Overcoming Jury Bias Page 4

Table of Contents
Page 2 | Page 3 | Page 4
Previous Page

4. Verbal Tools of Structure – In structuring a persuasive presentation of any type, the skilled advocate will do well to study carefully the master orators and persuaders from the past: Pericles, Cicero, Demosthenes and from the present: John F. Kennedy, Martin Luther King, Teddy Roosevelt and the master of them all, Winston Churchill.

For American lawyers, studying Churchill’s effectiveness as a speaker, brings us full circle to Churchill’s early training as an orator. Churchill acknowledges that his role model as an orator was a New York attorney and congressman, Bourke Cockran, whom he met when he visited New York in 1895. Churchill states that “it was an American statesman who inspired me and taught me how to use every note of the human voice like an organ. He was my model. I learned from him how to hold thousands enthrall”.

One of the most important lesson which Cockran taught to Churchill is equally important as a lesson for all attorneys today. Cockran stated “Only a speaker who is sincere can be eloquent, because sincerity is the name of eloquence. What people really want to hear is the truth – it is the exciting thing. Speak the truth.”

The preparation technique which Cockran explained to Churchill is equally applicable to advocates today, i.e., to study in great detail everything he could learn about his subject; to carefully store and order in his mind the materials; to simplify the most difficult issues with carefully selected examples and illustrations; to concentrate on the strongest points, and in delivery, to build the material up to an irrefutable conclusion. After a career during which he received innumerable distinctions, Winston Churchill, the only person ever to receive a Nobel Prize with a citation for oratory, was kind enough to list the seven rules that he had followed in order to achieve his level of almost unparalleled eloquence. These rules are certainly useful for those of us who seek to achieve our most persuasive level before juries. Churchill’s rules include the following:

  1. Know, respect and love the English language.
  2. See and hear eloquent speakers in action and study the text of their speeches.
  3. Endure your handicaps if they can’t be cured and turn them to your advantage.
  4. Read good books to broaden your mind and stimulate your thinking, since much of eloquent speaking depends on both knowledge and thought.
  5. Be sincere and use rhetorical devices to help your audiences understand and remember what you say, and to stir their emotions.
  6. Put forth your best efforts to prepare your speeches and seize every possible opportunity to practice them.
  7. Let your feelings or personality show in your speeches.

Top of Page

Remember that the goals which we seek to achieve in structuring our messages include simple communication which aid jurors to understand, empathize, retain and act upon the information which we convey to them.

a. Power Word ChoicesWords are the tools of the trade of the trial lawyer. Just as the plumber must choose precisely the right sized wrench, the trial attorney must choose precisely the right word from many with similar meanings. We are well advised to remember the advice of Mark Twain:

Use the right word, not its second cousin. The difference between the almost-right word and the right word is really a large matter – it’s the difference between the lightning bug and lightning. A powerful agent is the right word.

The great orators in our history have unanimously extolled the virtues of precise word selection. Franklin D. Roosevelt, in his famous radio address announcing Japan’s sneak attack on Pearl Harbor, originally wrote the opening line: “December 7, 1941, a day that will live in world history.” Upon reflection, he changed the broad term “world history” to the more precise word, “infamy”, which connotes not only the historical event but the contemptuous attitude which the American public held towards the Japanese sneak attack.

“Words are the most powerful drug used by mankind. Not only do words infect, egotize, narcotize and paralyze, but they enter into and color the minutest cells of the brain” according to master wordsmith, Rudyard Kipling.

In order to maximize the effectiveness of the presentation to the jury, the skilled advocate must carefully consider the selection of the language of the case before each trial. There are impact words which are generic and can be used in every case but the development of catch phrases, or lay synonyms for technical language and medical terminology must be considered. There are several word choices to make, including impact words, catch phrases, logical or emotional words, short, long, old and new words, technical or lay language and significantly, the specific language of the case. In making these selections the attorney must also consider the particular make-up of the jury to whom the words are being addressed. Another consideration is the comfort level of the attorney in using the words “chosen”. It is more persuasive to speak with rhythm and fluidity than to stumble over words with which the speaker is unfamiliar or has difficulty pronouncing. Counsel should also be cognizant of the possible synonymous meanings of a word since twelve jurors will be selecting their own definition and applying their own understanding to a word with numerous synonymous meanings. Remember, clarity is the goal, to convey to the judge and all twelve jurors precisely the message, since, as the German poet Goethe stated “everyone hears only what he understands”.

In word selection, consider both denotative meaning and connotative meaning of each power word. The denotative meaning is the precise meaning as defined in the dictionary. The connotative meaning consists of the ramifications which can be associated with the word. For example, “home” denotes the residence where a person lives but connotes far more, the comforts, privacy, warmth and intimacy of a person’s “castle”. Be specific and concrete in word selection.

The precise selection of words, metaphors, analogies and other rhetorical devices should be assimilated during trial to the specific type of jury before whom you are trying the case. In advance of trial, in establishing the language of the case and the rhetorical devices to be used, create alternatives which fit different types of juries. For example, if you draw a jury, the leadership of which is white collar business, you may choose not to use the same language of the case, metaphors and analogies which you would use if the jury leadership is blue collar, labor union members. Thus, it is necessary to review your word selections, analogies, metaphors and other rhetorical devices after voir dire examination and after you have learned as much as possible about the members of your jury so as to utilize language which will be most readily accepted, understood, retained and recalled by these particular jurors.

