The Show Business of Litigation

By Rob Duboff and Nancy Neufer

As originally published in Law 360.

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Law360, New York (October 10, 2008) — During this presidential election year, it is more evident than ever that politicians are perceived and judged like celebrities. In fact, several campaign ads promote this perspective and two of the candidates have routinely been described as “rock stars.”

As with politicians, litigators are more and more cast in the role of performers whether they like it or not. Now that any amateur citizen can become a star (or try to) with “American Idol,” YouTube and, professionals whose jobs require public speaking are being held to a high standard.

Of course, there are meaningful differences between politicians and lawyers. Politicians perform without any real rules or substance required. They can choose their own topics. While in the courtroom, of course, there is supervision with far more power than any political debate moderator.

This is significant and a key ingredient in how the litigator as performer plays the role. However, there is no doubt that litigators are viewed as performers independent of the arguments they make — and they are expected to perform well.

This is particularly true of lawyers because so many of them are portrayed on TV in shows such as “L.A. Law” (which set the bar for slickness), “The Practice” and “Law and Order.” Brilliant and compelling closings are the rule for these lawyers.

Evolution of Lawyer as Performer

When each of us began consulting with trial lawyers, these lawyers had two primary concerns: (1) how best to position and describe their case in court; and (2) identifying potential jurors whose preconceptions would hinder their ability to receive the lawyer’s message.

Over time, litigators became interested in graphics to help them make those key points. However, defense attorneys with deep-pocketed clients were always concerned about whether the client might be seen as being too slick and, inferentially, trying to somehow trick the jury. In those days before the Internet and PowerPoint, typical jurors were often put off by slickness — in lawyers and in presentations. Those days are long gone.

Now jurors we debrief actually expect what once might have been called “slick” — presentations worthy of network television. They presume that all lawyers have the ability to use PowerPoint and c-coded materials such that the right slide appears at the right time. (Fortunately, litigators unable to manipulate such tools can, and do, use assistants without being penalized by jurors.)

This situation is quite different from what most litigators expected or wanted when they chose this career path. Law school trained them to think that practicing law is a left-brain activity in which success turns on which side employs the best logic and interpretation of the law.

There were courses on litigation and evidence, but they focused on what to argue and the ground rules — not so much on how to perform most effectively.

Because of this training and, likely, the natural inclination of lawyers to focus on, yes, the laws and rules, many litigators ignore the importance of communication skills.

There is a great deal of evidence that most of what we humans receive from oral communications comes from nonverbal cues. Common figures cited are that less than 10 percent of what is received comes strictly from content, about a third from the sound of the voice (volume, emphasis points, etc.) and the rest from nonverbal factors (mien, gestures, etc.).

Historical analysis of presidential debates affirms the point. The most critical debate was that between John F. Kennedy and Richard Nixon in 1960. Radio listeners thought the more experienced Nixon won, but the viewing TV audience felt otherwise, and history judges Kennedy the winner because he appeared to be more vital if not more presidential.

Recognizing this trend, some litigators began to seek help for their key witnesses, and coaching consultancies were born (often staffed by former on-air newspeople or those who train and coach entertainers). Finally, litigators are recognizing their own need for such help.

So, while for years, litigators have solicited advice and counsel on the words they would use and iterate drafts frequently, now the guidance they want includes how the words are delivered. There are dress rehearsals for openings and closings, just as performers routinely have for entertainment events. Similarly, attorney wardrobe in the courtroom has become an openly discussed issue.

Juror Perception and Attitude

The jurors’ feelings about litigators have, of course, always extended beyond a sterile analysis about the quality of arguments. Debriefing jurors invariably produces comments demonstrating that they infer how the lawyers feel about their case (and often their clients) and use that as guidance into which side should win.

This means that some jurors assume the side with the “better” lawyer has the better case since that lawyer wouldn’t have taken the case without having the better side or, simply, that one side did a better job communicating to them.

Thus, whether or not all litigators recognize it, jury trials today require a great deal of attention to the presentation itself — apart from the words and themes used. The issues that need to be considered for every case — and particularly openings and closings include:

  • Length of presentation. Jurors tend to believe that if one side opens with a shorter presentation
    that side is showing its confidence in their case (and indicating its belief that the jurors are smart enough to get it without having to reiterate or try too hard).
  • Weakest link. Too often, lawyers list every possible support argument for their point. When
    asked, they readily acknowledge that several are make-weight arguments the other side can
    easily deflect. Since jurors consider each defeated argument as a loss, consultants usually suggest litigators limit themselves to only their very best lines of attack and defense. One winning argument is better than three weak ones. In fact, one winning argument should rarely be watered down by lesser points
  • Relationship with the client. In criminal law, there are some lawyers who want to know if their
    clients are innocent and others who don’t want to know. In essence, this is a recognition that the lawyer’s performance is impacted by this knowledge. In any case, good consultants can perceive what a litigator’s attitude and feeling toward the clients is (just as jurors can and do). While knowing what the body language says is important, remedy is difficult. The easiest fix is to have the member of the legal team with the best feelings toward the client give the key presentations.

