Even when I’m at the movies, I’m thinking about ways for you to win trials. For instance, the movie “Sliding Doors” has a very interesting premise that can be used to select and persuade jurors. It is a graphic example of the story-telling feature that I teach about called the turning point. “Sliding Doors” (which you should see) shows how a woman’s life would have turned out if 1) she had made it on to her subway train and 2) if she missed the subway train because the doors slid shut. This is similar to what you can do with jurors as you lead them through your case.
The turning point happens twice in your opening. The first time is at the end of your introductory comments where you tell the jury how the world ought to be or will be once they have fixed it with their verdict. The second time is at the end of the section in which you lay out your entire case, almost as a reminder of what the jury is supposed to do with all the facts. Without the turning point, all the jurors have is a set of facts, some request from you for a solution (that they initially see as somewhat self-serving), and their own life experiences to guide them. Let me point out the scary part—their own life experiences to guide them. Why scary? Because you can control the facts presented and you can control your own request, but you cannot control their life experiences.
Effective management of the turning point, however, can get you past the scary part. Psychological research strongly suggests that “counterfactual thinking” adds meaning and depth to a person’s experience of a situation. Counterfactual thinking is a technique where you ask a person to describe the opposite of the situation they are now in. For instance, instead of asking, “how did you meet your closest friend?” (which usually elicits a factual response), researchers asked, “What would your life be like if you had not met your closest friend?” This question elicits rich responses revealing motivation, emotion, and a glimpse at a person’s view of fate or destiny.
How does this work in voir dire? As a voir dire question you might ask, “You are here for jury duty today for a case that is supposed to last about two weeks, but what I’d like to know is what would your life be like if you don’t get selected to be on this jury?” You might get some interesting responses about being relieved, about being curious as to the facts of the case they will miss out on, about rejection, about lost opportunity, about fate. Instead of just facts, you will hear responses that give insight into motivation and emotion. You just might unearth that ONE juror who wants to get on the jury because of their own agenda, like tort reform, or out of control verdicts, or “those damn insurance companies.”
How does this work in my opening or closing? When “the why” behind a plaintiff’s or defendant’s actions are not made clear to the jury, then jurors fill in that void with their own (scary) ideas. By creating a counterfactual thinking moment in your presentation, however, you can guide jurors to think more like your client. In a typical plaintiff presentation, the attorney describes the incident that created the need for the trial and the damages the plaintiff suffered. Jurors will either be able to relate to this or not. But, if you create a counterfactual moment for them, they won’t need their own experience to guide them–they’ll be able to see the situation more from your client’s perspective.
At the turning point in the opening, why not say, “Let’s look at this another way. If this accident had not happened, how would my client’s life be moving along today? You will hear from Witness X that Bill’s life would be . . .” This just established your two story lines—one as a result of being in the incident and one that would be cooking along without it. The gap will appear huge and graphic. Now the jury can see WHY your client needs their help. Now the jury can see that their verdict will bring the two story lines back together regardless of whether it is a life they would choose for themselves or not. It is no longer “does Bill deserve the money” or “what will Bill do with the money” or “if we give Bill too much he’ll blow the money.” Now the mindset is “Oh, I get it. It seems pretty clear that $X will get Bill’s life back on that track that it was on.”
Let me ask you, “What will your next verdict be if jurors cannot see the case your way?”
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