By Julie Campanini, The Daily Record Newswire
It goes without saying that unless your trial presentation is persuasive, you’re lecturing. And lecturing won’t win. If you think about people who are persuasive, you think of common traits: likeable, credible, engaging. If someone is selling you something, you need to be convinced you want it (or need it).
The same principle holds true for jury trials. Jurors need to think that a verdict for you is the right verdict. There are many elements of persuasion, some of which are complex and cannot be addressed within the confines of a trial. However, there are several methods counsel can employ to achieve the ultimate goal: winning over the jury.
Make your arguments personally relevant. Jurors disengage and lack investment in outcomes that do not or never will apply to them, whether perceived or real. It can happen in a patent case, for example, if the issue is obscure or involves something jurors will never use, or in a securities case, in an area where very few jurors invest or pay attention to the public policy aspects.
That’s why in jury research involving insurance companies, we often hear jurors say, “It will only make our policies more expensive.” That perceived pass-through on costs is personally relevant to jurors. If you have a dry or less appealing subject matter at trial, point out how it affects the rest of the world (i.e., their world), and jurors will be more engaged.
If you say it enough, it’s true. This works in advertising via bombardment — think political ads. In a trial, we should not bombard the jurors, but we can create
the illusion of truth (or, more correctly, of being right) with mild repetition.
There is some credibility to the idea that the more you hear something, the truer it is. If you hear the same piece of information from five people on separate occasions, it seems more believable. The same holds true for trials. Without overdoing it, repeating key points and themes is critical to persuading your jury.
Use authoritative experts. Jurors defer to people who are experts. It enables them to avoid the sometimes arduous task of parsing difficult issues. In order to increase the persuasiveness of your case, have some well-credentialed and likeable experts testify on complex issues.
Again, don’t trot out six experts all saying the same thing; rather, use a few well-placed and highly credible experts to help sell your case. Jurors often claim that experts cancel each other out, but also that that they do matter. Jurors compare the experts to each other.
Frame arguments positively. Avoid using themes and arguments with “never,” “we did not” and other negative phrases. It’s more effective to use positive language: “He solicited feedback from all his subordinates” or “This product has a stellar safety record.” Compare those to: “His subordinates never complained,” or “No one ever questioned how to use the product.”
The negative language attempts to deflect blame onto others, which is less persuasive than affirmatively telling your story. Even if blame is appropriately placed, let jurors come to that conclusion on their own. It’s more powerful that way.
Don’t challenge jurors’ strongly held beliefs. In general, it’s ineffective and even damaging to challenge a juror’s core attitudes and beliefs (for example, downplaying the seriousness of a physical crime, downplaying a victim’s injuries, being dismissive of a culture, way of life or someone’s feelings).
There are many ways to tell a story and try a case while empowering jurors and assuring them that you want to convince them you’re right on a particular set of issues, not change their worldviews.
Add good storytelling elements to your case. Jurors like stories. They like neat packages that are easy to follow, engaging, even suspenseful. For example, play up any twists in the story: “And as we move through this case, you will be surprised at how it unfolds. It rivals even the most notorious corruption stories we have ever read about.”
Or, “And then the plaintiff did something highly unusual that I have never seen in my 23 years of practicing law, and we will get to that when she is on the stand. But suffice it to say, you will want to hear this.”
The case doesn’t even have to be sensational for good storytelling. In patent cases, talk about the start-up and blood-sweat-and-tears aspect. It humanizes an otherwise complex matter.
Be more likeable than your opponent. If jurors do not like you, they simply won’t want to find for you. If they don’t like your clients, they won’t want to hand them victory. Be positive, warm, engaging, truthful and respectful.
Practice makes perfect. That should be a given, but honestly, many attorneys rarely practice their openings and closings. Practice often and in front of a few different groups — both lawyers and non-lawyers.
Solicit honest feedback and implore your audience to ask you tough questions. Pay attention to verbal and non-verbal feedback. Ask honestly how you can make it better and what was most persuasive.
No matter how great a case is, the first run-through is never the best, so don’t let it be in front of a jury.
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Julie Campanini is a senior consultant at Trial Insights. She can be contacted at Julie@trialinsights.com.
