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Stephanie Francis Ward: We’ve heard the expression, you don’t have to get theatrical about it. But if you’re a lawyer in front of a jury, maybe you should. I’m Stephanie Francis Ward and that’s what we’re discussing today at the ABA Journal podcast. Joining me are David Ball, a jury consultant and the author of Theater Tips and Strategies for Jury Trials, and Joshua Carton, an actor who is president of Communication Arts, a Los Angeles business teaching litigators about applying communication skills and theater techniques to trial advocacy. I have a question for both of you initially. Opening statements, what do jurors think if you use notes during those?
David Ball: Well, notes for a lot of those people are crutches. They need them a lot less than they think they need them. But you’re absolutely right, it’s not a matter of notes, it’s really how you use them. Now if it’s something you glance at to see what to say next and then get back in contact with the jury, there’s nothing wrong with that. It’s certainly better than memorizing it or saying, “Uh, uh, uh, uh.” So it’s nice to have a guide to what you’re going to say but what you need to do when you’re looking at them is look at the notes, see what you’re supposed to say next, and then come on back up and make eye contact with the jurors before you start to talk. And then talk to them. It’s not about notes. And then when you’re finished making your point, and only then, then go back and look for your next note.
Don’t be down looking for your note while you’re still finishing what you were saying so that the last, and usually most important things that you’re saying in that segment, you’re now talking to your notes. Anything–if there are words coming out of your mouth, you need to be in contact as much as possible with the jurors and never talk to a note or the floor or the wall. I should add one other thing, do not use PowerPoint to introduce new topics in an opening or seminar or anyplace else.
Joshua Karton: David, I was going to say something about that. You said this great thing once, well many times, about don’t let–friends don’t let friends overuse PowerPoint.
David Ball: That’s right.
Joshua Karton: Well it was making me think, because of what David said about notes, the live human connection, that’s just got to happen somewhere and it can’t happen 24–you know, it can’t happen every split second but it has to happen somewhere and if the speaker thinks that anything, whether it’s memorized text or in the name of, “Well, younger people expect visual imagery,” whatever it is, it’s seen as the source rather than the human being who’s talking and sharing. It becomes dangerous because all that stuff is, you can get that elsewhere. The only thing you cannot get when someone’s talking to you anywhere else is that person. So like any new technology that’s not new anymore, it becomes something people over-rely on. And I’ve seen presentations where people stand in the dark so they can’t be seen, and show an outline of the language that they’re using.
It’s literally an outline, and they’ll say, “Oh, well that’s good because some people are visual learners.” And it makes me almost throw a clot as they say–then they’ll confess, “oh, well, it’s really a crutch for me.” And obviously it’s gone so far past now just words, I mean there’s brilliant use of it. But it doesn’t replace needing the live, human connection.
David Ball: Well unfortunately, it replaces it, it just doesn’t replace the need for it. You watch in a room, even at a seminar, when somebody’s using PowerPoint, and again I’m qualifying it, to introduce new things, it’s very different later on and very much easier to use but in an opening, you put up that new thought and people stare at it, and the dangerous thing that happens is not just that they’re out of contact with the attorney because they’re staring at a screen, but they now think they’ve got the gist of what you’re going to say so they tend to stop listening as carefully. This is such an important problem that the military services have now barred the use of PowerPoint in battle briefings, pre-battle briefings. And most corporations have done the same for their meetings because it’s so clearly known.
Lawyers still trudge on like nothing’s been learned about PowerPoint. They love it, because it means they don’t need notes. They just put the next thing up on the screen, they look at the screen and then they know what to talk about next. What I suggest is they put the whole PowerPoint series on a notebook which is, a notebook computer which they can see and the jury cannot and simply program it so they can glance down and see the next topic and then not show it to the jury until after they’ve explained that new point, not before. So the points only up for a moment and they see it and then you go onto your next topic. That’s okay, but this thing of putting, “okay, now we’re going to talk about demographics in Boston.” So they sit there staring at that label barely listening to the attorney, barely paying attention to the attorney. If you ask them later what they were listening to, they say, I don’t know, something about Boston.
Joshua Karton: And you can’t see the attorney.
David Ball: Exactly.
Joshua Karton: Because they’re in the dark and so–and if they are not fully in the dark, then the listener has to make a choice of, who should I be paying attention to?
David Ball: And they almost always pick the screen.
Joshua Karton: Right, and back to the McCuen’s electronic fire plate, I mean this brings up for me something that underlines all of this, which is the stage fright. It is harrowing to stand in front of people and be seen. And it’s something that every actor has to train to deal with. Well I may not say every, I don’t know, but some of the best ones have the hardest time with it. They say that acting, I think is being public–being private in public. So to make that personal human connection with people who at first you don’t know. And in the courtroom, the stakes are enormous. But if the name of dealing with it and coming up with strategies so that quote, “the nervousness doesn’t show,” anytime you’re trying to fake something, solve it by hiding from it–so it ultimately never gets done. That’s why, when we’re talking about notes or we’re talking about PowerPoint, if any of that’s done in the name of, “oh, well it helps me get over the nervousness,” it’s the wrong solution.
David Ball: It is very much the wrong solution. Keep in mind, the jury trials and theaters, since that’s our topic today, were started by the exact same individuals 2,500 years ago in Greece. And the format is the same, and the requirements for it is the same. It is a live event between human beings on the stage and human beings in the audience or jury. Anything that intrudes, it’s this nonsense about, this is a media generation, they love media. No, no, they don’t. They much prefer live. If you’re going to be a good talking head on a deposition or anything else, you get paid a heck of a lot of money for being an anchor on television. Very few people can stay interesting on video unless they’re idiots as most of the pundits might be today. But whether they’re tap dancing or something, but just for normal conversation, this is a live event. And anything that gets between you and the live–you don’t have the resources of Hollywood here.
Anything that gets between you and live event, such as talking to your notes, that gets between you and the live event, relying on PowerPoint’s up there that they’re going to be staring at, that gets between you and the live event, folding your arms in front of your chest because you’re more comfortable that way is getting between you and the live event and unless you’re interested in communicating your live arms but they’re not very persuasive, so that is a very big deal. And what’s unfortunately happened, especially with the rise of the American law school is that kind of thing has been lost. It had not been lost in the 19th Century. Trials in the 19th Century were still a lot closer to what the Greeks invented.
But then the law school took over and law schools don’t really pay that much attention to that sort of thing, and I’m not sure they should. That may be stuff for post-law schoolers, special classes or something. They do have a lot of concepts to teach. But we want the live events and the jurors ultimately are judging human actions but human people, not a bunch of technical stuff. And that’s not to say anything’s wrong with technical stuff if you use it well. Most people do not. Very quick example of that: When you–and I know we’re on openings, but when you impeach a witness using a high, fancy computer program, you can impeach that witness to death in about 13 seconds. “Oh, so you’re saying this now, well, let’s look at you saying it differently in your deposition.” You push a button and the person’s impeached. And you think you’re scored every point.
Well, you haven’t, because it didn’t take any time. It’s nowhere near as effective as turning around, walking over the table, picking up the deposition, finding the source of the deposition quote that you want, walking back to the witness and then reading it to him or asking him to read it. You’ve now taken 30, 45 seconds in some very dramatic pauses, some very interesting stuff going on. And so you put a whole human event into that impeachment and there’s nothing human about pushing the button on the technical stuff. Remember, the people who love the technical stuff are the people who sell the technical stuff. Just make sure it helps you be human and doesn’t get in your way.
Stephanie Francis Ward: Well, what you just said, I thought that was interesting because I know being the trial arguer, you’re a storyteller basically and I was curious about how you would tell your story through a witness, particularly on a cross where you haven’t prepped that witness. Is that how you would do it? A lot of it comes on you, the lawyer?
David Ball: Well, it’s the series of questions you are asking that are telling the story. The answers are not relevant, you know the answers, though relevant legally, what the jury is hearing is your questions followed by the witness saying yes or no depending on whichever you want, as long as you stay consistent and the story’s being told through your questions. If you understand what a story is, which is another issue. The thing is, a story is an extremely powerful tool. It’s our earliest method of conveying complicated information. The lack of story, in my view, is that it’s single-handedly responsible for poetry going from one of the most important and common and popular art forms to one of the least used and listened to.
And that happened when narrative stories stopped being used in poetry. But if you think back to the great poets of the past, almost all the great poetry was narrative and everyone loved it. By narrative, I simply mean it has a story. So nobody explains today what story, but anything you’re doing, I don’t care what it is, it’s part of the story, and if you don’t understand what constitutes a story, which may be more than we can go into today, might be a basis for a whole nothing webinar. Then you’re probably teaching jurors an insignificant and unmemorable way compared to what you could be doing.
Joshua Karton: The cross examination, I’ve heard, is the only reason to do it, is for the opportunity for the lawyer to retell her or his story. And this brings up something else about the live human event. And, David, what you were saying about the resources of Hollywood, when we’re watching something on a video screen or a computer screen or a movie or any of that, what we’re seeing has been determined by an editor, or the camera person. In the court room, people can look anywhere. So for example, the lawyer gets taught on direct examination, the juror should be looking at the witness and almost every lawyer has had the experience of carefully preparing a witness who comes apart on the stand. In which case, what a director understands is that you’re responsible for, in that case, you want the jurors looking at you, the attorney, confirming that story.
And that’s not a trick, but in real life it happens all the time. We’re not always looking where we’re supposed to be looking, we’re looking at what for us at that moment is the most compelling human stimulus or invitation. So on a cross examination, who is that lawyer who’s cross examining doing it for? And if you’re telling the story through these questions, you’re doing it for the jury. And too often, no contact is made with the jury. Now I’m not saying you pander and ignore the witness. And people who first get this concept will do that. But if you are cross examining a celebrity, at the beginning of that cross examination the lawyers are not going to be looking at you. Where in film and television, the editor is going to let the audience see who they want, who you want them to see. So all of it is an awareness that a director has. So when you first introduced me, Stephanie, and said, an actor, part of what let me know how to find my way through some of this is that I’d also worked as a writer and as a director.
And those are director’s awareness. And they’re very doable, I mean it’s not voodoo. But it is an awareness that doesn’t come from reading law books.
David Ball: And unfortunately, it’s not an awareness that comes from doing tons of trials either because you don’t learn the habits doing the trials. They’ve actually done a study that everything we know about how visual information is absorbed is defined by law books. And that’s that the indoctrination starts there. The other thing about law schools, and, David, you were talking about that, is that too often, the learning is shame based. Someone is called upon, and they are called upon to basically either satisfy the professor’s expectation or be shamed. And I’ll be teaching in a law school, I’ll be talking to a group and very nicely brought up young people will yawn openly in my face. And it’s because they’re used to feeling that they’re invisible. And so the awareness in the courtroom that you are going to be watched and you have to be watched, is a juror, I need to rely upon you that you’re not hiding from me.
Because if you’re hiding yourself, what else could you be hiding? So to tolerate being watched and to tolerate being heard, these are actor’s awareness’s, yeah, that you bring to it.
Stephanie: My question is, sometimes lawyers want to come across as being really tough lawyers who will fight to the death for a client, and I can see where clients would like that. But that personality, I would imagine, could be a turnoff if you’re -
David Ball: This is not just a matter of a turn off. If you are in the view of a jury, a tough lawyer, a warrior for your client, which is a worn applied to this business. It’s not a nice education word, but please leave it outside the courtroom. You get up and you can just control the hell out of them on cross examination, I’m not that concerned whether they like or dislike a warrior. I am concerned if the jury perceives you that way, they trust less, all of the information you will list at examination. Well of course he got the truck driver to say that, anything would say anything at the hands of that person. So one of the most common complaints that jurors have about lawyers is, why did he bully those people?
Why did he do that? He’s the one in the court room with all the power and yet there he is bullying. And I don’t care who you’re bullying. It can be a corporation president. You’re still at a disadvantage in the eyes of the lawyer. A skillful lawyer does not bully, does not overtly manipulate. They do what I call invisible cross control techniques and it’s the kid coming out of law school that’s been taught, well you need to control on cross examination. They come out and control. They’ve got two swords, a cannon, and a lion to help them do it. And so the jury’s response is, well, that was a nice show but I’m certainly not going to trust any of the testimony he elicited. So, yes, be a warrior of your client, tell them, I’m going to go out and blow up the world for you but in front of the jurors, you are a teacher, you are an elicitor of information, you are a colleague with the jury, nobody loves watching anger and arrogance and all that stuff.
Now that said, there are a few lawyers who can get away with it but there are very, very few. And it’s usually not the people who think they can get away with it.
Stephanie Francis Ward: Can you give me an example of what you mean by invisible cross control?
