By Jill D. Schmid, Ph.D.
Let me first say I’m thrilled to be joining my former colleague, Tom, at Sound Jury Consulting. Tom and I worked together for over eight years. We share the same fundamental beliefs about our profession and how we can work with attorneys and their clients in bringing their cases to the most favorable conclusions possible. I look forward to meeting those already working with Tom, and to working with many others who are looking for a trial consulting team and firm.
Since this is could be your introduction to me, I thought I’d use my first blog to summarize a critical takeaway and some observations I’ve garnered from being a trial consultant for over a decade and a communication professor for nearly the same amount of time. What I’ve learned is that this is not rocket science; I firmly believe many of the tried and true effective communication principles that have been with us for thousands of years still apply. People might want a new fancy name or brain research to prove it’s true, but all of that doesn’t diminish the fact that people pay attention to, process, understand, remember, and apply messages that: 1) Fit with their understanding of the way the world works (i.e., their world view), and 2) Hang together (they simply make sense when taken as a whole).
It doesn’t matter how hard you try to ram-rod a message down someone’s throat, if it doesn’t comport with what they already hold to be true (based on their life experiences and their opinions borne out of those experiences) and if the whole message does not have internal consistency, then people reject those messages. One or more of the fundamental aspects of the communication model will fall apart:
People do not pay attention to, let alone process, understand, remember, or apply messages that they don’t believe to be true based on what they “know” to be true. And they don’t know how to process or understand messages that have internal inconsistencies. They have to spend too much time figuring out “what’s really going on…” and in that process, you are likely sunk.
This basic understanding of communication is why everything from: 1) the creation of your case framework to 2) your jury selection strategy (which should be based on finding those who hold experiences and opinions that will make it impossible for them to truly “hear” your case) to 3) the way you organize and lay out your case story in opening, to 4) the ways in which your witnesses tell their “part” of the story, to 5) the way you arm and motivate jurors in your closing, is SO critical.
What do I see that most often inhibits effective courtroom communication? In no particular order, the list includes:
• Over reliance on the law – believing that a jury instruction, what the judge says, or a legal concept of some kind will miraculously make a bad fact (e.g., an email that lends insight into what people were “really” thinking), a juror’s differing life experience (e.g., they had a boss just like the one on the stand and he really was a big pain in the ass who fired people for no reason), or clear up confusion (e.g., sure, the instruction on proximate cause clears everything up for me, thank you) not matter.
• Covering too much – whether it’s diving into the weeds or including “everything” because you can’t figure out what to cut; giving jurors too much information means they do your job for you , and that’s scary as who knows what they’ll decide to keep and what to discard? Likely, it’ll be (go back to the principles) what they already hold to be true and what makes the most sense to them.
• Boring, long, unorganized – take your pick, people will stop listening if any of these things happen, let alone all three. People can only process so much information, and they will really only process that information if there is something that makes them want to pay attention. Using visuals as well as signposting (and other basic organizing principles) will help jurors pay attention so that they can later use the information in deliberations.
• Believing jurors got the point, because your associate said you did a good job and/or they got the point – the fact another attorney understood what you said could be helpful, but considering their legal training (and the fact they might report to you) it should be taken with a grain of salt. I am not saying jurors are dumb. I am saying they are likely not lawyers and they have not lived with your case for the years you have. What did you not know when you first took in the case? Remember that feeling and then realize your jurors are starting from there.
My years as a litigation consultant have been extremely fulfilling and I’m looking forward what the future holds at SJC. Tom and I have a passion for communication, psychology, and the law, and I believe that’s evident in our work. We’re looking forward to what the future holds.