We use focus groups to establish the language of the case and to test arguments and rhetorical devices. While the use of focus groups in litigation is a recent innovation, the same concept has been in use by great advocates and orators for centuries. Consider the test which Abraham Lincoln used in his selection of language:

I was not satisfied until I had put it in language plain enough, as I thought, for any boy I knew to comprehend. This was a kind of passion with me, and it has stuck by me; for I am never easy now, when I am handling a thought, until I have bounded it north and bounded it south, and bounded it east and bounded it west.

As advocates, we should replace Lincoln’s “Any Boy I Know” test with choice of language of the case designed to persuade our particular jurors in each individual case, taking into account all that we know about each of the jurors which we have learned on voir dire examination and through careful observation of their non verbal communication in and out of the courtroom, throughout the trial.

Top of Page

In careful word selection we must distinguish between general versus specific; abstract versus concrete; short versus long; emotive versus logical; technical versus lay; old versus new; familiar versus jargon; and give additional thought to such matters as to whether to use slang or vernacular.

(1) Abstract vs. Concrete – In word selection, we have to choose specific words as well as specific terms. A word choice may be the difference between an “accident” or a “crash”. Careful consideration of phrases leads a plaintiff’s lawyer to totally avoid the use of “medical malpractice case”.

In the choice of words with impact, a good starting point is to consider concrete words rather than abstract terms. Concrete words are those which refer to the use of our five senses, i.e., what we see, hear, touch, taste and smell, for example: scarring, screams, singeing, acrid or pungent. Abstract words create no tangible image and include such vague terms as justice, equity, liberty, and democracy. The problem with the attorney’s use of abstract words is that if you ask twelve jurors to give a definition of justice, you would get twelve completely different answers because each juror would interpret justice in terms of their own background, experience, education, ethnicity and intelligence.

Therefore, concrete words are more persuasive by their nature than abstract terms, particularly in group persuasion, and should be carefully selected by counsel to convey the proper concrete message.

(a) Simulative Concrete Words – The most effective use of concrete words is to use those which simulate the action generally rely upon the opening consonants to compel the lips to move forcefully to suggest the sounds. Examples for use by attorneys include crash, crunch, crush, blast, blare, flicker, flame, or flare; shimmer, shiver, or shutter; fizzle, sputter, splash, roar, whistle, hush, whoosh or gurgle. These are words that create vivid mental images in the minds of the listener and have the added advantage of being very familiar, simple and easy to recall. Words such as crash, crunch and crush are very specific and lead to very little controversy with respect to their precise meanings.

(b) Deliberative Abstract Terms – Not only should we carefully choose concrete words, but the better part of discretion dictates that we should avoid the use of abstract words. Abstract words such as justice are left brain, contemplative words which lead to philosophical debates and discussions, precisely the opposite of the goal which we as attorneys have in persuading jurors. Our goal is to mold the minds of the jurors into a cohesive mindset, culminating in complete accord on our side of the issue. Our purpose is not served by using words which stimulate debate. Once again Abraham Lincoln, demonstrating his brilliant understanding of the persuasive techniques that carried him to the White House and into the world’s history books, explains the problem with abstract terms:

We declare for liberty; but in using the same word, we do not all mean the same thing. With some, the word liberty may mean for each man to do as he pleases with himself and the product of his labor, while with others, the same words may mean for some men to do as they please with other men and the product of other men’s labor. Hereto, not only different, but incompatible things, called by the same name – liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names – liberty and tyranny.

In choosing the language of the case, choose carefully concrete words which most specifically describe the idea which you are trying to convey and avoid abstract terms which will merely move your jury to unwanted debate and philosophical discussion.

(c) Persuaded Word Selection and Avoidance – As a result of the extensive preload which has been imposed upon jury panel members before they walk into the courtroom through the mass media efforts of the insurance industry, the manufacturers of defective products, chemical companies and the health care professionals, there are numerous impact words which must be avoided by the plaintiff and which should be frequently utilized by the defense in particular types of cases. For example, the term “medical malpractice” will conjure up in the minds of many prospective jurors that, 1) this is the type of case that is driving up my health care costs, 2) this is why doctors are leaving medical practice, 3) this is why the elderly can no longer afford insurance, and 4) most of these cases are frivolous. Obviously a medical negligence defense lawyer should utilize the term as often as possible. However, the plaintiff’s attorney must speak in terms of “this is an ordinary negligence case that involves the failure by the doctor to meet the standard of medical care in this community. It is a simple medical negligence case. Nothing more, nothing less.” In the automobile collision case, the plaintiff should never use the term accident. An accident connotes an occurrence which was not the fault of anyone. For the plaintiff the event was a high impact collision, a crash that resulted in the crunching of metal on metal and the crushing of the life from the driver.

Top of Page

There are other circumstances where the industry language may be unfortunately misleading and must be avoided. For example, in the entire area of closed head injuries, the language used by psychologists and neurologists to describe the nature and extent of the closed head injury are mild, moderate and severe. A plaintiff’s attorney describing to a jury a moderate closed head injury will not “execute the required level of emotion” as Aristotle recommended 2300 years ago. The plaintiff’s attorney should advise the neuropsychologist, psychologist or neurologist who is testifying with respect to the injury of the plaintiff to use terms other than mild, moderate or severe and to avoid the use of the term “closed head injury”. Instead, more accurately descriptive terms such as permanent, irreversible brain damage go further to describe to the jury the true situation with respect to the plaintiff’s plight.

In describing our own work we should give thought to our role as we stand before a jury. Would you prefer to portray yourself as an asbestos lawyer or an environmental lawyer; a product liability lawyer or a product safety lawyer; a criminal defense lawyer or a constitutional rights lawyer. The idea is to identify the adverse words which may be used during the trial and soften those which support perceptions adverse to your position and strengthen those which aid you in explaining your client’s position to the jury.

