At A2L, we publish so many articles about litigation and trial preparation that I like to share the best of the best periodically.
At A2L, we publish so many articles about litigation and trial preparation that I like to share the best of the best periodically.
This article is the last in a series of four articles about courtroom storytelling. My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Tip #6. Your audience MUST care about the story. The audience should be emotionally transported. It has been said, “People will forget what you said, people will forget what you did, but they will never forget how you made them feel.” Scientific studies show that when people listen to an effective story, their brains react more like participants than spectators. When we say that people experiencing a deep connection are “on the same wavelength,” there is neurological truth to that. Scientists at Princeton University looked at brain scans (fMRI) of storytellers and listeners to the stories. They found that the most active areas of the brains of the speakers and listeners matched up; they were in sync or coupled. However, this synchronized activity was found in the areas of the brain relevant to theory of mind, not in areas that drive memory or the prefrontal cortex associated with cognitive processing. The stronger the reported connection between speakers and listeners, the more neural synchronicity was observed in the test subjects. The extent of brain activity synchronicity predicted the success of the communication – so connecting with your audience more makes you more persuasive. Source: Storytelling Proven to be Scientifically More Persuasive. Tip #7. Force participation of your audience. Engage the audience in the journey. As Pixar film director Andrew Stanton says, don’t give them 4, give them 2+2 and make them work to find the answer. Nineteenth-century writer William Archer wrote, “Drama is anticipation mingled with uncertainty.” Make your audience members keenly aware of their uncertainties and holding on to their sense of anticipation. The goal of a presentation is always the same -- to engage the audience, to move them. This holds true regardless of the stage. It’s so in the courtroom, on the floor of the U.S. Congress, in the boardroom, and in the classroom. Litigators engage a jury to win their case for their client; professors engage their students so that they can best teach the subject matter. Engagement leads to better understanding, which then leads to better retention and enhanced persuasiveness. Retention and understanding are the keys to success.
This article is the third in a series of four articles about courtroom storytelling (links to part 1 and part 2). My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Here is the fifth of these ten tips. 5. It is crucial to make your audience care about the characters in your story. It’s never just about a company. It’s never just about the CEO, and if Hollywood can make you care about a mute trash robot named WALL-E, you can make your factfinders care about the characters in your story. A major way to lose an audience is to fail to develop characters that a jury will care about. you don’t develop such characters, your jury will either not care about your side or will turn against your client from the start. Unfortunately, about half of all trial teams fail to properly develop the characters in their litigation story, and their cases suffer terribly for it. The excuses are numerous: from ‘We’re a big company, we don’t have individual characters” to “Everyone on our side is perceived as bad.” These are just excuses. I can guarantee that 99.9 percent of the time, there will be characters that can be developed. Here is a step-by-step guide to using Joseph Campbell’s model of the hero’s journey so as to turn your story’s main character into a hero. To make this useful pattern more accessible, I have attempted to use plain language to describe the steps. My plain language description is followed in parentheses by the name that Campbell gave to it. Also, to help bring the process alive, I have matched each step with an example from a hypothetical legal and technical fact pattern, typical of the cases we most often see at A2L. Here, our heroine is a lower-level employee at a stagnant remote-control manufacturing company, and she has an idea for a breakthrough product -- a remote control operated not with a handheld device but by wireless physical hand gestures. Something Interrupts the Ordinary (Campbell's Call to Adventure): Describe the status quo as it was at the time. Then describe that moment when someone sees an opportunity for change or a new threat emerges. In the hypothetical example, remote controls are functional uninspiring devices that get lost, wear out and have undergone little change for 25 years, in the same era that saw the mass deployment of handheld phones and personal computers. Inspired by watching her nieces play a TV-displayed game that uses hand gestures instead of controllers, our heroine imagines a world where hand gestures alone can manipulate her television and replace standard remote controls. At work the next day, she hears a speech by the firm’s CEO who is looking for new ideas. Obstacles Arise (Campbell's Refusal of the Call): Share how obstacles arose from the very beginning that prevented your client from taking the leap of faith required to pursue the opportunity. Example: After hearing the speech, our heroine brings the idea to the attention of management at the remote-control factory and was laughed out of the executive suite. She figured they were in management for a reason and went back to manufacturing remote controls as before. A Mentor or Helper Appears (Campbell's Supernatural Aid): Explain how your client gets some unexpected assistance that is a sensible next step in bringing the opportunity to reality. Example: Our heroine attends a consumer electronics conference that shows off some new gaming technology that reminds her of her idea. She talks with the reps at the trade show booth about applications they’ve considered for their wireless controllers. They suggest she show them what she has in mind.
This article is the second in a series of four articles about courtroom storytelling (here is a link to part 1). My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Tip #2. Charisma and likability matter. The best set of facts may not save a trial lawyer who is unattractive and poorly dressed. This isn’t fair or right, but it is a reality that science proves out. For these reasons and more, it is imperative to put your best foot forward. "Your job as a persuasive litigator is to understand the factors that can be used properly and ethically to be more likable and thus more persuasive. As your case becomes more complicated, jurors are more likely to seek shortcuts and give more weight to easier factors to understand, such as which attorney they like and which they don’t. The less personally involved jurors are with evidence, such as information that is too dry or difficult, the more they tend to rely on peripheral cues rather than on an argument’s actual strength. Being liked is an important ingredient in the cocktail of peripheral cues jurors use to decide whom to believe." See, Like It or Not: Likability Counts for Credibility in the Courtroom
Great trial lawyers are paid to tell stories for a living. Typically, one side’s recitation of a story is more persuasive than the other – even when both sides are drawing on the same set of facts. But why? Is it the charisma of the trial lawyer? Is it the way the story is told by both sides? Is it the deployment of superior litigation graphics by one side? Well, it’s all these things – and more. Our litigation consulting firm is often engaged to help top trial lawyers tell their stories in the most persuasive way possible. We do this by applying the latest findings of persuasion science and sharing the wisdom that we inherit by routinely observing the world’s very best trial lawyers. This article is the first in a series of four articles. My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Tip #1. There must be a story. You should present a story, and it should follow the basic guidelines of storytelling. That is, there should be a beginning, middle, and end, and there should be storylines and human characters that your factfinders care about. Research tells us that human beings automatically make stories out of virtually all life events to gain a sense of control, even if it’s a false sense. It’s the difference between collecting bare facts and interpreting them in a coherent manner. Most people can’t resist making assumptions, drawing inferences, and imposing upon the facts what they “mean” rather than merely accepting information as is. Most of what people discuss in their social lives are stories and gossip – not random facts. Since we know that your jury will be using a story to sort out your litigation facts in order to reach its results, whose story do you want the jurors using -- one they’ve made up, one provided by opposing counsel, or yours? If we now think about how one might tell a story in an opening statement, below is a model for telling such a persuasive story. This example comes from a trial that ultimately derived from the financial crisis of the last half of the decade of the 2000s, where the issue was whether a bank could be held liable to its shareholders for bad real estate investments that the bank made. Introduction: I like to start with the statement of some fundamental truths and an introduction of the characters like, “Banks survive on greed - it's how they make money. When they make good loans, they make money. When they make bad loans, they lose money. These bankers are essentially being accused of making bad loans, which to be true would have to mean, they were not trying to make money. When is the last time you heard of bankers not trying to make money? It makes no sense.”
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.