try taking your script or notes and highlighting just one or two words per point or per sentence. If you run through it enough, then those words will be sufficient to cue the right content. Then try producing an outline or page of notes that just include the highlighted words. If the notes by themselves make sense to no one but you, then you’ve done it right. Then, once you’ve pared down your notes and practiced a few times, it is a much shorter step to getting rid of the notes all together. 

3.  Memorize Your Outline

It is certainly possible to memorize a long presentation word for word. Actors do it, after all. But for most speakers, we don’t have the time, and the result would likely be a more flat-sounding recitation than the actors would be able to turn in. Better than memorizing word for word is memorizing structure. Knowing what content comes next is more important than knowing the exact phrase you had in mind when you wrote your notes. Having a good structure is the first step, because we know that your audience will process your content more effectively when it’s delivered in chunks. So instead of viewing your content as a linear list of points, one right after the other (warning, PowerPoint encourages exactly that), it is better to commit to a true multilevel outline grouped around a small handful of key points. 

4.  Pull in a Sounding Board

It can sometimes be a challenge to give our full effort to a practice session when we are by ourselves. So it is a good idea to drag in whoever we can: co-counsel, clients, consultants, secretaries…anyone who is handy. That scrutiny pushes us to be “on” during the practice. It also creates the possibility for good feedback. But even without that, an audience is a good in and of itself because it creates a practice scenario that is more realistic. 

5.  Use a Room that Comes Close to Your Actual Venue

Another factor in being realistic is the location of our practice. Research proves that our physical location serves as an important cue for our feelings, so it helps to practice in a place that resembles your presentation location as closely as possible. What’s best, of course, is to use the actual room you’ll present in. But when you can’t get that, the next best thing is to replicate the physical conditions that will apply to you as a speaker. For example, if you will need to stay behind a lectern, then you should practice that way. If, on the other hand, you will have space to wander as you talk, then practice that way. 

6.  Use Audio Recording

If you’re doing a practice run, it is easy to simply record it. Chances are your phone has that ability. Once you’re done, the recording will be a useful practice aid. The goal isn’t necessarily to critique the recording, but if it was a decent run-through, you can listen to it a few more times in order to pump that content into your memory. In my experience, when trying to build familiarity for an oral presentation, hearing the content is much better than reading the content from a page — it seems to engage the same part of the brain you’ll be using as you present. The recording will also allow a kind of passive practice: Listening to the audio lets you imagine yourself delivering it, and you can listen while you drive to work or before you fall asleep at night.  

7.  Use Video Recording

One step further is to vide0-record your practice. It is easier than ever to do, and again, your phone probably has that capability. Viewing the practice afterward is the best way to put yourself in the shoes of the audience, not only hearing the content but also seeing how you look and move as you present it. Viewing it allows you to notice some things you wouldn’t otherwise notice, and encourages some unconscious correction as well. The average person doesn’t really enjoy seeing themselves on video, but if you commit to not being too hard on yourself, then it can be a very useful step. 

8.  Try It at Higher Speed

When you are listening to your own performance via an audio recording, or running through the presentation verbally, and your goal is mainly to get your content into your short-term memory, try bumping it up to a higher speed. My own theory is that this can promote better recall because it focuses your attention to a higher degree and increases your own processing speed. The moment every speaker dreads is the feeling of not knowing what comes next. But if you get used to hearing or delivering the content at a higher speed, then the “What do I say next?” tends to pop into your head more quickly. With this technique, you will naturally need to be disciplined and remember to slow down to a normal conversational rate when it comes time for the actual performance. 

9.  Work on Nailing the Beginning and the End

The two most important parts of your speech are the introduction and the conclusion. The primacy and recency effects tell us that this is when you will have the greatest impact on what the audience remembers from the presentation — with recency (the conclusion) being the more immediate effect, and primacy (the introduction) being the more long-lasting effect. Your introduction also serves the purpose of contributing mightily to your own self-perception of how you’re doing, and a good one can give you an important shot of confidence early in the presentation when you need it most.  So if you don’t have time to go through everything, at least run through the beginning and end. 

10. Tighten Your Transitions

If you have more time, then I’d also encourage you to run through at least a few additional parts of the speech. One great candidate for added attention will be the transitions, since those are the points where a speaker is most likely to experience a memory gap. A good transition is not just a way to keep things orderly, and not just a substitute for “My next point is…” Instead, the transition ought to be a kind of a bridge: a way to show a meaningful relationship between the previous idea and the next one. You’re likely to know the content itself without as much practice, but if transitions are a sticking point, then it makes sense to give those extra attention, along with any other spot where you tend to get lost or to feel a gap. 

Practicing, of course, takes more time than not practicing. That is why some will avoid it or minimize it. But they do that at a clear cost to their own comfort as well as the quality of the audience’s experience. Want it to be great? Practice it.

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Other Posts on Speech Preparation: 

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Image credit: 123rf.com, used under license

April 28, 2014

Right Out of the Blocks: Make the First Few Minutes Count

By Dr. Ken Broda-Bahm: 

Runners start

The jurors lean forward in their seats a bit as they have their first chance to hear about the case in opening statement. The attorney steps to the lectern, looks directly at the panel, pauses, raises his hand for emphasis and…reintroduces himself and everyone sitting at counsel table. “You’ve already met me, my name is…and I represent….” Then, once the introductions are out of the way, he proceeds straight into the remarks he always uses to congratulate the jurors and say, “Thank you for your service,” and also share a few quotations: “Jurors are really important for a democracy.” With that step accomplished, it is time to hear about what an opening statement is and isn’t: “It isn’t evidence, it is the picture on the top of the puzzle box,” and so on. At this point, nearly ten minutes into the attorney’s time, the jury has noticeably changed. No longer on the edges of their seats, they’ve become accustomed to the realization that an opening statement is neither as exciting or concise as it’s Law & Order versions. They’re drifting off and thinking of other things, just as the lawyer is finally coming round to talking about the case. 

