May 24, 2017 What motivates and keeps the attention of a jury and any audience?
Last night, my son and I attended Tape Face’s only appearance in the Washington, D.C., area for his current tour. I had been looking forward to this performance very much, and even more to spending a weeknight on the town with my son. Tape Face, played by performance artist Sam Wills, delivers some eye opening and hilarious entertainment, always with his mouth taped shut.
So much entertainment is available in recorded format these days, but experiencing the performing arts live still provides the chance of something new and unexpected that may not yet be available in recorded fashion; better and truer sound, imagery, and overall experience; the shared experience and interaction with the rest of the audience; and a chance to better understand the performers’ essence and sometimes even to meet some of them.
I apparently was in a minority of less-plussed audience members, when I realized that the thrill of seeing Tape Face for the first time on YouTube had worn off, like eating the sixth slice of an otherwise tasty chocolate cake. A large majority of the audience was digging Tape Face’s sometimes clever and unexpected audience participation exercises as having a person use a golf club to drive a ping pong ball suspended in the air by a handheld hair dryer.
Similarly, in 2008 when I was all hyped up to experience what turned out to be a terrific Return to Forever reunion concert, I was completely non-plussed by the warm-up performance by the now-late Larry Coryell, who was asked by Chick Corea to perform, but who left me scratching my head about why so many of the audience members was digging his performance.
This Tape Face and Larry Coryell experience reminds me of several things about my work as a criminal defense lawyer:
– It is not sufficient for me nor my client to be convinced of my arguments, but for the decisionmakers to be convinced. That underlines the benefit of trial focus groups. discussing and brainstorming cases with lawyers and non-lawyers, and recognizing that ideas that sound good at first might not be so good, and ideas that sound bad or weak at first may actually be good.
– Courtroom performance is about persuasion whereas entertainers are about entertaining, but lawyers still need to keep their presentations interesting to keep their decisionmakers awake with attention grabbing, tension and resolved tension to offset and better yet supplant what sometimes can include long and otherwise dry evidence (or to keep the opponent’s evidence dry, and the criminal defense lawyers’ presentation interesting); to care for the decisionmakers rather than having them feel like captive victims to torturous proceedings; and to have the decisionmakers disposed to find in favor of the lawyer. Yes, the lawyer must be real, genuine and honest at all times, but that does not preclude being interesting and entertaining.
– People are not monolithic in how they make decision and react to events and information. They are not always easy to read, as we saw in the stonefaced O.J. Simpson criminal murder trial that announced acquittal the next day, but we can better get a sense of people’s views and feelings when we effectively engage them. People change their minds, sometimes back and forth in short periods of time, which means that the potential juror who seemed on our side during jury selection will not automatically vote for acquittal. This also means that alliances and enmity among jurors can shift during the course of the trial and deliberations. People might join the crowd in applause or booing to accommodate the collective group rather than as an individual action, so jurors must be empowered to speak their full voice during deliberations, rather than to fall into the crowd nor into groupthink.
– People are motivated heavily by feelings and fears. Jurors in a courtroom that is as stinky and sweaty as a garbage heap in a jungle cannot be expected to fulfill their oath to pay full time and attention to the proceedings when their own basic needs are not being satisfied. As a colleague has aptly emphasized, jurors better remember how a lawyer made them feel than what the lawyer said.
Consequently, at first I was about to chalk up our visit to Tape Face as only a good reason for an otherwise great weeknight on the town for me and my son. But instead, it reminded me to keep attending events that might dazzle me, because only by attending those events will I know whether I will be dazzled, and also that these events will give me more insight about what motivates and dazzles others.