Of the top 15 most popular paintings in the world, Leonardo Da Vinci has three [Mona Lisa, The Last Supper, and the Madonna Litta].  No other artist has any more than one in this top group.

What is it about Da Vinci or his process that has led to this dominant, remarkable achievement?  Let’s let him tell us:

“There are painters who work only with practical experience and judgment of the eye, but without the use of reason.  They are like mirrors that reproduce all the objects set in front of them without knowledge of those objects.  But whoever takes up practice without science is like a sailor who boards a ship without a compass and can never be certain where he is going.  Without science, nothing can be done well in painting.”

What “science” is he talking about?  Da Vinci, famously [and illegally] dissected cadavers so he could see the internal structures that supported and gave shape to the outer appearance of his subjects.  He was critical of other artists who “just” painted what they saw on the surface [“mirrors”].  The surface appearance, in his thinking, was not sufficient to get a meaningful point across to the admirer.  Without knowing what was happening below the surface, the artist was “not doing well.”

The parallels to you putting on a persuasive case to your jury struck me.

The art admirer is Da Vinci’s judge. He must persuade the judges to like his work.  He believed that his process would result in more “likes” than “dislikes.”  As it turns out, he was right.

Trial jurors are your judges.  You must get them to like your work.  According to Leonardo, that means you need to use science to get at the underlying structures of your set of facts and the underlying beliefs that your judges hold.

Here are three cases to illustrate:  an oil lease dispute, a nursing home wrongful death, and a death from a defective product–

• On the surface we can easily see . . .
  • Corporate lease holders just get a royalty check each month and don’t have to do any of the dirty day-to-day work to benefit;  [lots of jurors don’t like this]
  • An elderly woman in a nursing home dies from an accidental fall against a space heater;  [lots of jurors will feel sorry for her, but understand this is what happens as we age]
  • A piece of machinery that killed an operator wasn’t defective, it was just used wrong. [lots of jurors like to blame victims]

 

• When we look below the surface, though, we also see . . .
  • Corporations develop lease holdings through years of risky and expensive exploration, negotiations with land-owners, vetting producers, creating contracts, tracking the ages of the leases, regulatory changes, etc.]  Collecting the royalty check is just the pay-off for all that prior work;
  • An elderly patient who was not evaluated fully was placed in a level of care that failed to monitor her movements, giving her unwitting access to the device that killed her;
  • A design “defect” is not a “broken” device; it works, but the designers did not take possible misuse into account and design it away.

Here is where Leonardo helps attorneys.  The science, the dissecting, you do is pre-trial research [focus groups, mock trials, surveys].  Those dissections will tell you how jurors think about your facts. They’ll tell if they like your case or not.  They’ll tell you why.  This information becomes the “compass” Leonardo analogized.  Juror thinking tells you where you need to go with your presentation.

• What happened to these cases once they were dissected?
  • When jurors found out how much up-front work a lease-holder does, the surface argument of “they get something for nothing” quickly evaporates.  Dislike becomes a like.
  • Jurors found out that the elderly woman was not monitored because she was placed in a more independent and expensive area of the nursing home.  When she fell between the bed and space heater and burned to death with nobody there to save her, they changed their opinions completely.  Dislike becomes a like.
• • • By the way, in two separate focus groups with two separate sets of participants, two people raised the idea that maybe this was a suicide.  As preposterous as that was, the fact that it was raised twice in independent groups meant that it was a possible thought that could occur within the trial jury members.  It became a “below the surface” concept that the attorney who did the science knew was possible and could account for.  He never would have dreamed of it as a “thing” had not done the research.  This bizarre “thing” can radically switch liability from the defendant to the plaintiff.  It had to be addressed.  The “thing” was only discovered in the research.
  • Jurors usually think the word “defect” means the device is “broken” or “poorly manufactured”.  When jurors learn that there is a design hierarchy that engineers must follow when developing a product, then that notion of “broken” changes meaning.  The design process is what is broken, not the device itself. Dislike becomes a like.

I apologize for this seemingly self-serving lesson today.  I can help you with your research, as can the hundreds of trial consultants in the country.  It is not my purpose to market my firm in this email.  I wanted to express how floored I was by Da Vinci’s lesson.  When I read it I thought, “that’s what good attorneys do.”  I wanted to pass his lesson on to you.  His insight is critical.  Whether you hire scientists to look beneath the surface of your cases or whether you do it on your own, my message is DO IT.

The Master couldn’t be clearer: “Without science, nothing can be done well in painting.”  His process has made him dominant in his field.  Use his process to be dominant in yours.

*Not only did Da Vinci study the body, he “tweaked” his paint formulas for a desired effect.  This is from a modern X-ray study of the lead element Da Vinci experimented with in mixing his paints.  It shows the presence of lead that he added as a drying agent to enhance the appearance he wanted.  “You understand easily when you analyze his pigments and his compositions that he was truly an experimenter,” says Gilles Wallez, an inorganic chemist at the Chemistry Research Institute of Paris.