PSYCHOLOGY OF PERSUASION

R. Doak Bishop Sashe D. Dimitroff
King & Spalding
1100 Louisiana, Suite 3300 Houston, Texas 77002 (713) 751-3200

ADVANCED CIVIL LITIGATION
March 22-23, 2001
Houston

March 29-30, 2001
Dallas

TABLE OF CONTENTS A. B. Introduction..........................................................................................................................1 Voir Dire ..............................................................................................................................1 1. The twin purposes of voir dire .................................................................................1 a. Gathering information..................................................................................1 b. Advocating your case...................................................................................3 (1) Use a theme......................................................................................3 (2) Come up with a theme that is short, simple and memorable ...........3 (3) Use the "power of threes" ................................................................4 (4) Use the same theme throughout the case .........................................4 (5) Use visual aids .................................................................................5 Principal factors of persuasion.................................................................................5 a. Controlling the jury's impression of the facts ..............................................5 b. Controlling the jury's impressions of your client.........................................6

2.

C.

Opening Statement...............................................................................................................6 1. 2. The importance of a strong opening ........................................................................6 Be persuasive by telling a good story ......................................................................6 a. Tell the story chronologically ......................................................................7 b. Tell the story from a single point-of-view and in the present tense.............7 c. Tell the story in plain English......................................................................7 d. Engage the jury's senses...............................................................................8 e. Make the story simple, short and sweet .......................................................8 f. Make sure the story has a beginning, middle and an end ............................9

D.

Examining Witnesses and Presenting Evidence ..................................................................9 1. 2. Carefully orchestrate the order of your witnesses and evidence..............................9 Questioning witnesses............................................................................................10 a. Direct examination.....................................................................................10 b. Cross-examination .....................................................................................11 Methods of commanding the jury’s attention ........................................................12

3. E.

Closing Argument..............................................................................................................13 1. 2. 3. 4. Purpose...................................................................................................................13 Using closing arguments to determine fault ..........................................................14 Creating an emotional appeal.................................................................................15 Anticipating dangers ..............................................................................................16

Selected Bibliography....................................................................................................................18

PSYCHOLOGY OF PERSUASION A. Introduction

When preparing a case, a trial lawyer must, first and foremost, consider his audience - the jury. They are in an unfamiliar world. Most of them don’t know what to expect or what is expected of them. They come to court with a value structure built up over a lifetime. They will measure the parties’ case against their values. They are unlikely to change that value structure because of information they receive at the trial. In fact, jurors are more likely to reject or distort new information that is inconsistent with their value structure than they are to alter their values to be consistent with the information. One problem is that jurors can't make demands upon lawyers. They can’t ask you to repeat yourself when they don't understand. They can’t tell you when you are repeating yourself or have talked too long. They can't tell you when they disagree with what you are saying or need more information. The key, therefore, is to be alert to your audience through every stage of the trial. B. Voir Dire 1. The twin purposes of voir dire

There are many views on how to pick a jury. The traditional view is that voir dire is the opportunity to educate and persuade the jury. In the 1960’s, a study by Kalven and Zeisel found that jurors begin making up their minds from the earliest moments of the trial and have decided the case by the end of the opening statements. The study concluded that since jurors begin making up their minds right away, the advocate should think of jury selection as an extension of opening statements, and the thrust of voir dire should be devoted to advocacy. In other words, voir dire is more about advocacy than information gathering. At the other end of the spectrum, Wu and Shaffer found in a 1987 study that a jury's attitudes and biases, which stem from prior experience, are the most resistant to change during a persuasive appeal. In other words, jurors pre-existing attitudes and biases shape the way they view the evidence rather than the evidence shaping the way jurors think about the case. According to this view, a lawyer should spend voir dire discovering what people think about his case and his evidence because that is more likely to determine the outcome rather than the lawyer's early persuasive appeals. As a practical matter, there is value to both approaches. This section will discuss both how to gather information from the jury panel and how to advocate your case effectively during voir dire. a. Gathering information

According to jury consultants, one thing that interferes with jury selection more than anything else is the notion of “profiling,” stereotyping and folklore about who will be good jurors and who will be bad.1 There is simply no tried and true demographic profile. The reason
1

