The science around repetition is well settled, and I've always found it a little disturbing. For all the advanced degrees, experience with thousands of cases, and the wisdom litigation consultants like us have to share about maximizing persuasion at trial; the truth is one of the easiest ways to increase persuasion at trial is simply to repeat yourself - a lot. It is a technique used by politicians and trial lawyers alike. However, I think the political climate of the last few years has shown us that there are few upward limits on the number of times one can repeat themselves before it feels uncomfortable. And it works. Politicians on all sides and people of all political beliefs make false assertions, these assertions are repeated and amplified by social media, and over time, people come to believe them. This has happened for thousands of years. It's just much more accelerated now, so it feels new. The last ten years brought us this social media multiplier effect. Now, repetition comes fast and from seemingly independent sources - both factors that increase persuasion. Furthermore, assertions are often presented in a meme-like format, and the easier an assertion is to process, the more likely someone is to be persuaded by it. That's why short and simple quips frequently repeated are far more persuasive than a well-reasoned lecture delivered once.
Dr. David Schwartz is a founding partner of Innovative Science Solutions, LLC (ISS), a scientific consulting firm specializing in helping legal teams prevail in high-stakes litigation involving complex scientific principles. Dr. Schwartz has served as a consulting scientist to the legal industry for over 25 years and has provided support to cases involving environmental and occupational exposures, radiation, drugs, medical devices, dietary supplements, cosmetics, industrial chemicals. But over the course of the past several years, Dr. Schwartz has focused on the role of genetics as an alternative cause in toxic tort litigation. As part of a strategic alliance, ToxicoGenomica, Dr. Schwartz and other ISS consultants have been providing consulting support on asbestos and talc cases focusing on genetic evidence as an alternative cause of mesothelioma and ovarian cancer. In 2017, Dr. Schwartz (ISS), myself (A2L), and others co-hosted a pioneering conference on the subject of the role of genetics in civil litigation. Now two years later, I sat down with Dr. Schwartz to get a better understanding of how genetic science has evolved since then and how it is likely to change the way toxic tort cases will be litigated in the near future, specifically in talc and asbestos cases. Q: Give us a quick summary as to how genomic science will change toxic tort litigation. A: Modern medicine is advancing from broad-based treatment based on randomized controlled clinical trials to “precision medicine” where treatment is tailored to individual patients based on their genetic profile. Similarly, toxic tort litigation has been based on so-called black-box epidemiology studying large groups of people and trying to determine risk. We are bringing the field up to date by applying the tools of precision medicine to evaluate risk in toxic tort litigation. With genomics, we can directly ask if a person was born with genes that predispose them to develop a disease (like mesothelioma) instead of relying on statistical inferences from large populations. This is a watershed moment in toxic tort litigation. Q: Talc litigation is heating up. Last I read, there were 14,000 claims filed related to talc. Do you think genetic science has a role in talc litigation? A: Absolutely! Genetics provides a medically sound alternative cause argument no matter what the alleged injury: mesothelioma, lung cancer, ovarian cancer, lymphoma, autism. These conditions are all known to have well-established genetic underpinnings. If a defense lawyer can demonstrate that a plaintiff had a specific set of genetic factors, then it is legitimate to make the argument that the condition was caused by those factors. Q: What is a genetic mutation? A: A mutation, also referred to as a variant, is an error in the sequence of a gene that could drive specific types of cancer. A gene can have hundreds or thousands of different types of mutations. Some mutations have no known effect on a person’s life, while others will drive the onset of cancer. Q: If genomic testing is already being used in precision medicine, has that information ever been used for litigation purposes? A: Yes. Sometimes the genetic analysis at a hospital can be very informative. That’s especially true for cancer treatment at excellent cancer hospitals. Having the capability to review plaintiffs’ medical records for relevant genetic evidence will be a core skill set moving forward.
Working at A2L, I have the distinct pleasure of watching many of the world's best trial lawyers prepare for trial. Most start months or years in advance. Those lawyers engage A2L early to do theme testing with a focus group or to organize and run a mock trial. Each of these events requires the creation of litigation graphics and usually assistance in developing an opening statement. Having watched so many great trial lawyers prepare for 25 years, I have been able to observe patterns in how they prepare. Below I share ten chronologically ordered tips (plus accompanying resources) based on these observations. If you're less than one year from trial, I hope these tips are still helpful, and I hope you will get in touch with me. More than one year from trial: There is no better time to do theme testing then when discovery is still open. Read more in How Early-Stage Focus Groups Can Help Your Trial Preparation and as you start this journey, always remember that Great Trial Lawyers Behave Differently. One year before trial: Plan your first of two mock trials. There are dozens of good reasons to conduct a mock trial, but forcing yourself to prepare early may be the very best one. Read my one-year trial planning guide and read A2L's Opening Statement Toolkit. Also, it is a good time to read A2L's Jury Consulting and Mock Trial Handbook. Nine months before trial: Begin or continue development of your litigation graphics. If you conducted a mock trial, you already have a good start. Read How Long Before Trial Should I Begin Preparing My Trial Graphics?, 10 Reasons The Litigation Graphics You DO NOT Use Are Important and The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation. Six months before trial: Refine your opening statement story and the visuals that will support it. Make sure your experts have their visuals being worked on by your litigation graphics team - not the in-house people at the expert's firm. Watch Persuasive Storytelling for Trial Lawyers and read Storytelling for Litigators. To help develop your experts, have them read this three-part series on How to Be a Great Expert Witness. Three months before trial: Conduct opening statement practice sessions with your trial team, litigation consultants, and your client. Read The First Version of Your Story Is NOT Your Best, 3 Ways to Force Yourself to Practice Your Trial Presentation, and Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well.
No matter where you stand on the border wall dispute that has captivated the nation, you have to admit that it is an important debate. After all, $5 billion is a lot of money and who knows if the wall will really make a difference. But allowing between 200,000 and 2,000,000 people to easily enter the United States every year via the border with Mexico is probably not a good thing either. You probably just automatically identified yourself with one of those two previous sentences and took it as your position, right? The other sentence may have even made you angry or at least started you thinking about counter-arguments. In other words, like most political discussions, minds are rarely changed by more facts. It's kind of like a jury trial, right? You hear one side. You attach to it emotionally and then proceed to ignore evidence that is contrary to your new belief. In jury consulting-speak, this phenomenon is called confirmation bias. As a jury consulting firm, we've written about confirmation bias many times. See, for example: I’m Right, Right? 5 Ways to Manage Juror Bias Jurors Will Believe Anything (That They Already Believe) When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias Could Surprise Be One of Your Best Visual Persuasion Tools? 7 Ways to Overcome Cognitive Bias and Persuade However, A2L is not just a jury consulting firm. We’re also a top-ranked litigation graphics firm (and litigation consulting and trial technology consulting firm). So I'm always baffled by big disputes where the participants fail to use pictures effectively. In this day and age, there is no excuse. The science of visual persuasion is well established. See, What is Visual Persuasion and What Do You Need to Know About It?
It's my eighth year writing an end-of-year top-10 style article. That feels pretty great because in that time, we have published more than 600 articles and A2L's Litigation Consulting Report blog has been visited one million times. Wow, right?
In a recent post here, I confessed my guilty pleasure: watching NBC’s hit reality singing competition, ‘The Voice.’ But I also acknowledged my frustration over the format: too much inconsequential fluff that’s got nothing to do with singing. For one thing, there’s the vapid bantering between the coaches and the inevitable and insincere implication that every pairing of performers compels a decision as agonizing as Sophie’s Choice. And then there’s the over-dramatization of many contestants’ personal stories that can feel a bit cringy when the judges purport to empathize with issues around, among other things, body image, bullying, sexual orientation, and loss. (In fact, watch for a future blog post about the importance of authenticity). These personal subplots help explain why, as I previously pointed out, the most exceptional voice rarely wins ‘The Voice.’ And in all of this is a lesson about jury trials. Who wins ‘The Voice’ depends on who decides who wins ‘The Voice.’ Succeeding in the early rounds depends upon winning over elites – judges who are experts in vocal performance. One would expect qualities like timbre, tone, pitch, range, resonance, phrasing, articulation, dynamics, as well as good taste, among others, to feature prominently in an assessment of the best voice by the music judges. By contrast, audience members are far less likely to be capable of similar discernment. While the public can authoritatively say what it likes, it is not sufficiently trained or experienced to identify the superlative voice the program promises. Yet, to win on ‘The Voice,’ a contestant must ultimately win over the less discerning voting public and not the elite judges. What it takes to succeed with subject matter experts is quite different from what it takes to win over an essentially unsophisticated TV audience. In fact, their very unsuitability for discerning technical vocal quality with sufficient granularity to distinguish among a field of talented singers may explain why audience members likely consider a broader (and more accessible) range of criteria, such as the performers’ feel-good back stories. Perhaps, in that sense, ‘The Voice’ imitates life, where it is as important to be lucky, and liked, as it is to be superlative. Just as a contestant on ‘The Voice’ must manage the transition from being judged by experts (musical superstars) to being judged by lay people (the viewing public), so too must the trial lawyer. Most of us have spent an overwhelmingly disproportionate share of our professional time and energy persuading the minds of other well-trained, elite legal professionals – in-house lawyers, opposing counsel, and, at the top of that heap, judges. We know precisely how to talk to them because we speak the same language.
Part 1 of a multi-part series. I have a shameful secret: I watch NBC’s ‘The Voice.’ In fact, to come entirely clean, I guess I should say, “I faithfully watch ‘The Voice.’” The revelation of this guilty pleasure would come as a surprise to people who know me because of both my specific contempt for “reality TV” and my more general disdain of formulaic dreck. Ironically, ‘The Voice’ is both – in spades. Apart from the musical performances, there is a surfeit of contrived drama: the competition and bantering between the judges, and the often cloying back stories of the performers. Ugh. But there is no curious conundrum to resolve here: I like ‘The Voice’ despite the fact that it is unabashedly formulaic reality TV (a sin that technology helps me minimize). For those of you who don’t know it, ‘The Voice’ is a singing competition. And I happen to be captivated by musical talent. I get completely floored by a 14-year old girl with the vocal timbre of Billie Holiday or Amy Winehouse and am left slack-jawed by the burly former linebacker with the range and falsetto of Philip Bailey. But it’s not just the surprise of those incongruities. For me, it is almost exclusively about the quality of the performers’ pipes and, occasionally, the musical instincts and insights of the “superstar” musicians who first judge, then coach, the contestants. Now, I suspect that my television viewing habits hold your interest just about as much as my love of pudding, but there is a substantive point behind this confessional. Useful lessons about trial presentation and persuasion can be learned from ‘The Voice,’ which first aired in 2011. First, some background. ‘The Voice’ is a complex, intensely dramatic version of the old-fashioned talent show. At the end of each season, one singer, drawn from the ranks of thousands of Americans who believe they have musical talent and have entered the competition, is crowned the winner and signed to a recording contract.
We have written many times about what separates good trial teams from world-class trial teams. One article collectively written by many people inside and outside of A2L stands out to me as seminal. It can be found here: 10 Criteria that Define Great Trial Teams If I could have all trial lawyers read only one of our articles, it would be this one. It is one of more than 600 on our site, but it succinctly reflects our leadership's best thinking, and it best summarizes what most of the other 599+ articles say. This simple list of 10 criteria, especially when used as a trial team self-assessment tool, is a thing of magic. In arriving at this deceptively simple list, we captured hundreds of years of trial experience. At first, we identified 50 trial team traits that set the great ones apart from the ordinary (you can see these in this article). When we reduced these 50 traits to 10 key criteria, I think we revealed the secret ingredients of a successful trial team. And in the two years since that was published, I have not seen any reason to revise the criteria. In fact, I’ve seen this list turned assessment tool perform consistently: Trial teams with low scores lose cases; trial teams with high scores win cases. Nowhere on this list do we explicitly use the term groupthink, but our thoughts on the subject are certainly implied through our selection of these 10 traits. First, what is groupthink? Wikipedia says: “Groupthink is a psychological phenomenon that occurs within a group of people in which the desire for harmony or conformity in the group results in an irrational or dysfunctional decision-making outcome. Group members try to minimize conflict and reach a consensus decision without critical evaluation of alternative viewpoints by actively suppressing dissenting viewpoints, and by isolating themselves from outside influences.” During trial preparation, members of a trial team can easily put not wanting to be wrong or different ahead of challenging a group decision. We have written about trial teams becoming dysfunctional under severe stress several times before in articles like: 5 Signs of a Dysfunctional Trial Team (and What to Do About It) When a Good Trial Team Goes Bad: The Psychology of Team Anxiety Groupthink is a little different than the nearly complete group breakdowns described in these articles, however. It's a little more subtle and not quite as nightmarish. Still, groupthink can derail a case -- and it often does. Although groupthink can raise its head at any time, we often see it emerge when a trial team is evaluating an opening PowerPoint deck under development, particularly if there are more than five people doing the evaluating. Members of the team will avoid challenging everything, including the specific slides, the order the story is told in, and what not to say during opening. Instead, they will give the appearance of agreement by staying silent. This is groupthink and it does not help win cases. It does the opposite. Here are nine ideas for solving these problems in a trial team. Get the “buts” out of the room: This is an expression we use at A2L. When you are doing creative work, nothing shuts down the creative mind more than someone who jumps in to say why something won't work. These statements usually start with the word “but.” See, Dealing With That ‘Bad Apple’ on Your Trial Team. Establish rules for your trial team meetings: Here are two we often use: silence is acceptance, and no spectators allowed. Ask your litigation graphics team for variations to stimulate thinking. Looking at one litigation graphic may generate some discussion, but looking at two variations guarantees it. Ask for this from your provider. See, 10 Reasons The Litigation Graphics You DO NOT Use Are Important.
I have the privilege of working on a regular basis with many of the top trial lawyers in the nation, and they are an impressive bunch. In addition to their knowledge of the law, their capacity for hard work, and their practiced trial skills, they tend to carry an unquantifiable charisma. The great trial lawyer is a person who, when he or she enters a room, knows how to command the room. And although they are not arrogant, they do know that they have that ability and that they can turn it on or off. This means that the great trial lawyers can develop an ineffable rapport with jurors, a connection that is hard to explain and remarkable to see in action. Trial consultants are well advised to leave well enough alone, to “do no harm” when that connection is clearly operational; their job then is to simply sit back and observe this meeting of the minds and hope it will carry them on to victory. But these top trial lawyers, who have developed great sensitivity to issues of rapport and communication, often voice a concern to me. The concern is that they may be using some PowerPoint slides, say to highlight the themes of an opening statement, and then they wish to move on to a point that is not on the slides. But the jurors, they point out, are still staring at that screen, and the personal connection, instantly made, will instantly be lost. Should the jurors be looking at the screen or continuing their focus on the lawyer? It must be noted that the great trial lawyer knows not to make his or her case strictly via PowerPoint and knows how important it is to limit the use of this seductive trial technique. Still, there is a place for PowerPoint at trial and thus a corresponding concern. The trial lawyers’ concern is, fortunately, overblown and easily remedied. The remarkably simple solution is to press the “B” key on the computer keyboard. In PowerPoint, this instantly makes the screen go black, thus removing all competition for the jurors’ attention. Just learn to switch fluidly back and forth, using that key. This will not only preserve the crucial emotional connection between lawyer and jury; it will also lay the groundwork for the lawyer to assume the role in the jurors’ minds of trusted counselor and friend, someone who can make sense of all the evidence and tell a convincing story that puts it all together. I wish all trial lawyers’ dilemmas were so easily resolved. Other A2L Consulting free resources related to PowerPoint, connecting with jurors, and what makes a great trial lawyer include: 10 Criteria that Define Great Trial Teams 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint The 12 Worst PowerPoint Mistakes Litigators Make Like It or Not: Likability Counts for Credibility in the Courtroom How Many PowerPoint Slides Should You Use in a Typical Trial? The Redundancy Effect, PowerPoint and Legal Graphics 12 Things About PowerPoint You Probably Never Knew How to Make PowerPoint Trial Timelines Feel More Like a Long Document New Webinar - PowerPoint Litigation Graphics - Winning by Design Lawyer Delivers Excellent PowerPoint Presentation Why Reading Your Litigation PowerPoint Slides Hurts Jurors How Much Text on a PowerPoint Slide is Too Much? 12 Ways to Eliminate "But I Need Everything On That PowerPoint Slide" Do Professionally Designed PowerPoint Slides Get Better Results? 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) 14 Tips for Delivering a Great Board Meeting Presentation 5 Things Every Jury Needs From You Jury Selection and Voir Dire: Don't Ask, Don't Know 10 Things Every Mock Jury Ever Has Said Your Trial Presentation Must Answer: Why Are You Telling Me That?
It turns out that a large number of Russian ads on Facebook that viewers did not know were Russian ads influenced the way people thought about various issues last year. They may have even influenced the 2016 presidential election to some degree. Rather than delve deeply into the appropriateness of these ads (in my view, they were wholly inappropriate), who exactly directed their placement, and how exactly they affected behavior, let's instead look at these ads from a trial lawyer’s perspective. After all, if pictures and a few short phrases can be used to change the voting behavior of the electorate, it stands to reason that pictures and some well-chosen phrases can be used to change the voting behavior of jurors. In the courtroom, there's no ethical debate about this process, since jurors know exactly where the message originates from -- the mouths of lawyers, experts, and witnesses. So if an attorney can use proven persuasion techniques and it's ethical to do so, the attorney must do so to zealously represent his or her clients. This is precisely why high-end persuasion firms like A2L exist. We're here to help persuade, using all appropriate and ethical means, both visual and rhetorical. We're not Russian hackers. Instead, we're hackers of human psychology, since we help top trial lawyers use proven techniques to maximize their persuasiveness. We do this by bringing together a remarkable combination of trial lawyers, social scientists, and artists to do what we do, a process we call litigation consulting. Let’s look at the Russian ads in this light. Because of some good investigative journalism and investigative work in Congress, many of the ads, Facebook groups, Facebook pages, and messages have been identified and published -- and most of them are really disturbing. The ads used some of the same time-honored techniques that trial lawyers use – but because their source was disguised and because they were intended to disrupt, not to persuade, they were dangerous. For example, many of the ads targeted topics where there is a deep division or poked at issues in a way designed to inflame. In almost every case, they used a favored technique of marketers, trial lawyers, and politicians alike -- FEAR. And that makes sense. Fear is a ten times greater motivator than hope of gain. That’s why marketers tell us that the one-time low pricing will end Sunday night, not how happy we will be on a new mattress. That’s why politicians tell us that immigrants should fear deportation if their opponent is elected, not that the melting pot is a good thing. And finally, of course, that’s how a specious argument that an everyday product causes cancer can overwhelm a defense based on good science. Fear wins, and good trial lawyers on both sides of the courtroom must use it. I wrote a lot about this topic in my five-part series about the Reptile Trial Strategy. It's no surprise that ads traced back to Russia focused on hot-button topics like Black Lives Matter, Muslims supporting Hillary Clinton, gun rights, LGBT rights, and more. Let's look at the techniques used in three Russia-linked ads: 1. Heart of Texas: This Facebook group that advocated for Texas secession quickly gained more than 250,000 members. The ad below uses a fake Facebook event as part of its messaging. What made a quarter of a million Texans unwittingly sign up for a Russian-backed Texas secessionist movement? The ad works because it stokes existing biases while seemingly coming from a credible source. If we define bias broadly as any commonly held belief by a person that makes it harder for them to accept contrary evidence, you can see how this could work in the courtroom. Obviously, we’re not talking about using racial, ethnic, or sexual preference biases as part of advocacy. Instead, I’m referring to those beliefs that many jurors show up to trial with -- like bankers are all motivated by greed, big energy companies don’t really care about the environment, or tech companies will ruthlessly steal from one another. Just as the Russians used biases in a deplorable manner, trial lawyers can play to other biases by encouraging jurors to accept and double down on their beliefs. As I wrote in a recent post, when you combine a credible source such as an expert witness with a message that jurors are ready to hear, you are likely to come out ahead. Consider how I embraced these biases and re-messaged these in a recent blog post about bias below. As you read each think about how you might couple each with persuasive visuals to maximize persuasion. Bankers are greedy, so why would they ever do something that risked their money? (Possible visual storytelling aid to accompany: evidence of penny pinching at all levels of the organization summarized on a chart to demonstrate a culture of avarice) XYZ oil company has been more reckless with the environment than you or me, but given what they went through before, do you really think they are dumb enough to do it again? (Possible visual storytelling aid to accompany: list in a slowly scrolling chart the tangible consequences the organization faced as a result of the last disaster) Sure, tech companies will do anything to get ahead, but can you imagine anything more humiliating to someone as competitive as the CEO of ABC company as looking as if you’re not as smart as the other guy? Nothing is worth that when you are a competitive tech geek. (Possible visual storytelling aid to accompany: text callouts coupled with the CEO photo openly demeaning the intelligence of the opposition)
On this day sixty years ago, a 34-foot-tall Soviet rocket lifted off the Earth from a Cosmodrome in present-day Kazakhstan. Its payload -- a shiny silver globe with four external antenna masts to broadcast a repeating radio chirp back to Earth. The Soviets called it Prosteyshiy Sputnik 1 -- “Simple Satellite 1.” The world’s first successful orbiting satellite was tiny, just 22 inches in diameter and weighing 184 pounds. But its “beep-beep -- beep-beep” signal was rebroadcast everywhere and easy to pick up directly by shortwave radio. Sputnik could also be seen in orbit by the naked eye, the sun glinting off its polished shell. In the moment a person first heard or saw Sputnik, they were catapulted into a new and different world. For 21 days Sputnik circled our planet, captured our imaginations, reshaped American national priorities, and changed the order of our lives. The Space Race began. NASA opened for business one year later. Within twelve years, Apollo 11 delivered two Americans to the Moon. Back to present-day Planet Earth. You are a lawyer on a jury trial. Opening statements begin tomorrow. How will you capture the attention of your audience of jurors? How will you get them to pay close attention, to focus on what matters most for your client? Even the best storyteller struggles with this. And to be honest, many trial presentations are, by their nature, not exactly heart-stopping. Plan for that. Find some element of the narrative that commands attention from the jurors, that challenges them to think deeply and to care genuinely about what is going on in that courtroom. Capture the jurors’ attention in that opening statement, and you can have it again later, coming back to that moment when the story struggles to engage the listener. Give jurors that moment they crave, that leaves them changed by something they just heard or saw. Make jurors feel that the trial will make a difference in someone’s life, even in their own lives. Mark the spot in the case that separates life “before” and life “after.” Ask yourself, what is going to be your trial’s “Sputnik” moment? Other free A2L articles A2L and free webinars related to opening statements, storytelling, and being memorable at trial include: 6 Ways to Use a Mock Trial to Develop Your Opening Statement Free Download: Storytelling for Litigators E-Book 3rd Ed. 14 Differences Between a Theme and a Story in Litigation 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do 5 Things TED Talks Can Teach Us About Opening Statements 7 Ways to Draft a Better Opening Statement 5 Ways to Maximize Persuasion During Opening Statements - Part 1 Why a litigator is your best litigation graphics consultant 6 Reasons The Opening Statement is The Most Important Part of a Case How to Structure Your Next Speech, Opening Statement or Presentation The Effective Use of PowerPoint Presentation During Opening Statement 5 Things Every Jury Needs From You Is Hiring a Jury Consultant Really Worth It? Free A2L Consulting Webinar: 5 Ways to Maximize Persuasion During Opening Statements — Watch Anytime 12 Insider Tips for Choosing a Jury Consultant
Forty years of research about the psychology of human memory has shown that our memories are far from perfect replicas of the events that they purport to describe. Eyewitness accounts, in particular, have been proved unreliable – with a profound impact on the value of courtroom testimony. Thousands of criminal convictions have been based on identifications and accounts later shown to be incorrect. Human memory is malleable -- it is affected by a number of factors that can modify it or distort it. It is well known that people can be induced to remember and to sincerely believe episodes from their past that never actually happened. This presents a difficult task for the trial lawyer. It’s not just criminal cases that turn on witnesses’ recollections of events. Most civil cases also rely on witnesses, and subjective assessments of witness credibility. Before a lawyer decides to put a fact witness on the stand, he or she needs to have some sense of how reliable that witness will be. Here are three suggestions, based on research by forensic psychologists, for the trial lawyer who wishes to assess the likely accuracy of a witness at trial. Ask the witness how confident he or she is about the planned testimony. There can be a significant relationship between how confident a witness is of his or her testimony and the likelihood that the testimony is accurate. The trial lawyer should ask the witness for a “confidence statement.” Is the witness 90 percent sure that this is what happened? Only 60 percent sure? The answer will help the trial lawyer decide how much weight to place on the witness’s testimony, or even whether to call him or her to the stand at all. Have the witness write down the key details of what he or she saw or heard. Details that are written down soon after the event are likely to be more accurate. The sooner a memory is recorded, the smaller the chance that it will be warped by hearing the accounts of others. In a civil case, it may have been months since the events in question occurred, but it still helps to ask the witness to write everything down, in his or her own words. Do not discuss the testimony with the witness too many times. Sometimes, if a witness is over-rehearsed, his or her testimony will harden to a point where it becomes rote and projects a confidence in details that is not really justified. It’s no surprise that sometimes witnesses say that they are “absolutely sure” of their testimony because they have been asked to repeat it on countless occasions before the trial. So keep to a minimum the number of times that the witness is asked to repeat his or her story. Other A2L free resources related to witness preparation, expert witnesses, and the science of persuasion include: Witness Preparation: Hit or Myth? The Top 14 Testimony Tips for Litigators and Expert Witnesses 3 Ways to Handle a Presentation-Challenged Expert Witness 7 Smart Ways for Expert Witnesses to Give Better Testimony Contact A2L about witness prep services performed by industry-leading consultants Free Download: Storytelling for Litigators How jurors evaluate expert witnesses vs. how lawyers do Witness preparation best practices - don't stay in the shallows! A2L Consulting Voted #1 Jury Consulting Firm by Readers of LegalTimes 7 Things You Never Want to Say in Court How NOT to Go to Court: Handling High Profile Clients No Advice is Better Than Bad Advice in Litigation Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well Webinar - Integrating Argument and Expert Evidence in Complex Cases Walking the Line: Don't Coach Your Experts (Re: Apple v. Samsung) 3 Articles Discussing What Jurors Really Think About You
During one college summer, I used to engage in aikido, a martial art. In retrospect, it was all a bit goofy, but I learned some good lessons from it. In particular, I learned about a technique common to many of the martial arts and to conflict in general. This is the idea that you can use someone's momentum against them. If they are running at you, you can move to the side and trip them -- and they will fall. This requires far less energy from you. Similarly, in the courtroom, while there is no physical contact (hopefully), there is certainly a direction and a momentum in the way factfinders arrive at conclusions. We've written about the idea of confirmation bias before in articles like I’m Right, Right? 5 Ways to Manage Juror Bias and Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias. It's a concept that I believe all trial lawyers must understand at least somewhat. In the courtroom, using the momentum of a juror’s beliefs to help further those beliefs is a master trial lawyer technique. A new study reveals just how important it is for high-level trial lawyers to understand this concept of persuasion. The study, reported in the open-access journal Computational Biology, confirms something that is a little sad. It turns out that most humans will continue believing something that they previously believed, even when presented with clear evidence to the contrary and even when it hurts us to continue believing it. It's a bit more nuanced than that, but this is the essence of it. In the courtroom, we regularly work with banks accused of fraud, companies that have allegedly polluted the environment, and tech companies accused of theft of trade secrets. Trial lawyers always have the temptation to simply try to straightforwardly show judges and juries evidence that clearly contradicts the beliefs that those factfinders arrived with. That only makes sense, right? After all, if someone says you put the pollution there and you didn't, you just tell them you didn't do it, bring evidence, and you're off the hook, right? Unfortunately, my experience and this study do not support that idea. All humans arrive with certain biases when they show up to trial – such as these: Bankers are greedy. Oil companies don't care about the environment. Tech companies will do anything to win. All too often, trial counsel puts a lot of effort into trying to disprove these beliefs. Instead, consider the aikido move, step to the side, agree with the momentum, and use it to your advantage as follows: Bankers are greedy, so why would they ever do something that risked their money? XYZ oil company has been more reckless with the environment than you or I, but given what they went through before, do you really think they are dumb enough to do it again? Sure, tech companies will do anything to get ahead, but can you imagine anything more