As a trial lawyer, what do you really need? What does every trial lawyer need more of in order to win their case? Attention – the jury’s attention.
I don’t mean that in the narcissistic “everyone look at me” sense. When I say every trial lawyer wants more attention, what I mean is that before you can build a rapport with the jury and earn their trust, you have to fight a war – the war for the jury’s attention. “Attention” and “connection” are the key elements needed to win the minds and hearts of the jury.
Like it or not, we are in the midst of an attention war. We need to confront the reality that the jury’s attention can no longer be taken for granted. We have to change our way of thinking to focus on gaining attention before we can leave lasting impressions.
The jury’s attention must be the currency that every trial lawyer trades in.
We live in an age where we are bombarded by information. Walk one block in New York City and your senses will be overloaded by billboards, large neon flashing signs, and window displays that dazzle. All of this is competing for our attention at the same time.
The average person has to be able to separate the wheat from the chaff in order to avoid going into information overload. This explains why attention spans are eight seconds long, one second shorter than a goldfish. A recent study found that the average person checks their smart phone up to 150 times per day.
As shocking as this might sound, information overload is a by-product of the twenty-first century and is growing at an unprecedented rate. Therefore, it is better to accept this as mainstream and adapt to it rather than indulge yourself in the fantasy that it is nothing more than a fad that will pass quickly.
Now put yourself in the shoes of the jury. They have been herded like cattle into an unfamiliar and intimidating place called the “courtroom,” a Roman coliseum of sorts, stripped of their smart phones and any other connection to the outside world, and squeezed into a small rectangular box where they are forced to sit elbow to elbow with perfect strangers. Not such a warm and cozy feeling to say the least.
Against this backdrop, imagine what it must be like for the jury to hear the ubiquitous phrase, “Good morning. My name is John Smith, the Assistant Prosecutor. I want to thank you for your patience over the last two days of jury selection and for your unwavering commitment to jury service. It is very noble. I’m not going to talk long …” I can think of no more dull and unoriginal a greeting as this one to bore the jury to tears. Why do we spend five minutes fawning over jurors for their unselfish giving of their time when they know full well they are only here under summons from the court and want more than anything to be someplace else?
Yet most lawyers begin this way for no other reason than that this is the way that it has always been done. There are many number of traditions that trial lawyers pass on to those who follow in their footsteps. Some are tried and true, proven effective in the courtroom. As many others have long since lost any basis in reason if there ever was one – the bad habits of generations of trial lawyers that have their root in the nineteenth century conception of the courtroom and that have been chiseled into the annals of trial practice.
In the nineteenth century conception of the courtroom, the courtroom is viewed as a controlled laboratory in which the science of the law is performed. Under this model, attorneys present evidence, the judge supervises for quality control, and the jurors give the results of the experiment. There is little room for emotions or actions whose impact cannot be predicted. A trial is simply the sum of the parties’ formal evidence: eyewitness testimony, exhibits, and stipulations.
A lot has changed since then, not the least of which is how we as human beings process information in the digital age. While the format of a trial has not changed since the U.S. adopted the English common law system, what has changed is the modern-day view of the courtroom. Thanks to epoch motion pictures such as “The Verdict” with Paul Newman, “A Civil Action” with John Travolta, “A Few Good Men” with Jack Nicholson and Tom Cruise, and the hit series “Law & Order,” the nineteenth century view of the courtroom as a controlled laboratory has gone the way of the dinosaur.
What’s worse is that this is not limited to opening statements. It continues throughout the trial often rearing its ugly head right before direct and cross-examination. We greet the witness, almost always by name, and make every effort to be polite and cordial, as if we’re going to ask the witness out for tea and trinkets. A study done at Duke University found that jurors are “turned off” by salutations. There is nothing more infuriating to a juror than a patronizing attempt by an attorney to offer gratitude for something in which he gave them absolutely no choice. They want the lawyer to waste no time and get right to it.
If there is anything positive to be gained by this research other than a bruised ego, it’s that by subtracting these not-so-sacred traditions from our opening statements, we have already increased our effectiveness ten-fold. I like to refer to this process as “addition by subtraction.” Jurors will no longer be spending our entire opening statements wondering why they have to sit and listen to us talk at all if nothing we say means anything anyway (“Nothing I’m about to say is evidence …”).
And jurors will no longer be bored to tears by disconnected summaries of each witness’s testimony, preceded by the annoying platitude, “the evidence will show.” Not to sound presumptuous, but when was the last time you read a movie or book review that gave a painfully tedious account of each character’s testimony? And if so, did it make you run right out and see the movie or buy the book?
Moreover, pandering alienates the jury during a time that is considered to be the most optimal for influencing the jury – the beginning of the case. Psychologists have found that jurors reach a tentative conclusion after the opening statement and then view the evidence presented afterwards in light of its proving or disproving the tentative conclusion. This is known as the principal of “primacy.” Primacy teaches that the first part of a presentation is often the most memorable because it is transferred to long-term memory by the time of recall.
The principal of primacy is consistent with the modern-day vision of the courtroom – the view that a courtroom is a theater in which the parties act out a human drama and the jury provides the conclusion. While a defendant sits in court, he is at center stage and on full display for the jury like a manikin in the showroom window of Macy’s. Jurors scrutinize his every move, attaching deep importance to a quick glance or a passing remark. High-profile trials, such as the Casey Anthony trial, show that jurors use a defendant’s courtroom demeanor to determine his or her sincerity and culpability. By wasting time with greetings and salutations, lawyers squander a golden opportunity to exploit primacy.