For example, one dated authority lists the following "profiles:"

is that statistics and stereotypes don’t work when applied to small groups. For example, suppose you learn that 70% of Polish housewives are tough on crime. During voir dire, looking at a Polish housewife, is she of the 70% that is tough on crime or the 30% who is anti-government? And even this is a gross oversimplification of people’s views. Lawyers don't have as much information as other people have who use statistics and stereotypes. Lawyers have to go right to the horse’s mouth. They must get the jury talking to them.2 Voir dire is also a key time to deal with your case weaknesses while you still have a chance. If the bias is there and you uncover it, consider yourself lucky, even if everyone else hears it too. You only get one chance to hear from the jurors. You can hear from them when they speak their verdict, when it is too late, or you can hear it from them in voir dire when there is still something you can do. If you hear about a bias you don’t like, thank the juror for being honest. Check with the rest of the panel to see what they think. Some will agree, some won’t -others won’t have anything to say on the topic. Often you will find a juror who has the exact opposite opinion. If nobody has a bias that you can detect, that’s a good sign. If everybody is strongly biased about something in your case, that also gives you valuable information. Whatever the case, you can deal with it during voir dire. It teaches you how best to persuade the juror sitting right in front of you.

The ethnic characteristics method of jury selection looks at ethnic backgrounds … attitudes are deep-rooted beliefs that are affected by values acquired early in life from family and social peer groups. Consequently, plaintiff personal injury lawyers favor Irish, Jewish, Italian, French and Spanish jurors. Conversely, defendants in such cases look favorably upon English, German and Scandinavian jurors - Nordic types who are viewed as more responsive to law and order arguments and resent windfall damages. Criminal lawyers who subscribe to this theory use the same approach, except they reverse the conclusions. Prosecutors prefer Nordic types; defense attorneys prefer Mediterraneans. Closely tied to the ethic origin approach is the religious belief analysis. Catholic and fundamental protestant sects are viewed as favoring the prosecution. Liberal protestant and most Jewish sects favor the defense…. Fundamentals of Trial Techniques, quoted as "folklore" by Patricia J. McEvoy, Ph.D. in her paper titled Voir Dire and Jury Selection at 3.
2

Some of the techniques suggested by jury consultant to get the panel talking include: • • • • • • • • Ask open-ended questions that get them talking. If you can get them talking, your decision about whom to strike will become apparent to you. You talk 20% of the time; they talk 80% of the time. Get the jurors talking during the first three minutes. Don’t argue or cross-examine them. Ask a lot of open-ended questions that give no clues to the right or wrong answer. Talk to individuals, not the group, when asking your key questions. Get to the point. Keep your questions short and simple. Remember theories of group dynamics - the way you treat one juror is the way you treat them all. Be gentle with shy jurors, but don’t neglect them.

Id. at 8.

2

Finally, it is actually easier during voir dire to listen rather than to talk. You can maintain decorum and respect and still build rapport. A presentation that is stern, authoritative and serious may be effective but it is one style of successful communication. There are other styles that are equally persuasive and often more conducive to voir dire:3 b. Advocating your case (1) Develop a theme

Introduce jurors to your theory of the case as soon as possible. The best way to express your theory is through a theme. A theme is a verbal picture - it communicates ideas beyond the plain meaning of the words. For example, when someone invites you to a theme party (Superbowl, toga, shower, tea, etc.) criteria are set and information communicated without the necessity of a detailed invitation. The invitee generally knows what to wear, formal or informal, how long they have to stay, whether a guest is permitted, what they will do at the party, and what type of festivities to expect. A single word conveys a lot of information. The trial theme serves the same purpose - a quick, cohesive statement that focuses your audience’s point-of-view by telling them what to expect and why they should vote your way. (2) Create a theme that is short, simple and memorable

The most efficient way to develop a short theme is to reduce the theory of your case to a ten-word telegram.4 Formulating a ten-word telegram may take hours or even days of collective trial team effort, but it is a critical first step to persuading the audience. As explained by a jury
Most lawyers claim that their favorite parts of trial are cross-examination and closing arguments. The characteristics of a good cross-examination include: • • • • • • • Asking closed-ended questions that you can control; Avoiding questions to which the lawyer doesn’t know the answer; The questions themselves are often more important than the answers; Maintaining a stern, controlling demeanor so that everyone knows the lawyer is in control; similarly in closing argument; It is a one person show; Strongly advocating a position at all times; Dismissing, downplaying or even ignoring the defendant’s strengths.
3

On the other hand the characteristics of a good voir dire include: • • • • • Creating a conversation; encouraging others to talk; Listening more than you talk; Asking open-ended questions that prompt people to self-disclose; Exposing your case weaknesses to find out who disagrees with your position and why; Building rapport.

Id. at 4. Thus, the very skills that make a lawyer a stellar cross-examiner are the very same skills that may trip him up during jury selection.
4

Zagnoli McEvoy Foley Ltd., Developing Effective Case Themes, The Practical Litigator at 4 (July

1993).