David Ball: It’s really hard to do that out of context. It’s–a lot of it is just playing tone of voice. Sometimes it’s ignoring the basic rules of, always ask closed ended questions and once in awhile you can say, tell me about that. Explain yourself, how do you feel about that? It’s the name when you might deal with someone in cross–on direct examination. People say, “Oh, no, no, you’ve got to control them all the time.” Not if you know what they’re going to say and not if you’re any good at the job. We have controlling methods. Ask a closed ended question with the impact of the question as close as possible to the end of the question so they don’t have time to think. Give them time to think. If they’re going to lie, it’s even better if they’ve had time to think. But it’s hard to give you specific examples out of context for that. But it’s–a lot of it is just playing tone of voice. You were there by 5:00, weren’t you? Instead of, you were there by 5:00. The first is, you’re talking to them as if you and I are already agree in advance. We’re old friends, old buddies here. The other is, “You sniveling, slimy little jerk.” So Joshua, go ahead.
Joshua Karton: You weren’t addressing that to me, so -
David Ball: No, no, not at all. You weren’t sniveling.
Joshua Karton: I think it comes down to respect and respecting the jurors. And if you’re asking the jurors to respect your case and your client, you have to respect them. And if I am putting on a show of a certain kind of behavior as in, I’m trying to convey that I will fight hard for my client, then I’m not really doing it. I am pretending to do it so I can convey some persona that isn’t maybe the one that’s needed for the task. I mean obviously, David, you’ve talked a lot and taught a lot and made this huge impact with the model of the reptile. And part of what’s in there is that it’s about survival. And that jurors need to know that the decision they make is going to be one that lets them survive. It’s going to help them survive. I hope that’s okay, my summarizing like that. Well adaptation is the Hallmark of survival. Darwin, so if we see an attorney who will not adapt to the moment so that when there is a need in this moment not to be a destroying warrior -
David Ball: I say jerk.
Joshua Karton: Sorry?
David Ball: I say jerk, but okay.
Joshua Karton: Yeah. Then we’re seeing an attorney who is not adapting, and therefore, this is something who really is not on a survival track. I mean even a leaf turns to the white, you know, so the adaptation to the present situation which the jurors are in I think is part of what Stephanie is, the answer to your question, about the danger of trying to convey something which is, how am I doing as opposed to what am I doing? Am I trusting, am a communication? Even communicating, I think, is insufficient. Am I teaching, am I taking care of the jurors in this moment? And again, that’s an actor’s vocabulary. What is my objective and what’s the verb I’m using to get there?
David Ball: The guide, to teach, to help, that sort of thing as opposed to beating the hell out of somebody. Think in terms of, what is the jury to make of a case if it requires a lawyer who’s a warrior or a manipulator or controller? And how good can the case be, the jurors think and this is subconsciously going on. It doesn’t usually sit there dwelling on it but it’s there. When we watch somebody in a courtroom that’s going through all those amateur gyrations, and that’s what I call them, they’re amateur gyrations to control the fight, to be the warrior because they’ve mistaken a training attitude for a performance attitude, the jurors are simply sitting there saying, “boy, if this is a good case nobody would have to do all that,” and that really undermines the way in which the jurors perceive and react to virtually every piece of evidence in the case. It costs people cases when we do that. Nothing theoretical about that. That’s is an absolute true statement. Take it back to theater.
If you see somebody acting like that in the theater, I mean if you see a character acting in a manipulative way, are you really going to say, this is the character I’m going to cheer for? Unless we’re already on that person’s side. But if you’re debating which side to be one, let the case do the win for you, not your strategies. Don’t come on with a Sherman tank. What is it, you win more flies with honey. Not that you want to win flies but you get the point.
Stephanie Francis Ward: Do you think that to be believable to a jury, does a lawyer have to appear to be likeable?
David Ball: I don’t. I have no idea how Joshua feels, but I don’t.
Joshua Karton: No, I agree with you.
Stephanie Francis Ward: And can you tell me why, Josh?
Joshua Karton: Well likeable, that’s subjective measure and in 7th grade I was a hero, and in 6th grade I was a dish rag and one year I was popular and another year I wasn’t. And worrying about being likeable is just, I mean that’s what makes adolescence such hell. I think if you do to the very best you possibly can, which by the way, does not mean staying in your comfort zone, it means whatever is necessary, a commitment beyond any considerations beyond do I look good, am I likeable? To really solve the task of bringing the truth to the jurors in a way that lets them make an informed choice that will be good for them and your client and that they see your client as one of them no matter how divergent life experience has spread their paths. That is the best you can do, that is the only witness of credibility. I’ve heard it’s the one who’s the most credible as opposed to the most likeable. and I think if you are doing that, you could be described as likeable. Not necessarily somebody who, I want to go to a tailgate party with.