That is an opportunity lost. At a time when the jury’s attention is at its peak, the attorney focused on formalities and platitudes. Instead of using those few golden moments of fresh attention to aggresively convey a trial theme and frame the case story from his perspective, he simply followed a routine. “But,” he will counter, “I did get into the theme and the story right after that.” And it is true that any powerful appeal he could have put into the first few minutes he can always add later. But attention will never again be as high as it was during those initial moments when the attorney and the presentation were both new and juror focus was on overdrive. Make a strong statement in your introduction — not ten minutes in, and not even two minutes in. Make it right at the start. It is common advice and I make it frequently. But I still see it violated even more frequently. This post takes a look at why those initial minutes are so important and provides a quick list of what should be banned and what should be stressed during that precious span. 

The Attention Curve: 

10-minute-rule-graphThe general understanding is that attention toward a speaker is at its peak at the beginning, and then declines swiftly and steadily throughout the presentation before dipping up a bit at the end. As this representative graph shows, the first part of it looks a lot like the stock market in 2008. The reason for this steep attention curve is that at the beginning, the speaker, the speech, and the situation all have novelty on their side, and that generates attention. But once the style, the person, and the topic become familiar, then it becomes harder to sustain that attention. It is true that a good speaker can recapture attention, creating smaller peaks along the way, but it remains unlikely that attention will ever get back to that original point, even with serious efforts from the speaker to keep or recapture attention. The main lesson regarding early attention: make the most of it while you still have it. 

These Should Be Banned From the First Few Minutes of Opening: 

Reintroducing Yourself and Your Team. To the extent that jurors need this, and don’t already know who everyone is from voir dire, you can return to the topic after you have established your theme and set a tone in the first few minutes. 

Repeating the Judge’s Instructions. If the sentence begins with “As you just heard from the judge…” then the sentence is probably not necessary. 

Playing Down the Importance of Opening Statement. Emphasizing that “What we say here is not evidence” and “soon, you’ll be hearing from the important witnesses,” can end up conveying the message, “So it is totally okay if you don’t pay attention for the next hour or so.” 

Quoting Thomas Jefferson, Alexis de Toqueville, or Harper Lee on the Importance of Juries. Yes, there are some moving quotations out there, and they speak to the truth of the sanctity of jury service. But when delivered at the start, they can sound, somewhat accurately, like ingratiation. There are better times, like closing, where you will want to empower the jurors by reminding them of the importance of their role.

Anything Else That Does Not Immediately Get to the Point of Your Case. While you have the greatest access to the eyes, ears, and cognitive resources of the jury, hit them with your best shot.  

Instead, Do This

Get to Your Theme. Your one sentence or so that boils your case down in a powerful way should make an appearance as early as possible and come back often in the opening statement. 

Identify. Connect with where jurors are likely to be at that point. Play the ball where it lies by acknowledging what they might be thinking, for example, after hearing the other side. 

Surprise. Give jurors something they don’t expect, something that flies in the face of what they are assuming that you and your party will say in this situation. 

Acknowledge. If there is an obvious weakness, or a elephant in the room that everyone is likely to see, then go ahead and ‘steer into the skid’ by acknowledging that weakness. 

Start a Story. If you see someone throw a ball, you can’t help but watch until you see whether the ball is caught or not. A narrative arc inherently grabs attention. 

Create a Frame. The context and framework that is placed around your case will play an important role in determining how your story is evaluated, so begin creating that frame. 

Analogize. Teach the new in terms of the known. Analogies and metaphors make use of a familiar situation to encourage jurors to think in a particular way about your case. 

Bottom line, when you’re starting out, don’t rely on what is habitual, routine, or rote. Instead, push yourself to create the opposite, and get to that right away. 

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Other Posts on Opening Statement: 

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Photo Credit for Header Image: 123rf.com, used under license. 
Image Credit for attention curve chart:  Hartley J and Davies I “Note taking: A critical review” Programmed Learning and Educational technology, 1978,15, 207-224 cited in Brain Rules (Medina, 2009). 

December 30, 2013

Chunk Your Trial Message

By Dr. Ken Broda-Bahm: 

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Give me the bite-sized version, break it down into pieces, and tell it to me step-by-step. The brain loves to segment, and the process known as “chunking” seems to be a central part of how we recognize patterns, manage information, and form new insights. A recent perspective on the process is articulated by Cambridge neuroscientist Daniel Bor in his book, The Ravenous Brain (2012). According to Dr. Bor, this ability to chunk is a key feature — perhaps the key feature — in human consciousness. “The process of combining more primitive pieces of information to create something more meaningful,” he writes, “is a crucial aspect both of learning and of consciousness and is one of the defining features of human experience.” 

The book covers a broad sweep, and it is likely that I’ll be mining it for future posts. But one of the clearest implications of Bor’s thesis is that practical persuaders need to adapt to the brain’s preference for patterns by giving the gray matter what it’s looking for. And if it’s true that an essential element in making meaning is conveying these chunks of information, the “small nuggets of meaning that are particularly salient,” then that is a very important concept for persuaders to understand. While much of the media attention regarding Bor’s work (e.g. this piece from Lifehacker) has focused on use as a memory aid to remember longer and longer chains of numbers, for example, the more basic implication of chunking lies in giving us insight into how we experience and perceive. Though chunking “can vastly increase the practical limits of working memory,” Bor clarifies, “it is not merely a faithful servant of working memory — instead it is the secret master of this online store, and the main purpose of consciousness.” A recognition of components and an ability to organize them into patterns is nothing short of the substructure of how we perceive, think, and are persuaded. This need to break information into chunks has implications for all communicators, including litigators at all phases of trial: voir dire, opening, witness examination, and closing. 

