If you ever take the time to watch a jury trial you will quickly find how boring they can be. This is especially the case for trials that take days or weeks to conclude. The reason for this, is in part, because the procedural rules governing the presentation of evidence was not created for the purpose of entertaining audiences. Thus, we as trial lawyers need to work extra hard to create interest and maintain interest in our case, despite what might be an awkward method of presentation. To do this we can look to the teachings of theater.
There are books full of techniques which instruct us on how we can captivate audiences. Here we will discuss a few of these techniques. One of these techniques involves what David Ball calls the use of forwards. Essentially what a forward does is give some foreshadowing as to what will come later in trial. However it is more than simply foreshadowing as with the forward technique we foreshadow something which is of great interest to our jurors. This will generally be something visceral, which is something which gets at the emotions of the jurors. Visceral communication speaks to topics which resonate with human emotion. These things include danger, love, revenge, greed, and many other topics which are innately provoking. So when we use a forward we give the jurors a glimpse of what is to happen next. This forces the jurors to tune in, as the jurors become eager to hear what will actually happen at the end of your story.
This use of forwards is an incredibly powerful tool because it does two things for you simultaneously. First and foremost, it creates interest in your audience, the jurors. The jurors become eager to process information so as to determine what the conclusion of the story is. The second benefit of the forward is that when you actually get to the event which you have been alluding to throughout trial your juror’s ears and eyes are pealed. They listen attentively to every detail as they have been eager to hear your conclusion throughout trial. Essentially, this technique allows you to capture the attention of your jurors.
You can use forwards throughout trial. You can begin using them as early on as voir dire or opening statement. Of course, if you use these forwards in opening be careful to avoid argument. We can use forwards during many different stages of trial. We can use them solely within a witness examination for instance. Or we can use a forward or multiple forwards solely within our opening statement. We can also use a forward in opening which doesn’t provide a conclusion until the end of trial. If you are really good at using these you can use multiple forwards at a time. You can use forwards at any and all times as you progress through trial. Of course, it helps to have a case with interesting facts but you can find opportunities for forwards even in mundane cases. For example, let’s say you have a case where your client lost the ability to use her arm. You can say in opening “you will hear from Mrs. X what it is like to lose the use of her arm”. This creates interest in the jurors. They want to hear about this tragic experience. They want to hear how it happened and what it is like to lose that ability to use an arm.
If you have a case that allows for you to create a mystery for the jurors then create this mystery, with the promise to solve this mystery before the end of trial. Jurors love the anticipation of a mystery and they will do their best to solve that mystery during trial. For example, I have a case where my disabled client was raped in her dentist’s office on a Saturday afternoon. In opening statement I could tell the jurors that they “will hear from Mrs. X what it was like to find herself at the mercy of a predator”. “Mrs. X will tell you what it was like to be trapped in room with this giant of a man with no one there to help her escape.” “In this trial, you will also find out what happened to Mrs. X. on that Saturday afternoon”. Here you are planting a couple of forwards with your jurors. The jurors now want to hear from Mrs. X herself about the fear that she felt. The jurors also want to know what exactly happened to her. They get the general idea that something bad happened to her but they want to hear all the gory details now. By planting these forwards, the jurors become eager to hear future testimony and to hear and see what happened in your case. You have now captivated your audience.
If you get really good with using forwards you can employ a special type of forward which is called a cliffhanger. A cliffhanger takes you right to the brink of a visceral event but doesn’t take you all the way through the event. In this way the jurors are left in a state of angst as they wait to find out what ultimately takes place. Using the example above you could tell the jurors, “that during this trial you will hear what happened that Saturday afternoon when Mrs. X found herself trapped in a room with the Defendant”. In this way you allude to something bad that happened but leave the jurors to their imaginations as to what transpired. The jurors now become eager to hear evidence so that they can piece together what did in fact happen on that Saturday afternoon.
Another concept which is central to good trial advocacy is that of making the case bigger than simply what happened to your client. People generally care about themselves and their immediate family and friends. Beyond themselves and this close group of loved ones they generally are unconcerned. This is why you need to make every case bigger than simply what happened to the defendant. If you are conducting an injury trial then you need to show how the danger which the Defendant created could have affected people just like those in the jury box. Don Keenan and David Ball call this “spreading the tentacles of danger”. Essentially you are bringing the case home for the jurors. You bring the danger to the jurors’ front doorsteps. I personally believe that this one tactic alone separates the average plaintiff’s trial attorneys from the great plaintiff’s trial attorneys.
