The Importance of the Opening Statement Strong Trial Themes Through Storytelling

Transcription

1 The Importance of the Opening Statement Strong Trial Themes Through Storytelling NYSBA Labor Law Claims, Coverage & Litigation December 16, 2016 John D. Gilleland, PhD Agenda Part I Storytelling and the Processing of Information Part II Persuasion Considerations in Jury Trials Part III Creating a Persuasive Narrative 2 1

2 Part I: How Do Jurors Process Information? 3 Decision Making Psychology DecisionQuest 4 2

3 Scenario Novel and ritualized environment Unfamiliar language Conflicting versions of the facts Asked to make profound decisions 2016 DecisionQuest 5 Mental Process Story developed early in trial Experiences and beliefs used as framework Selectively filter information Expect witnesses to tell them the answer 2016 DecisionQuest 6 3

4 Powerless Powerful Powerless Powerful Developing a Strong Trial Theme 12/16/2016 The Trial as Story Perceptual Map of Litigants: Villain Hero Loser Victim Bad Good 2015 DecisionQuest 7 The Trial as Story Perceptual Map of Litigants: Post-Plaintiff D Villain Hero Loser P Victim Bad Good 2015 DecisionQuest 8 4

5 Powerless Powerful Developing a Strong Trial Theme 12/16/2016 The Trial as Story Perceptual Map of Litigants: Post-Defendant D Villain D Hero P Loser P Victim Bad Good 2015 DecisionQuest 9 Scripts & Schemas 2016 DecisionQuest 10 5

6 Story Elements The Setup - What is this case about? The Confrontation - Why did it happen? The Resolution - Why are we here? 2016 DecisionQuest 11 Five Places Jurors Always Go With Employment Disputes Were corporate policies and procedures followed? Did the plaintiff follow complaint protocol? What about similarly situated employees? How was the termination conducted? What effort has the plaintiff made to mediate damages? 2016 DecisionQuest 12 6

7 Having a zero tolerance policy 2016 DecisionQuest 13 The need to complain 2016 DecisionQuest 14 7

8 Filtering Information Attitudes, Experiences, and Preconceptions Case Information 2016 DecisionQuest 15 Filtering Information Attitudes, Experiences, and Preconceptions Case Information 2016 DecisionQuest 16 8

9 Mental Process Decisions made quickly with relatively little information Jurors focus on a small number of issues and facts Primacy and recency effects Nonverbal vs. verbal cues 2016 DecisionQuest 17 Many Decisions Are Made Via Peripheral Processing Central Route Audience Processing Persuasion Persuasive Appeal Analytical and motivated Peripheral Route High effort: elaborate, agree, or counterargue Cogent arguments evoke enduring agreement Not analytical or involved Low effort: use peripheral cues, rule-of-thumb heuristics Cues trigger liking and acceptance, often only temporarily Response 18 9

10 Perception Is Reality 2016 DecisionQuest 19 Preconceptions Color Perceptions 2016 DecisionQuest 20 10

11 Count the passes on the white shirted team Something as Simple as How Many Passes 11

12 Count the passes on the white shirted team Perception Blindness 2015 DecisionQuest 24 12

13 Perception We see and hear what we want to see and hear DecisionQuest 25 The Changing American Jury 2015 DecisionQuest 26 13

14 Demographic Shift Meet today s juror, so overloaded with information that he can barely focus on the important things in his own life. Chances are, more than half the jurors on any given panel belong to Generation X or, even worse, Generation Y raised with a television in every room, surfing the Internet, cell phones in their pockets and ipods in their ears. Trey Cox, Information Age Saps Jurors Attention, The National Law Journal (February 6, 2009) DecisionQuest 27 Variability in Learning Styles The concept of learning styles suggests there is no one best way to educate every person. Instead, people are presumed to have different strengths and preferences concerning the manner in which they perceive, process and retain information. "Tactics, Ethical Considerations in Leveraging Demonstratives, Rhode Island Lawyers Weekly (February 9, 2009) DecisionQuest 28 14