What Does It Mean for Litigators to Chunk?

The first reaction from the communication-savvy individual to this advice about breaking a message down into chunks might be, “thanks, Captain Obvious!” And of course, the need to have structure in any message is something that is drilled into us from Speech 101 on. But in my day-to-day work, I continue to believe that attorneys who truly take this to heart are the exception rather than the rule. Yes, the attorney may be clear in his own head that he is following an outline, but are the jurors and the judge? What if one were to ask at the conclusion of an opening, “Okay, who can tell me what the structure was — how many main points were there?” Following the average opening statement, how many would know the answer, other than the speaker? 

My belief — and I’ve sometimes checked this belief after mock openings — is that the answer is few to none. It is one thing for the attorney to get that structure, and it is another thing for her listeners to get it just as well. Litigators and other communicators often believe that they’re breaking things down based on a clear, explicit, and meaningful structure, but their audience instead simply experiences a continuous and unbroken flow of information or arguments. Here are a few rules of thumb for making sure you’re actually chunking when you think you’re chunking: 

    • It has to be simple (which usually means flat, without substructure, and limited to a manageable number of main points). 
    • It has to be explicit (which usually means actually saying something like, “First point,” “Second point,” and “Third point”).
    • It usually should be previewed (“Tell them before you tell them,” unless you having a strategic reason for preserving a surprise). 

With these requirements in mind, here are a few reminders on where and how litigators should chunk their trial messages. 

Chunk Your Oral Voir Dire

Attorney-conducted oral voir dire should not consist of a long list of questions. Instead, there should be topical divisions, each with its own goal. For example, in a products liability case, you might move from general to specific, focusing first on attitudes toward personal responsibility, then on views of product cases in general, then on reactions to the situation involved in the case at hand. Within each topical segment, there might be a natural sequence: A set-up that encourages jurors to call their experience to mind; a choice of some kind that divides higher-risk from lower-risk jurors; and a follow-up that elicits supportive themes. At the end of each segment, transitioning and signposting the next topic will help the venire members maintain their interest and focus. 

Chunk Your Opening Statement

The goal of opening statement is to give jurors a way to think about your case and structure can be key to that. Of course, most attorneys now know that the best way to open effectively is by telling a story. But telling a story doesn’t simply mean tying all the facts all together with an “and then…” link between each. Most books have chapters and most plays have scenes. They follow that format because structure is really the essence of story. As you move through your opening story, make sure that your listeners will have a sense of that movement. That means knowing when each new chapter begins. 

Chunk Your Witness Examination

Examination amounts to a series of questions, but to the juror watching it, the examination also should break down into discrete topics and themes. In either direct or cross examination, the same principle of telling the story in chapters applies. Each section should be united by its own goal (e.g.,  in the “Experience” section of cross, the goal is to show that, while impressive, the expert’s experience is irrelevant to the issues in this case). In addition, each segment should follow a common pattern: first an orientation, then a fleshing out of greater and greater detail, and then a punchline or conclusion. In direct, it is important to have witnesses familiar with the sequence as well, so they are prepared without being over-prepared

Chunk Your Closing Argument

In most cases, the closing should follow the verdict form order, with those questions providing the chunks that are most relevant at that stage. Instead of telling the trial story over again, you will want to focus jurors on the story that lies ahead: deliberations. The problem is that by this point, jurors have heard a lot, and your focus cannot simply be on repetition. Instead, you need to organize and synthesize what they have heard, and that is where chunking comes in. Treating each of the verdict form questions as a basket in which to group the relevant evidence and argument provides jurors with the most meaningful and motivated way to organize their recollections of the trial. 

At this time of the year, there is one more timely application of chunking. That is the reminder that we don’t  experience time as free-flowing. Instead, we impose a human order on those natural rhythms and chunk time into years, then months, then hours, minutes, and seconds. So, as 2013 winds down, I offer this wish: May your next chunk be at least as good as your last. 

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Other Posts on Message Structure: 

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Bor, D. (2012). The Ravenous Brain: How the New Science of Consciousness Explains Our Insatiable Search for Meaning. Basic Books.

Photo Credit: Trekkyandy, Flickr Creative Commons

December 12, 2013

Don’t Whine About ‘Argumentative’ Demonstratives (and Argue Back Against Whiners)

By Dr. Ken Broda-Bahm: 

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I have a few pet peeves. Some relate to language (don’t say “literally” when you mean “figuratively,” and don’t say “jive” when you mean “jibe”). Those I can live with. But a larger pet peeve that I have trouble living with relates to demonstrative exhibits in the opening statement. Or, more specifically, it relates to how frequently and how easily good demonstratives are yanked out of an opening statement because they are “too argumentative.” Listening to opposing counsel playing the “argumentative” card, I feel like repeating that line from The Princess Bride: “You keep using that word. I do not think it means what you think it means.” Though it is not inconceivable that a demonstrative could cross the line in various ways, I do think that the label “argumentative” has become a catch-all objection that really means something like, “that is a bit too effective,” or “that is likely to be persuasive,” or “I’d simply prefer that you not make the point in quite that way.” 

Don’t make that objection. It just worsens the communication experience for both sides, and for jurors as well. But in addition, don’t be too quick to accept that objection or to self-censor before opposing counsel or a judge has a chance. Of course, there are reasons to be cautious: No one wants an objection to break the flow of their opening or, worse (but rare), to be reversed based on improper argument in opening. But there are also reasons not to be overcautious. Your opening statement is a precious opportunity to teach the case, and to set a tone. It may not determine the verdict, but it does often help jurors reach a durable first impression. Forswearing the use of good visual tools simply because they’re too good amounts to tying one arm behind your back. This post takes a quick look at what the “argumentative” objection means, or ought to mean, and shares a sample argument. 