3

consultant, “if you cannot state your theme in thirty seconds, or twenty-five words or less, then you have not developed an effective theme.”5 Simplicity and clarity are your goals, not eloquence or creativity. Follow these rules: • • • Use simple English, not legalese; Avoid any words that are not absolutely necessary; Avoid the use of lofty and legal concepts.

A way to practice simplifying your language is to challenge yourself to finish the sentence, “this case is about…” in twenty-five words or less. You should prepare a story you want the jurors to hear throughout the trial. This is a story you will help them complete as characters and plot twists develop. The story should be complete with beginning, middle and end. To test it, tell the story of your case to a twelve-year-old. If he gets it, you’ve got it. (3) Use the "power of threes"

One accepted belief in communication is that there is power in threes.6 Red, white and blue; breakfast, lunch and dinner; life, liberty and the pursuit of happiness - we are all drawn to threes. The theory of threes applies to themes. “Safety, sense, and experience” are what the manufacturer had in mind. “Possible death, probable injury, certain disaster” is what the defendant overlooked. Three-part themes should never be corny or too catchy, but they should use language with which the audience is already familiar, and is comfortable using. Finally, jury consultants suggest that you use the power of threes by stating your theme three times, word for word, during the trial. (4) Use the same theme throughout the case

You also need to use your theme in all aspects of trial from voir dire through closing, including the examination of witnesses. For example, if the case involves an environmental liability, a defendant’s theme could turn on the premise that the company’s waste disposal was as safe as it could have been given what the company knew at the time, or that “accidents happen.” A series of voir dire questions in this instance might be: • • • • How many of you have ever worked in a job you might call dangerous? Did your company have safety guidelines? Over the years did those guidelines change? Do you believe that safety guidelines are a guarantee that no accidents or mistakes will ever happen?

5

Id. at 5. Id.

6

4

Mr. Smith, you said you worked at XYZ Company around hazardous chemicals for 25 years. Do you think it’s possible for all the safety guidelines and precautions to be taken and yet an accident might still happen? (5) Use visual aids

If at all possible, use visual aids during voir dire and opening statement (and, for that matter, throughout the trial) to explain the nature of the case. Visual presentations are far more effective than oral presentations. In fact, jurors not only remember visual information better, but they also understand it better than oral information. As a result, if you use visual aids during voir dire, jurors are more likely to remember and be persuaded by your theory of the case. 2. Principal factors of persuasion a. Controlling the jury's impression of the facts

A trial is largely a matter of impression management. Psychologists say that only about 10% of what jurors remember and base their decision upon is substance. The other 90% is impressions - impressions, for example, of the witnesses and their credibility. When the trial is over, jurors often can’t tell you what a witness said, but they will tell you that they were impressed with a witness or they thought he was evasive and didn’t believe him. The jury's impressions may be explained by the way they reason. People can be categorized as cognitive or affective. Cognitive people are those who reason inductively. They gather information, carefully weigh it, and then infer conclusions from it. Affective people reason deductively. They come to conclusions fairly quickly, and then select information to support those conclusions. Most people probably fall into the affective category. Jurors, however, can only receive and use a certain amount of information. They are usually overwhelmed by information in most trials and cannot possibly process or remember all or even most of it. Therefore, they will come away with selective perceptions and impressions. You persuade by tying your case to matters with which the jury can identify, such as justice and community values. The jurors have been yanked out of their normal routine and have to sit through a trial - there are only a few things that they might get out of it. One key thing is the satisfaction of doing justice as they see it. If you show the jury how the facts allow them to reach a verdict that is consistent with their view of justice and fairness, they will be able to explain the verdict to their neighbor with pride, and you will go a long way toward winning the case. Conform your theme so that it links to relevant community values. The theme will structure the jurors’ thinking and give them a way to organize the evidence, thus influencing their selective perceptions in a way that is favorable to your case. Examples of "community values" themes include: • personal responsibility for one’s own actions;

5

• • • • • b.

fair play; a man’s word is his bond; a deal is a deal; he gave his word; he shook hands on a deal.