(2) Catch Phrases – A catch phrase is an innocuous term which has been reworded so as to turn it into a thorn in the side of your opponent.

An example of a meaningful catch phrase is found in a case in which a customer in a grocery store bent down to pick up a package of candy off of the bottom shelf of a multi-tiered candy counter which was complete with shelf extenders with bags of candy attached. As she bent down she impaled her eye on one of the metal shelf extenders which was completed concealed by the cellophane packages. In preparation for trial it was realized that the term shelf extender was an innocuous meaningless term which would not “execute the required level of emotion”. During the course of deposing the company employee who loaded the candy onto the display counters, he was asked what the company called the shelf extenders. He replied “we call those profit pegs”. Profit pegs became the perfect catch phrase in the trial for the reason that those two words “profit pegs” perfectly embody the theme of the case, which is corporate greed over consumer safety.

The skilled attorney will give careful consideration to locating and utilizing catch phrases. Catch phrases may often be found by searching the literature of the defendant. For example, Clark Equipment Company, the manufacturer of forklifts which have a tendency to tip over and either severely injure or kill the driver when the top of the forklift crushes the skull or various parts of the body, refers to that crushing phenomenon as “the fly swatter effect”. This is found in their literature and demonstrates a rather cavalier attitude towards a problem which has rendered a number of their users paraplegic, quadriplegic, severely crippled or dead. Additionally, the fact that they have bothered to create a term for the phenomenon and include it in their literature, demonstrates clearly that they are familiar with the problem but chose to take no action to correct it.

Before each trial, search through the language of the case to determine if there is an innocuous term which you can develop into a thorn in the side of the opposition. Catch phrases are easy to create, easy to remember and easy to argue.

Top of Page

(3) Emotive Words – Emotive words are those words whose interpretation may be clouded by preloads; which invoke attitudes of hostility or which incite feelings which are rooted in such adverse emotions as prejudice or fear. Such words as demagogue, shyster, hick, wetback, dictator or quack have implicit messages which are derived from temperament, prejudice, background or experience of the jurors who hear such words.

Such emotive words are dangerous to use in the courtroom because they barricade the simple communication which we attempting to achieve with jurors. We encounter the additional problem that such words are generally chosen for the purpose of appealing to prejudice and have little to do with factual persuasion. Since we are proscribed to make prejudicial appeals, the avoidance of emotive words is recommended.

(4) Logical vs. Emotional Words – There are right brain emotional impact words and left brain, contemplative, philosophical words to describe the same event. For example, justice versus injustice. Justice is a left brain logical word which invites contemplation and philosophical discussion. It implies no call for action and seeks no remedy for a wrong. However, injustice is a right brain, emotional word which causes offense. It stirs people to action and inspires people to right a wrong.

If Martin Luther King had stood in his pulpit in Atlanta and called for “justice for the blacks in America”, he would probably still be doing it. However, Dr. King chose to go into the streets, be attacked by police dogs, knocked down by fire hoses, placed in handcuffs, thrown in jail and subjected to numerous other indignities, all for the purpose of demonstrating injustice. His demonstration of injustice stirred people to action and has caused many of the wrongs which he confronted to be corrected.

The skilled attorney should give careful thought to whether you choose to make a left brain appeal by utilizing logical words or whether you wish to make a right brain call to action by utilizing emotional words. Obviously, both appeals should be prepared and a combination of logical and emotional words should be part of the language of your case.

(5) Short, Long, Old & New Words – In deciding whether to use short words or long words, once again the best advice comes from Aristotle: “what we need is a mixed diction”. Through the careful mixing of short and long words, we gain the advantages of impact provided by the short words and rhythmic flow provided by long words. A review of some of the world’s greatest literature indicates that the use of short words, preferably one syllable, is replete in the works of many of the greatest writers. Shakespeare understood the use of rhetorical devices as demonstrated in Shylock’s powerful speech in the Merchant of Venice in which fifty-seven of the sixty-six words are one syllable. Page 33, supra.

Abraham Lincoln understood very well the power and effectiveness of one-syllable words. Consider the Gettysburg address, one of the most powerful and beautifully structured speeches in history, in which Lincoln conveys his message in 270 words, 203 of which (75%) are one syllable.

(Address delivered at the dedication of the Cemetery at Gettysburg)

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that nation might live. It is altogether fitting and proper that we should do this.
But, in a larger sense, we can not dedicate–we can not consecrate–we can not hallow–this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us–that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion–that we here highly resolve that these dead shall not have died in vain–that this nation, under God shall have a new birth of freedom–and that government of the people, by the people, for the people, shall not perish from the earth. November 19, 1863

An interesting historical footnote concerning this address is that Abraham Lincoln did not deliver the Gettysburg address. The principal speaker at Gettysburg was Dr. Edward Everett, the President of Harvard College, who spoke for more than two hours while Lincoln delivered his “Remarks by the President of the United States” in 10 sentences, comprised of 270 very carefully selected words.

Winston Churchill recognized the power of short words but also suggested that “old words are best”. The reason Churchill was devoted to the use of old words was their value in serving as an effective means of communication. Older words have the ring of familiarity and lead to clarity of understanding.

Top of Page

(6) Bilingual: Technical & Lay – It is necessary for the skilled attorney to be conversant with both the technical language to be used in the case and the layman’s translation which the jury will need. However, the attorney must overcome the desire to show off his or her technical knowledge and remember the maxim to “communicate simply” with jurors.