What is Argumentative? 

We all know the legal standard: An opening statement is not evidence, it is just a preview of the evidence. That distinction, however, can quickly break down once you get past the simple analogies of pictures on the top of a puzzle box and such. While there isn’t a great deal written on what “argument” means in opening statement, I did find a couple of articles that both voice a common theme: It isn’t very clear. 

University of North Dakota law professor Michael Ahlen (1995), for example, notes that “argumentative” is the most common objection raised in opening statement, and yet American courts have not provided clear guidance on what constitutes improper argument. It appears that the objection for arguing is a catch-all for any improper remark.” Pepperdine law professor Timothy Perrin (1999) agrees: “Surprisingly, this most fundamental question — ‘What does it mean to argue in the opening statement?’ — has never been subjected to serious in-depth analysis. Despite over a 100 years of practice under its limits, the meaning of argument within the opening statements is one of the least analyzed or understood principles of trial practice.” 

While on face, the rule “forbids advocates from interpreting the evidence for the jury by drawing conclusions or inferences from facts,” that is often defined in the negative, as forbidding anything other than the proper goal of explaining (but not arguing) what one’s own case will be. Perrin writes of the “witness test,” meaning that advocates may only discuss evidence based on a good faith belief that it will be admitted in trial. But that is not much of a limit given the broad parameters of what a witness may testify to.

In practice, the rule is more honored in the breach. Based on a content analysis of openings from a number of high profile trials (e.g., California v. Simpson, U.S. v. McVeigh, Minnesota v. Phillip Morris), Perrin finds that argument is rampant, rarely brings an objection, and the objection is generally not sustained. “The findings suggest that the rule against argument fails miserably in eliminating argument from the opening statement. At the same time, however, the rule overwhelmingly succeeds in confusing lawyers.” 

Based on that confusion, lawyers default to trying to apply the rule during the one time they safely can: before opening when reviewing disclosed demonstrative exhibits. But if the meaning of “argumentative” is indeterminate when applied to verbal utterances, how much less clear is it when applied to visual communication? In that context, the objection just breaks down to a way to limit the other side’s flexibility. That of course would be a good idea only if you weren’t simultaneously limiting your own. 

Unfortunately, that is just what the broad and imprecise use of “argumentativeness” does when applied to opening statement demonstratives. Instead of sticking to bland documents and descriptive timelines, advocates need to fight for effective visual communication during opening. Here is an example of how that fight might go. 

A Sample Argument Over Argumentativeness

The Case: A chemical company sold a herbicide chemical (we’ll call it ‘Orthvan’) to a third party who used it, causing high levels of crop damage to nearby farmers when the chemical moved off target. Part of the plaintiff’s argument was that the chemical had known dangers which were not fully disclosed to either the third party or to those who were in harms way. 

The Demonstrative: For simplicity’s sake, let’s just focus on one demonstrative making the basic point that this advanced chemical is much more potent than other chemicals jurors might know and use. The accurate version actually was scrapped from an opening for being too argumentative. 

Potent(Click to see full sized image)

 The Objection:

Your honor, a thousand skulls and crossbones? This is clearly argumentative and clearly prejudicial. The inference is that it is too deadly to be on the market. They can put an expert on the stand and explain the toxicity, and they can argue in closing that we’re the worst thing since plutonium, but it is improper in an opening statement. 

The Response:

Your honor, I disagree. The purpose of opening is to preview evidence and this previews evidence. As disclosed in the expert report, we will have a witness who will testify to this basic factual ratio. I think it is well-established that people will understand a comparison like this better visually rather than just verbally. And the skull and crossbones is a universally understood symbol for toxicity — that’s why they use it on their own label! The bottom line, your honor, is that this is a clear and visual way to preview a relevant point in this case. The fact that opposing counsel does not like it is not grounds for an objection.

Depending on the judge, a response like that may or may not prevail. In the end, the whole exchange might not seem worth it: It isn’t a game winner for the plaintiff to use it, and it isn’t fatal for the defense to allow it. The defense could even minimize it by saying, “All this shows is that the chemical is concentrated…and that the Plaintiff is trying to scare you.” In the end, just doing your own good job of persuading verbally and visually is a better course than complaining about their opening arguments or visuals. Don’t whine, but also don’t give up too easily when they whine.  

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Other Posts on Demonstrative Exhibits: 

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Ahlen, M. J. (1995). Opening Statements in Jury Trials: What Are the Legal Limits. NDL Rev.71, 701.

Perrin, L. T. (1999). From OJ to McVeigh: The Use of Argument in the Opening Statement. Emory LJ48, 107.

Photo Credit: frotzed2, Flickr Creative Commons. Demonstrative exhibit created by Pam Miller, Persuasion Strategies. 

April 15, 2013

Practice Mentally

By Dr. Ken Broda-Bahm: 

6894790_s[1]When I taught public speaking I’d ask students to picture an experiment. A group of people are being tested on their ability to shoot basketball freethrows, and they’re divided into subgroups (evenly matched on ability) and each subgroup prepares for the test differently. One group prepares by actually practicing with a basketball on the court. A second group is asked to prepare by visualizing the shot: They picture the ball arcing through the air and going through the basket, nothing but net. A third group does nothing before the test. So which group would you expect to do best on the test? The group that practiced with the ball seems like the best bet. But the intriguing possibility is that the group just visualizing would come in a very close second. Some say that this study has actually been done with exactly that result, but the better information seems to be that this study on visualization is just that, a visualization – an academic myth about a study that never actually occurred. But the illustration is still useful and there is no shortage of current research on the benefits of mental preparation. 