Controlling the jury's impression of your client

Jurors come into the courtroom with certain preconceived associations. For example, they may associate big corporations with power or greed. During voir dire, you must identify any preconceptions that the jury may have and then effectively enhance or defuse them. For example, build positive associations around your client (e.g., responsible) and your theme and negative associations around your opponent (e.g., greed) and his theory of the case. Although this impression is first developed during voir dire, it becomes critical during the later parts of the trial. C. Opening Statement 1. The importance of a strong opening

Most jurors make up their minds by the conclusion of opening statements. In one study, 80% of the jurors made up their minds on the question of liability after the opening statement.7 Psychological studies have also shown that people are more likely to remember the first thing they hear ("primacy") and the last thing they hear ("recency"). What this means is that not only do first impressions count - they count disproportionately! Because jurors won’t likely remember the details of what they hear first, the first impression (primacy) should leave them with a desire to find for one party.8 Opening statements should ideally be dramatic and strong. When developing your opening, keep it short and make it clear. State the case in the simplest terms, eliminating all the facts and evidence that are not necessary to the case. 2. Be persuasive by telling a good story

Most people remember the opening statement when told to them within the context of a story. The key, however, is to tell them a story you want them to hear:

7 8

Edward T. Wright, How to Use Courtroom Drama to Win Cases, 124 (1987).

During final argument, you should reinforce this, but also give the detailed reasons for finding in your favor ("recency"). The jurors can then use this information to justify the decision to themselves intellectually. They can also use as ammunition to argue with the other jurors.

6

a.

Tell the story chronologically

The most persuasive opening statement tells a simple, yet impactful story. A good story makes your theme easy to remember. A story also helps the jurors understand the vast array of information they received at trial and arrange it in a meaningful way. When telling your story, remember to tell it chronologically. Telling a story in sequence not only has the greatest dramatic impact, but people tend to remember best when they are told a story chronologically. By telling the story chronologically, however, do not make it a mere recitation of the pertinent facts in the case. Create a real drama incorporating only those facts necessary to tell your story in order to make it interesting. b. Tell the story from a single point-of-view and in the present tense

Tell your story in the present tense and from a single point-of-view, preferably, the pointof-view of your client. Jury consultants tell us time and time again that jurors are totally baffled when they get into a deliberation situation because an attorney has not told the whole story from a single point-of-view. Keeping your story tightly structured and convincing is crucial because it impacts credibility. In fact, a well structured but false story can be more credible to jurors than a poorly structured but true story. Keep in mind that a very important element of the story is the party’s motivation. Research indicates that once a juror decides on the goal behind a party’s action, he will interpret all other evidence to accord with his belief. Tell the story from a consistent point-of-view. For example, imagine watching “The Verdict” (the movie starring Paul Newman). What if, throughout the movie, the perspective changed from the plaintiff’s lawyers to the judges to the doctors? This would tend to leave the impression that both sides are equal, and the only fair way to judge the case is to consider them equally since the story treated everybody equally. This is not the impression that you want to advocate, and it is not the way that movies and books are created. They usually want you to like, understand and take the side of the main character. Tell the story in the present tense. The present tense implies that the story is happening now, at this moment. It puts the listener inside the story. It also puts the advocate and the jurors on equal footing as experiencers of the story: the story belongs not to the teller alone, but to the teller and the listeners alike - you all experience it simultaneously. If the present tense is combined with the telling of the story from one single point-of-view (that of your client), a juror has no choice but to identify with the client because in essence the story is happening in the time that it is being told to everyone in the room. c. Tell the story in plain English

Use active sensory language. Legalese is death in the courtroom and it kills the story. Avoid words like “client” and “proceed” and “approach.” Even more importantly, avoid using legal jargon. The people who are deciding whether or not you win or lose are not in your profession. Every time you use legalese when simple English will do, you are telling the jurors that you belong to the same category as the opposing counsel, not the story.

7

Using legalese also interrupts the story. Jurors are excluded from the story, which means they are not listening to your story. It takes them out of your client’s shoes and puts them back in their own. If you don’t believe this, go to the local library and try to get a good grasp of an area that you know absolutely nothing about. Start with the most technical book on the subject that was written only for professionals or professors. See how long it takes you to wander over to the children’s section hoping to find a place to begin. It is much harder to learn how to express yourself in layman’s terms. Aim for the ten year-old level of understanding for both the legal language and the technical complexity of your case.9 In learning anything for the first time, it has been shown that adults grasp it at about that level of understanding.10 If you do not follow this rule of thumb, a juror will allow his or her mind to wander. d. Engage the jury's senses