David Ball: Does that mean you’re turning down my recent invitation?
Joshua Karton: But somebody who I trust and who I can endorse, who I can trust. Who’s there to protect all of us. That I can go with. But I mean, it’s just harrowing worrying about if you’re likeable.
David Ball: Think about the teachers you had who were your best teachers. Some of them were very likeable. Some of them you were afraid to approach. Some of them were distant, some of them, I’m not saying you want to be a person we hate, but whether you like the teacher is perhaps a measure of success for someone teaching 3rd grade. But for someone working with adults, they will like you if you teach them well. If you don’t, you can smile and dance and make jokes with them and be pleasant and seem like a likeable person all you want and they make like you less because they’ll see right through your act.
Joshua Karton: There’s a very famous case years ago where I remember hearing that the expert who was going on, the jurors couldn’t wait. They loved him. He was fantastic. They couldn’t wait for him to come back when he was recalled. Now they didn’t decide for that side, well of course we didn’t believe that -
David Ball: He was fun to watch.
Joshua Karton: He was enormously likeable and for some reason, I don’t know why, but Betty David has just come up in my mind. Celebrated actresses. She was not likeable but, boy, we stayed watching her forever.
David Ball: And we liked her in a more important sense of the word like. Look at the work like itself. The word like means, I’m finding similarity in you that I appreciate. That’s what like actually meant originally. There’s a contact here. It doesn’t mean that I’m going to a tailgate party. I want one of the most uncomfortable things I think we ever see in a court room, is an attorney trying to be liked. It’s as bad as arrogance in front of a jury which is pretty -
Joshua Karton: It’s cringable.
David Ball: Yeah, and first of all, if you’re trying to be liked, you are automatically not being honest by definition. You’re doing something artificial to get a response that you wouldn’t get if you were being normal. So the juror is right there, in full view of the jurors you’re saying, I want you to smile with me and it’s okay if you don’t trust me. And that’s kind of silly. There are some people who are enormously warm and likeable and does that help them? Yes, every natural attribute can help you but think of it this way. If you’re not all that likeable when you talk to a jury and you try to pretend to be, it’s like if you’ve got a scrawny little person in there trying to be a muscle man. It’s just a total fraud. And you don’t need to do it. We like teachers. We like guides. We like people who are fair with others even when the others are on the other side. We like those things. We appreciate those things and most important, those are the people we wish to follow.
Joshua Karton: Well that’s not just thinking, David, when you were saying, we like them, we like them, and in my experience with 3rd grade, and she was a monster.
David Ball: Well you went to that Catholic school, didn’t you?
Joshua Karton: But we wanted them to like us. And that is a piece of that exchange, I think, that goes on. I’m sorry, not I think. That goes on between attorney and juror.
Stephanie Francis Ward: That’s everything that I have. Do ‘ither of you want to add anything?
David Ball: I would like to put a warning in here. When attorney’s see the word theater or theatrical, it’s dangerous. It’s like telling them to be warriors. It’s a useful thing in the teaching level. The thing about theater when it works, or movies, the thing about it when it works is that it’s techniques were utterly invisible. Utterly and completely, for a realistic context, you didn’t see all the artificial things that went into manipulating the audience into being moved to their soul by a production of King Lehr. That stuff never occurs to them. So if you carry this theater stuff, like any strategy or technique, you have to use it. Don’t let it take you over. I don’t know how to put this. Joshua, maybe you can put that better because I know you know what I’m talking about.
Joshua Karton: It’s the same difficulty, I mean a word like theatrics, when is the time to use theatrics? It’s like, bring on the tumblers, the jugglers, the clowns. It’s also, for me, the problem with the word audience. You and I can go see King Lear, be utterly just, our hearts are broken and mended again and tragedy has achieved, etc. And we go out and we have a drink. At the end of the presentation of the case, those jurors are not an audience. they are your co authors. They have to be moved to take an action. And so any of this language, theatrics, audience, acting, script, any of it if it’s taken as a way out of solving the real problem becomes, as you say, very dangerous.
Stephanie Francis Ward: All right, well thank you both so much for your time. I appreciate it.
David Ball: Wait, I thought you said I have two or three hours.
Joshua Karton: We’re just getting warmed up here. We have a whole bunch of great gossip stories about things we were going to tell you.
Stephanie Francis Ward: Well, I’d be thrilled to have you guys back another time.
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