That research is frequently cited by those who practice and promote the idea of visualization and mental practice. That was an important point for my public speaking students to get: Practice and visualize your speech. And it is an important point for litigators and witnesses to understand as well. Voir dire, openings, closings, and witness examination and testimony: These are all high stakes communications situations that can be executed well or poorly. So how do you prepare? Of course the substantive preparation is to know the facts and the law, the arguments and the evidence, the goals and the structure. But there is also the practical preparation of walking through it mentally and getting up and doing it. Drawing from a recent Psyblog post on the demonstrated benefits of mental practice, this post focuses on what attorneys and witnesses should be doing and avoiding when it comes to getting their heads in the game. 

Pulling together a number of recent research findings on the subject, the reliably useful Psyblog points to a few fascinating qualities of mental practice:

  • Medical students do significantly better when trained in mental imagery techniques (Sanders et al. 2008).
  • Novice surgeons do better when they engage in mental practice (Arora et al., 2011).
  • Individuals are even able to improve the muscle strength in their pinkies through mental practice alone (Ranganathan et al., 2004).

Attorneys Should Practice and Visualize

In my experience, there are some differences in how attorneys prepare for something like an opening statement. Some attorneys will prepare as well as an actor, and will habitually stand up to deliver their opening to a handful of people in the office or to an empty room. These attorneys are typically very good. Other attorneys will prepare well at their desk, but only rarely on their feet, most often presenting their opening for the first time while in court. Those attorneys are usually not as good. Being ready on the substance is one thing, and being ready to execute it well is another thing. The busy litigator will often feel “It would be great to practice, but who has time?” Well here’s a tip that I’ve shared with a number of the attorneys I’ve worked with. Get ahold of a good digital recorder – these days, there is probably one on your phone. Record yourself as you deliver the opening. Then listen to yourself as many times as you can. It is a passive form of practice that you can engage in as you’re doing other things: while you’re eating, just before you go to sleep, or while you’re driving to court. While you listen, visualize yourself up on your feet presenting. I give a lot of presentations frequently using this method and it works. 

Witnesses Should Practice and Visualize 

Witnesses are generally more nervous than experienced attorneys, and that makes the practice phase all the more important. When an attorney says they’ve prepared a witness, or when a witness tells me they’ve been prepared, I’ll always ask what that means. It all too frequently means that the lawyer and the witness have sat down at the same table and talked about the case. That kind of meeting is critical, but it isn’t practice. Particularly for a witness who’s never testified before, they need that picture in their heads and they need that experience. Once the substantive portion of preparation is mostly done, we encourage the witness and attorney to walk through the mock testimony or the mock deposition. Then, a final assignment at the end of the session is for the witness to keep a few things in mind and often that means visualizing themselves answering calmly, credibly, and nondefensively. 

Both Should Avoid Negative Visualization

There is another word for “negative visualization:” worry. Witnesses worry, attorneys worry, and worry means thinking about and picturing what could go wrong. To understand why that doesn’t help, let’s go  back to the idea for the basketball study and think about what would’ve happened if there was a fourth group asked to prepare for the freethrow test by imagining a series of bricks and missed shots like our President experienced recently on the court: The ball arcs high and over the backboard, bounces off the rim, or falls several yards short of the hoop. There is no question in my mind that this group of negative thinkers will do not just worse, but far worse when it comes time to actually shoot the ball. The same applies to practice for attorneys and witnesses: When you practice, make it positive practice, and when you visualize, make it a positive picture. That doesn’t mean blinding yourself to the negatives in either your case or the situation. Instead, it means picturing and practicing your best self and your best responses. 

There is a wonderful moment in the final Harry Potter installment where, as part of a kind of dream sequence, the young wizard asks his mentor, “Is this real or is it all in my head?” Dumbledore replies, “Of course it’s all in your head, but that doesn’t make it any less real.” In the science and art of how we understand ourselves and influence others, the pictures and the practice that takes place in your head is all the more real.

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Other Posts on Preparation:

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Image Credit: Used under license, www.123rf.com

January 14, 2013

Overlap Your Stories

By Dr. Ken Broda-Bahm: 

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Let me start differently in this post, with a ‘Tale of Two Tales.’ Here is tale number one: 

First, From the Plaintiff’s Perspective: 

It is January, 2010. Brian Starr, a computer storage engineer on contract for GiganTech Industries has come up with a rough design for the UltraDrive, a radical new design for a computer hard drive that will increase storage space and performance while reducing manufacturing costs. Brian is all the more enthusiastic about the idea because his contract with GiganTech grants him a share of royalties from any new product. So he begins work immediately, looking into a path to market. 

It is March, 2010. Brian and GiganTech are facing the normal amount of problems in fleshing out a new product. There are many issues to troubleshoot, but they all seem resolvable and it will be worth it in the end. 

It is June, 2010. Brian realizes that GiganTech has lost patience with the UltraDrive. He thinks they must have had unrealistic expectations for a quick path to market, because they’re cutting their losses and moving on. Brian Starr’s contract isn’t renewed, and after being told that GiganTech has no plans to ever get UltraDrive to market, he signs a standard form agreeing that he has been paid all he is owed by GiganTech and releasing all future claims against the company. 

It is October, 2010. Brian Starr is shocked when GiganTech comes out with a product nearly identical to the UltraDrive and immediately seizes a large share of the market. Brian calculates that, but for the release he signed, his share of royalties would top $3.5 million. 

So far, it is a story of dashed expectations and perhaps too much trust. But let’s take another look. 

Now, Going Back to Add What the Plaintiff Didn’t Know

It is January, 2010. GiganTech executives are pleased with Starr’s new idea. To hedge their bets, they immediately send the sketches and the specs to one of their subcontractors, Far East Innovations, asking if the idea is feasible or not. They don’t tell Starr about this. 