Use language that exploits the five senses. We learn and experience through our five senses: seeing, hearing, touching, tasting and smelling. If jurors can experience the story through those senses, they can experience the story as if it were happening to them again, on equal footing with the storyteller. Within the five senses, research has shown that some are more potent than others. Sight is the least helpful because it is the one to which we refer most.11 Sound is next. We are bombarded by sounds in modern life, but it is still very effective. Touch really begins to hit a listener on a visceral level, but it is in the areas of taste and smell when you can really heighten the listener’s identification with your story. For example, if you are trying to describe a woman’s life that has been destroyed by the murder of her husband, you need to set-up a solid marriage to which all jurors can relate. You might say, “Sam and Celia have been married for 25 years. They took care of each other and every one of their friends will tell you that they truly loved one another.” You can improve the story by exploiting the senses, especially smell, by saying: “That morning, Celia opens her eyes. The first thing that she is aware of, just as it has been every morning for the past 25 years, is the smell of freshly-brewed coffee. She waits a minute, looks up, and in walks Sam, his glasses fogged-up by the steam rising from the two cups he has brought in to start their day.” e. Make the story simple, short and sweet

There are many facts and details in any lawsuit. Pick carefully. Don’t dilute your own story with too much. Consider writing a ten-word telegram. Tell the whole thing in just ten words of clear, active English.12 It doesn’t need to be a sentence; it’s a telegram. It should show
9 10

Zagnoli McEvoy Foley Ltd., The Opening Statement at 7. Id. Id. at 5.

11

"The difference between the right word and the almost right word is the difference between lightning and the lightning bug." Mark Twain (Letter 10/15/1888).

12

8

you what is the essence, what the kernel of your story truly is, no matter how complex it may seem at the moment. The telegram does several things for you. First, it eliminates time wasting fillers that bury your story and make it almost impossible for your listener to hear. This category includes statements like “your honor, counsel, ladies and gentlemen of the jury, my name is Bob Smith and I represent the plaintiff and want you to know right off the bat how much this case means to me. How excited I am to come before you on Mr. Jones’ behalf. Now and over the next several days you are going to hear a lot of witnesses…” Does that hit you in any visceral level? Second, it can be a good way to come up with a theme if you are having trouble finding one. Third, it becomes an excellent way to begin an opening or closing. For example, if the first thing that the jurors hear is “mother maimed by death machine put in hands of thoughtless bureaucrat,” they are likely to listen in a way they will not if you start with “ladies and gentlemen of the jury….” f. Make sure the story has a beginning, middle and an end

The story you tell in the courtroom has one beginning, but you decide where that is. It does not have to be chronological as long as it begins where you want and it leads the jurors to the ending you need. Let them finish the last chapter but make sure they know how the characters in your story want it to end. The beginning is linked to the middle, the meat of “what happened.” What you choose to put in and leave out, the order of the middle, all these options are yours, but you must write the middle out of the beginning that you have chosen, and it must lead inevitably to the ending that must be reached. There are also a very limited number of endings to a story in a courtroom. The big mistake many attorneys make is the assumption that the story of the case that they are telling ends in the past. It does not! The story is alive and present in this moment - it has no ending until the jurors give it one. That ending will be a thumbs-up or a thumbs-down for your side of the case. You must include the way you want the story to end clearly and carefully at this point in the trial. D. Examining Witnesses and Presenting Evidence 1. Carefully orchestrate the order of your witnesses and evidence

Jurors tune in and out during trial. Whenever a change occurs, jurors tune in. These "changes" are key times to capture the jury's attention. They include the following events. • • • • beginning of trial or of defendant’s case; a new witness; change from direct to cross-exam; after breaks.

9

Keeping this in mind, put on important facts and witnesses at key times. Specifically, put strong witnesses on first and last, with high-credibility witnesses near the end so the jurors will associate the evidence with the high-credibility source. Put low-credibility witnesses on early in the case (but not first) so jurors will forget the source of the evidence. Psychological studies show that you have four minutes to catch the jurors’ attention or they will tune you out - so start with a strong impression and don’t waste it. If you capture their attention within that period, you can keep it as long as they stay interested in the presentation. Alternating the types of witnesses will also help hold the juror’s interest. For example, if you put two expert witnesses on the stand back-to-back, you may overload the jury with technical information. Instead, mix the fact and expert witnesses by putting your “emotional” or warm and fuzzy witnesses in between the expert witnesses. It may also be wise not to put two of your best witnesses back-to-back because it may minimize the effectiveness of their testimony. Jurors are most alert first thing in the morning and directly after lunch - at least if you capture their attention - so if you need to present relatively lifeless material, mid-afternoon is the best time to do so. The length of the average juror’s attention span is 17 - 20 minutes, so use that period during the times jurors are most alert to produce your most impactful evidence. Also, emotional material is better remembered than factual material. Therefore, emotional material should be presented first since it will linger in the jury’s mind. Similarly, novel information is remembered well. When information is unique or novel, it stands out and becomes more difficult to forget. Present factual data last since it is difficult for the jury to retain for any period of time. Finally, prepare the jury for the length of the testimony. Jurors will be much better prepared to pay attention to the testimony if they know how long it will last. Imagine, for example, how disconcerting it would be if you were watching a television show and you couldn't find out how long it would last. To be most effective, tell the jury how long any presentation, such as a video deposition, will take, and make it as short as possible. 2. Questioning witnesses a. Direct examination

It is very important to get the jury to relate to your witness on a human level. There are a number of ways to "humanize" the witness, particularly your client: • • Call the witness by their first name. When introducing the client in voir dire, go up to him and put your hand on his shoulder to show you like being associated with him (transferring your credibility to him). Tell the jury what the case means to the client, what has happened to him as a person - to his life - as a result of the incident.

