A half-eaten bagel hurls across the room at the large screen of mock jurors deliberating in the next room. “I spent at least five minutes talking about that in my presentation!” insists the incensed attorney. Why don’t they understand the proximate cause defense? Were they listening to the attorney who is now half a bagel short of a fulfilling breakfast? Were they paying attention? Or are they just stupid?
There are plenty of clichés that apply: A nickel for every time would make me rich; a drinking game would make me drunk. Sayings aside, this happens…a lot. An attorney gives a long case presentation that includes addressing a key issue, yet in deliberations it never comes up. The attorney throws his or her hands up in the air in frustration. If they spent time explaining it and no one remembers, what else can they possibly do?
One of the differences between an average trial attorney and a great one is the role of salience in their trial strategy and presentation. The topic of salience should be chapter one in any book or course on trial advocacy, yet it tends to get lost in the whirlwind of trial preparation. Persuasion is fundamentally repetition. We’ve known that since the days of Plato and Aristotle, but if dead philosophers aren’t your thing, there is also modern-day psychology and neuroscience. Nobel Prize winning psychologist Daniel Kahneman has conducted a series of fascinating studies on the importance of repetition and familiarity. His studies have repeatedly shown that the more people hear something, the more they trust it, like it, and believe it to be true.
The problem with our bagel-tosser is that, while he certainly addressed the topic in his presentation, he only talked about it once. It was five minutes of his ninety-minute presentation. He had deployed the checklist approach when writing his presentation. Once he added the section on this key issue, he checked it off as done, but once is never enough for a key issue. If you want jurors to remember it and apply it in their deliberations, you need to make it salient.
Here are five simple strategies for enhancing the salience of key issues in your case.
1. Incorporate it into the organizing structure of the case. If it is a key issue in the case, it is not something you should just address. Instead, it should organize the entire case presentation. This can be both overt and subtle. If you believe you win the case on proximate cause, you should repeatedly tell jurors in your opening statement that the fundamental question in the case is, “What caused this to happen?” In closing, you should tell them that this is the first question they should answer when they begin deliberations, before they even look at the verdict form. You should literally tell the jurors how to think about the case. They want this guidance even when they think they don’t.
2. Safe harbors and thematic statements. Once you have developed the organizing structure of your case, you want to develop repetitive language and phrases to be used throughout trial to reinforce your organizing structure. These phrases and key words serve as cues or triggers that bring jurors’ attention back to the key issue (proximate cause in our current example). You should use them in your opening and closing and your witnesses should use them in their testimony. If you are lucky, your repetitive use of them may lead an adverse witness or attorney to adopt them as well.
3. Witness testimony. Sometimes the questions are more important than the answers in witness testimony, particularly when it comes to enhancing the salience of a key issue. The questions in witness testimony are a way for attorneys to talk to the jurors and attorneys should look at their part of the conversation as taking the jurors’ hands and walking them through the issues. The order, language, and structure of witness questions can fundamentally change the way jurors think about the issues in the case. Think of your outline for direct or cross as a guided tour for jurors of what you think is most important in the case. This means you need to help jurors understand why you are asking the question and how it relates to previous or upcoming questions. This is easier to do than most attorneys realize. It can often be accomplished with simple signposting. For example, an attorney might begin a question with, “Mr. Smith, one of the key issues in this case is whether this actually caused this accident, so I want to ask you a few questions about this.” This simple statement tells the jurors what you are doing, why the next few questions are important, and where in their overall view of the case they store the answers to those questions.
4. Visual presentation. When attorneys are willing to let their PowerPoints be something more than just their outline projected onto a screen, strange things start to happen. Endless bullet-points give way to colorful and engaging timelines or graphics that naturally bring jurors’ focus to the critical issues such as proximate cause. Trial graphics should synthesize key issues into simple visual expressions that make the point apparent to the jurors with as little work as possible on their part. You should take your key issue and spend time thinking about how you would visualize that issue and its role in the case.
5. Painful repetition. I’ll start where I began. There is no more rudimentary form of persuasion than repetition. Companies spend hundreds of billions of dollars each year on advertisements in the United States for one reason: they know that repetitive exposure to their product will make us more likely to trust, like, and believe in their products. I know nothing about plumbers, so when one of my boys flushes something stupid down the toilet (most recently a ball), I Google our local plumbers and usually go with the one I recognize from advertisements. I always seem to simply assume them to be better or more legitimate and the reason is familiarity. I’ve heard or seen their ads, so I recognize them, and because I recognize them, I trust them more than the others…all because of repetition. The go-to advice of one of my favorite trial attorneys is: “Tell them what you’re going to say, say it, and then tell them what you just said.”