By Thomas M. O’Toole, Ph.D.
From our earliest days on earth, we learn about contrast, difference, and fit. Whether it’s simple games like “which one is not like the other” or trying to fit different-shaped blocks into different-shaped holes, difference plays a critical role in our development and connection to the world around us. As we grow older and develop connections to the social fabric around us, contrast, difference, and fit gain more prominence in defining and understanding our place in the world. For example, scholars say gossip functions as an expression of our values against another’s. So while we may actually be talking about another person when we gossip, at its heart we are saying that person is different from us. Nearly everything we do involves differentiation. It happens on the levels of basic visual perception, social interaction, and self-understanding. In other words, it is the most natural thing we do.
For this reason, contrast and difference should play central roles in the development of the case presentation and the “story” at trial. There’s an old maxim that a verdict is the product of what jurors choose to talk about. This is one of, if not the most important principle that trial attorneys should understand because it is about focus, which is zero-sum. If jurors are focused on one thing, they are not focused on another. And the more jurors focus on something, the more critical they become of it. In other words, if jurors spend two hours of deliberation time discussing something, it is going to be a critical discussion of it. Jurors simply do not spend that kind of time heaping praise on something. Consequently, the case presentation should try to control the focus, or what the jurors talk about during deliberation. There are endless filters through which any set of case facts can be viewed, with each filter leading to a different outcome. In other words, jurors can put on blue-tinted glasses and see blue, put on green-tinted glasses and see green, etc. Difference and contrast in case presentation are the most effective ways to control the filter and consequently, the focus of discussion in deliberations.
Here are just a five ways to incorporate the elements of contrast and difference in your case presentation. As you’ll see, I’m a firm believer that the visual presentation of contrast and difference is essential. Often, jurors do not appreciate the extent of the contrast until they actually see two items side-by-side. This even happens with attorneys, who sometimes do not appreciate how persuasive two documents can be until they’ve put them side-by-side.
1. Use the testimony of parties in opening. In my experience, this is one the most underutilized trial presentation strategies. Research shows 70-90% of jurors make up their mind about a case shortly after opening. This means opening is a critical opportunity to effectively frame the issues, the evidence, and the people. In other words, the role of opening is to set the focus. The use of deposition testimony from the opposing party is a great way to control jurors’ perceptions of them. Ideally, you should select clips that provide contrast to the claims by that party or show the party offering conflicting testimony. For example, the defense can carefully select a few video clips from the plaintiff’s deposition that cast the plaintiff in a very bad light. Consequently, when the plaintiff takes the stand, rather than just telling his or her story, the first thing he or she must do is try to restore his or her credibility because their identity has already been framed by the defense through effective focus. If unsuccessful in doing so, the telling of the story will have little impact on jurors.
2. Talk about what you would expect to see. Another effective means of contrasting involves taking the claims of the other side and contrasting them to what one would expect to see if the claims were true. For example, in one case where I represented a defendant accused of fraud, there was evidence that could lead one to conclude fraud had occurred even though it had not. We knew the evidence was insufficient even thought it did not make us look good. So we created a checklist of what one would expect to see if fraud had occurred. What we found in creating the checklist was, while unfortunately there was evidence on two of the checklist items, the other eight items were not present in this case. The result was jurors concluding that there was not enough evidence to support the fraud claim. This kind of checklist can be used on just about any issue in a case.
3. Compare documents. Documents need context to attain their greatest persuasive value. This context can often be established through contrast to other documents. For example, put two documents side-by-side in a PowerPoint slide with call-outs of key text. If the documents involve the party saying conflicting things, at a minimum, it will call into question whether or not jurors can trust the other party. Contrasting documents can accomplish a lot more than undermining trust. As another example, it can establish the motive behind actions. In one case, we put an internal email where the other party was discussing the excessive costs of paying royalties next to a testimony call-out of the same party saying, in the context of litigation, the lack of general interest in the product was why they did not enter into an agreement with our client. The contrast of what was said when litigation wasn’t a concern versus what was said after the litigation was filed helped jurors appreciate the real motive behind the other party’s actions.
4. Develop contrasting timelines. One of the best types of timeline is the “above the line/below the line” timeline. This timeline contrasts one party’s behavior to another’s. Visually, the troublesome acts by the other party should appear below the horizontal timeline bar using darker tones (below and dark suggest something bad). Visually, the this kind of timeline shows your client’s fair and reasonable acts above the line while (of unbeknownst to your client) the other party was engaging in a pattern of questionable activity below the line.
5. Highlight choices and alternatives. One of my favorite graphics is the decision tree. A decision tree looks the incident in question in a case and isolates the series of poor choices made by the other side that led to it. Visually, a decision tree isolates each decision point and contrasts the decision that was made to the alternative decision that could have been made, which would have halted the progression of events that led to the incident. A decision tree is effective because it establishes a pattern of poor choices by contrasting each individual choice to the alternative. Patterns are important. Jurors can forgive someone for making one poor choice, but it becomes a lot more difficult to forgive someone for seven poor choices.