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B. STRUCTURING POWER THEMES
1. Psychological Principle of Structuring – Jurors are influenced by the way the message is structured and delivered. Jurors are constantly trying to make sense out of their environment and/or attempting to resolve inconsistencies. Therefore, it is an important consideration to jurors as to how the information being conveyed by counsel is structured and delivered. Is the theme or message consistent, easily remembered and well delivered? Jurors are more likely to perceive the source as credible when the way in which the message is presented allows jurors to feel both competent and intelligent. If counsel presents data which is too confusing or too multifaceted, jurors will discredit the information rather than discredit their own capability to understand the information. Therefore, the skilled advocate will present information which is simplified which jurors can easily perceive and which make them feel competent in carrying out their duties as jurors. An attorney delivering a complex message does not convey the perception to the jurors that the attorney is intelligent. More likely, jurors will perceive the attorney as less intelligent and incapable of communicating a clear and simple message. Jurors look at the attorney as the source to find out what is wrong with the information presented.
2. Psychological Tools of Structure – Certain principles are now axiomatic in the field of psychology which can be applied with great effectiveness by the skilled trial attorney to a jury trial. These include, among many others, primacy, thematic anchoring, embedded commands, the Zeigarnik effect and the principle of recency.
a. Primacy – Jurors tend to place the greatest emphasis on information which they receive first concerning a person or an occurrence. Combine this with the communication principle that perceptions are organized and structured by jurors within a brief period of time and we learn that impressions, particularly concerning people, are formed based on very scanty information. The bottom line for trial lawyers with respect to the principle of primacy is that the information presented first is most decisive.
The skilled advocate will utilize the principle of primacy repeatedly throughout the trial. For example, the first witness in the morning, the first questions asked of that witness, the first questions asked after a coffee break when a witness is recalled, the first questions asked after the lunch break, the first questions on cross examination and, of course, the important use of primacy during the trilogy of persuasion. The first four minutes of voir direct examination, opening statement and each section of the summation are the most crucial to perception, formation, and persuasion. The demonstrative evidence introduced during the earliest moments of testimony of a witness, during the earliest part of the day and the earliest part of the trial, will be received, retained and recalled better by jurors than other demonstrative evidence.
In crucial debriefing of thousands of jurors, they invariably had a much better recall of the beginning and the ending of trials than of the evidence offered during the middle of the trials. This raises the next issue as to which has the most impact, the beginning or the ending, i.e., primacy or recency. The skilled advocate utilizes both primacy and recency as part of the persuasive process.
One of the important uses of primacy by the plaintiff’s attorney is the opportunity to establish the issues in the case and the language which will be used to discuss those issues. Plaintiff’s counsel should advise the jury from the inception, on voir dire examination, and opening statement, that the issues to be resolved by them are simple, state what those issues are in very simple, common sense terms, and warn the jurors not to be misled by attempts to confuse and complicate this very simple lawsuit, which will be the tactic of the defense.
Combining the principle of primacy with the communication principle that perceptions are organized and structured within a brief period of time, the Plaintiff’s attorney must effectively utilize the first impression stage of the trial which includes voir dire, opening statement and the first witness. These three areas form the basis of the jury’s first impression of the case. The goals of the Plaintiff’s attorney during this crucial time frame should be to educate as to the issues in the case, disclosures of the weaknesses in the case, inoculation against the defendant’s attack and clear simple repetition of plaintiff’s themes.
The principles of primacy and recency can be interwoven into the closing argument structure. The principle of primacy maintains that listeners will tend to believe most deeply what they hear first.
b. Thematic Anchoring
(1) Anchoring Through Repetition – Anchoring is a well accepted psychological technique. Anchoring is a technique whereby a word, a phrase or a theme is repeated. It is repeated from the same spot, with the same gestures, with the same facial expressions, the same tone of voice, and with the same mannerisms. One use for anchoring that everyone can remember was done by the late great Jack Benny, who had a certain way of folding his arms, putting his hand under his chin, and saying the word, “Well….” Pretty soon he was getting laughs without saying the word and then he did not even need to put his hand under his chin. He just used part of the gimmick and the anchor worked. Anchoring causes an association of the subject matter anchored with an emotional response that is initiated by the repeated use of the anchoring technique. In essence, it communicates our theme impactfully on an emotional level. Because of the pipeline, the theme is easily recalled and therefore is more likely used. The key is that information which is anchored will be likely remembered and used. The most important information you want a jury to remember and use is your case theme. It explains why your client should prevail.
The techniques that we have described here are excellent communication techniques. They are well documented in the social science literature. They can be used very effectively at trial, in personal relationships, in negotiations, and many other areas of life. They are techniques which have been scientifically studied. They are tools available to trial lawyers whose job it is to communicate effectively.
While understanding and using these techniques is no guarantee of success, they give the advocate who knows and understands them a persuasive edge. And in this age of high powered litigation in both large and small cases, any edge that an advocate can achieve is one he or she should have. It is our job to present our client’s case in the best light. We can achieve this most effectively by increasing our understanding of how to communicate simply with jurors on all of the levels through which they receive information.
Anchoring is a technique of establishing a pattern of behavior to communicate with the listener’s unconscious mind. It is an organized means of verbally communicating with a conscious mind while nonverbally communicating with the unconscious mind. Anchoring is used during voir dire examination to introduce the case theme followed by repetition and the use of a more precise statement supporting the case theme during opening statement. At some point in the beginning of the summation again anchor the case theme. That is, return to the language which sets out the case theme, say it in the same manner with the same gestures and from exactly the same position in the courtroom utilizing the same graphics and impact words and phrases which are the heart of the case theme. For example, when trying a case in which the theme is that defendant placed “corporate profit ahead of child safety”, this impact phrase should be anchored in several ways: 1) verbally by repeating precisely the same words; 2) vocally by using the same tone of voice; 3) nonverbally by using the same gestures and movements each time the phrase is delivered; 4) physically by standing in exactly the same location in the courtroom when discussing that theme and at no other time; and 5) visually by referring to precisely the same piece of demonstrative evidence while delivering the phrase. Anchors ideally are used throughout every phase of the trial. In order to establish and maintain their effectiveness, they must be used consistently and precisely.
Anchors may be used effectively by plaintiff’s attorneys and prosecutors in conjunction with the primacy concept. However, they may also be used effectively by defense attorneys, both in civil and criminal cases. The goal of plaintiff’s counsel is to anchor a case theme through a highly emotional state while the goal of defense counsel is to anchor the defendant’s theme through use of a logical, objective, factual state.
Anchoring is a technique that could be most closely likened to classical conditioning when an identified stimulus will elicit a particular response, e.g., Pavlov’s Dog. Anchoring frequently occurs in the courtroom by attorneys who are using the device unconsciously.
(2) Anchoring Technique – For example, when an attorney punctuates the air with his eyeglasses in order to make a particular point, it is a form of anchoring. However, if the same attorney punctuates the air with his glasses on a different issue, the anchoring process is lost. To be effective, anchoring must be consistent, repetitious and use identical methods for eliciting a particular response pattern.
(3) Collapsing an Anchor – It is also important for the skilled advocate to understand how to collapse an anchor. If you see your opposing counsel successfully anchoring his or her message or case theme in the minds of the jurors, you need to identify whether counsel is accomplishing this through verbal message, voice tone, nonverbal communication, spatial manipulation, use of exhibits or more likely, a combination of these. You can successfully collapse the anchor by standing in the same location, using a different voice tone, different nonverbal communication and a different graphic to talk about exactly the same subject matter. It is just as important to understand how to recognize and collapse anchors as how to create them.