While we often encounter technical language in product liability, toxic tort and many other types of cases, the place where technical language occurs most frequently for the personal injury lawyer is in the medical field. In Marshall Hout’s excellent treatise, Lawyers Guide to Medical Proof, he gives two wonderful examples of medical jargon at its worst:

  • In a wrongful death case the plaintiff’s lawyer had to call the doctor who signed the death certificate. After the preliminaries, the exchange on the substantive question of death went:
    • Q. Now, Doctor, can you, in popular language, tell us what the cause of this man’s death was?
    • A. (Uncertain) You mean, I presume, the causa mortis?
    • Q. (Pleading) Well, Sir, it was my hope that you could put it in common down-to-earth, everyday, lay language that we could all understand. Can you please tell us what caused this man to die?
    • A. (Supercilious and condescending) Well, it will be difficult but, I can try. The cause of death was cerebral edema, caused by thrombosis, or perhaps embolism, secondary to generalized arteriosclerotic brain disease moderate to severe, secondary to a subphrenic abscess, following a cholecystectomy.
    • A JUROR: Well, I will be damned!
    • THE COURT: Sir, I will not tolerate the use of such language in my courtroom and must caution you against any further outburst. Normally, I would find you in contempt and levy a fine. However, since you have done nothing more than give audible expression to a thought which wells up in the court’s own mind, I cannot find it in my heart to punish you.

While this was an actual example from a trial, the poet, as is so often true, captures the essence of the problem in the following doggerel:

  • With an erudite profundityAnd subtle cogitabundity,The medical expert testifies in Court;Explains with ponderosity

    And keen profound verbosity,

    The intricate nature of the plaintiff’s tort.

    Discoursing on pathology,

    Anatomy, biology,

    Opines with patient’s orbit suffered thus:

    Contusions of integuments

    With ecchymosed embellishments,

    And bloody extravasation forming pus.

    A state of tumerosity

    Producing lacrimosity,

    Abrasion of the cuticle severe;

    All diagnosed externally,

    Although, he feared internally

    Sclerotic inflammation might appear.

    The jury sits confused, amazed,

    By all this pleonasm dazed,

    Unable to conceive a single word;

    All awed, they think with bated breaths

    The plaintiff dies a thousand deaths.

    What agony, what pain he has endured!

    Said then the counsel for defense,

    Devoid of garrulous eloquence,

    Would I be correctly quoting you

    To say his eye was black and blue?

    To this, the doctor meekly answered,


Top of Page

(7) Use of Jargon – In litigation we encounter the necessity to explain to jurors the nuances of numerous professions, occupations, product designs, medical procedures and innumerable other areas in which jargon has been developed by members of the group to communicate with each other. As a general proposition, it is best to avoid the jargon of a particular field in communicating with a jury simply because such jargon requires additional explanations. It is more efficient in terms of communication to identify lay terms which are synonymous with the jargon and use those lay terms in communicating with the jury.

(8) Slang – As a general proposition it is better to avoid slang in courtroom communications. Some slang is offensive, has double entendre meanings and creates images which may not be consistent with the goals of the speaker. It is generally better to use simple language which will more clearly convey to your listeners precisely your message without running the risk of offending your listeners.

(9) Vernacular or Colloquialism – Using the vernacular which is peculiar to a region may be helpful in communicating to the jurors from that region, however, the attorney should attempt to use vernacular only when it can be done so comfortably and with a clear understanding of all the possible ramifications of the vernacular. A native, hometown advocate can communicate effectively with native, hometown jurors by using the vernacular of the village. However, an outsider attempting to ingratiate himself to jurors through the use of local vernacular runs the risk of being spotted as a manipulator, and not having a clear understanding of all of the possible ramifications of the vernacular term. The simple suggestion is to avoid the vernacular unless it is clearly understood and comfortably used by the attorney.

(10) Language of the Case – If we are to communicate simply and successfully with jurors, the most effective way is to speak to them in their own language. Each case has its own peculiarities with respect to the language describing the events and the resulting damages.

As you discuss the case with the jury on voir dire examination, listen very carefully to the specific language which the jurors use in talking about the events, this type of injury or any other relevant parts of your theme.

One of the many valued services which focus groups can perform is to educate the attorney with respect to the language of the case. The technique is to give the focus group a simple, bland description of the events of the case and encourage them to talk about the case in terms of the questions which arise in their minds; their opinions about this type of litigation generally and this case specifically, and whatever other focuses you are attempting to achieve from the group. However, listen very carefully to the phrases and terminology which the focus group members use in talking about your case. This will give you the language which laymen use, understand and accept in discussing this case. You then adapt that language into your voir dire examination, opening statement, witness examination and summation as a vital part of presenting your messages and themes to the jury in simple, communicable, lay language.

b. Analogies – Analogies are an extension of the two other comparative tools, metaphors and similes. The analogy, while being used to communicate a point clearly by comparison, stretches further than the metaphor or simile. Analogies often require more lengthy storytelling than a simple metaphor or simile but the end result is that the analogy most often will be the most effective means of clearly communicating a point to the jury.

It is suggested that analogies from everyday life and from the national press make excellent realms of comparison to the value of human life or the experiencing of physical pain and suffering and mental anguish. Analogies should be assimilated to the particular jury to which they are being argued. There are very effective sports analogies, art analogies and other types of analogies which can be used for comparative purposes. Consider the following analogy that was used in arguing damages for the death of a child:

What is this child’s life worth in our community? Counsel says 4 million dollars is too much money. However, ladies and gentlemen, we live in a society in which 82.5 million dollars was recently paid for paint on canvas. Why? Because it was the work of a master, Van Gogh. Ladies and gentlemen, if paint on canvas is worth 82.5 million dollars in our society because it is a masterpiece, is the greatest creation of the greatest master of them all, God’s creation of a child, worth at least 4 million dollars in our community?

