One of my first jury trials was against a very well-respected and extremely successful trial lawyer known for winning, and winning big. To him, a good trial presented like a good play: Both have a cast, a plot, and a theme. And, like a good play, a good trial keeps the audience engaged.
He didn’t tell a story, he painted one. His case came alive in your mind, never falling flat like a boring presentation. Facts were spoon-fed and weaved into the storyline, his questioning cut to the point, and his theme was highlighted at every opportunity. He entertained.
These have always been the ingredients for successful trial presentation. But today, this recipe is more important than ever because the 21st century is changing the way people share information. At its core, a trial is an information exchange. Two opposing sides deliver information (evidence), place a spin on it, and the receivers (the jury) put their view of the information into a verdict. Considering the ways in which we send and receive information in our everyday lives can be insightful in developing effective trial techniques.
If breaking news can be conveyed over Twitter in fewer than 280 characters, so, too, can many of the facts and issues in a case. Society—especially younger generations—are growing increasingly accustomed to ideas being boiled down into the lowest digestible dose. Anything longer than necessary runs the risk of being lost. “Headlines and memes” is how one Generation Z’er described his generation’s consumption of news. This is how we are expecting information to be delivered to us, whether we are online or in the jury box.
However, simplicity alone will not keep a jury focused in today’s oversaturated digital world. Adolescents coming of age in 2019 have had iPads in their hands since before they could speak in complete sentences. We can hardly ride the elevator without pulling out our cellphones for a distraction. With so much vying for our attention, it has become harder to capture and hold a person’s interest. Lawyers all too often present their evidence without making sure the jury hears it. You can’t prove your case if no one is listening.
Most jurors walk into jury duty with the goal of getting out of it. Leading up to my first trial, my dad took great interest in the process, especially voir dire. “How will you decide who to strike?” he repeatedly asked. I thought he was a proud father. Turns out, he had jury duty coming up and was looking for ways to get booted. In a world with On Demand television, imagine watching a black-and-white movie you don’t want to see.
Attorneys can overcome this by writing a good script and capturing their audience with the opening “scene.” The longer you wait, the harder it is to grab one’s attention, especially in a world of decreasing attention spans. Opening statements often turn into dry recitations of the evidence that will be presented. Just because you cannot wear a costume or break into song doesn’t mean you cannot entertain the jury. Craft a persuasive theme and make your characters compelling; break up your case into acts and scenes and vary the way the evidence is delivered; and engage one’s senses and emotions. Entertainment is at our fingertips 24/7. The more stimulus-filled our world becomes, the more we will come to expect it inside the courtroom.
We’ve all heard of the so-called “CSI-effect,” where modern juries demand the level of evidence they see in forensic television dramas. By the same token, modern juries expect trial lawyers to use modern demonstratives like they see all over the internet. As much as practical, make video reconstructions, interactive technology, and eye-catching graphics part of your case. Jurors tell stories through videos and photos on Instagram and Snapchat daily; feed their cravings for stories in the form of videos and graphics.
Today, anyone can generate content on the internet. Factual and fictional stories are being published side-by-side. As a result, we are growing increasingly skeptical of everything we hear. The effect on trial practice is that lawyers are having a harder time convincing juries. The jurors of yesteryear weighed evidence to determine which side had a more persuasive argument. By contrast, some jurors today view their role in court as a factfinder, there to distinguish truth from falsehood. Fight the fake-news mindset by considering novel ways to increase the perceived credibility of yourself and your witnesses.
The way we share and process information in the 21st century is drastically different than it was 20 years ago. By examining these changes and drawing conclusions from them, trial lawyers can better connect with the modern juror, which is the central aim of every trial.