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b. Transferring Factual Information
There are times when you want to convey to jurors that the information being presented is just factual. The last thing the attorney wants to do is lead jurors into an emotional state. In order to do this, you need to follow several behavioral cues. These cues include the following:
- Keeping the eyes level
- Keeping the breathing pattern even
- Using a moderate rate of speaking
- Avoiding extremes in vocal tones
- Keeping all behaviors in moderation
If you want jurors to treat information as a matter of fact, you must treat it as a matter of fact. The behaviors you use for transferring factual information to jurors are very nondescriptive and moderate. The eyes stay at an even level, neither moving up or down, just appropriate eye contact. Breathing tends to be even so jurors will not see an extreme in the breathing patterns. The one risk that is run in transferring factual information is that it can become boring. Thus, when you do transfer information that is factual, you will want to break it up by emphasizing key points or making something more exciting simply to maintain the attention of the jurors.
c. Transferring Visual Information – In many types of cases, there is a need to describe a picture, scene, or event for the jurors. This definitely involves the transfer of visual information. Some jurors will pick up these visual pictures very quickly because they will be visually oriented. Other jurors who are kinesthetically or auditory-oriented will need the attorney’s help in obtaining the transfer of information. Behavior cues used to transfer visual information include the following:
- Using quick vocal tones
- Breathing in the upper chest
- Keeping the eyes moving up to upper right or left
- Using gestures that are above the waist and expansive
- Pointing up to a chart
- Maintaining a fast pace
Using these behavioral cues is most appropriate when the attorney is telling a story. If the attorney asks the jurors to picture or focus on some object, he should pick up his rate of speech, pull his hands up and get the juror’s eyes moving to the upper right and left. Remember, what you are trying to do with the eye movement pattern behaviors of the jurors is to keep their eyes in the quadrant corresponding to the state you want them to experience. When you want them to have an emotional feeling, you want their eyes going down to the lower right. When you want them to have an auditory or more factual type of feeling, you want the eyes level. To visualize or picture a particular event, you want the eyes moving to the upper left or right. To do this, you need to point up.
One way of getting jurors to visualize information is through the use of charts or graphic displays. With the proper use of a chart, the attorney can induce the proper eye movements. If you want the jurors to be assisted in visualizing or seeing what you are saying, make sure that you are using hand motions to pull their eyes up. Point to the uppermost part of the chart, or to the top of the screen. This will pull their eye contact up. Try to keep the chart high enough so that when you point to it you are pointing in an upward direction. If you want the jurors to visualize an event, you should never pass out material to them. When they are looking at such material, their eyes are looking down.
Thus, learning how to effectively communicate moods and feelings to jurors can be a very valuable tool in delivering themes to the jury.
We know turn to the social sciences with an article on theming by one of the world’s premier trial consultants, Dr. Amy Singer, President of the Singer Companies in Ft Lauderdale, Florida. In this article , Dr. Singer discusses trial theme development, why it is so essential for attorneys, and how the trial theme that “achieves the widest possible level of acceptance” can be realized.
D. DR. AMY SINGER: CASE THEMES
1. Jury-Validated Trial Themes – How to Establish, Enhance, and Employ Such Themes for Courtroom Success
A jury trial is a dramatic debate waged by two star orators—attorney for the plaintiff (or prosecutor) versus attorney for the defense. But far more depends on the outcome of this electrifying exchange than who takes home the silver loving cup at the end of the evening. For criminal trials, the defendant’s liberty, even his or her life, can hang in the balance. For civil trials many thousands, even millions, of dollars may be awarded from one party to another. Persuasion is the key—and the jury decides all.
Persuasion is a storytelling skill that depends on a clearly defined and broadly accepted theme to be successful: “Give me liberty or give me death,” “We have nothing to fear but fear itself,” “Ask not what your country can do for you but what you can do for your country.” Strong themes such as these crystallize complex concepts and arguments while at the same time making the ideas they represent impossible to forget and many times even impossible to deny.
Despite their abundant other courtroom skills, many attorneys don’t know how to develop strong themes for their cases most effectively or put them to optimum use in the courtroom. They are further at a loss when it comes to integrating the trial theme throughout all the important trial segments – voir dire, opening statement, direct examination, cross examination, closing argument – and thus constantly reinforcing the theme in a positive way in the mind of the jurors. Such attorneys are less effective trial advocates as a result.
2. Few Attorneys Think Thematically
It should come as no surprise that many attorneys find it difficult to determine and develop compelling trial themes. Attorneys are not trained in law school to think thematically, nor are they encouraged to do so at most law firms. They are taught instead to focus with laser intensity on the law in all of its sometimes mind–numbing minutiae.
