There are certain parts of a trial that lawyers instinctively believe they should do themselves. Writing the opening statement is near the top of the list. I understand why. The first chair knows the case. The first chair knows the witnesses. The first chair has lived with the documents, depositions, expert reports, motions, bad facts, good facts, and opposing counsel—sometimes for years. So when trial approaches, it seems perfectly natural for that lawyer to sit down and write the opening statement. But I would ask a different question: Does knowing the case better than anyone else necessarily make you the best person to decide how someone hearing the case for the first time should hear it? Those are not quite the same skill.
There is a particular moment in trial that I have seen far too many times. A lawyer is standing in front of the jury. The lawyer is prepared. The question is good. The witness has just given exactly the answer everyone hoped for. Now the lawyer wants Exhibit 237 on the screen. And suddenly the trial stops. The lawyer turns toward the laptop. Clicks something. Nothing happens. Clicks again. The wrong document appears. Someone at counsel table whispers something. The lawyer looks back at the screen. The jury looks at the lawyer. And a moment that should have been about the evidence has become a moment about the technology. This is almost entirely preventable.
The billable hour is expensive. So why are so many litigators spending it doing graphic design?
The Perkins Coie Podcast Series: Bullet Points Are Killing Your Persuasion This article is part 5 of our continuing series (parts 1, 2, 3, 4, and 5 are here) highlighting our conversation on the Persuasion Occasion podcast with Perkins Coie. In earlier installments, we discussed why fear often persuades more effectively than logic, how simplifying your opening statement strengthens your case, and how to overcome juror confirmation bias. If you missed those articles, be sure to check them out on the Persuadius blog. You can also listen to the complete podcast episode on Spotify for the full conversation. One of the questions Jasmine Wetherell of Perkins Coie (now Ashurst Perkins Coie) asked during the podcast was one we've been answering for years. "Why are you so against bullet points?" The short answer? Because they kill persuasion. That may sound like an exaggeration, but after helping lawyers prepare thousands of opening statements over the past three decades—and after writing about this topic for more than fifteen years—we're more convinced than ever that text-heavy PowerPoint slides are one of the biggest obstacles to effective courtroom communication.
Part 4 of the Persuasion Occasion podcast series with Perkins Coie (see parts 1, 2, 3, and the full podcast on Spotify) Trial consultants love stories. Unfortunately, facts occasionally insist on participating. One of my favorite persuasion lessons comes from an antitrust matter involving the proposed merger of two of the largest airlines at the time. The case never produced quite the courtroom drama we imagined. The matter settled a couple of weeks before trial, and like many high-stakes cases, the final resolution came before every argument could be fully tested in court. Yet one demonstrative from that matter taught me more about persuasion than many cases that actually went to verdict. The exhibit was almost embarrassingly simple. It wasn't a 3D animation. It wasn't a sophisticated economic model. It wasn't a dazzling piece of trial graphics. It was a slowly scrolling list of airline bankruptcies. Just a list. One name after another. Many of them familiar. Eastern. Pan Am. TWA. Braniff. People of a certain age recognize these names immediately. They were once household brands. Today, they're gone. And as the list continues to scroll, something interesting happens. You start to see the airline industry differently. Here's my explanation below:
I’ve been hesitant to share this method for a long time because I was afraid my smart readership wouldn’t take it seriously. As I’ve gotten older, though, I’ve come to appreciate really simple tests that explain a lot. Some of these simple tests might sound strange, but they’re useful rules I can actually live by. If my clothes don't fit, the dry cleaner did not shrink them. The best measure of my losing or gaining weight is changing punch holes on either my belt or my watch. If I've ever had to pay lawyers to deal with you, we can no longer be connected on social media. Keys. Wallet. Phone. Watch. And somehow I still forget. And if you can connect major points in an opening statement with "and then," then it's not done yet. I’ve written a lot about persuasive storytelling techniques for judges and juries over the years, including: Dan Pink, Pixar, and Storytelling for the Courtroom Folktales Reveal a Powerful Persuasion Tool for Trial Lawyers Ten Ways to Maximize Persuasive Courtroom Storytelling (Part One) Three Top Trial Lawyers Tell Us Why Storytelling Is So Important and of course, Storytelling for Trial Lawyers
Pharmaceutical product liability trials are some of the most difficult cases a jury will ever be asked to decide. They are built on science, filtered through fear, and decided by people who usually know very little about either. That is what makes jury consulting for pharmaceutical product liability trials so important.
