Lawyers USA Your Business Partner

When presenting a case to a jury, there is a fine line an attorney must walk between showy theatricality and mind-numbing exposition of technical evidence.

Be too entertaining and you lose credibility. Be too dry and jurors’ eyes roll back in their heads.

Since credibility is essential, we often err on the side of mind-numbing exposition.

But to keep jurors engaged, we must first recognize our own biases. We live with cases for years and are steeped in the minutiae of contract language, life care plans, market share and obscure legal standards. We take pride in mastering the details of complex subject matters, with acronyms rolling off our tongues like rich nuggets of expertise. Unfortunately, our comfort with complicated concepts can communicate superiority, an attitude that can stop a jury from listening – the only message they are getting is that we know the material, and they don’t.

Two brothers, Chip and Dan Heath, wrote a great book called Made to Stick: Why Some Ideas Survive and Others Die. In it, they discuss what makes some ideas more memorable than others.

Every litigator should aspire to increasing the “stickiness” of his or her ideas, whether he or she is presenting to a judge, jury, mediator or even opposing counsel. Since we traffic in ideas in litigation, the simple equation to remember is: Attention + Comprehension = Persuasion.

Make evidence understandable

First, to make complex evidence meaningful, it must be understandable. It helps to use the 12-year-old test, where you keep asking an expert in the case, “What does that mean?” After he or she responds, ask again: “What does that mean?” Then repeat.

Keep going until the testimony is so clear that even a 12-year-old could understand it. It usually takes at least three rounds of this before the concept becomes perfectly clear.

While attorneys are familiar with the intellectual exercise of debating abstract principles like negligence, doubt and reasonableness, jurors are not. They need concrete examples to make the concepts clear.

For example, if the current OSHA-permissible limit of airborne Benzene in a workplace during an eight hour workday is 1 part per million, you can demonstrate (if permitted by the court) by spraying an atomizer in the courtroom. Or when talking about distances in an accident reconstruction, speak about the distance of 120 feet being twice the length of the courtroom.

These in-court examples allow jurors to take abstract concepts and make them immediate and personal.

Step-by-step testimony

Many experts will testify about their opinions and the methodology they used to reach their conclusions. However, they rarely take jurors through the process they went through to explore the fundamental questions they were hired to answer.

These questions should be likened to mysteries, where the expert takes the jury through his or her investigation, making mini-discoveries, explaining why he or she is looking at certain issues, working through problems and complications, and ultimately solving the mystery.

Through this process, the expert makes the jurors the experts, giving them better information to use in deliberations.

Most of the inherent drama of an accident case is drained out by the forensic analysis of the reconstruction. This drama can be re-inserted by using a narrative version of a slow motion shot on film, which also inserts the point of view perspective of the participants. Here is a typical recounting of an accident: “Vehicle one, driven by my client, was traveling in the number one lane at 40 miles per hour. As it proceeded into the left hand turn lane, another vehicle (vehicle two) traversed from the number two lane into the left hand turn ahead of my client. As my client was navigating the turn at approximately 20 miles per hour, it was struck on the passenger right rear panel by a third vehicle (vehicle three).”  Good for a report, bad for a jury.

Instead, try this: “Mary Smith is driving her silver Toyota Tundra on a cloudy, flat, grey day, Thursday, May 4th at 3:30 in the afternoon. She’s in the inside lane next to a row of green shrubs in the center median. She sees a yellow Ford Mustang with two black stripes down the middle slightly behind her in the curb lane. She looks ahead and sees the street where she needs to make a left turn. Suddenly, the Mustang speeds up and cuts hard into the left turn lane ahead of her, with a slight squeal of its tires. She looks at the Mustang as it disappears. She sees a car at a distance in the curb lane and thinks she has space to turn. But she doesn’t see the light green sedan traveling in the opposite inside lane until it’s too late. It hits her. She feels her right shoulder strain against her seatbelt. It holds as the airbag explodes around her. She spins around 180 degrees, coming to a stop in a spray of glass.”

This second version incorporates a number of narrative story devices to make it more compelling for the listener.

First, it tells the story in present tense so the listener is placed in the car, seeing what the driver sees. Second, small details in the story help clarify your client’s version of events. “Cloudy, flat, grey” tells us the sun was not in her eyes. The “yellow Mustang with two black stripes” gives us the cause of the distraction and could introduce a non-party at fault. The “green shrubs in the center median” can explain why Mary didn’t see the light green car.

Finally, by taking us through the turn in slow motion, this version allows the jurors to see how Mary could have been distracted. It also creates a verbal “reenactment” that is more compelling than a straight factual recitation.

Also, from a strategic liability perspective, while the green sedan certainly had the right of way, this narrative helps to reduce the comparative fault of the driver by placing visual emphasis on the Mustang and the road design. Finally, the “strain against the seatbelt” might foreshadow a seatbelt defense.

Demonstrative evidence

After you develop a narrative, it is important to create demonstrative evidence that visually reinforces this story.

Using the previous example, it can be an animation, video, or a series of still pictures in sequence to reinforce the narrative from the driver’s point of view.

In the truest sense, demonstrative evidence is a representation of the witness’ testimony and aids the jury in understanding the witness. This means more than timelines or pie charts. Rather, you can create an actual storyboard of the case you want to present, and then plot the key documents, animations, models and demonstrations that illustrate that core narrative.

All facts in a case, no matter how dry or complex, contain a story. Our job is to find that story and tell it to the jury in a meaningful way.

Richard Gabriel is President of Decision Analysis, a trial consulting company with offices in Los Angeles, Chicago and San Francisco. He is co-author of Jury Selection: Strategy & Science, published by Thomson-West, and is a regular columnist on trial strategy for Lawyers USA.

Close this Window Bookmark and Share This Page

Save to Browser Favorites / Bookmarks

Print RSS Feed Ask backflip blinklist BlogBookmark Bloglines BlogMarks Blogsvine BuddyMarks BUMPzee! CiteULike co.mments

Connotea del.icio.us Digg diigo DotNetKicks DropJack dzone Facebook Fark Faves Feed Me Links Friendsite folkd.com

Furl Google Hugg Jeqq Kaboodle kirtsy linkaGoGo linkedin LinksMarker Ma.gnolia Mister Wong Mixx MySpace

MyWeb Netvouz Newsvine oneview OnlyWire PlugIM Propeller Reddit Rojo Segnalo Shoutwire Simpy Slashdot

Sphere Sphinn Spurl Squidoo StumbleUpon Technorati ThisNext Twitter Webride Windows Live Yahoo!

Email This to a Friend

Copy HTML: 

 If you like this then please subscribe to the RSS Feed.

More »