It would be absurd to suggest that any individual can hope to become an adequate lawyer without a thorough understanding of the law. But too rigid an emphasis on strict “legalistic” thinking can become a major problem at trial time. What’s important to the attorney may prove to be of little interest to the jurors (the old problem of lawyer perspective versus juror perspective). While the attorney may be arguing convincingly regarding CRITICAL LEGAL ISSUE ‘A’ the jurors may instead be concerned about CRITICAL NON–LEGAL ISSUES ‘B’ or ‘C’ (or, for that matter, ISSUE ‘Z,’ which may not even show up on the attorney’s radar screen).
The great humorist Will Rogers once said, “The minute you read something you can’t understand, you can be sure it was drawn up by a lawyer.” A narrow “legal issues–only” viewpoint often makes it difficult for attorneys to communicate with non–lawyers. As a result, many attorneys are unable to develop trial themes that jurors will find compelling. Their tendency is to focus case development primarily on complex or arcane legal issues that jurors may neither understand nor care about.
For example, a large number of attorneys mistakenly believe “negligence” to be a workable theme upon which to build a case. “Negligence” is not a theme, however, but rather a theory that attorneys try to prove in court. More to the point, “negligence” is a dry legal concept that creates no emotional or psychological valences with juries.
While “negligence” is a perfectly acceptable legal theory, “an ounce of prevention is worth a pound of cure” is a theme to which everyday folks (jurors) can relate.
Another problem: some attorneys’ trial themes, even though workable, may not resonate as strongly with most juries as the attorneys would have preferred or as other more appropriate themes might have done.
3. Rhetoric Requires Themes – Remember high school composition class? The instructor tried repeatedly (probably valiantly but vainly) to drum home the importance of theme development. The reason is simple. Theme development is the rock upon which all writing and oratory are constructed. It is the most basic and essential concept for planned and structured communications. You can’t have the chicken without the egg, and you can’t communicate in any sustained and meaningful way without a theme.
4. Themes Essential for Juries –The idea of theme development is particularly fitting when it comes to all forms of persuasive communications, including courtroom argument and debate. Attorneys should consider the following trilogy of truths regarding trial theme development: 1) trial themes personalize case issues, 2) themes help jurors form impressions, and 3) impressions win lawsuits.
Along these lines, over three decades of scientific jury research show that: 1) jurors deliberate in themes, 2) the case theme is the primary mental organizer that helps jurors remember the facts, 3) a good theme enables jurors to look for evidence that “fits” the story and to disregard evidence that does not “fit,” and 4) themes facilitate evidence comprehension and enable juries to reach pre–deliberation verdict decisions.
As these and other findings indicate, trial theme development is a subject that should merit the most intense scrutiny, interest, and attention on the part of trial attorneys.
5. What Makes a Good Trial Theme? – A trial theme is a summary of the attorney’s case, it’s raison d’être. It should be able to be expressed in a few words or less. “Safety first, not last” (for accident cases), “David vs. Goliath” (valuable for many commercial cases), “paying for someone else’s mistake” (for negligence cases) “destruction of a Van Gogh painting” (for damages) are examples of such themes. These make excellent trial themes because they are easy to explain and easy to understand.
Even better than themes of a few words are one–word themes— “indifference” (for medical malpractice and accident cases), “accountability” (for liability cases), and “greed” (for commercial cases). Other popular one–word themes include “integrity,” “prejudice,” “conspiracy,” “arrogance,” and “protection.”
One–word themes act as laser beams of meaning and significance to illuminate and clarify the case and make it understandable for the jurors. They help jurors focus on the key idea or concept essential to a favorable disposition of the case (the case’s pivotal point).
One–word themes bind the entire case together. They are like life rafts that jurors can hold onto throughout all the trial’s tempests and tumult, complexity and confusion, bewilderment and brouhaha. They help jurors rationalize away all the case conflicts and justify the desired point of view.
A good trial theme should also be memorable. “He couldn’t hit a curve with an ironing board” is the way Hall of Fame pitcher Bob Feller described retired NBA Hoop God Michael Jordan during Jordan’s Spring 1994 tryout with the Chicago White Sox. Feller’s colorful description is a great theme summary because it describes Jordan’s baseball–playing abilities in a few words—and because it’s easy to remember.
Additionally, a good theme should be consistent with the evidence and the jurors’ beliefs. And it should create a sense of shared value between the attorney (and thus his or her client) and the jury.