Sports analogies are particularly effective today because of the extremely inflated salaries which sports stars are receiving for playing children’s games. Consider the following which was used in an argument shortly after the Spinks-Tyson fight:

Ladies and Gentlemen, what is the reasonable sum of money to compensate this young man for the mental anguish which he will endure every day of his life for the next fortyfive years as he sits confined as a prisoner in his wheelchair as result of the negligence of this defendant. Is 10 million dollars enough? We ask you to judge this by the standards of our society. We live in a society in which 23 million dollars was recently split by two men, Spinks and Tyson for 91 second in a boxing ring. If 91 seconds of dancing and punching each other is worth 23 million dollars can 10 million dollars even begin to compensate this plaintiff for 45 years of mental anguish?

Johnny Carson said that he had the world’s easiest job. He simply read the paper each day and his monologue leapt out at him. The same is true with the use of analogies in summation. It is suggested that counsel should maintain a summation notebook that is filled with anecdotes and matters of common public knowledge. Use these as a basis of establishing societal standards from which to argue the reasonable value to compensate for catastrophic injury or death.

Analogies may be used to explain a point of law. For example, in an effort to explain the law of non-delegable duties in order to make the jury understand why a department store owner could not abrogate its responsibility to maintain its elevator in safe working condition by simply signing a contract with an elevator maintenance company, the following analogy was used:

Simpson’s department store owes a direct duty to its customers to maintain the elevators in safe working condition. They would have you believe that they met their obligation by simply signing a contract with an elevator maintenance company. However, the law says differently. The law says that Simpson’s cannot delegate their responsibility to the elevator company. Many of you may remember the sign that President Harry S. Truman had on his desk “The Buck Stops Here”. The law places that same sign on the desk of Simpson Department Store and tells them that “the buck stops here” when it comes to providing safe elevators for their customers.

The analogy is also a helpful tool in arguing the 5% disability case:

Counsel says that the plaintiff is suffering only a 5% disability. However, the 5% figure is meaningless because the defendant did not inflict an injury solely on the plaintiff’s low back. The 5% figure is meaningless when an injury occurs which afflicts physical pain and suffering and mental anguish on a worker to such an extent that it incapacitates him from performing the usual tasks of his job. The 5% figure is meaningless when we consider the effect of the back injury on the whole man. The 5% figure is meaningless when we consider where the 5% is located in the body. Mr. Jones is injured at L4-L5, the work horse part of the back; the portion of the body that is used for bending, lifting, stooping, and the many other tasks that Mr. Jones had to perform on a daily basis.

What is a 5% disability? The 5% figure is meaningful only when we consider the effect of the 5% on Mr. Jones’ overall performance. For example, look at the clock on the courthouse wall. If that clock malfunctioned to the extent of 5% beginning now, by the time we return to this courtroom tomorrow at this same time, the clock would be 72 minutes behind; two days from now would be 144 minutes behind; three days 216 minutes, and then four days, the clock would be almost 5 hours behind. Mr. Jones experiences the same type of difficulty as he attempts to return to work and perform his usual tasks and finds that he gets further and further behind every day. The 5% figure is meaningless.

The same type of analogy can be used while demonstrating a sense of humor by good-naturedly poking a bit of fun at the defense counsel, in this fashion:

Counsel ridicules the plaintiff’s claim of a 5% disability to the body as a whole. However, if counsel takes his wife and two children on a boat in Galveston Bay this weekend and his wife spots a hole in the bottom of the boat with water pouring in, I have to wonder if counsel would tell his wife, “Don’t worry, dear. That hole only represents a 5% disability to the boat as a whole.”

Top of Page

Just like the water rushing in to sink the boat, the physical pain and mental anguish which Mr. Jones is experiencing on a daily basis is sinking him financially, is sinking him physically and is sinking him emotionally. Only you as a jury can throw him the life buoy before he drowns in the disabilities which have resulted to him from his injury.

A variation on this theme is the small leak in a chemical plant; a chip in the heel of a winning race horse; a small tear in a priceless da Vinci painting; a small cigarette burn in the new dress; a thorn in the paw of the mighty lion which incapacitates it; the small leak on the nuclear plant which represents only a 5% malfunction of the structure as a whole; a rotator cuff injury to Nolan Ryan’s pitching arm, only 5% disability to the body as a whole, or, one which is easy for our jurors to identify with, a pebble in the shoe which annoys and distracts you throughout every minute of every day when you’re on your feet, whether working or playing.

In a case involving the cut tendon and ligament, the analogy is to a puppet which breaks the string that controls the use of its arm. Analogy is drawn to the manner in which tendons, ligaments and muscles work like the string of a puppet. However, with the puppet you simply have to replace the string, but the tendon or ligament which limits motion cannot be repaired but will develop scar tissue which will render the disability permanent.

In death cases, the effective analogies are to the incredible amounts of money which we spend in our society to protect or save the life of one person. We could have flown to the moon long before Neil Armstrong landed, and at much less expense, if we had been willing to sacrifice the lives of two astronauts by leaving them there. Landing on the moon was the simple task compared to the Herculean problems involved in taking off from the moon and docking with an orbiting spacecraft for the return trip. However, the billions of dollars involved to return men safely from the moon were never questioned, and the thought of leaving them there was never considered. Why, because of the huge value which we place on human life in our society.

