By Dr. Ken Broda-Bahm:
We’ve written frequently on themes: those little nuggets of language and meaning that distill a case to its persuasive essence. As consultants, we create themes even more frequently, trying to find the right message to leverage a case’s greatest strengths while minimizing or reframing its most important weaknesses. By definition, a theme is a simple message that helps an audience see your case in its most favorable terms. But based on some recent research, there is also a mirror image of that: an ‘anti-theme’ in the form of the condensed message that would turn off your audience and turn them away from your case. Considering these anti-themes when working on the contours of your message can help you know what to avoid and what to preempt in your trial strategy.
The study (Gromet, Kunreuther & Larrick, 2013) focuses on consumer choices in lightbulbs and found that buying behavior could be substantially reduced in some audiences just by adding a single, apparently positive message to the packaging. While the question of “What sells an audience?” naturally garners much academic and practical attention, the parallel question of “What kills the sale?” should merit equal attention. And this focus fits well with a goal I’ve written about before: the need to use those forces that attract an audience toward your message (alpha strategies), as well as the need to address the forces that potentially repel an audience from your message (omega strategies). This post applies this approach-avoidance perspective to the question of themes. In addition to looking at the research on the words that can wound your cause, I’ll also share some of my own thoughts on common anti-themes that could play a role in a jury’s or judge’s response to your case.
The Research: When Can Your Message Harm Your Case? Proving that you can learn about social science
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by Ken Lopez
I have seen some great law firm litigation graphics departments over the past 20 years. The best was at Howrey, which is where A2L’s second team member and others came from in the mid-1990s. Back then, Howrey’s litigation graphics department was led by an Academy Award-winning artist and producer.
These credentials commanded respect. Litigation graphics were largely a mystery to most lawyers at that time, and I believe that the litigators at Howrey were quite proud of the in-house graphics department. Smartly, it and other divisions of Howrey were separate profit centers. The idea was visionary, but it failed. And it failed long before the firm did.
Having been in the industry for 18 years, I have seen many firms, vendors, and law firm graphics departments fail. I see a pattern in those failures and have come to believe that a law firm graphics department can, at best, only achieve short-term success.
Here are 13 reasons why I believe that in-house law firm litigation graphics/trial graphics/animation departments are mostly doomed for failure:
1. Law firms rarely go to trial. By far the biggest thing working against an in-house trial/litigation graphics department is how rarely it is used. Even the largest law firms only make it all the way to trial maybe a dozen times per year, and that is across 15 or more offices. Even if you imagine that every one of those trials was handled by an in-house team, it’s just not that much work. Contrast that with our firm, which goes all the way to trial 25 to 75 times per year in addition to a lot of related work. More trials equals more meaningful experience.
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By Ted Brooks
In “How Not to Crash
,” John Cleaves offers survival tips for litigation support staff who find themselves sudden occupants of the courtroom’s “hot seat.”
Next, Ted Brooks offers five important rules to follow when you are in charge of trial technology in “Survival Secrets
Mr. Cleaves approaches the topic from the perspective of a paralegal or litigation support staffer, while I share a few tips, based on my years of experience. John (Cleaves) also has a great deal of experience in the Hot Seat, but for purposes of this piece, chooses to offer some relatively “low-tech” ideas for getting the job done when you don’t have enough time or resources to purchase and learn a bunch of new software and equipment.
I’m not going to rewrite my article here, but I can tell you that anyone who happens to find themselves assuming the role of a Trial Tech will quickly understand why it’s called the Hot Seat. If not for the pure stress of the job itself, add the expectation from everyone that nothing will go wrong – ever. Add to that the fact that once a jury gets accustomed to seeing an exhibit displayed within a couple seconds of its mention, what might have been an acceptable delay using hard copy exhibits will seem like a very uncomfortable eternity.
With that, one of favorite sayings with respect to trial technology is that “It’s not a matter of if something will go wrong, but rather when, how badly it will fail, and whether anyone else will even realize there was a problem.”