15 Jurors Must Utilize Visual Imagery The bottom line is that visual images, rather than words, dominate most people s thinking, and visual images are the modality through which most people are most comfortable and best able to learn. "Tactics, Ethical Considerations in Leveraging Demonstratives, Rhode Island Lawyers Weekly (February 9, 2009) DecisionQuest 29 Lawyers tend to think of themselves as orators first but they should really be thought of as presenters 15

16 The Shift to Visual Learning Part II: Persuasion Considerations In Jury Trials 32 16

17 It is a bit like herding cats The Lawyer He looks like Donald Trump, and I can t stand the Donald. He makes a very good point about publicly available information. Who will compensate me for MY losses from the market crash. He blinks a lot and fidgets before he answers tough questions. Top notch credentials and he s kinda cute. I m angry that Wall St. hasn t paid for the problems it caused but this guy is making good points for his case. I m just a cashier, I don t understand his points, but corporate fat cats will lie to save their skin and the company. The Jury 33 The Story Model Jurors actively build stories based on the material presented at trial and then fill the gaps in the narrative with their own personal experience and knowledge. Nancy Pennington, Reid Hastie, Explaining the Evidence: Tests of the Story Model for Juror Decision Making, Journal of Personality and Social Psychology (1992) 17

18 Weak Performance Strong The Process Is as Important as the End Product Cognitive Load Simple Task Focused attention, flashbulb memory, fear conditioning Low Arousal High Difficult Task Impairment of divided attention, working memory, decision-making and multitasking 18

19 Chunking Chunking 19

20 Chunking Chunking 20

21 A Picture Can Be Worth a Thousand Words to Capture a Theme Complaints Against Plaintiff Matt Appel Chief Administrative Officer John Legg Senior Vice President Gil Hollander Senior Vice President (Plaintiff s Direct Supervisor) Alyssa Krahmer Senior Attorney Bridgett Zeterberg General Counsel Lisa Freeman Vice President of Special Events Plaintiff Vice President of Sales Maria Prince Vice President Michelle Chapa Vice President of Merchandising for Wedding Categories Sharon Davis Vice President of Merchandising for Fashion Business Diane Thorton Administrative Assistant Harsh Parekh Director (Independent Contractor) Manoj Tiwari Director of Diamond Sourcing (Plaintiff s Direct Report) Leesa McElroy Director of Talent Acquisition and Store Support Center HR 42 21

22 Trial Calls for Inductive Reasoning Inductive Reasoning Argues from the particular to the general This particular ice is cold and the ice I touched yesterday is cold therefore all ice is cold. 22

23 Inductive Reasoning Lawyer and witnesses present fact one Followed by fact two Followed by fact three, etc. Presumption: Jurors will assimilate all of the facts and be in our favor Schema A cognitive system that helps us organize and make sense of information 23

24 Schema Jurors make sense of the case by creating a story or schemata with the evidence Jurors use their own personal attitudes, experiences, and beliefs Without a schema, juror confusion results Schema Pros Helps jurors organize evidence Helps jurors recall gist and themes Causes jurors to ignore or rewrite the opposing side s evidence 24

25 That s The Pattern I See 2016 DecisionQuest 52 Part III: Creating a Persuasive Narrative 53 25

26 Developing the Story 2016 DecisionQuest 54 Facts Provide the Foundation Themes Persuade 26

27 Tell me what I need to know 2016 DecisionQuest 56 Steps to a Better Story Tell the story before they hear the evidence Identify a clear moral theme Reaffirm what jurors already believe Embrace opponents best facts (preemptive strike) Stay in bounds 2016 DecisionQuest 57 27

28 Themes work to: Organize elements; convey the essence of the dispute Make key evidence salient Suggest motives Advance your theory of the case 2016 DecisionQuest 58 Identifying Your Themes Start with a list of key case issues Construct phrases that characterize the issue Don t have more than just a few main themes The best themes are not always verbal Themes are a crutch that helps jurors piece together the complexities of a case 2016 DecisionQuest 59 28

