Litigation PostScript. Persuasion Strategies for Litigators

For Opening Statement (or Any Other Presentation), Keep Your Speaking Notes Off the Screen

by: Dr. Ken Broda-Bahm

Those of us who are old enough may recall that there was a generation taught to give public speeches using index cards.  Those little 3x5 or 4x6 cards would hold all of the main points, supporting bullets, and quotables that one would need to get through the presentation.  So what happened to the index cards?  For most presenters supported by PowerPoint, the answer is clear:  What used to be on the index card, is now on the screen.  In conference rooms and courtrooms across the country, juries and other audiences are too often treated to screen after screen of text, text, text.  It feels quite comfortable for the speaker (it is, after all, easy to know what you are going to say when it is there for all to see on a 9’ x 12’ screen.  But a great deal of research old and new is adding to the conclusion that the ‘text on screen’ approach is doing little to help the viewers understand.  “Cognitive Load Theory,” for example, tells us that a human’s working memory is actually quite limited, and your audience is either listening to you, or they are reading the text that you have on the screen – they probably aren’t effectively doing both.

Remember That Your Juror is a Consumer First

by: Dr. Ken Broda-Bahm

Faced with conflicting testimony in a fictionalized construction case, a recent Denver mock jury had to decide whether it was more likely that an owner created unworkable conditions, or that a contractor had dropped the ball.  Their answer -- that the contractor had indeed dropped the ball -- was buttressed not so much by the factual timeline or by expert testimony, but by jurors filling in the gaps with illustrations drawn from their own lives.  “In my personal and professional experience,” one juror opined, “contractors will commit to a date but they never meet it.  They commit to a budget amount but they never meet it, it always goes over.  I think that is just the nature of the beast…”  As it turned out, there was nothing terribly individual about that experience.  Other jurors quickly chimed in with stories about unreliable plumbers, arrogant electricians, and careless carpenters.  In short, nearly every juror had at least one experience involving a contractor who failed to meet expectations.  Particularly in construction cases, but more broadly in any case involving a service provider relationship, jurors can’t help bringing in their own individual experiences as a consumer.

Be Wary of Jurors Who Resemble Your Key Witness

by: Dr. Karen Lisko    
 

A fascinating trend emerges when you look at what the research says about jurors’ evaluations of witnesses who share similarities with them.  One study found that jurors of a similar race to an expert witness rated her less favorably than did jurors of a different race.[1]  Other research has found that medical doctors are harder on doctor defendants in medical malpractice cases than are non-medical jurors.[2]  And in the criminal arena, some research has found that female jurors are more skeptical of female accusers in rape trials.[3]

 

A Picture Really Is Worth a 1,000 Words - Harness the Power of a First Impression

by: Dr. Shelley Spiecker

Clearly visual presentation is important in persuasion.  I remain consistently surprised, however, at how little import is placed on visual impression formation in witness testimony. 

 

In my experience how witnesses look when they testify and how they sound when they speak their words has a profound impact on the impression they make on jurors, judges and arbitrators.

 

Questioning this experience need only be met with common sense.  When was the last time a serious message delivered via email had the same impact as the identical message delivered with moderated vocal inflection, direct eye contact, and highlighted use of gestures in the right sentence breaks?

Provide the Science Jurors Expect, and the Emotion They Require

by: Dr. Kevin Boully

Jurors demonstrate increasingly demanding and complex expectations for scientific proof in the courtroom.  Gone are the days of extreme concern about over-presenting your case or looking “too slick” in trial.  In most venues, slick is the new standard.  Jurors see high-level graphics and video animation on their televisions at home, on their computers at work, and on their cell phones everywhere else they go.    

Whether you believe in a measurable “CSI Effect” in civil litigation or remain skeptical, trade journals, blogs and academic research all highlight jurors’ evolving expectations of high-tech evidence and high-tech trial presentations.  You and your experts must approach trial ready to give jurors the science[1] and the dynamic presentation of evidence they expect.   

But do not underestimate the critical influence of emotion-based attitudes and beliefs on jurors’ interpretation of evidence – scientific or otherwise.  Science is important, but you must address in equal weight the emotional motivators that drive jurors’ decisions, because those motivators can and do drastically impact the weight of the actual evidence.  When speaking to your tougher audience on the jury, remember a few things: