by Ryan H. Flax
(Former) Managing Director, Litigation Consulting & General Counsel
A2L Consulting

In our last post in this series, we explained why storytelling is the key to gaining and keeping the attention of any decision maker and thus the key to winning before trial.

How does one develop an effective story? Here are the rules of thumb.  

First, the simpler the story, the better, and the simpler the language, the better. Use metaphors involving sensory descriptions. Reduce the facts to a relatable story, and use “word pictures.”

The complete package of storytelling is not just an oral telling of a story; it also involves necessary visual persuasion.

Studies show that at least 60 percent of people learn primarily by seeing. They are visual learners. 

The majority of attorneys, however, are auditory and kinesthetic learners, which means that attorneys typically learn by hearing and/or experiencing something.  When you think about it, this makes sense because lawyers learn this way in law school lectures, and they continue to do so as practicing attorneys by experiencing litigation. However, most people do most of their “learning” watching television or surfing the Internet.

The problem is that most people usually feel more comfortable teaching the way that they prefer to learn. So most lawyers will teach and argue to the decision-makers and will attempt to persuade them by giving a lecture. That is not what most jurors want and is not suitable to most jurors’ style. While judges are even less likely to be visual learners than jurors, many still are visual or kinesthetic learners.

You can’t just dump information on your jury or judge audience. You have to connect with them. You have to present information in an effective way. How do you bridge that communications gap? The way to do that is by using effective demonstrative exhibits. This way, you will be able to teach and argue, using your comfort zone, but the graphics will provide the judge or jurors with what they need to understand what you’re saying. This gives them a chance to agree with you. This effort should begin in your earliest filings and hearings.

Two researchers recently tested the effect of graphics on jurors. In two different studies, each with four groups of jurors, the researchers looked at the persuasiveness and impact of opening statements in an employment discrimination case. One group of jurors saw no graphics, one group saw graphics with the plaintiff’s opening statement, and one group saw graphics with both opening statements. This was done twice, making a total of eight groups and more than 500 jurors.

The results showed that not only did the use of graphics make an argument stronger, but it actually made jurors feel that the attorney using them was more competent, more credible, and probably more likable. The jurors retained the information better – and the result was better verdicts for the graphics users. When the plaintiff used demonstrative graphics, for example, the defendant was seen as more liable for damages. When the defendant used graphics, the defendant was considered less liable.

So what is the lesson of this study? It is that demonstrative graphics are essentially a mandatory component of any litigation - both during trial and before trial . If you’re not using them and your opposing counsel is using them, you’re in a heap of trouble.

In our next post, we will look at what kind of graphics work – and what kind of graphics don’t work.   Click here to be notified of subsequent articles.

Parts 1, 2, 3, 4, 5

Other articles and resources related to trial preparation, storytelling for lawyers and persuasion from A2L Consulting:

• Winning BEFORE Trial - Part 3 - Storytelling for Lawyers
• Winning BEFORE Trial - Part 2 - Parallel Trial Preparation Tactics
• Winning BEFORE Trial - Part 1 - Consider Litigation Costs and Opportunities
• Storytelling for Litigators E-Book 3rd Ed.
• 4 Tips for Using Trial Graphics in Motions and Briefs
• Are You Smarter Than a Soap Opera Writer?
• 5 Ways to Maximize Persuasion During Opening Statements - Part 1
• Don't Be Just Another Timeline Trial Lawyer
• $300 Million of Litigation Consulting and Storytelling Validation
• Free Webinar:  Storytelling as a Persuasion Tool
• Complimentary Subscription: This Blog! The Litigation Consulting Report
• Why The Use of Clichés Puts Your Persuasiveness at Risk
• How to Apply Cialdini's 6 Principles of Persuasion in the Courtroom
• Top 14 Litigation Consulting and Persuasion-Focused Articles of 2014
• How I Used Litigation Graphics as a Litigator and How You Could Too
• 14 Differences Between a Theme and a Story in Litigation
• Storytelling Proven to be Scientifically More Persuasive
• 10 Things Every Mock Jury Ever Has Said