One of the best sources for analogies in a death case is the daily newspaper. Analogies of this type should be constantly updated since, to the credit of our society, we frequently spend large sums of money in lifesaving measures.

c. Metaphors – The metaphor has been defined as “the application of a word or phrase to an object or concept it does not literally denote, in order to suggest comparison with another object or concept.” An example of a common metaphor is “a mighty fortress is our God.” Counsel effectively using a metaphor can rely on a familiar story or anecdote. Biblical stories make excellent metaphors. The effective metaphor is easy for the jury to understand. The jury is not threatened when listening to a metaphoric story.

d. Similes – The use of simile is a comparison of one thing to another. Martin Luther King used similes in the following powerful phrase from his “I Have a Dream” speech: “No, we are not satisfied and we will not be satisfied until justice rolls down like water and righteous like a mighty stream.”

Top of Page

For example, in the trial of a case involving 15 defibrillation of a nine month old infant, the term defibrillation is a totally meaningless, innocuous and non-inspiring term which conveys absolutely no message with respect to the agony which the child endured. However, when an expert witness described defibrillation as being “just like electrocution”, this predicated an emotional right brain appeal during summation based upon sending an electric shock through the body of a 38 pound infant with sufficient force to stop the heart from beating. Thus, electrocution became a highly electrifying catch phrase replacing the innocuous term, defibrillation.

Another example of use of simile in a product liability case is the following: “This defendant is like the criminal who killed his parents and pled for mercy because he was an orphan.”

e. Establish Sense of Humor – One of the complaints about attorneys is that we appear unapproachable and are basically stuffed shirts. One of the best techniques for establishing approachability, credibility and common ground with the jury is through the use of humor. Neither the purpose nor the technique is to tell a joke or to attempt to entertain. The purpose is to simply establish in the minds of jurors that we have a good sense of humor.

Of the eight categories of humor: surprise, exaggeration, understatement, pun, irony, sarcasm, climax and anticlimax, the best techniques for demonstrating a sense of humor would be to utilize surprise, understatement or irony. Obviously avoid exaggeration, puns or sarcasm, which, if taken wrong in the context of a trial, could reflect very badly on the attorney’s credibility. The techniques of climax and anticlimax may also detract from the seriousness of the proceedings.

The most appropriate time to use humor is during voir dire examination while initial impressions are still being formed and before the serious matters at issue are undertaken in the trial in chief. Humor may also be used in trial during particularly long, boring testimony offered by the opposition in order to demonstrate to the jury that you share their boredom and offer the humor as a brief respite. Demonstrating a sense of humor in colloquy with the court may also be helpful to demonstrate your good relationship with the court as well as your sense of humor.

You may purposely choose to inject humor into direct examination as a means of humanizing your witness or under cross examination as a weapon against the adverse witness. In direct examination of an expert witness, counsel made a mistake, which was promptly pointed out by the opposing counsel. As direct examination resumed, counsel apologized to his witness for the mistake and then inquired “Doctor, is that the first time you’ve seen an attorney make a mistake?” to which the doctor responded, “no, but it’s the first time I’ve seen one admit it.” The judge, jury, witness and counsel all laughed at the witness’ remark. This served the valuable purpose of humanizing the witness, demonstrating his sense of humor and demonstrating that the attorney had a sense of humor and could take a joke of which he was the butt.

Some attorneys use sarcasm successfully as a weapon on cross examination. However, this is tricky and should only be used if it fits your particular style and you appear to be comfortable with it.

One of America’s greatest advocates, Tom Alexander of Houston, wields the weapon of sarcasm with grace and style. For example, in cross examining a doctor in which Alexander’s theme was that the doctor had performed unnecessary surgery, he began with the question “Doctor, are you aware that you are known as the fastest knife in the West?”

In cross examining a doctor who had been established to be a very frequent testifier for the plaintiff’s bar, defense counsel stated: “I’ll be brief, Doctor. I know you are needed in several other courtrooms.”

However, the rule remains that the purpose is to demonstrate a sense of humor, to humanize the attorney, or to humanize the witness rather than to entertain the jury.

Top of Page

f. Anecdotes – Personal anecdotes are a great storytelling device. We all use them in telling a story to make a point in a conversation with friends. They are just as effective in conveying a message to a jury and have the added advantage of enhancing the approachability and the humanity of the attorney. For example, a lawyer arguing the wrongful death case of a father who had left a widow and a six year old son. Using classic storytelling techniques, he related the following occurrence:

  • We see the young child as he stands on the platform at the train depot looking up at his father and thinking how big and strong he looks in his army uniform; we see the pride in his eyes as he looks around at all of the other soldiers waiting for the train and realizes that his dad is the best soldier of them all; we see him as the conductor calls “all aboard” and dad hugs and kisses mom and lifts the youngster in his arms as he thinks how lucky he is to have the best dad in the world; we see him as dad, with tears in his eyes, makes him promise to take care of his mother and mind her until he gets back from the war; we see him as he waves good-bye, his dad climbs aboard the train and rushes to the nearest window; we see him as mom raises him up to the glass so he can put his lips against the glass and give his dad one last kiss good-bye; we see him standing hand in hand with his mom and waving and waving and waving until the caboose is out of sight and only the trail of smoke remains; we see him bravely trying to hold back the tears, without success, as he realizes that he is the man in the family now and must not cry in front of mom; we see him 22 months later enter the living room as the man delivers the telegram to mom, the tele-gram that says that dad will never be home again.
  • I can describe that occurrence to you with such vivid detail because the soldier was my father and I was the young man on the train platform. It was 50 years ago but I remember it as if it were yesterday. So when I tell you that I know what this young man has lost in losing a father, I speak to you from my heart and my experience.

g. Quotes – Quotations, when skillfully but sparingly placed in the argument, can also be an effective tool for conveying a complex situation to the jury. The quotation should come from a source that the jury automatically accepts as gospel on the point that counsel is attempting to make. Common sources for quotations are: 1) The United States Constitution, 2) The Bible, and 3) Notable heroic figures, such as Abraham Lincoln and Winston Churchill, 4) Poetry, 5) Prose and 6) Song Lyrics.