humiliating to someone as competitive as ABC company as looking as if you're not as smart as the other guy? Nothing is worth that when you are a competitive tech geek. In other words, find a way to accept that either your factfinders walked in with a certain bias or that your opponent will help them form a bias during opening statements – and then run with it. There’s no better way to test this approach than in a mock trial setting. That’s where you can learn to anticipate the biases and get ahead of them. Common sense, that new study, and several decades of litigation experience bear this out. Other free A2L articles and resources related to confirmation bias, the overwhelming power of the opening statement, and the power of effective storytelling in the courtroom include: When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors 7 Ways to Overcome Cognitive Bias and Persuade Still Think Persuasion is About Talking While Showing Bullet Points? 5 Essential Elements of Storytelling and Persuasion How Much Text on a PowerPoint Slide is Too Much? 5 Ways to Maximize Persuasion During Opening Statements - Part 4 Free A2L Consulting Webinar: Persuasive Storytelling for Litigation Good-Looking Graphic Design ≠ Good-Working Visual Persuasion I’m Right, Right? 5 Ways to Manage Juror Bias Persuasive Graphics: How Pictures Are Increasingly Influencing You 14 Places Your Colleagues are Using Persuasive Graphics That Maybe You're Not Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias Why the President is Better than You at Creating Persuasive Graphics Law360 Interviews A2L Consulting's Founder/CEO Ken Lopez Are Jurors on Your “Team”? Using Group Membership to Influence Subscribe to this blog for free
The other day, I noticed a New York Times obituary for Alan Peckolick, a graphic designer and illustrator known for his distinctive corporate logos and typeface designs. Peckolick championed “expressive typography.” He wrote a textbook called “Teaching Type to Talk.” He created General Motors’ “GM” logo, and letterforms for Mercedes-Benz, Pfizer and Revlon. In a 2015 interview, Peckolick explained that he conceived of “letterform as a piece of design. Cat is not ‘cat’ — it’s c-a-t. That’s what led to the beginning of the expressive topography.” Peckolick belonged to a pioneering generation of designers who reinvented typeface as a form of art. They believed that, just as words convey literal dictionary meaning, so do they express figurative value through typeface and letterform. In litigation graphics, imbuing words with depth of meaning and expression is mission-critical. Each letter counts. Each word must carry its own weight on the page. There simply is no space to waste. And in addition to practicing economy of language, we must elevate the appearance of words to convey essential meaning. As a design blogger wrote: Typography often provides that at-a-glance first impression that people gauge and judge the rest of the design by — so your font choices need to be purposeful and appropriate. Is your font saying “beach vacation” when it should be saying “job interview”? Do the elements of your font “outfit” clash, or do they complement each other? Are they effectively communicating the qualities you want to project? Ask yourself, does the chart you are devising use an easy-to-read, unobtrusive typeface? Does the timeline have enough white space to let a juror follow it with her eyes? Does the font say “major patent issue worth hundreds of millions” or does it say “routine commercial dispute”? By power-packing words with multi-layers of meaning, we communicate at the highest level, allowing words not simply to “speak” in unison with graphics, but to come alive and leap off the page at the reader. Other free A2L Consulting articles and resources related to graphic design, font usage, and persuasion tricks in litigation graphics include: Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias Still Think Persuasion is About Talking While Showing Bullet Points? Free Download: A Guide to Making Great Trial Timelines 5 Demonstrative Evidence Tricks and Cheats to Watch Out For A Surprising New Reason to Repeat Yourself at Trial Watch Out for Subliminal Messages in Trial Graphics The Top 14 Testimony Tips for Litigators and Expert Witnesses Never Use Bullet Points - Here's Why Don't Use PowerPoint as a Crutch in Trial or Anywhere 6 Trial Presentation Errors Lawyers Can Easily Avoid 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) 10 Criteria that Define Great Trial Teams How Much Text on a PowerPoint Slide is Too Much? 5 Ways to Maximize Persuasion During Opening Statements - Part 4 Free A2L Consulting Webinar: Persuasive Storytelling for Litigation The 12 Worst PowerPoint Mistakes Litigators Make 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations The Effective Use of PowerPoint Presentation During Opening Statement 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint 12 Questions to Ask When Hiring a Trial Graphics Consultant
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