10

When representing a corporation, select your corporate representative carefully for appearance, sincerity, responsibility, and competence, and personify the corporation as the representative.

Finally, get the witness off the witness stand and up to the blackboard, whenever possible, in order to capture the jurors’ attention. Minimize your role (stand at the end of the jury box, whenever possible) and maximize that of the witness. The witness should command center stage on direct examination, and the jury’s focus should be on the witness. This does not mean that your role is to shrink into the woodwork. Research has shown, for example, that an attorney’s likability affects jury verdicts. Research has also indicated that the lawyer's body language can create a positive impression, including, for example, how you act towards your client, your self-esteem and self-confidence touching and space. There are times for a lawyer to cross-examine his own client - to show skepticism for a certain motive or disputed act and to ask the hard, pointed question. Of course, the witness should generally know what is coming. Asking pointed questions of your own witness will tend to peak the attention of the jurors. The lawyer’s reaction to the responses to the pointed questions may also lend credibility to those answers. Lawyers have a large task in convincing jurors to find for their client. Consequently how they treat their client in court is the last thing on their mind. But, jurors are watching. They not only watch the lawyer when he or she is talking to them but also when he or she is not. How a lawyer treats his client shows the sincerity of his or her argument. This encompasses the lawyer’s conduct both inside and outside the courtroom. If the lawyer comes across as genuinely concerned for the client in the courtroom, but the juror notices that in the hallway he is not paying attention to the clients, not talking to them or maintaining a distance from them, the juror may develop a subliminal impression that the lawyer is just putting on an act. In contrast, if the lawyer seems consistent in and out of the courtroom, respect and trust for the lawyer will grow. b. Cross-examination

The key advantage of the cross-examiner is juxtaposition - the ability to determine the order of your questions and to juxtapose one point with another (e.g., what the witness did with what he didn’t do, his motive with his acts). Don’t automatically follow a chronological order during your cross-examination or the order used on direct examination. Plan the order of your points and questions carefully. Cross-examine about probabilities.13 Use your experience and logic to think through what probably happened (including the minor details). Then cross-examine the witness to bring out the “probable” facts (and details) that favor your case or that tend to throw doubt on the witness’ story, conclusions or interpretations. Finally, be an actor. On cross-examination, the advocate should take center stage and show your reactions to the witness’ testimony.
13

F. Wellman, The Art of Cross-Examination (1903).

11

3.

Methods of commanding the jury’s attention

There are a number of ways to capture the jury's attention: a. Verbal headlines: By using these signposts, you tell the jury that something new and significant is about to happen, and they should pay attention: • • “Now, I’d like to ask you some questions that go to the very heart of this matter.” “This next question is very important and I’d like for you to think very carefully about it.”

b. Less is more: Lawyers, as a group, have been taught to believe that words are sacred. Therefore, the more words the better. Not true. More is just more, and more often than not is tedious, boring, frustrating, and uninteresting. When it comes to the art of persuasion, less is more. c. Words alone don’t persuade: Persuasion requires all the senses, not just hearing. Thus, for example, visual aids have a tremendous impact in persuasion. People in this age of television expect pictures and need them. Their brains are programmed to look for visual clues to help them categorize, process and access information. People literally need pictures to make sense of incoming stimuli. Visual communication has gone beyond pure entertainment to the heart of information processing. d. Voice, pauses and gestures: Voice inflection and pauses may regain a jury's attention and can help build suspense. Similarly, asking a rhetorical question or repeating a point at an opportune moment can serve two purposes - it can arouse the jury's waning attention and can highlight weaknesses in the opposing side's position or argument. What you do with your body - how you express yourself nonverbally - will affect your message just as much as your thinking will affect your body. It is very difficult to deliver a vital compelling story when your body is restricted and tight and your voice is caught in the middle of your throat. Mind follows body too. e. Movement: Rule 269(h) of the Texas Rules of Civil Procedure warns counsel to try cases from “his place at the bar” (i.e., from counsel’s table). But you should use every opportunity to show exhibits to a witness or to use the blackboard or other demonstrative devices to move around and break the monotony for the jury. f. "Standing your ground:" Body language is also an important aspect of communicating. Although movement can quickly grab the jury's attention, it has to be done on purpose and for effect. Nervous habits can take the jury's attention away from your presentation. Jury consultants suggest that "standing your ground," particularly when delivering the telegram discussed earlier, is far more effective than pacing and/or using other distracting physical

