the importance of the opening statement strong trial

Developing a Strong Trial Theme 12/16/2016

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The Importance of the Opening Statement –

Strong Trial Themes Through Storytelling

NYSBA – Labor Law Claims, Coverage & Litigation

December 16, 2016

John D. Gilleland, PhD

[email protected]

Agenda

Part I

Part II

Part III

Storytelling and the Processing of Information

Persuasion Considerations in Jury Trials

Creating a Persuasive Narrative

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2

Part I: How Do Jurors Process Information?

3

Decision Making Psychology 101

© 2016 DecisionQuest | 4


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Scenario

Novel and ritualized environment

Unfamiliar language

Conflicting versions of the facts

Asked to make profound decisions


Mental Process

Story developed early in trial

Experiences and beliefs used as framework

Selectively filter information

Expect witnesses to tell them the answer



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The Trial as Story

Pow

erf

ul

Pow

erl

ess

Bad Good

Loser Victim

Villain Hero

Perceptual Map of Litigants:


The Trial as Story

Pow

erf

ul

Pow

erl

ess

Bad Good

Loser Victim

Villain Hero


Post-Plaintiff

P

D



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The Trial as Story

Pow

erf

ul

Pow

erl

ess

Bad Good

Loser Victim

Villain Hero


Post-Defendant

D

P

D

P


Scripts & Schemas



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Story Elements

The Setup - What is this case about?

The Confrontation - Why did it happen?

The Resolution - Why are we here?


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?



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Having a “zero tolerance policy”


The need to complain…



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Filtering Information

Attitudes, Experiences, and Preconceptions

Case

Information


Filtering Information

Attitudes, Experiences, and Preconceptions

Case

Information



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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


Many Decisions Are Made Via Peripheral Processing

Audience Processing Persuasion

Peripheral Route

Low effort: use peripheral cues, rule-of-thumb heuristics

Cues trigger liking and acceptance, often only temporarily

Not analytical or involved

Central Route

Persuasive Appeal

Response

Cogent arguments evoke enduring agreement

Analytical and motivated

High effort: elaborate, agree, or counterargue

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Perception Is Reality


Preconceptions – Color Perceptions



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Count the passes…on the white shirted team…

Something as Simple as ‘How Many Passes…’


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Count the passes…on the white shirted team…

Perception Blindness



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Perception

We see and hear what we want to see and hear.


The Changing American Jury



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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)

www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202428037744


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)

http://rilawyersweekly.com/blog/2009/02/09/tactics-ethical-considerations-in-leveraging-

demonstratives/



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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)

http://rilawyersweekly.com/blog/2009/02/09/tactics-ethical-considerations-in-leveraging-

demonstratives/


Lawyers tend to think of themselves as orators first…but they should really be thought of as presenters


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The Shift to Visual Learning

Part II: Persuasion Considerations In Jury Trials

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It is a bit like herding cats…

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Top notch credentials

and he’s kinda cute. He blinks a lot and

fidgets before he

answers tough

questions.

He makes a very

good point about

publicly available

information.

Who will compensate

me for MY losses

from the market

crash.

I’m angry that Wall St.

hasn’t paid for the

problems it caused

but this guy is making

good points for

his case.

He looks like Donald

Trump, and I can’t

stand the Donald.

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 Lawyer

The Jury

The Story Model

Nancy Pennington, Reid Hastie,

“Explaining the Evidence: Tests of the Story Model for Juror Decision Making,”

Journal of Personality and Social Psychology (1992)

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.


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The Process Is as Important as the End Product

Cognitive Load

Arousal High Low

Per

form

ance

W

eak

Str

on

g Simple Task

Focused

attention,

flashbulb

memory, fear

conditioning

Difficult Task

Impairment of

divided attention,

working memory,

decision-making

and multitasking


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Chunking

Chunking


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Chunking

Chunking


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A Picture Can Be Worth a Thousand Words to Capture a Theme

Complaints Against Plaintiff

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Plaintiff Vice President of Sales

Alyssa Krahmer Senior Attorney

Bridgett Zeterberg General Counsel

Lisa Freeman Vice President of

Special Events

Maria Prince Vice President

Michelle Chapa Vice President of Merchandising

for Wedding Categories

Sharon Davis Vice President of Merchandising

for Fashion Business

Matt Appel Chief Administrative Officer

John Legg Senior Vice President

Gil Hollander Senior Vice President

(Plaintiff’s Direct Supervisor)

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

Diane Thorton Administrative Assistant


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Trial Calls for 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.

Inductive Reasoning


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• 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

Inductive Reasoning

• A cognitive system that helps us organize

and make sense of information

Schema


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• 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

• Helps jurors organize evidence

• Helps jurors recall gist and themes

• Causes jurors to ignore or “rewrite” the

opposing side’s evidence

Schema “Pros”


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That’s The Pattern I See…


Part III: Creating a Persuasive Narrative

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Developing the Story


Facts Provide the Foundation – Themes Persuade


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Tell me what I need to know…


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



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Themes work to:

Organize elements; convey the essence of the dispute

Make key evidence salient

Suggest motives

Advance your theory of the case


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



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Three Questions To Cover With Your Themes

What is this case about?

Why did it happen?

Why are we here?


Thematically Speaking

Opening Case in Chief Closing



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Four Areas At Issue

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1. Complied with the Law

2. The Facts Confirm Compliance

3. Genuinely Believed it Was in Compliance

4. Ms. Smith Simply Got it Wrong

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Confidential Data Remains Within the Exchange


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What Did Barnes and Clark Do?

Barnes and Clark violated the

Exchange’s policies and

procedures.


Why did it happen?

Why am I here?



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• 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



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?)


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You are the Director

If you fail to answer one

of the questions jurors

have, jurors will do it for

you…

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


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• Central processing over peripheral

processing

• Stronger/resistant attitudes

• Provide a compelling story so jurors are

more interested in content vs. peripheral

factors

Ultimate Goal

Storytelling is Paramount: A Case Example


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• 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

Case Study

If an employee decides to drink alcohol,

drive a company car, and then causes an

accident…

24%

5%

52%

19%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90%100%

The employee is responsible for theaccident.

The employee is responsible for thatemployee's conduct.

Both the employee and the company areresponsible.

It depends on whether the employee wasworking at the time.


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40%

33%

17%

10%

0%

20%

40%

60%

80%

100%

Strongly agree Somewhat

agree

Somewhat

disagree

Strongly

disagree

Companies that allow employees to have company

cars are always responsible for any injuries the

employee causes while driving that car.

Among all the types of drivers on the road,

which of the following is the most dangerous,

in your opinion?

5%

0%

7%

0%

83%

0%

5%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Drivers without a license

Uninsured drivers

Drunk drivers

Drivers in trucks and semis

Drivers who are tired

Drivers who speed

Drivers on cell phones


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• 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

Prior 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.

New Themes


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• 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.

The First Few Minutes of Opening:

• 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…

Motivate Jurors to Find for Your Client


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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.


The Importance of the Opening Statement –

Strong Trial Themes Through Storytelling

NYSBA – Labor Law Claims, Coverage & Litigation

December 16, 2016

John D. Gilleland, PhD

[email protected]

the importance of the opening statement strong trial

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