It is March, 2010. Starr is running into trouble designing a manufacturing line. Far East Innovations, however, says that not only is the idea feasible, but they can make it themselves using their existing lines. While a few technical fixes are necessary, Far East is confident they can address them quickly. 

It is June, 2010. After thinking it over, GiganTech executives decide to pull the plug on Starr and go with Far East Innovations. Hoping for a big market surprise, they keep everyone in the dark including Starr. The head office decides to end the relationship with Starr and get a release from him so there will be “no strings attached” to the new product. They tell him that GiganTech has no plans to manufacture the product, which is true, but it leaves out the part about Far East’s manufacturing lines. 

It is October, 2010. GiganTech launches a product that is a combination of Starr’s idea and Far East’s manufacturing. The company sees record profits. Brian Starr gets nothing. 

Now, that is a different kind of story. Instead of too much trust on Starr’s part, we’re talking about fraudulent concealment on GiganTech’s part. Litigators face strategic choices in mapping out their trial stories. One way would be to just walk through the narrative once, sharing everything that happened when it happened. Another way is to tell it twice, as I do above, focusing first only on what the plaintiff knew at the time, and then coming back to fill in what the plaintiff didn’t know at the time and only learned through subsequent events and through discovery. That latter approach of overlapping two stories can have some advantages. 

Why Overlap the Stories? 

Take the example above. From the plaintiff’s perspective, the central challenge is to address the question, “Why would you sign a release?” That is much more understandable if we’re able to consider it first while standing in the Plaintiff’s shoes, knowing only what he knew at the time. From his perspective, in the summer of 2010, there would be no reason to assert a right to royalties on a project that he had every reason at the time to believe was being shelved.

Beyond this example, there are several situations in trial where advocates will have an interest in reducing the knowledge, power, and responsibility of their own clients. Obviously, jurors will need to understand the whole story in those cases, but if they’re first able to appreciate the story through your client’s eyes, and not from an unrealistic omniscient standpoint, the fact finders are more likely to avoid hindsight and “you should’ve known better” thinking. In those settings, there are a few rules of thumb in telling the story. 

 1. Avoid the Omniscient Narrator. When you read novels, you know that sometimes you have a narrator who has a ‘God’s eye view’ of everything going on, as captured in a phrase like, “little did he know that the person next to him was a spy!” In other cases, the narrator is a character in the story, bound by the limits of his or her own perspective. We know that when it comes to demonstrative exhibits, the overarching point of view in the omniscient perspective can lead to feelings of greater responsibility, and at times, an unrealistic perception of what one should have known. The same applies to storytelling. 

2. Tell the Naive Story First. If the goal is for fact finders to identify with your ‘character’ in the story, then consider establishing that connection by putting your jury in the shoes and behind the eyes of that individual, at least initially. It also helps to add details that will help listeners see the story as you tell it, and that means fleshing it out more fully than I have in the brief examples above. Once you tell the simple and perspective-bound story, then the punch comes from moving to an omniscient mode and letting listeners in on what that party didn’t know at the time and only came to appreciate later.

3. Separate the Stories on the Timeline. In telling two different stories, your timeline can often help. Instead of just meshing all of the entries together on one line, regardless of who knew what at the time, you can use the horizontal axis to separate those events. Using the example below, you could first tell the story using the green entries above the line (‘the world as Starr knew it’), then you could go back and add the red entries (‘what Starr didn’t know’) in order to complete the picture. 

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Other Posts on Story: 

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Photo Credit: K. Broda-Bahm

December 6, 2012

Pick the Right Frame

By Dr. Ken Broda-Bahm: 

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Earlier this week at a mock trial, I witnessed a face-off between two jurors with very different views about the same insurance case: “The company wasn’t fair,” cried one, “to this day they haven’t stepped up to do the right thing.” But the other juror was unmoved: “The policy is what it is, there’s no benefit to them going beyond it.” It is tempting to see this as an exchange between two types of people. But more accurately, it is a conflict between people who happen to apply two different frames around the situation. The first juror is applying a moral frame, looking through the perspective of fairness and right versus wrong. The second juror is just looking at the pragmatics of the situation, and what the policy calls for quite independent of what is good or bad. While you might think the die is cast on which type of discussion will prevail as of jury selection, much depends on the message they hear in trial. 

The critical lesson is this: Frames can change, even within a single individual. Based on a recent study (Van Bavel et al., 2012), people appear to be very malleable and able to selectively apply either a pragmatic or a moral frame, and are able to rapidly switch between the two, even when evaluating the same or similar activities. To determine how the frame of evaluation impacts the way participants viewed the same stimuli, the researchers presented a number of concepts (e.g., murder, honesty, eating, or riding a bike), and asked for ratings on the moral grounds of whether they are right or wrong, or on the pragmatic grounds of whether they are personally beneficial or harmful. The team found not only that participants were able to easily switch between the different frames for all kinds of activities. They also found that the choice of frame matters: Moral judgments tended to be quicker, more extreme, and more universalized in the sense of applying to everyone. So the choice of frame matters, and if it is changeable, then the promotion of a particular frame is a key part of the message.

What’s in a Frame? 

I get it that lawyers’ eyes can sometimes glaze over when we social science types slip into our lingo. Our thoughts on perceptions, framing, and moral judgments might sound fairly remote from the concrete needs of applying the facts to the law in a specific case. But the more we learn about the process of decision making, the more we are able to control the message elements that influence that process. 

So, moving from theory to practice, how would a litigator adapt to the malleability of a juror’s frame? Well, since moral judgments tend to be quicker (more impulse driven), more extreme, and more universally applied to everyone, and pragmatic judgments are more deliberative, modest, and situational, then it is easy to see that in most (but not all) cases, plaintiffs would want to suggest a moral frame while defendants would want a pragmatic frame. So how would each advocate cultivate that chosen frame?

