Persuading juries and judges in the Internet and television age of information overload
Fairfax criminal lawyer pursuing the best defense since 1991
Before radio, television, film, and telephones, great oral storytellers could hold the rapt attention of audiences for well over thirty minutes or one hour. In some cultures, great stories were primarily passed on orally, rather than committed to writing.
Imagine the plight of the great modern storyteller to hold the audience’s attention when today we see people constantly reaching for their smartphones when they vibrate alerts about incoming texts, emails, social media updates, or phone calls; texting on their phones while driving; surfing the television rather than watching a movie or video uninterrupted; and emailing idea fragments rather than full sentences, as if they were Twittering away to a limit of 140 characters and emoticons. The days of the shorter attention span — or perhaps make that the exponential increase in external competition for people’s attention — was underlined decades ago when USA Today introduced itself and thrived with a format and articles that are short, chart- and picture-filled, television theme-inspired, and often fluffy. The New York Times has had heft and a readership demographics to whom some of the highest-priced goods and services companies wish to advertise, while USA Today beats the Times in readership numbers.
The widespread use of the Internet has challenged people all the more to keep their attention held for a sustained period of time, now with a generation for whom life without the Internet, cellphones and texting seems as alien as was my trying in my younger days to conceive of a time when people had no telephones nor record players (I mean the predecessor of CD players).
A great trial lawyer persuades through relevant storytelling at every stage of the trial. Today’s trial lawyer is persuading juries and judges bombarded with more information — much of it of limited value — in this Internet age where once we read the news from a daily newspaper delivery, and now have it available every minute of the day on our electronic devices.
Should the effective trial lawyer respond with mimicking the Internet, peppering the entire trial with PowerPoint-itis, and turning the trial into the likes of an infomercial? Of course not. However, the effective trial lawyer does need to accept the reality that his or her jurors and judges do live in this Internet, soundbite-texting age, with a wide range of attention spans, mesmerized by the latest best Star Wars and other action movies, and with unpleasant memories of being bored to tears with the most boring of their elementary and high school teachers and principles who droned on and on about obscure-seeming items without once considering the needs nor interests of their audience.
Nobody in any century has enjoyed being bored, talked at, droned at, babbled at, nor lectured at. How about that?
Do we go to the movies more for the high-technology or the characters and character development? Do we watch the news more for the advanced studio design and lighting, or for what the newspeople have to say? Do people watch the nearly decade-old and wildly successful Diners, Drive Ins & Dives more to observe the artery-clogging dishes or to live vicariously through the gusto with which host Guy Fieri engages with the entire experience and dives right into the vittles? Take away the characters, and the audience leaves.
A great persuading storyteller — whether at trial or elsewhere — is not a dispassionate, neutral reciter of text, but instead becomes part of the story himself or herself, drawing people irresistibly into the circle of the story and even into the character and very being of the storyteller, with the purpose of persuading — not manipulating — the audience.
Think of the times when you had your friends or family member(s) in rapt attention and even uncontrollable laughter as you recounted a hilarious event or series of events from a recent vacation or other experience. In all likelihood, they were transfixed with or laughing with your story because you became that story, easily transported yourself to the very moments you were recounting, and felt no pressure nor need to transfix them nor make them laugh uncontrollably. You were enjoying yourself and relishing the moment too much to have any performance nor speaking anxiety whatsoever.
Think of the times when you let your hair down with your closest friends, acting like buffoons and laughing hyenas, having the times of your life.
If we offstage transfix our friends, family, and ourselves with our storytelling, then why do so many of us turn into boring, talking-head stick figures once we start talking to an audience as part of our professions? Part of the reason is performance anxiety, stagefright, and anxiety over the reaction and evaluation of our bosses, if we have them. Another part is not having embraced being our entire real and living selves in each moment that we spend on this planet. Audiences want at least a glimpse of others’ best real selves, warts and all.
Therefore, a great trial lawyer does not need to bog down with endless powerpoints that lead the story, rather than having a few powerpoints here and there to underline the story. The great trial lawyer instead can become the powerpoint machine, the movie camera that gives us several screen shots including panning and closeups and widescreen views, and the sound effects that help move along the story.
We were born with arms and hands, and can use them in moderation to make points. We were born with legs and feet, and can move around the courtroom to represent transitions in our story or the scene. Even in the federal courthouses and any other courtrooms where rules or judges glue lawyers to the podium, we still can still change our standing, body, and head positions to introduce and underline key points.
With our voices, we can use crescendo, decrescendo, stacatto, legato, and close to musical notes to move the story along and in the direction it belongs. And we can do all of these body movements and vocal approaches naturally, without over-choreographing and overplanning, because most people are simply in the moment when talking off-stage in their day-to-day activities.
Of course, when persuading an audience, the persuader does not want to burden the audience with information overload; with data, facts, figures, names, and dates that seem too dizzying to remember; nor with unnecessary (and unsettling and distracting) bickering with the other side nor with the judge. The persuader, after all, is here to help take care of the audience, from assuring a comfortable room that is at the right temperature, to assuring a reasonable number of breaks for the restroom and to stretch, and to assuring the audience has enough time to eat and take care of their personal affairs.
In helping the audience process the persuader’s information, and even the information provided by the opponent as well, the trial lawyer can break a large series of points and ideas into chapters, and can introduce the transition into new chapters and ideas through saying something during cross-exam or direct-exam or opening and closing argument along the lines of “Now let’s visit the next day, when Conrad arrived at the scene.” The persuader can admit that a large amount of data will come into evidence, and can underline some of the most important evidentiary items to remember, without suggesting ignoring the remaining information. The persuader can provide mnemonic devices to remember some key facts in the case; for instance, I would not be able quickly to name all the Great Lakes without the HOMES acronym for Huron, Ontario, Michigan, Erie and Superior
Of course, the audience’s intelligence and dignity must never be insulted. The trial lawyer is not there to shove ideas and concepts down the audience’s throats — nor to boil them down to to the common denominator of an infant — but instead to credibly, persuasively, and interestingly present and package the evidence in the light most favorable to the lawyer’s client.
If the trial lawyer has done his or her job well enough, at the end of the trial, not only will s/he win, but will leave the jury and judge wanting to hear the lawyer talk even more, rather than rushing to their cellphones to catch up on all the emails and texts that arrived while the lawyer was onstage.