Understanding Effective Communication

The implication of this new level of courtroom competition is that litigators need to study communications knowledge with the same level of attention given to understanding the actual laws in question.

Books such as “Blink,” “Sway” and “Predictable Irrationality” are good introductions to the topic as they demonstrate companion points to the idea that how you communicate orally is more important than the actual words used. People are easily influenced by subconscious factors — factors that can be discerned and used by an advocate.

Each of these three books is replete with illustrations of these triggers.

For example, if groups of people are given a task to do that involves words such as “old,” “feeble,” “aging,” etc., they will leave the site moving measurably slower than others given the same task with different words.

A classic psychological concept is cognitive dissonance, which posits that we sort new information in ways that accord with our prior beliefs.

So, if different groups are given a political speech that is said to be from someone they like, they will respond favorably. Given the same speech, but told it’s been given by a politician they don’t favor, they will be negative to the speech. Litigators must understand these phenomena so that word selection, analogies and other references work in their clients’ favor.

Another important concept relates to understanding the mix of communication styles jurors bring with them into the jury box.

Myers-Briggs (see “I Don’t Understand” for more information) is one of several self-administered questionnaires that identify preferences for receiving information. While experts disagree about the validity of any of these personality-profiling systems, for the purposes here, every expert agrees that not all humans look at the world similarly. Myers-Briggs presents helpful ways to describe these differences.

The key for lawyers is the distinction between what Myers-Briggs classifies as “thinkers” and “feelers.”

The former group contains people who always try to use logic to solve problems and set up objective criteria to do this. In essence, these are the types of people that most litigators implicitly appeal to (particularly those defending corporate clients). However, there is another broad classification of people who reject these decide-by-numbers, left-brain approaches. They prefer to use their values to decide key issues.

Listening to jury simulations, we can all recognize these types.

The thinkers are the ones who say the case is easy to decide — those are the facts and here are the standards. (“You heard what the judge said” is a common refrain.)

Other jurors inevitably say that that outcome is not just and ignore or re-interpret the charge. These are the people who easily argue social policy, such as the O.J. Simpson murder trial jurors whose feelings about the police colored their perception of the case. To them, the right outcome was a not guilty verdict despite seemingly objective evidence to the contrary.

The dimension of thinkers vs. feelers splits about 50/50 across the population. Unlike the three other distinctions or dimensions Myers-Briggs covers, there is some difference between males and females. Females are split about 60/40 feelers to thinkers; males are split about 60/40 thinkers to feelers.

As important as it is to appeal to both thinkers (easy for most lawyers) and feelers (harder for most lawyers since the feelers’ decision process is not attuned to precedence or bright lines of rules), litigators have to be cognizant of the other dimensions.

Some people are what Myers-Briggs classifies as “sensors,” while others are “intuitives.”

Essentially, the latter group (about 50 percent of all jurors), want the big picture, they prefer to listen to only a few observations and then reach their conclusion. The sensors (the other 50 percent) want to take in as much information as possible before reaching any conclusion.

This has a number of implications for presenters as well as helping to explain why even the best presenters can’t please all the audience all the time.

While the thinker/feeler dichotomy explains the classic debate between following the rules to decide vs. deciding who should win by what feels right, the sensor/intuitive clash is between (back to politics) the “Where’s the beef?” quest of sensors for specific details and programs and the “Where’s the vision?” desire of the intuitives.

At a minimum, litigators need to provide details to support their points but also give the big picture.

The need to satisfy intuitives’ desire for the big picture is why it’s almost always best for the defense to give its opening at the beginning of the case so that intuitives don’t naturally migrate to the only side that gave them a conclusive road map into which to fit the details.

Most importantly, litigators need to always muse about the right level of detail so as not to bore half the audience nor leave half distrusting the conclusions.

Again, the point is not that these specific classifications are the right and only way to view differences between jurors but, rather, that litigators need to be more thoughtful about their audience and recognize that most jurors have different communication preferences than any given lawyer.

It is also worth noting that each juror has a combination of preferences. Feelers, for example, are split between sensors (who will want to consider all and every factor before deciding what feels right) and intuitives (who will quickly develop their gut sense and will be particularly hard to persuade).

In the end, what’s most important is that litigators who want to win must learn how to connect on a more emotional level with jurors.

Appealing to the left-brain, logical thinkers comes naturally to most lawyers as this type of persuasion is implicit in their training. But appealing to the feelings and emotions of jurors takes more thought and effort. Good performers in the arts do this naturally as do many politicians (who do have to give some attention to logic as well). In the current era, litigators ignore their role as performers at their peril.

Original article.

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