Devoting the rest of this post to a couple of examples, let’s use a fictional civil tort fact pattern that we’ve used before: A young baseball pitcher injured by a ball hit from a highly-engineered aluminum alloy bat. The Plaintiff (we’ll call him Jason Jackson) claims that the bat manufacturer (let’s call them Newland Company) purposefully created a bat that tricked the regulatory tests and hit the ball faster than allowed, depriving the plaintiff of a proper reaction time. The plaintiff would want jurors in the moral frame of broadly righting a wrong. The defendant would want jurors in the pragmatic frame of just answering a situationally specific and limited question. Let’s see how each might go about that in opening statement. The key words suggesting a frame are bolded in the examples below. 

Illustration: The Plaintiff’s Moral Frame

There is a moral to this story. Beyond the family tragedy at the heart of this case — a 16-year-old boy who is brain injured for life — there is a company’s careless and dangerous choice. Newland had the right path right in front of them: go ahead and comply with the standards that are meant to keep the game as safe as possible. But instead, Newland chose the wrong path: trick the test in order to produce and market a bat capable of hitting the ball at a speed that deprives the pitcher of a reaction time. The ethical and responsible thing for the company to have done would have been to say, ‘We don’t want and don’t need that kind of unfair advantage in the market, and it is not right for our business to put players in greater danger.’  In other words, the company could have followed their values instead of following their profits. 

Illustration: The Defendant’s Pragmatic Frame

As you’ve heard, there is a lot of emotion in this case. But there is also a single, simple, and pragmatic question: What would have prevented this tragedy? As an investigator, your job is to focus on that. So let’s think about it and look at what is realistic: ‘What if the player used a different bat?’ You’ll hear from several very reasonable experts — including the Plaintiffs’ expert — that any bat is capable of hitting a ball at a speed that could be too fast for the pitcher to react. That is what the science, the physics, and the facts will tell you. And let’s look at the standard: ‘What if Newland had tested differently?’ You’ll see with your own eyes that Newland applied the test in exactly the same manner as every other company. There would have been no benefit to doing it any differently. And finally, let’s ask the bottom line question: ‘What would have kept Jason safe?’ The only logical answer is, ‘Staying off the baseball field.’ That is the reality: There are just inherent dangers to the game.   

Viewed this way, any case can be seen as a kind of “frame war.” Based on the study’s (Van Bavel et al., 2012) findings, a single juror could easily apply one frame or the other, so advocates need to gear their message to that battle. Of course, one paragraph will never succeed in setting or altering a juror’s frame of reference. But applied consistently throughout opening, presentation of evidence, and closing, the language you choose plays a critical role in influencing the filter through which the jury sees your case story. 

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Other Posts on Storytelling: 

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ResearchBlogging.org Van Bavel JJ, Packer DJ, Haas IJ, & Cunningham WA (2012). The Importance of Moral Construal: Moral versus Non-Moral Construal Elicits Faster, More Extreme, Universal Evaluations of the Same Actions. PloS one, 7 (11) PMID: 23209557

 


Photo Credit: m.prinke, Flickr Creative Commons (“Rahmen ohne Bild,” sculpture in the Westpark/Braunschweig)

October 29, 2012

Appeal to Your Juror’s “Temporary Identity”

By Dr. Ken Broda-Bahm: 

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It is Halloween time again, and everyone who is a kid or young enough to party like a kid, is preparing their temporary identity for the night: a pirate, a witch, a vampire. This year, apparently, the trending looks are less traditional, including “Angry Birds” and costumes for this year’s angriest bird of all, Big Bird, are flying off the shelves. Of course, the idea of temporary identity, of being something else for a short period of time, isn’t limited to October 31st. It is something that sets the stage for human communication in every context. In different situations, we adopt different personas. There is overlap, of course, but when you think about it, there are probably some pretty clear distinctions between the “work-you,” “friends-you,” and “family-you.” 

There is also a “juror-you.” That is, there are differences between the identity a juror assumes during trial and the identities that person may hold in any of their other life contexts. While we might think of attitudes and personalities as something fixed and immutable — something that a person “has” — it is more accurate to see them as highly changeable and sensitive to the situation — something that a person “does,” and does differently in different contexts. We’ve raised the issue previously of jurors being in different “decisional mindsets” at different stages in the trial. In this post, I’d like to take that point a little further and discuss ways to get jurors into a preferred role or identity during trial. I’ll be choosing two early moments in trial, voir dire and opening statement, where a juror’s understanding of her role can be critical, and providing suggested language on ways to encourage and adapt to a juror’s temporary identity at that stage. 

Identity Matters

I got to thinking about the importance of a juror’s temporary identify after reading a recent piece by Maggie Koerth-Baker in The New York Times Magazine. In that essay, “The Mind of a Flip-Flopper,” she explores the idea of changing minds, initially in the political “Romney-Obama” sense of revising political positions, but then ranges into a diverse body of research on how we decide and redecide. Much of it, she writes, has to do with flexibility in identities: “Our identities, of course, are also stories we tell ourselves about ourselves. In some cases — if we want to think of ourselves as thoughtful and open-minded — we can adopt identities that actually encourage flip-flopping.” Drawing a parallel to juries, she also draws from research on an unusual setting for deliberation known as the Oregon Citizens Initiative Review. As part of the state’s “Healthy Democracy” program, Oregon addresses popular ballot initiatives by pulling together “a panel of randomly-selected and demographically-balanced voters,” who then hear from the campaigns for and against the measure prior to drafting a “Citizen’s Statement” that is published in the voters’ guide: a kind of mini-verdict from an unbiased group that has looked closely at the measure.

