Last week, I finished a three-week road trip with my family in which we drove over 3,000 miles, camped every night, and saw some of America’s most amazing offerings such as Rushmore, the Badlands, Devil’s Tower, and Yellowstone. Sadly, I had never before taken so much time off in my professional life, but doing so allowed me to step back and see the big picture of the work that we do. With all that time on the road, I started to see some important parallels between my trip and what we need to do in the courtroom. Here are five key takeaways.
1. Break things up into chunks. I do not enjoy driving long distances and never have. Sitting in the car for long periods with nothing to do other than stare at the road is difficult, especially in today’s attention deficit culture. The idea of having another four or five hours on the road does not help, but what I found myself doing along the way was breaking the trip into chunks to make things more palatable. For example, on our 6+ hour trip from Yellowstone to Coeur d’Alene, Idaho, I wasn’t focused on how long until we got to Coeur d’Alene. Instead, I focused on getting to Butte, a much shorter distance. From Butte, I focused on getting to Missoula. I created my own mental milestones, which made things much more manageable. Lawyers need to do the same thing at trial where everything is overwhelming for jurors. Jurors need the case broken down into manageable chunks, which will ultimately make it so much easier for them to reach the final destination.
2. Changes in scenery are important. Montana is beautiful but gets monotonous after so many hours on the highway. When we got to Wyoming, there was a noticeable change in the landscape and this change was refreshing. We had something new and interesting to look at, which caused us all to perk up and be more attentive to our surroundings. The same monotony arises at trial. Jurors sit in the same chairs for long hours, stare at the same boring courtroom, listen to the same attorneys stand up and sit down, talking about the same things. Even simple changes can make a big difference. In a long, quiet direct, stand up and speak loud during cross. Build in some graphics. Give jurors something new and interesting to look at. If you are in state court, move around the courtroom as you speak or ask questions. Jurors want variety. It will keep them interested and engaged and you are the only one that can give it that to them.
3. Your world is not everyone else’s world. We live in an egocentric world. This is a fundamental tenet of jury economics: we filter everything through our own experiences, beliefs, and feelings. However, when attorneys do this, the consequences can be devastating. Being a great speaker is all about understanding the unique perspective of your audience and the ability to put yourself in the position of your audience. On our road trip, we traveled through some very interesting places that I never knew existed. It was fascinating to see different communities where people live every day in profoundly different ways than I live my own life. There were many instances where values that I thought were commonly shared by most were not embraced at all by the community. Attorneys need to recognize this and not make assumptions about what the jurors will find interesting, understandable, believable, credible, or important. This is even more important in a polarized world where many people will sit back and remain quiet about beliefs that you might not have ever suspected them of having.
4. It goes much better when you do it together. Our road trip was amazing, but it was even more amazing with my wife and children; it will go down as one of my all-time favorite trips. We all stepped out of our comfort zones, taking more time off than we ever have, driving further than we ever thought we’d want to go, and going to places we had never been. Sharing an experience with someone is powerful and this can happen at trial as well. In our post-truth world of declining trust in all traditional authorities, jurors don’t want to be told what to think. In opening statements, attorneys can change their relationship with jurors. Instead of lecturing jurors on what the evidence will be or what they’ll learn, attorneys should change their language and describe trial as a journey that both the attorney and jurors are on together and talk about what they will likely discover together along the way. This aligns the attorney with the jurors and shifts the psychology of jurors to more open-mindedness. It may sound overly simple and perhaps even silly, but it works.
5. The scariest things are not what you should be most afraid of. Our last big stop before we headed back to Seattle was Yellowstone National Park. Yellowstone’s most famous animal is the Grizzly bear and the idea of running into a Grizzly scares the heck out of a lot of people. In fact, the general stores around the park make a lot of money selling bear spray at $50 a pop to tourists who are most likely never going to see a Grizzly or be in a place where the Grizzly presents any threat to them. The likelihood of seeing a Grizzly is very low and the likelihood of being attacked by a Grizzly is even lower. Instead, the much more dangerous animal in the park is the bison. These animals look lazy and slow. Some think they look cute. However, they can run up to 35 mph, weigh 2,000 pounds, and sometimes get sick and tired of tourists getting too close trying to snap a picture. In fact, the reality is that the most dangerous thing in Yellowstone is yourself. The overwhelming majority of injuries and deaths each year in Yellowstone are caused by people making terrible decisions that seem reasonable to them in the moment. This is such a great lesson for trial. Fear is irrational and can cause attorneys to worry about things that they simply should not worry about. And then, along the way, they make reactionary decisions that put them in real danger. A safe trip to Yellowstone is the result of doing the research ahead of time, understanding what you’re getting into, and not over-reacting. The same is true at trial. At trial, you don’t want to abandon your plan and your common sense and make questionable decisions.