Publications: Back to Basics: the Three R’s of Persuasive Trial Techniques

Imagine you open your mail at home and receive a mandatory summons to attend a focus group of sorts, one where marketers present their products and you must confer with several strangers about which products to pick. You know nothing about the products before arriving at the presentation, nothing about the presenters, and nothing about your fellow conferees. How are you going to decide?

Congratulations, you have just put yourself in the shoes of the average juror.

Now return to a trial lawyer’s shoes while keeping in mind what it felt like to be a juror. How do we persuade strangers to choose our side? Well, just as Mrs. Johnson taught us in the first grade, it helps to study the Three R’s. Only, in this case, it isn’t Reading, ‘Riting, and ‘Rithmetic. We now have to pay attention to cRedibility, Reliability, and Reasonableness. And, just like the Three R’s we grew up with, the importance of the subjects seems to matter more than the exact spelling.

cRedibility
When forced to choose between competing positions, people usually choose the more credible presenter. A trial is where the focus should shift from making points in a debate in front of a judge—if, indeed, it was ever there—to winning the trust of the jury. This is not a negotiation where you hope the jury splits the difference. It is an all-or-nothing battle to be the person jurors trust when they deliberate. To attain this, you must be accurate, exact, and scrupulous with the facts. A lawyer who wants to get a jury to believe a plaintiff was going 50 m.p.h. in a 25-m.p.h. zone by arguing that the plaintiff was going 80 is not credible and may lose the 50 m.p.h. he hoped for by exaggerating the facts.

When reviewing credibility, it helps to think back to the advice Mom gave you—or would have drummed into you had she known you were going to wind up as a trial lawyer. Remember to follow her advice to the letter.

First, admit what you must, and do it gracefully. It helps your credibility to be human and for your case to have weaknesses. Denying or ignoring the weaknesses makes them larger than they really are. In a recent case, a defense trial lawyer made a fact that as ignored in the plaintiffs counsel’s opening the focus of his opening. “Houston, we have a problem” became his theme to brand the missing fact in the mind of the trier of fact, and it had an impact on the subsequent ruling for the defendants. Like the problem understated by the Apollo 13 crew, the plaintiffs counsel’s failure to address this weakness became a matter of grave concern in the trial.

Second, fight only the battles you can win. The plaintiff must prove all of the elements. So it is better for defense counsel to let one go than fight a losing battle on that one and have that credibility gap hurt her on the rest of the elements. In a medical malpractice case many years ago, the defense lawyer, at the clients’ insistence, fought liability in a case where the doctor had obviously erred and subsequently lost on the amount of damages as well. The jurors told her that they liked her personally but could not support her (lower) damage argument because she had been wrong regarding the liability argument. Several years later—with lesson well learned—the defense lawyer whose client performed the wrong surgery admitted liability and obtained a verdict that was less than she offered to settle the case. Why? She maintained her credibility and focused the case on the lack of real damages.

Mom’s final instruction would be to argue only what you must to win. Do not take on burdens, real or imagined by jurors, that you do not need to take on. Let us hypothesize that your client is a defendant in an armed robbery case. The eyewitness is a widowed 80-year-old woman who testified that she saw your client, from 100 yards away, leave the grocery store at or about the time of the robbery. She had never seen your client before, does not know him, and was not wearing her glasses that night because it was snowing furiously and she had grown tired of wiping them. She lives by herself and loves to help the police, so she listens to her scanner and headed for the grocery store when she heard the initial report. She had walked a block toward the grocery when she saw someone who she now identifies as your client leave. She knows it was him because the person she saw, and your client when she picked him out of the lineup, were both wearing a black jacket. You are now offering your closing. Is she a liar or simply mistaken in her effort to assist the nice policemen who are the only social contact she has had since her husband died two years ago? You know the answer. Take the easiest road to victory. It is the best way to maintain your credibility.

Reliability
Undoubtedly, Mom also would have told you this: if you promise something, you must deliver. Whether it is a fact to be proven, a witness to testify, or a document to be introduced, the fastest way to the dumpster filled with losing lawyers is to fail to deliver what you promised. People like reliability. That is why most people love dogs. Most dogs do not do anything truly useful, but they are always there for you. Often, that is enough.

A useful path to credibility and reliability is to temper your promises. Understatement is often very effective. If you tell jurors that the defendant was speeding and the evidence shows that she was going 80 m.p.h. in a 25-m.p.h. zone, they will be less likely to doubt your credibility on other disputed issues. If, on the other hand, you claim 80 and evidence exists (that the jurors believe) that she was only going 50, you will have suffered an unnecessary hit. (After all, the speed limit is still 25 m.p.h.) So you must be reliable in all respects.

If the trial starts at 9:00 a.m., be there on time. It would not hurt for jurors to see you there at counsel’s table at 8:45, when they walk in. If there is a delay, and there often is, they will know you are not the cause. Have your witnesses ready and available to call when the judge desires. Jurors appreciate a lawyer who does not keep them waiting and who does not waste their time. Get to the point in court with direct and cross, for the same reasons.

Reasonableness
An experienced lawyer once said that in a courtroom there are three sides: the plaintiff’s, the defendant’s, and the truth. He guessed that the truth was somewhere in the middle of the three. This is not to say that everyone lies but rather to acknowledge that no one is 100 percent accurate and that our desires, emotions, and memories draw witnesses’ testimony to the opposite poles rather than toward reality. When presented with polar positions, people look to the more reasonable position as the more likely to be true. In a medical malpractice case about ten years ago, the jurors reported how they resolved such a phenomenon. They heard testimony from experts on both sides regarding the standard of care. They decided where they thought the standard of care should be. However, because they were bound by the jury instructions that the standard of care should only be determined by expert testimony in that jurisdiction and not by common experience, they picked the standard of care that was closest to the one they had decided upon themselves. The defendant won because his expert took a more reasonable position than the plaintiff’s expert.

When in doubt, get back to the basics. They are at the core of any good trial lawyer’s repertoire.

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