If that sounds a little like a jury, it is meant to. Like a jury, it can sometimes lead to decisions one wouldn’t expect from looking at popular attitudes alone. Koerth-Baker quotes Penn State professor John Gastil who shared the example of Oregon Measure 73 focusing on mandatory sentencing. To those who gave it only a little thought — the majority of the population —  the idea of strict and fixed criminal sentences held widespread appeal. To the panel, though, the negative consequences far outweighed the positives and the panel voted 21 to 3 to oppose it. According to Gastil, that finding played an important role: “You got a shift from two-thirds in favor to two-thirds against just by reading the report.” 

The point is that a working group can end up assuming an identity where “facts suddenly matter.” A jury is such a group. Rather than simply importing and applying the baseline attitudes they brought in the courthouse door, those individuals who are selected become “jurors” and that role can mark them internally as surely as the sticky badge marks them externally. The trick for litigators is to adapt to and cultivate the best aspects of that special identity as you prepare and present your case. 

Create and Speak to a Preferred Juror Identity…

Addressing the juror in their appropriate role matters in all phases of trial, but let me speak more specifically to two of the early stages. 

During Voir Dire

During voir dire, especially attorney-conducted oral voir dire, attorneys have an early opportunity to put a frame around the venire members and help them see their activity and their statements in an appropriate light. That role is not to be “auditioning” for a part, and it is neither to be in a contest with the court or counsel. Rather, the identity you most want panelists to embrace is the identity of one who is openly and honestly sharing views in a context that makes those views critically important.  

It is also not, at least from a juror’s perspective, about admitting to something called “bias.” By that name, bias is a bad thing that no panelist is comfortable admitting. Instead, voir dire is about the kinds of knowledge, attitudes and experiences that everyone has. 

Here is one example of how counsel might appeal to a juror’s temporary identity in voir dire: 

My part in this process requires that I ask you some questions about your experiences and your views on several issues. It isn’t my goal to single you out or to embarrass you, but our jury trial system is based on the idea that cases need to be decided by people who have no strong attitudes at the start of the case that would influence how they understand and use the evidence. We all go through life forming opinions based on our experiences.That is normal. But it means that not every juror is right for every case. For example, I live in Denver and I’m a big football fan, and a big John Elway fan. So I wouldn’t be the right kind of juror for a case against the Denver Broncos. There isn’t anything wrong with that, it just wouldn’t be the case for me.

By framing the questions in that fashion, you can help a potential juror understand that admitting to a strongly-held attitude doesn’t mean failing some kind of test, but instead means helping a worthwhile process. 

During Opening Statement

After jury selection, the next opportunity to encourage jurors to embrace a particular identity is opening statement. That is typically the time when attorneys talk about how grateful they and their clients are that the jurors are sacrificing their time, how important jury service is, and how it is second only to military service in the good it does the country. That can be an important message, but the lesson for counsel is that a little goes a long way, and it is often a message that sounds best coming from a judge. Too much from an attorney, and it sounds like flattery and ingratiation. 

The better message is to reinforce and empower jurors’ identity. Tell them what they are there for. At the stage of opening statement, they are there to hear what the story is about. But they don’t want to be in the passive role of an audience, or just consumers of information. And they also aren’t there to be a judge of which attorney has the better persuasive skills. Instead, the opening is an ideal time to tell jurors that they are there in order to be active, to be investigators of the facts, to try and find answers. One way to introduce that role might be as follows:

As both sides begin this case, we are given the opportunity to speak to you directly. That is an opportunity we won’t have while we are presenting the evidence. In fact, we won’t have it again until closing argument. We aren’t given this opportunity to provide an opening statement so that we can argue to you. We aren’t given it so that we can tell you a story. And we aren’t given it so that we can show off our persuasive skills. No, we are given this precious opportunity in order to help you in your role. To assist you in working with the testimony you are about to hear, to help you to be investigators. Because that is what you are. Not passive listeners, not critics, but active determiners of what is and is not factual in this case. To help you in that investigation, I want to share what I expect the evidence to show in this case. 

That message can precede an opening that is strong, and an opening that does indeed tell a story while staying on the right side of the “argumentativeness” line. The most important theme is that the jury is in control: They’re the ones reaching their own conclusions based on the evidence and facts, the arguments, and their own process. 

Rather than being a mask or anything false, this temporary identity we are asking jurors to assume is something that helps your case as long as you take care in shaping it and in strategically appealing to it. If jurors see the verdict as their own unique product, they are empowered. If they see trial as merely a persuasive contest between two sides, however, they can easily see it as all trick and no treat.

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Other Posts on Mindset and Persuasion: 

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Photo Credit: Mags20_eb, Flickr Creative Commons

January 30, 2012

Don’t Put “Story” on Too High a Pedestal

By Dr. Ken Broda-Bahm:

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Many hold that stories are essential to effective communication, and I am among them.  Especially in litigation, there is a natural role for stories as a glue holding together the facts and the law, the ethics and the evidence, the logic and the persuasion.  I believe that and apply it in my practice every day.  So when I heard about Tyler Cowen’s TED talk encouraging people to distrust and to rely less on stories, I approached it with some suspicion.  When I viewed the remarks on YouTube, it was with an eye toward refuting Dr. Cowen.  As I listened to the economics professor’s remarks, I found myself rejecting some parts of his argument.  Rather than being “a kind of candy,” “a kind of mental laziness,” or “a kind of self-deception,” it seems more likely that stories are an unavoidable part of cognition and the way we make sense of the world.  But I found myself agreeing with other sentiments, like the tendency of stories to sometimes invent intention, and to make “the mess” that is life appear to be unrealistically organized and driven by clear plot lines.  I considered the possibility that maybe we do rely on stories as a crutch, particularly in complex litigation, to simplify things that ought not be simplified.  Then I thought, “Oh my god, what if he is right?” because up to this point in the blog post, all I’ve been doing is telling a story.  Continue reading

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