12

gestures or habits (e.g., pointing your finger at the jurors, putting your hands in your pockets or behind your back, or putting your weight on one hip as part of the presentation).14 g. Demonstrative evidence can play a vital role in recapturing a jury's attention. You have a wide array of choices, all of which signal to the jury to pay attention because something new is about to take place. Examples of effective demonstrative evidence include: • • • • • • • physical evidence; models; computer simulations; exhibits; blow-ups of documents, graphs and charts; overhead projection of documents; videotape/computer charts, graphs and documents.

g. Eye contact: Most people like to be looked at and want to be addressed directly. Eye contact increases the amount of confidence the jury members feel toward the lawyer. Research shows that eye contact with the jurors gives the lawyer credibility, sincerity and believability. In addition, many people associate averted eyes with lying. By looking jurors in the eye you can convey that you are speaking truthfully and honestly. E. Closing Argument 1. Purpose

In closing arguments you have the chance to re-tell your client’s story but with a difference. Now you can show how the evidence that has been presented at trial shows that your client deserves to win. Closing arguments are the only point in the trial when a lawyer knows exactly what evidence is before the jury, and the lawyer is given a relatively free reign to use persuasive techniques. To be most persuasive, you should hearken back to voir dire and use the same continuing theme, including the same analogies that you have been discussing throughout the trial. For example: • Use the community values (your theme) and show that the evidence favors your case. Show the jury that they can proudly point to and justify the verdict to their friends and neighbors.

14

Zagnoli McEvoy Foley Ltd., The Opening Statement at 10.

13

• • •

Provide logical justifications for your client to win. In that way, your friends on the jury will have some ammunition to use in the jury room. Problem solving - solve the problems in your case through final argument. Draw the conclusions that you led up to in cross-examination, but stopped short.

Reiterating your theme through these points will not only give the jurors a solid framework to use during deliberations, but it will also provide them with a psychologically satisfying feeling of closure. 2. Using closing arguments to determine fault

Psychologists have developed a theory called "causal attribution" to explain how people go about fixing blame for an event. Jurors generally look for cause and effect patterns and try to organize the data they have into a meaningful explanation of what happened. They also look at a person’s conduct in different situations to figure out whether the person always acts this way or whether the circumstances dictated the action. Causal attribution can be broken down into two subsets: • External attribution - if the jury attributes the behavior to an external source, it has to rationalize that the person usually does not act this way and his conduct took place because of the situation or circumstances. Factors that the jury may consider include: 1) 2) distinctiveness - first time it occurred; consensus - other people act the same way under similar circumstances; inconsistent - the person's action is inconsistent with his actions in other circumstances.

3) •

Internal attribution - alternatively, the jury may attribute the behavior to the person directly by concluding that he always acts this way, and his character dictates the outcome. Factors that the jury may consider include: 1) 2) 3) actions are not distinct - not the first time it has happened; no consensus - most people don’t act this way; consistent - the person acts this way consistently.

Jurors are more likely to blame the defendant if they attribute the accident to internal causes (i.e., the person’s character is to blame). They are also more likely to exonerate the defendant entirely, or at least, to minimize the damages, if they attribute the accident to external causes

14

(i.e., this was an isolated incident, the person doesn’t usually act this way, and the circumstances are to blame). Another psychological theory - and a surprising one - is known as defensive attribution. People do not like unpredictability and try to explain things (e.g., accidents) away in a manner so that they will not happen to them. Surprisingly, the more jurors perceive themselves to be like the plaintiff in a way that is significant to them (i.e., the more they identify with the plaintiff), the more likely they are to blame the plaintiff for the accident. Some of the reasons for this type of reaction from the jury include: • jurors tell themselves that the accident happened because of the victim’s character or because he/she did something that the jurors tell themselves they wouldn’t have done; jurors attribute the accident to some personal "flaw" within the plaintiff in order to neutralize the impact of fate (i.e., neutralize the possibility that such an accident could happen to them); the more intense the accident or the injuries, the more likely are jurors to use defensive attribution. Creating an emotional appeal

• 3.

