by Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

This article is the last in a series of six articles about storytelling and trial preparation. Parts 1-5 are linked at the bottom of this article.

What is a trial attorney supposed to do after he or she has developed a theme and a story plus some graphics to support them visually?

The answer is, test them. I encourage you to use mock juries, not to predict the outcome of your trial, but to see what themes and facts resonate with the jurors. Doing so will help you decide which facts and story lines are worth building your case around. You can test what images and litigation graphics help make your case and which documents really make a difference when you show them to the jurors. Finally, testing with mock juries can help you figure out what type of juror you do and don’t want in your actual trial.

If using a mock jury is not in your budget, find some folks at your firm that are far removed from your case and test with them. Administrative assistants, receptionists, family members, paralegals, and junior associates are good for this testing. Enlist the services of local high school students to perform as mock jurors (they’ll gain experience and you’ll have about the right educational demographic for your jury, but consider how to deal with confidentiality).

A mock trial and testing on your peers are fancy forms of practice in litigation. Practice may not make perfect, but it will make "as good as possible." By the week of your opening statement, you should have tried out your presentation dozens of times. So many times that you can recite it without notes, without looking at your graphics and so that you are speaking and showing in perfect synchronicity. Practice it until you could sing it.

The bottom line is that to win in litigation you usually first need to win the trial. To do this you’ll need to convince jurors, who are biologically programmed to respond to stories and used to learning by watching TV and surfing the internet, that your position is the better one.  To persuade such an audience, you must communicate on their terms and in their language (to a degree). By framing your case in storylines and traditional themes and by using well-crafted visual support, you will be able to teach and argue from your comfort zone – by lecturing -- but you will provide the jurors what they need to really understand what you’re saying and give them a chance to agree with you.

Jurors who understand you are more likely to agree with you, because they feel that their emotionally based opinions are founded in logic and reason.

Although I’ve strenuously urged you to put a lot of effort into the persuasion track of trial preparation, I’m not suggesting that the other, the law track, should be abandoned or even diminished.  You must dot all your “i”s and cross all your “t”s and address every important fact that may become essential to a favorable appellate decision in your case.  But, you should split your litigation prep into these two tracks early in the case and rigorously develop both for a winning litigation strategy.

Other articles in this series and resources related to mock trials, storytelling and trial preparation on A2L Consulting's site:

• Part 1: Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy
• Part 2: Storytelling at Trial - Will Your Story Be Used?
• Part 3: Storytelling Proven to be Scientifically More Persuasive
• Part 4: 5 Essential Elements of Storytelling and Persuasion
• Part 5: Why Trial Graphics are an Essential Persuasion Tool for Litigators
• Part 6: Practice is a Cruicial Piece of the Storytelling Puzzle
• 10 Things Every Mock Jury Ever Has Said
• 11 Problems with Mock Trials and How to Avoid Them
• 12 Astute Tips for Meaningful Mock Trials
• 6 Good Reasons to Conduct a Mock Trial
• Mock Trials: Do They Work? Are They Valuable?
• The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation
• The Magic of a 30:1 Presentation Preparation Ratio
• 11 Surprising Areas Where We Are Using Mock Exercises and Testing
• Accepting Litigation Consulting is the New Hurdle for Litigators