(1) Prose – By carefully selecting well known prose or poetry, we have the advantage of choosing language which already has the rhythm and the rhetorical devices built in. The idea is to pick and choose phrases from prose or poetry which create a link of commonality between counsel, client and the jury. The more familiar the prose or poetry that is used, the stronger the bridge of commonality that will be built.

Top of Page

Consider, for example, the wonderful prose “What is a Boy?” Obviously we would not choose to quote this in its entirety. The idea is to pick and choose useful phrases which apply to your particular case.


Between the innocence of babyhood and the dignity of manhood we find a delightful creature called a boy. Boys come in assorted sizes, but all boys have the same creed: to enjoy every second of every minute of every hour of every day and to protest with noise (their only weapon) when their last minute is finished and the adult males pack them off to bed at night.

Boys are found everywhere–on top of, underneath, inside of, climbing on, swinging from, running around, or jumping to. Mothers love them, little girls hate them, older sisters and brothers tolerate them, adults ignore them, and Heaven protects them. A boy is Truth with dirt on its face, Beauty with a cut on the finger. Wisdom with bubble gum in its hair, and the Hope of the future with a frog in its pocket.

When you are busy, a boy is an inconsiderate, bothersome, intruding jangle of noise. When you want him to make a good impression, his brain turns to jelly or else he becomes a savage, sadistic, jungle creature bent on destroying the world and himself with it.

A boy is a composite–he has the appetite of a horse, the digestion of a sword swallower, the energy of a pock-et-size atomic bomb, the curiosity of a cat, the lungs of a dictator, the imagination of a Paul Bunyan, the shyness of a violet, the audacity of a steel trap, the enthusiasm of a firecracker, and when he makes something, he has five thumbs on each hand.

He likes ice cream, knives, saws, Christmas, comic books, the boy across the street, woods, water (in its natural habitat), large animals, Dad, trains, Saturday mornings, and fire engines. He is not much for Sunday School, company, schools, books without pictures, music lessons, neckties, barbers, girls, overcoats, adults, or bedtime

Nobody else is so early to rise, or so late to supper. Nobody else gets so much fun out of trees, dogs, and bruises. Nobody else can cram into one pocket a rusty knife, a half-eaten apple, 3 feet of string, an empty Bull Durham sack, 2 gumdrops, 6 cents, a slingshot, a chunk of unknown substance, and a genuine supersonic code ring with a secret compartment.

A boy is a magical creature–you can lock him out of your workshop, but you can’t lock him our of your heart. You can get him out of your study, but you can’t get him out of your mind. Might as well give up–he is your captor, your jailer, your boss, and your maker–a freckled-face, pint-size, cat-chasing, bundle of noise. But when you come home at night with only the shattered pieces of your hopes and dreams, he can mend them like new with the two magic words–“Hi, Dad!” See p.23, infra.

(2) Poetry – Poetry, if carefully selected, can be a very useful tool in conveying a message to the jury. If you can find poetry which coincides with and conveys your theme, the jury can be persuaded that your theme has a commonality which has been adopted by the poets and should also be adopted by the jury. We must be cautious in the selection of abstruse poetry which must be studied to be understood. Remember that the jury is receiving the poetry only through the auditory channel and does not have the opportunity to read the poem and study its meaning. By making a careful vocal presentation of the poem, counsel may also reach the kinesthetic channel by invoking the feelings of the listeners. Jim Perdue, in his excellent book, Who Will Speak For The Victim, has suggested the following lines of poetry from “The Broken Wheel” by Edgar Guest. Consider the effective use of this wonderful poetry in a case in which a defective product has been placed on the market by the manufacturer:

We found the car beneath the tree.The steering knuckle broke, said he;The driver is dead; they say his wife

Will be an invalid for life.

I wonder how the man must feel

Who made that faulty steering wheel.

Perhaps the workman never saw

An indication of the flaw;

Or seeing it, he fancied it

Would not affect his work a bit,

And said; It’s good enough to go –

I’ll pass it on. They’ll never know.

It’s not exactly to my best

But it may pass the final test;

And should it break no man can know

It was my hands that made it so

The thing is faulty, but perhaps

We’ll never hear it when it snaps.

Note the effective use of short words by Edgar Guest in order create impact, combined with the use of longer words to achieve rhythmic flow. Of the 121 words in the poem, 99 (82%) are one syllable.

(3) Biblical Quotes & Parables – The Bible is an excellent source of quotations. However, a caveat is to be very careful in using biblical quotes or parables which are subject to multiple interpretations. Remember how many different denominations there are that interpret the same basic scriptures in very different ways. Particularly in the interpretation of the Bible, it could be disastrous for counsel to offer an example to make a point with which a juror disagreed on the interpretation or which opposing counsel could interpret to their benefit. Examples of Biblical quotations which may be helpful include:

if he rise again, and walk abroad upon his staff, then shall he that smote him be clear; only he shall pay for the loss of his time, and shall cause him to be thoroughly healed. Exodus 21:18,19

Rachel weeping for her children refused to be comforted: because they were not. Jeremiah 31:15

Top of Page

(4) Song Lyrics – Quotes from song lyrics can be particularly compelling when properly incorporated into an argument. For example, in the case of a 22-year-old college coed who was a paraplegic and who testified as to her mental anguish when she helped the other young ladies prepare for dates for the big game on Saturday night, counsel effectively used the lyrics from “They’re Writing Songs of Love, But Not For Me.”