29 Three Questions To Cover With Your Themes What is this case about? Why did it happen? Why are we here? 2016 DecisionQuest 60 Thematically Speaking Opening Case in Chief Closing 2016 DecisionQuest 61 29

30 Four Areas At Issue 1. Complied with the Law 2. The Facts Confirm Compliance 3. Genuinely Believed it Was in Compliance 4. Ms. Smith Simply Got it Wrong 62 Confidential Data Remains Within the Exchange 63 30

31 What Did Barnes and Clark Do? Barnes and Clark violated the Exchange s policies and procedures. 64 Creating a Persuasive Narrative What is this case about? Why did it happen? Why am I here? 31

32 Creating a Persuasive Narrative What is this case about? In a legal story it s the first two to three minutes of the opening statement Sets climate or atmosphere for the story Critical component as it affects jurors perception of the rest of the story Creating a Persuasive Narrative Why did it happen? ACT (What was done?) ACTOR OR AGENT (Who did it?) MEANS (How it was done?) PURPOSE/MOTIVE (Why?) CONTEXT (What are circumstances?) 32

33 You are the Director If you fail to answer one of the questions jurors have, jurors will do it for you Creating a Persuasive Narrative Why am I here? Jurors will be instructed to evaluate both sides stories A key ingredient of every good story - whether narrative, film, or trial - is conflict This section allows you to loop back to the themes presented - resolving the conflict 33

34 Ultimate Goal Central processing over peripheral processing Stronger/resistant attitudes Provide a compelling story so jurors are more interested in content vs. peripheral factors Storytelling is Paramount: A Case Example 34

35 Case Study Bill is a salesperson for a trucking company and had a company car Drunk driving accident Question about course and scope of employment Turns out Bill had another DWI w/prior trucking company If an employee decides to drink alcohol, drive a company car, and then causes an accident It depends on whether the employee was working at the time. 19% Both the employee and the company are responsible. 52% The employee is responsible for that employee's conduct. 5% The employee is responsible for the accident. 24% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90%100% 35

36 Companies that allow employees to have company cars are always responsible for any injuries the employee causes while driving that car. 100% 80% 60% 40% 40% 33% 17% 20% 10% 0% Strongly agree Somewhat agree Somewhat disagree Strongly disagree Among all the types of drivers on the road, which of the following is the most dangerous, in your opinion? Drivers on cell phones 7% Drivers who speed 0% Drivers who are tired Drivers in trucks and semis 0% 5% Drunk drivers 83% Uninsured drivers 0% Drivers without a license 5% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% 36

37 Prior Themes CZ Trucking conducted a thorough background check on Bill Bunnell CZ Trucking allows its salespeople to use the company vehicles both on and off work and Bill Bunnell was not working at the time of this accident CZ does not allow any drinking while driving company vehicles Bill Bunnell was the cause of this accident, not CZ New Themes Bill Bunnell broke his contract with CZ Trucking Company. Bill Bunnell has a history fraught with deception and lies. CZ Trucking Company s background checks exceeded industry standards. Bill Bunnell dodged the system twice. 37

38 The First Few Minutes of Opening: Start with Bill Bunnell filling out the application and signing the contract. Keep the focus on him details. When the tone is set, shift back to respect for the plaintiffs but CZ s right to be defending itself. Motivate Jurors to Find for Your Client Jurors sought to blame Bill Bunnell but also blame on CZ. Not motivated to find in CZ s favor Unlikely we would get them there directly but perhaps indirectly 38

39 Testable Themes From Actual Cases You may not like my client. He acted as if the rules didn t apply to him. My client doesn t compromise with people that steal. The road to advancement goes through the Assistant Manager position DecisionQuest 80 The Importance of the Opening Statement Strong Trial Themes Through Storytelling NYSBA Labor Law Claims, Coverage & Litigation December 16, 2016 John D. Gilleland, PhD jgilleland@decisionquest.com 39