Part 3: Insights from the Persuasion Occasion Podcast with Perkins Coie Most trial lawyers understand confirmation bias in theory. Fewer know how to actually break it in real time—inside a courtroom, with a jury that has already made up its mind. That’s exactly where this next insight comes in. In my conversation with David Biderman and Jasmine Wetherell on the Persuasion Occasion podcast from Perkins Coie, we got into a technique that sounds counterintuitive at first… and then becomes hard to ignore. The Problem: Most Jurors Decide Early—and Stay There If you’ve tried cases, you’ve felt this. Jurors don’t wait until closing argument to decide. They decide early—often during opening statement—and then spend the rest of the trial doing something very human: They filter. They listen for what confirms their initial impression… and quietly dismiss what doesn’t. That’s confirmation bias, and it’s one of the most powerful forces in the courtroom. Once it locks in, persuasion becomes exponentially harder. The Counterintuitive Solution: Make Them Work Here’s where things get interesting. During the interview, I floated a technique I haven’t seen widely used—but I believe has enormous potential: If you want a juror to really process something… make it slightly harder to process. Not confusing. Not sloppy. Just enough friction to force engagement. I've included that video conversation below:
In Part 1, I explored a counterintuitive truth: fear often beats logic in the courtroom. That conversation—featuring litigators from Perkins Coie—pulled back the curtain on how juries actually process information, not how lawyers wish they did. But there was another idea in that discussion that may be even more important. And it’s one that the very best trial lawyers in the world quietly rely on: They strip their cases down to the bare essentials. The Dirty Secret of Great Trial Lawyers There’s a misconception that great lawyers win because they are more sophisticated, more detailed, more exhaustive. In reality, the opposite is often true. During the podcast, I referenced two of the most effective trial lawyers alive—Mark Lanier and David Boies—and what they do differently: They make cases almost impossibly simple. Not because they can’t explain the complexity. Understand the jury can’t absorb it. As I explained in that conversation: They take cases down to their basic elements… just what you need to know. They drop all the names, every extraneous piece of data. That’s not dumbing it down. That’s precision. Here’s a short clip from the podcast interview:
The other day, I did a simple experiment in a room full of lawyers from the Los Angeles Bar Association. Roughly 200 people. I showed a few slides in a row. Same layout. Same structure. Same visual rhythm. Same title. Then I showed a fourth slide. Same design. Except for one thing: There was a typo on it. A pretty obvious one. Then I asked the room: “How many of you noticed the typo?” About five hands went up. Five… out of two hundred. The uncomfortable truth It wasn’t that the audience wasn’t smart. It wasn’t that they weren’t paying attention. It’s that their brains had already decided what my slides were going to say—and stopped really looking or reading. That’s not a presentation problem. That’s a human cognition problem.
I was recently invited by Perkins Coie—one of the most respected litigation firms in the country—to join their Persuasion Occasion podcast. We covered a wide range of topics on jury decision-making, trial strategy, and persuasion. But one idea stood out—because it runs directly against how most lawyers are trained to think: “Fear wins. When fear is up against logic, fear wins.” If you try cases for a living, that statement should matter to you. Because it explains why strong, logical cases sometimes lose—and why weaker cases sometimes win.
For more than 30 years, we’ve worked with trial teams across the country, and we’ve learned something simple: Cases improve when lawyers test their themes under real jury pressure. What has changed is not whether mock trials work. What has changed is how we conduct them. Today, trial teams must decide between: In-person mock trials Online (virtual) mock trials Or a layered combination of both We run both formats constantly. And when structured properly, each can deliver powerful strategic insight. But format is not the most important decision. Design is. Our Gold Standard Mock Trial Methodology When the stakes justify it, we do not run small, casual focus groups. We recruit venue-specific participants. We create a case-specific mock juror questionnaire. Then we create three to four separate 12-person panels, that are balanced and what we would expect from the venue.
Trials are not won when counsel sits down. They are won later, when twelve jurors sit around a table trying to persuade one another. That reality changes how trial teams should think about persuasion. The real question is not: “Did we present a compelling case?” It’s: “Did we give jurors arguments they can actually use?” Because once deliberations begin, lawyers disappear. The courtroom disappears. What remains are jurors debating facts, credibility, responsibility, and damages. Jurors become the advocates. And the side that wins is often the side whose arguments are easiest to remember, explain, and repeat. At Persuadius, this principle shows up across all of our services—jury consulting, storytelling and opening statement development, litigation graphics, and courtroom presentation. Each discipline contributes to a single goal: Equipping jurors with persuasive tools they can carry into the jury room.
You might be waking up today to a world that looks like it’s been quietly buried in snow. Sidewalks vanish. Cars turn into white shapes. The usual landmarks of daily life—curbs, steps, driveways—are suddenly indistinct.
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