Materials to Accompany the On-Demand CLE Seminar Lessons in Jury Communication Inspired by Clarence Darrow

Transcription

1 Materials to Accompany the On-Demand CLE Seminar Lessons in Jury Communication Inspired by Clarence Darrow Copyright 2012 Barristers Educational Services

2 JURY COMMUNICATION AND COMPREHENSION IN THE AGE OF TELEVISION AND NOW THE INTERNET Teaching is at the heart of jury trials. Throughout the trial, lawyers must teach people things they probably did not know before entering the courtroom. Whether you are imparting technical data, factual information, or legal concerns, it is imperative to help the jury understand the issues and the facts. But, the process of how adults today take in, digest and remember what is explained has been significantly impacted by their exposure to television. The contemporary television-trained audience versus the way lawyers present a case in court is a challenging dichotomy for most litigators. 1 The more successful trial attorneys are successful communicators. The objective of this chapter is to help you become a better communicator by identifying courtroom challenges raised by the reality of how people learn today and to discuss possible communication solutions for trial lawyers. I. The Effect of Television and the Digital Age According to Sonya Hamlin in What Makes Juries Listen 2, few people pursue learning new information after leaving school. Generally, [a]dults tend to stay with what they know and divert themselves from ever really looking at deep basic questions. There is an area of life in which people are continually challenged to learn the news. Almost certainly, the only new information everyone gets and must continue to process daily is the news. Aware of the mental set of the average American adult, the broadcasting industry has spent considerable time and expense in developing techniques to make people learn, understand and pay attention. The news is the only new thing most people have to learn, absorb and understand. Whether it s local, national or international news, the information requires some thought and assimilation, critical appraisal, agreement or disagreement, judgment and decision. [S]tatistics show that 77 percent of all the people in the country get 90 percent of their news from television and 41 percent get all their news from television Hamlin suggests correctly that studying how television reports the news can illuminate what techniques make people learn. Since Ms. Hamlin s study in the 1980 s, the advent of the PC, the internet, and a thousand and one digital devices have accelerated and magnified the television effect on jurors. This disturbing phenomenon is chronicled in Mark Bauerlein s provocative book The Dumbest Generation: How the Digital Age Stupefies Young 1

3 Americans and Jeopardizes our Future (2008). Several studies in Bauerlein s book compared college students in 2002 with their counterparts in 1982 and His thesis is aptly summed up in the book s chapter on Knowledge Deficits. Bauerlein states, The mental equipment of the young falls short of their media, money, e-gadgets, and career plans. The 18-year-old may have a Visa card, cell phone, My Space page, part-time job, PlayStation 2, and an admissions letter from State U., but ask this wired and on-the-go high school senior a few intellectual questions and the façade of in-the-know crumbles. The average high school graduate today, according to Bauerlein, spends virtually no time reading even online. In fact, multiple studies showed that nearly 70% of them are not proficient in reading. Likewise, the vast majority cannot name their mayor, governor, or senator, and half could not comprehend a ballot. Related to all of this is the oft-repeated concern with the growing deficits in the average American s attention span. Two generations of television, now aggravated by the advent of text messaging and Facebook, have forced college professors and ministers to completely re-tool how they get (and keep) the attention of their audiences. Lawyers have no choice but to follow suit if we hope to have any shot with a typical jury. While criticized by many as an example of the dumbing down of American culture, several high-profile churches have resorted to asking their parishioners to tweat on Twitter during the sermon (with the blog displayed on a big screen behind the preacher). Time, June 1, 2009, p. 51. It is merely a sign of the times to which litigators must adapt. A recent survey in USA Today showed that 47% of respondents admit to getting antsy if they go an hour or more without checking their text messages, , or social networking sites. USA Today, May 28, 2009, p.1a. So with the evidence mounting that computers and other digital media are accelerating the television effect, how can lawyers adapt in the courtroom to better reach jurors? Ms. Hamlin has several suggestions that a number of noted trial lawyers swear by. A. Television Techniques to Consider 4 1. Television news stories are short and designed for brief explanations absent in-depth analysis. 2. Television uses magic to suspend time. Television news continually moves from the studio to live scenes on location to a suspended talking head to graphics on the screen. The viewing audience never sees how it gets there. Because of this seamless unexplained movement, viewers have come to believe in and expect 2