Facts persuade, but emotion creates the desire to act. Although a good closing argument should be built solidly on cold fact, logic and experience, it is often as important that it be emotional in order to stoke the jury’s desire. But the argument cannot be too overtly emotional. Some emotional themes include:15 • • • • • • • •
15

Injustice; Family; Inequality; Rich v. poor; Hero v. villain; Democracy; Daily struggles; The underdog;
Zagnoli McEvoy Foley Ltd., Developing Effective Case Themes, The Practical Litigator at 4 (July

1993). .

15

Patriotism.

As in closing arguments, stories and themes play an important part in evoking emotions. Stories, poems and famous quotations can bring a point home much more effectively than a simple recitation of facts.16 In selecting the words for your closing argument, don’t hesitate to use language familiar to the jurors, including what they expect in the legal system (i.e., rights, justice, fairness, judgment, etc.). Paint word pictures through metaphor (e.g., “the grisly audit of death” - Moe Levine [wrongful death case]) or similes (e.g., “like a strand in a rope braided to lynch” Winston Churchill). Use analogies liberally to explain concepts to the jury: • “Preponderance of the evidence” - the plaintiff argues it is like a scale, and all the plaintiff has to do is to tip the scales just a feather’s weight more in its favor, just 51%, to meet this burden. “Ordinary care” (negligence) - defendant argues it is akin to a “C” grade in school, not an “A” for excellent or “B” for above average, but just a “C” for ordinary care.

Bring home the emotion that makes your client right and will make the jury want to find in your favor. 4. Anticipating dangers

One of the most important uses of closing argument is to anticipate problems that the jury may have with your case when they start discussing it in the jury room. During your closing argument, you have to provide the jurors with a plausible explanation for each problem in the case. In order to do so, you may have to justify the law to be imposed (antitrust, usury, etc.). You may also have to remind them of the oath they took (Rule 236 of the Texas Rules of Civil Procedure) to be fair. For example, if the opposing counsel gets overtly emotional in his argument or tries to get the jury to consider something outside the evidence and the instructions, point out that he is attempting to get them to subvert their oath. Finally, tie the argument to voir dire by recalling the commitments the jurors made in voir dire (“You promised you could be fair to my client even though it is an insurance company.” “You gave me your word that there was no specific amount in your mind beyond which you couldn’t go in awarding damages if the evidence justified it.”). Throughout your closing argument, you should try to engage the jury so they can identify with your client through your argument. Finish your case strong. Polish your closing argument so it makes the most dramatic impact. While jurors remember best the first arguments made to them, they also remember the last arguments as well. Make sure they do not forget your crucial

“And oftentimes excusing of a fault doth make the fault the worse by the excuse.” Shakespeare, King John, Act IV, Scene 2.

16

16

trial theme, and that their attention remains riveted on you. In each case you try, you have the opportunity to make an uplifting and unforgettable argument. Don’t waste it.

17

Selected Bibliography 1. Lisa A. Blue, Psychology of Trial Presentation, Civil Trial Practice: Winning Techniques of Successful Trial Attorneys, Ch. 12 (2000). 2. M. Levine, Summations: The Best of Moe (1983) 3. M. Levine, Final Argument: Summing Up and Medical Witnesses (Condyne audiocassette tape 1983) 4. Litigation Sciences, Psychological Anchors: Influencing the Jury (1985) 5. E. F. Loftus, Eyewitness Testimony (1979) 6. J. McElhaney, Trial Notebook (2nd ed. 1987) a. b. c. d. e. f. Ch. 5 - The Theory of the Case Ch. 6 - Humanizing the Client Ch. 7 - The Credibility of the Lawyer Ch. 21 - The Language of Examination CH. 38 - The Right Word Ch. 46 - Analogies in Final Argument

7. L. Nizer, My Life in Court (1961) 8. L. Nizer, Reflections Without Mirrors (1978) 9. J. Stein, Closing Argument: The Art & the Law (1987) 10. D. Vinson, Jury Trials: The Psychology of Winning Strategy (1986) 11. Vinson, How to Persuade Jurors, 71 SBA J. 72 (Oct. 1985) 12. F. Wellman, The Art of Cross-Examination (1903) 13. I. Younger, The Art of Cross-Examination (1976) 14. Selected speeches by jury consultants Zagnoli McEvoy Foley Ltd, including: a. Communication Skills Training for Attorneys

18

b. c. d. e. f. g. h.

Developing Effective Case Themes The Opening Statement Nonverbal Communication Persuasion Voir Dire and Jury Selection What Jurors Really Want What Jurors Say About Lawyers

19

Sign up to vote on this title
UsefulNot useful