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September 17, 2017 Articles

Beyond Wordland: How Litigators Can Break Their Reliance on Words, Logic, and Checklists When Speaking with Jurors

Most jurors rely more on intuition, emotion, a basic sense of fairness, and common sense to learn and make decisions

By G. Christopher Ritter

Often it is as if lawyers and jurors come from different planets. Most lawyers come from a planet I’ll call Wordland. It’s a place where inhabitants rely on words, logic, checklists, and other linear processes in order to learn, make decisions, and persuade others. While some jurors also come from Wordland, the majority do not. Instead, most jurors come from a different place, where people rely less on words and more on intuition, emotion, a basic sense of fairness, and common sense in order to learn, make decisions, and persuade others. The language of Wordland is very foreign to them.

Lawyers tend to be very good at asserting arguments that convince the handful of jurors in the box who are from Wordland. Persuading this group, by itself, is never enough to win a case. To prevail at trial, attorneys need a unanimous verdict, or at least one with a supermajority, when, typically, more than half of all jurors in the box are not from Wordland. These are the jurors who relate to Ella Fitzgerald’s lament in Lullaby of Birdland when she sings, “Never in Wordland could there be ways to reveal in a phrase how I feel.”

Graphics are often the best tool to foster communication, understanding, and agreement between inhabitants from these two different worlds. Graphics allow an attorney to communicate logical arguments in a way that visual-thinking jurors can understand and process. Graphics can make that unanimous verdict attainable. Of course, a successful trial lawyer will continue to rely on words to persuade, but he or she must also learn to think visually so that every juror will see the point being made.

When I say “see the point,” I am referring to two different forms of visualization. The first is the most obvious—that is, material that jurors see using their own eyes. These tools can range from simple, spontaneously hand-drawn graphics to state-of-the-art 3-D animations. There is a second, equally important way that jurors can “see the point”—that is, in their minds’ eyes. To enable this form of seeing, a lawyer needs to use verbal stimuli, such as stories, analogies, and other detail-rich words that will create a mental image for the listener.

Never trivialize pictures developed in the mind’s eye. Lawyers often forget that these are very powerful tools, precisely because they are created by the person receiving and processing the information. When a picture is shown to someone, there is no certainty as to how the image will register with that person. Fortunately, the vast majority of the time, externally created images produce the desired results. Moreover, there are situations in which external pictures cannot possibly produce mental images as profound as those created in each individual juror’s own mind’s eye.

Because visual images are so important, I wonder why so many lawyers rely on graphic images such as the one shown below:

For the record, in case you need confirmation, this is not just a bad graphic . . . ; it is a horribly bad graphic. The information is convoluted and offers no power to persuade whatsoever. The lawyer who used it lost a case worth $140 million. Was that loss attributable solely to the graphic? Of course not, but a graphic such as the one shown above is one aspect of major case blunders that lead to catastrophic losses. A lawyer who uses graphics such as the one above has failed to fully think through and simplify his or her case. Worse yet, use of this graphic disrespects the jurors. It says, essentially, “I don’t care if you understand what this case is about.” We do, of course, owe our jurors so much more valuable information than what is represented by this graphic.

I find that lawyers who use graphics such as the one above often make four mistakes:

First, they fail to appreciate the value of learning to think visually, because they are not visual learners. About 65 percent of the overall population learns visually. While I do not have a scientific study to back me up, I am convinced that this percentage is appreciably lower among trial lawyers. Lawyers’ likely tendency toward verbal acquisition of knowledge, coupled with their very human inclination to assume that the way they do something is the way that everyone must do it, creates potential barriers for them in the courtroom.

Let me remind you, jurors are your peers, not your clones. Your way is not the only way. Human beings process information in a variety of different ways, and if you are going to be successful in the courtroom, you must not only take this fact into consideration, but you must also pay proper heed to it by providing information in a variety of ways to the 12 different jurors you face.

The second mistake that many lawyers make is that they tend to consider graphics as afterthoughts. They see graphics as merely pretty pictures to be used as the icing on top of their presentations, rather than as an integral part of these presentations. They use trial graphics in the same way people who decorate waiting rooms at a professional office use art. These people see the need for a picture (any picture); then they put up a picture (any picture), mostly just to fill space.

The third mistake that these lawyers make is they do not understand basic principles of “information architecture.” Full exploration of the principles of visual design is far beyond the limits of this paper, but suffice it to say that the best graphics are those whose creator (1) knows exactly the point that he or she wants to make, (2) devotes ample space to making important points, (3) eliminates all information that is not important, and (4) designs visuals that are quickly and easily understandable by the viewers.

The fourth mistake that lawyers often make is they don’t recognize the value of spending time actually thinking visually. I recommend that lawyers go through a process that I call “mental mining.” Most lawyers are very adept at the first component of mental mining, which involves the gathering and processing of facts months before trial. It involves learning names, dates, documents, and other facts. During acquisition of all of this knowledge, as the conscious brain has been organizing facts in a linear, organized manner, whether you are aware of it or not, the subconscious mind has been organizing the facts by connecting them within its massive library of associated analogies, images, stories, memories, and other deep-seated concepts. The subconscious mind is what adds your perspective to the facts.

Many lawyers are unfamiliar with the second aspect of mental mining, a process that involves consciously exploring that library and uncovering the connections that have been created there. These image and story connections must be brought into the forefront of your conscious mind and then considered for use as persuasive tools to be used in the courtroom. You may be thinking, “Wait this is my subconscious library—what does that have to do with the jurors’ own subconscious libraries?” The fact is that large portions of these libraries are common to all of us.

So, for instance, when I say, “This case is like the battle between David and Goliath,” we may all have slightly different pictures in our minds, but our internal pictures are quite similar and will evoke the same sentiments in most of us. The image and story connections you connect to case facts will possess a secondary persuasive power that many jurors will understand.

The best possible way to engage in mental mining is to repeatedly ask yourself, “What is this case really about? What is it like?” Don’t be surprised if you start uncovering ideas at the most unexpected times, such as when you are walking, taking a long drive, even in the shower. Write these ideas down. Examine them and see what kind of visual images arise. Your case will be the better for it, for you will be speaking in a language that even those jurors from worlds far beyond Wordland will understand.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).