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Developing a Strong Trial Theme 12/16/2016
1
The Importance of the Opening Statement –
Strong Trial Themes Through Storytelling
NYSBA – Labor Law Claims, Coverage & Litigation
December 16, 2016
John D. Gilleland, PhD
jgilleland@decisionquest.com
Agenda
Part I
Part II
Part III
Storytelling and the Processing of Information
Persuasion Considerations in Jury Trials
Creating a Persuasive Narrative
2
Developing a Strong Trial Theme 12/16/2016
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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
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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:
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The Trial as Story
Pow
erf
ul
Pow
erl
ess
Bad Good
Loser Victim
Villain Hero
Perceptual Map of Litigants:
Post-Plaintiff
P
D
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The Trial as Story
Pow
erf
ul
Pow
erl
ess
Bad Good
Loser Victim
Villain Hero
Perceptual Map of Litigants:
Post-Defendant
D
P
D
P
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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?
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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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Developing a Strong Trial Theme 12/16/2016
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Having a “zero tolerance policy”
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The need to complain…
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Filtering Information
Attitudes, Experiences, and Preconceptions
Case
Information
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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
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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
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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.
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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
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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/
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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
32
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It is a bit like herding cats…
33
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
42
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…
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Part III: Creating a Persuasive Narrative
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Developing the Story
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Facts Provide the Foundation – Themes Persuade
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Tell me what I need to know…
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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
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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?
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Thematically Speaking
Opening Case in Chief Closing
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Four Areas At Issue
62
1. Complied with the Law
2. The Facts Confirm Compliance
3. Genuinely Believed it Was in Compliance
4. Ms. Smith Simply Got it Wrong
63
Confidential Data Remains Within the Exchange
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64
What Did Barnes and Clark Do?
Barnes and Clark violated the
Exchange’s policies and
procedures.
What is this case about?
Why did it happen?
Why am I here?
Creating a Persuasive Narrative
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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
What is this case about?
Creating a Persuasive Narrative
Why did it happen?
Creating a Persuasive Narrative
– 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?
Creating a Persuasive Narrative
• 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.
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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
jgilleland@decisionquest.com
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