Primacy provides us with a springboard to leap into storytelling. Storytelling answers the age old question, “How do we cut through all of the noise and distractions of everyday life in order to connect to the jury on a human level?” Stories are something that every human being in every language and in every culture can relate to.
Storytelling in the courtroom is not a new fad. Great trial lawyers have been harnessing the power of storytelling in the courtroom for well over a century. And for good reason. The very essence of a trial is a story – the story of a human experience. Before going any further, I want to clear up a misconception. One interpretation of “story” suggests something that is made up, untrue, or designed to fool those listening to it. As used here, “story” suggests oral delivery that is compelling, that holds the audience spell-bound, that will be remembered, and that will shape the jury’s impression of the evidence they are about to hear.
For me, the power of storytelling came when I was backpacking around Europe and the Middle East. I ended up in Marrakesh in medina, a densely packed, walled medieval city dating to the Berber Empire, with maze-like alleys where thriving souks (marketplaces) sell traditional textiles, pottery and jewelry. It has a mythological feel to it. At nighttime, it’s full of snake charmers.
As I was walking around, I saw an old man leaning on a cane with a beard telling a story. A huge crowd had formed around him. He was speaking in Arabic and although I didn’t understand a word, I was completely mesmerized.
Before long I said to myself, “This is what I want to do. I want to be like him. I want to tell stories because that shriveled-up old man on a cane has transformed himself into a twenty-foot beast that is holding everyone spellbound, hanging on every word he says. He is larger than life.”
Of course, this created more questions than answers, none more apparent than, “How did he do it?” My journey into acting and storytelling, not to mention the countless cases that I have tried, have given me some profound insight into this. At the same time, I am not presumptuous enough to believe that I have mastered this craft. In fact, I feel like I have merely scratched the surface.
As with anything else in life, the more you learn, the more you learn how much you don’t know. I prefer to be like a sponge, absorbing everything I can. Jazz great Winton Marsalis said it best, “Humility engenders learning because it beats back the arrogance that puts blinders on. It leaves you open for truths to reveal themselves.”
Beginning in the simplest place, story is the most powerful tool of persuasion. As humans, we trust people who can tell a good story. Since the dawn of time, storytelling has been the principal means by which our ancestors have taught one another. Look no further than the story of great hunts and epoch battles told in darkness around campfires by Indian chiefs that were passed down from generation to generation and became the history of the tribe.
If we examine stories from all cultures, we’ll find that the most memorable ones all have one thing in common – they embody one or more of the six emotions: love, hate, joy, sadness, power, and fear. These universal truths are the very essence of what it means to be human.
Storytelling contains the essential ingredients for arousing empathy. It permits the speaker to speak easily, openly, and powerfully from the heart. Social research proves that audiences are moved by a story because it touches them in those soft, unprotected places where their decisions are always made. An attorney who projects a true belief in the righteousness of the cause shows how deeply he cares about his client. And this is not lost on the jury.
In my opinion, storytelling in the courtroom is no longer an option for lawyers. If we don’t use it, then the jury will.
Think about it. No sooner is the jury sworn in then they are bombarded by a torrent of evidence that comes in bit by bit through oral testimony and physical exhibits – often out of order – and disrupted by continuous objections, sidebars, and removal of the jury from the courtroom so that technical legal arguments can be made and ruled upon without unduly prejudicing the jury against one side or another.
To make matters worse, the opposing side is advancing a completely different version of the story. The jury is left with the unenviable task of sorting through this mess and somehow making sense out of it all.
And how do they do this while preserving their sanity? They begin to imagine a story almost immediately, interpreting facts to fit into a familiar framework. In other words, a jury instinctively begins imagining a story out of necessity. When this happens, it will be difficult for the jury to see these same facts through a competing account of what happened.
As trial lawyers, we must seize upon this narrative instinct that jurors have by telling them a story from the very start. This requires us to understand the jury as human beings and not automatons. Let’s begin with a simple truth: jurors are not blank canvasses upon which we can paint. Nor are they sticks of clay that can be molded into whatever shape we desire.
Jurors arrive at the courtroom with their own experiences, “handed down frames of reference,” and biases. No matter how many times the judge instructs them to view the evidence objectively and dispassionately, jurors routinely measure the validity of what they hear against their belief systems, attitudes, life experiences, backgrounds, values, education, and training. A story is not believed unless it is complete, internally consistent, and conforms to the jurors’ notions of common sense.
What does this mean for the lawyer? We must be able to address disparate jurors and tell a story that will impart a single perspective to the entire jury, a narrative framework for them to view the evidence.
The possibilities are endless. If your story rings true to the jurors and influences their frame of reference, they will interpret the evidence to fit your case. When this happens, it will be difficult for the jury to see these same facts through a competing account of what happened. Witnesses will be viewed in the context of how they provide validation of your story. And witnesses who contradict your story will be viewed with a healthy dose of skepticism.
As trial lawyers, we must change our way of thinking by learning to accept what we once rejected and to take up what we once set aside – the human drama, how the experience was lived and felt by the people involved.
The attorney who can leave the jury thinking, “I may not have done what Bill did, but I can understand why he did it” is a mere heartbeat away from victory.