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by Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
So, you’ve made the time, effort, and budget commitment to conduct a mock jury exercise to test your case before trial. In my opinion and in the opinion of almost every litigator I’ve worked with, all this time and effort is generally well spent. But if you fail to get the right feedback from your mock jurors, you’ve wasted your time and resources.
What is that “right” feedback and how do you get it? Your jury consultant should lead the way in this regard (ours has a Ph.D. in psychology and over 30 years’ experience), but the feedback you’re looking for relates primarily to whether the jurors felt they understood your case, accepted your “story,” and trusted your theme – and WHY. If they did and the evidence made sense to them in relation to each of these aspects of your presentation, you’ve likely got a winner, all things being equal.
An important aspect of your case and how it was presented to the mock jurors is your demonstrative evidence and litigation graphics. These will likewise play a key role in your actual trial and its success. It’s important to test the graphics you intend to use or are considering using at trial with your mock jurors. These graphics will have been carefully, professionally designed to track your mock “clopening” (a contraction of opening and closing) argument and should highlight the important themes, storylines, evidence, and expected testimony of your case. Here are seven essential questions you must ask your mock jurors about your litigation graphics:
1. Why Did The Jury Reach The Outcome It Reached?
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By Morgan Smith
I’m getting ready to head to Vegas for the annual American Society of Trial Consultants conference. I appreciate networking with this group because their members are full of ideas and new information on trial research, strategy and technology. Check out ASTC’s publication The Jury Expert and their blog aggregator, The Red Well, to tap into two great resources on trial advocacy. At the conference, I’ll join litigation consultant Alison Bennett for a presentation on “iPad Technology for Trial Consultants,” during which we’ll highlight many apps that increase productivity at work, home and, of course, in the courtroom. I’ve blogged before about my favorite presentation apps for litigation (see, for example, this earlier post on Keynote for Attorneys, which is a great alternative to PowerPoint; or this post on SlideShark and Idea Flight). Now, I’d like to mention a few others apps that I’ve come to rely on and truly enjoy.
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by Laurie R. Kuslansky, Ph.D.
For decades and in every part of the nation, mock jurors who are presented with various fact patterns and legal issues tend to have the same reactions. Some are helpful and others are harmful, depending on where you stand in the case. Knowing that these issues recur over and over can help to prevent those which are unfavorable to you:
1) Why did the plaintiff wait so long to sue?
While there may be good reason to delay filing suit, mock and actual jurors often use the delay between the alleged problem and the filing of a claim as a yardstick of its merit. The longer the gap, the less credible the claim. If counsel fails to address this issue, it tends to work against the plaintiff. It is especially damaging, for example, when someone claims an issue in the workplace, but waits until they are no longer employed. To many jurors, this signals that it was the termination, separation, or voluntary departure that was the issue, not the conduct, such as discrimination, that is the subject of the complaint.
2) That doesn’t make sense.
Lawyers don’t always put their case through the basic “smell test” or test of common sense from the…
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My favorite quote from this article is “If you want to see the worst of someone’s personality, go to trial with them — especially those who are only in trial once a year or less.
A little OCD can go a long way. Making sure everything is in order before you go to sleep at night will help you rest. Waiting to finish something in the morning can lead to other problems if something goes slowly, or additional work comes in. One point should be very clear — this is not a 9 to 5 job.”
By Ted Brooks
The option of using the tools of technology for trial presentation is no longer an issue for debate. Once thought of as running the risk of appearing “too slick,” juries and judges now expect to have the ability to view the evidence — even in bench trials.
With this acceptance comes an increased level of expectation. Where it was once not uncommon for an attorney to spend a few minutes digging through a stack of exhibits or boxes to locate a desired exhibit (and sometimes not finding it), it is now only a matter of seconds from the time an exhibit is mentioned until it is on the screen for all to view.
This bridge between attorney and evidence is often referred to as the “Hot Seat.” Like the attorney who could not find the important exhibit, the Hot Seat operator shares in the burden and risk of disturbing the flow of the trial. Although it looks like a well-rehearsed performance when done properly, technology glitches can cause a delay — or even a mistrial.
Here are a few things to include in your “insurance policy” that can help prevent a courtroom meltdown.