4 what seems like magic. Most significantly, this formatting telescopes time and contributes to our raised impatience levels. 3. Television captures the viewers attentions and reinforces the message by using graphics and descriptive written words to identify and clarify what is being conveyed. Though this is a respected teaching technique, it lulls the audience into not working too hard to figure anything out on their own. As a result, people learn quickly that they do not have to listen to carefully because television will tell them again. 4. Television uses visuals as the primary message provider. Words and the spoken language is no longer the principal vehicle for conveying messages. Consequently, television has taught the viewer to demand visual proof pictures. 5. Television edits the visuals that are portrayed so that what looks true is not true. The pictures telecast to the viewing audience are edited by the reporters, their content and angle of presentation are usually carefully selected by editors and directors, even by the location of the cameramen. Consequently, what the viewing audience sees is not pure truth. Time and reality are distorted. 6. Television conditions its viewers to expect the bottom line. Because the talking head is considered boring, it is generally given 30 seconds or less of air time. Thus, what is said is cut, cropped and edited down to the essence of a message decided by the person doing the cutting, cropping and editing. 7. Television provides story tellers who deliver the message in a seamless, almost mistake-free flow of words. Because they are reading a pre-prepared story from a teleprompter designed to give the illusion that they are not reading at all. The viewing audience begins to learn that people do not stumble, falter, think, or try again. 8. Television hardens its audience to privacy, sensitivity, caring and concern. The television camera and reporter s microphone intrude in places, situations and lives where normally we would fear to tread. As viewers, the television audience is uninvolved and becomes passive. Violence and conflict become abstract and commonplace. Unfortunately, in this manner television alters the view of connected, responsible citizenship, the bulwark the jury system depends on. 5 B. How Television Affects Trial Communications The television audience now expects an edited, telescoped version of anything new and unfamiliar. It is also expected that this version be accompanied amply by visual reinforcement. To be an effective communicator trial lawyers need a deeper understanding of the psychology and dynamics of being a juror today. The jurors conditioned reflexes borne largely of the television techniques described above expect 3

5 to be cajoled, tantalized, shocked, titillated and entertained to keep them from reaching for the dial or the OFF button. 6 II. What Jurors Need A. Basic Communication Communication involves both giving and receiving. It is the sharing of a message and the receipt of the message. Communication is a dialogue made up of telling and listening. It cannot be a monologue in which only the speaker is at work. 7 What is it that makes a listener listen? How do trial counsel engage their juries? What makes each of us pay attention to someone or something? What makes each of us listen? People listen when the message is in some way connected to their self interest. Tapping into someone s self-interest increases the likelihood that they will be an attentive, willing, thoughtful audience. To engage a jury trial counsel must discover a means to show their juries what s in it for each of them (W-I-I-F-M or what s in it for me ). B. Knowing the Jury It is helpful to become your audience know, understand, feel for them. This requires you to internalize. (1) What are the jurors anxieties? (2) What are their preformed images of the trial? (3) How do they see themselves? (4) What are their goals? It is the answers to these questions that will help you decide on the most compelling form, tone and text for your message. III. Techniques and Presentation A. Basic Components of Trial Techniques 8 Strong opening Identifying and stating jury s needs and interests Structure explaining where you will taking them and what the content will be 4

6 Organization of material Recognizable language Analogies and/or relevant, familiar examples Rhythm, pace, drama Visualization and;/or using visual aids Audience involvement and participation Warmth Humor Energy level and commitment Succinctness Recapitulation and repetition Memorable close B. Developing a Courtroom Image 9 Jurors actively attempt to make sense out of the courtroom environment. They do this by collecting information and organizing the information in a way that they can understand it. Your courtroom image is much more than your appearance. Trial counsel s courtroom image provides the jury with information through three different channels of communication verbal (word content, word choice, and phraseology), vocal (voice and vocal characteristics) and non-verbal (movement, gestures, appearance, eye and facial behavior). Positioning a case involves consideration of each of these. 1. Positioning a Case Part of developing an image is the courtroom is positioning that image in the minds of the jurors. This requires counsel to focus on the world through the jurors eyes. It is imperative to consider how the jurors identify the characteristics, concepts, and values you want to convey. The psychological persuasion of another person depends on the extent to which information can be presented and linked to the way in which this individual thinks. 10 This requires outside-in thinking. It requires asking: 5

7 How do the jurors think? How will the jurors perceive this? What prior experience do the jurors have that will affect their response? All decisions about a courtroom image made from a positioning concept provide a broader framework in which to view a case. 2. Projecting the Desired Image There are essentially three overall factors to consider with regard to projecting a desired image in the courtroom. These include perceptions of counsel s (a) credibility (competence or expertness), (b) trustworthiness, and (c) dynamism. The perception of credibility is associated with being an expert a knowledgeable source of information. Consequently, where counsel and expert witnesses are concerned, the perception of credibility cannot be underestimated. Trustworthiness is also crucial. While counsel need to be perceived as trustworthy, it is extremely important that the client be perceived as trustworthy. Studies demonstrate clearly that juries are more likely to reward those people they like and trust. The final factor is dynamism. This refers to the charismatic or dynamic quality of an individual. Attorneys who have a natural instinct toward drama or the ability to charm people have what we refer to as a dynamic quality. Groups are able to listen and pay attention to these individuals for longer periods of time. When the normal adult today possesses an attention span of only about 18 minutes, dynamism is helpful. A dynamic individual who captivate and mesmerizes the jurors has the ability to triple the average attention span. Adults generally, and jurors in the courtroom more specifically, do not listen continually. They tune in, and they tune out. It is easy to understand the significance of keeping the pace moving and the information sharing process interesting. Enhancing dynamism or developing dynamic qualities coupled with presenting your case in the most interesting way possible are important in getting your jury to listen to and actually comprehend the message you want to convey. 1 Hamlin, S. (1985). What makes juries listen. Clifton, NJ: Prentice Hall Law & Business. 2 Id. at Id. at Id. at Id. at Id. at Id. 8 Id. 9 Smith, L.J. and Malandro, L. A. (1985). Courtroom communication strategies. New York, NY: Kluwer Law Book Publishers, Inc. 10 Id. at 18. 6