When you bring the case to the jurors’ doorstep the case gains a bigger significance than simply that of the jurors compensating a plaintiff for her harms and losses. This is because, beyond brining it home to the jurors’ immediate safety concerns you at the same time empower the jurors to do something to prevent injuries like these from occurring to them or their loved ones. You tell the jurors that whether this conduct occurs again in the future is entirely within their own hands. You let the jurors know that they can prevent this type of conduct from happening again only by means of a large plaintiff’s verdict. That the jurors need to send a message to the Defendants so that the Defendants learn their lesson and know better than to behave the same way in the future.
Another strong point which David Ball teaches, which I find very wise, is to not feed conclusions to the jurors. This goes for a variety of issues in trial but this especially goes for describing emotions. Don’t tell the jurors how Mrs. X was feeling that day. Do not tell the jurors how sad she was or how scared she was or how much pain she feels. Remember, that you are a teacher before you are an advocate in trial. Jurors are always suspicious of what you say as they know you, as plaintiff’s trial lawyer, have a dog in the fight. Thus don’t give the jurors conclusions as to what emotions a person felt. Instead give the jurors facts which allow the jurors to determine on their own what feelings or emotions the individual must have felt. If you say “Mrs. X found herself trapped in the small room with this giant predator of a man” the jurors can conclude on their own that Mrs. X is feeling fear. You don’t need to say “Mrs. X was scared for her life”. Let the jurors reach conclusions on their own. When jurors reach conclusions on their own then those conclusions become much more solidified and unwavering than when you try to spoon feed it to them.
Larry Posner wisely teaches this same concept for cross examination. When we conduct a cross examination we lead the witness all the way to the conclusion without stating the conclusion. We don’t ask that final question which would force the hostile witness to give us the conclusion that we want. We stop short of that question, right at the edge of the cliff. This allows the jurors to reach the obvious conclusion on their own. When the jurors make their own conclusions those conclusions become firmly ingrained. When we try to force conclusions on the jurors then the jurors become skeptical of our conclusions.
On this same point, that we give facts as opposed to conclusions to prove emotion, we can and should do the same thing to show character. If we want to show that our client has a strong work ethic, for example, we should not come out and tell the jurors “that Mrs. X has a strong work ethic”. This will not be persuasive at all. The better method is to use fact witnesses, such as friends or acquaintances of Mrs. X, to talk about all the hard work that Mrs. X. does. Have these witnesses describe how hard Mrs. X has fought to recover from her injuries. Have the witnesses describe Mrs. X still gets up every morning to visit her grandkids despite the agonizing pain she is in. This goes for all character descriptions. Again, you are advocating by teaching. Give facts to your jurors, not conclusions.
When you work to establish character remember to humanize your client as much as possible. Let the jurors know that your client is a good person. To do this, establish facts which show things like her dedication to her family or her dedication to her community. Show the jurors that you personally have a good relationship with your client. Don’t tell the jurors that you have this relationship, rather show the jurors that you do. You can do this by showing rapport between you and your client while your client is on the stand. Joke around a bit with you client when appropriate perhaps. Call your client by her or his first name always. When jurors see that the plaintiff is not just a “plaintiff”, but rather a person just like themselves the jurors better empathize with your client.
This same concept should be employed to show motivations. Remember, that if you are trying to persuade the jury that the defendant did or did not do a particular fact in issue it is absolutely necessary that you prove the defendant’s motive to do that thing. When jurors work to determine what did or did not happen the first thing they ask themselves is “why would the defendant do take that action”? If you can show that the Defendant had a motive to act in a certain way then it will become much more believable that the Defendant did act in conformity with that motive. So on the same note, when you show motive don’t simply tell the jurors that the Defendant’s motives were “x,w, and z”. Instead, give the jurors facts which demonstrate a motive. If you are dealing with a sexual assault case, for example, you could show facts that the Defendant had made advances towards the victim on more than one occasion prior to the assault. In this way the Defendant’s motive becomes clear without you explicitly telling the jurors that “the Defendant lusted over Mrs. X”.
I learned a great deal of the advocacy techniques above from David Ball. He is an excellent trial advocacy teacher as well as a top notch jury and trial consultant. If you want to gain a more thorough understanding of techniques like these then I direct you to any of Mr. Ball’s publications. Mr. Ball also tours the country with legendary trial lawyer Don Keenan. The two of them give seminars in various cities across the country. If you have the chance to attend one of these seminars I urge you to do so.