(5) Literature – Familiar quotes from literature are very useful tools. Once again, the more familiar the quote, the more useful in establishing commonality with the jury. Consider, for example, Shakespeare’s quote concerning the value of a person’s reputation, which may be useful in a defamation case.

  • Good name in man and woman, dear my Lord, is the immediate jewel of their souls. Who steals my purse steals trash; but he that filches from me my good name robs me of that which not enriches him and makes me poor indeed. OTHELLO, ACT III, SCENE III
  • The purest treasure mortal times afford is spotless reputation. RICHARD II, ACT I, SCENE I

Shakespeare may also be useful if the defendant or defense counsel has shown a cavalier attitude towards the plaintiff’s pain and suffering: he jests at scars that never felt a wound. ROMEO & JULIET, ACT II, SCENE II

(6) Witnesses/Parties – Of course, often the most persuasive quotes in the case will come from the witnesses and the parties, either during the trial or in previous correspondence, publications, depositions or other writings. Once these have been introduced into evidence, a particularly relevant or poignant quote should be enlarged, mounted on fiber board and shown to the jury during summation.

In order to obtain these quotes, search carefully the literature of the opposing party and their experts; trial and deposition transcripts from other cases and, of course, quotes from the case at bar. Also search through all records, reports or other writings by your opposition, their experts and witnesses, with a particular eye to pulling out quotes which may be enlarged and used in the persuasive process during summation.

(7) Medical Quotations – The following quotations are from an accumulation in a sample notebook by Thomas J. Murray. Once again, the full quote may not be necessary in order to support your position, but they are offered as useful sources from which you may choose the relevant portions.

  • Quote 1 “In severe sprain, the ligaments are torn, the synovial membranes are contused, or bruised. Cartilage may be loosened from bone. There may be hemorrhage into and about the joint. The muscles are stretched or torn. Tendons are stretched, torn or displaced. Blood vessels are contused. Nerves are damaged. The skin is contused.” [p. 368, Sec. 25, 27; Gray’s Attorneys Textbook of Medicine, Vol. 1]
  • Quote 2 “In addition to torn ligaments, frequently small blood vessels also are injured. Blood escaping from these vessels may form a hematoma; this is composed more of tissue fluid than actual blood.” [p. 858; Arthritis and Allied Conditions, 4th Edition, by Comroe]
  • Quote 3 “From the clinical standpoint, there are multiple organic pathological factors involved in radiculitis that follows a whiplash injury. It is reasonable to assume that there is trauma of the spinal ligaments because of the characteristic symptoms of a sprain of the neck, and, in some severe ligamentous injuries, an actual subluxation can be demonstrated by roentgenographic examination. It is likely that there is some hemorrhage and edema in the region of the damaged ligaments that may be a source of nerve irritation. Later on, fibrosis and cicatricial changes may be a chronic source of irritation of the nerve roots. At the instant of the whiplash, direct trauma of the nerve roots from stretching, compression, or even trauma of the spinothalamic pathways in the lateral columns of the spinal cord may conceivably occur.In the acute case, swelling and vascular congestion of the nerve root and narrowing of the foramen due to protrusion of the intervertebral disc or swelling of adjacent ligaments may be important factors producing symptoms. In chronic cases, fibrosis, which is the late counterpart of hemorrhage and edema, may involve the nerve root directly, produce adhesions between the spinal ligaments and the nerve root, or cause a relative narrowing of the vertebral foramens. An additional factor may be the abnormal mobility of the vertebral joints because of damage of the ligaments.” [p. 1703; Journal of the American Medical Assn., Vol. 152, No. 18, Aug. 29, 1953, Common Whiplash Injuries of the Neck, by Gay and Abbott]
  • Quote 4 “Such simple activities as stooping, shaving, brushing the teeth, hanging curtains, painting or papering ceilings, making a bed, driving a car, working under a car, etc., may aggravate the symptoms because these activities usually produce hyperextension of the neck.” [p. 77; The Cervical Syndrome, by Jackson]
  • Quote 5 “At any rate, the result of neck-lashing injury is sprain or stretching or tearing, or avulsion of the ligamentous and capsular structures, with or without immediate compression or irritation of the cervical nerve roots. Sudden compression of nerve roots give immediate symptoms. If the symptoms are delayed a few hours, irritation of the nerve roots probably occurs because of hemorrhage or swelling in the surrounding structures. The symptoms may be so mild at first that they are ignored, but as time goes on further stretching and relaxation of the ligamentous and capsular structures may occur and permit more mechanical derangements.” [p. 73; The Cervical Syndrome, by Jackson]
  • Quote 6 “Degenerative changes initiated in a disc by a severe sprain may occur long after the injury and give rise to delayed symptoms.” [p. 74; The Cervical Syndrome, by Jackson]
  • Quote 7 ” There is considerable evidence for the belief that in many cases the lesion may be a tear of the posterior longitudinal ligament (which keeps the intervertebral disc from protruding), a tear of the annulus fibrosus (the outer part of the intervertebral disc), or traumatic changes within the disc substance.” [p. 399; Handbook of Orthopedic Surgery, 4th Edition, by Shands]
  • Quote 8 “Usually, the roentgenogram are found to be negative immediately following and or some time after the rupture due to the fact that the degenerative changes take place slowly. Usually, by the end of a year, narrowing of the affected interspace will begin to take place, and after several years, condensation and proliferative changes of bone characteristic of traumatic arthritis will develop.” [p. 109; Lewis’ Practice of Surgery, Vol. II]
  • Quote 9 “Many of these cases of low back strain present a variable degree of the hypertrophic type. When confronted with a case of this type, a surgeon who has had much experience usually gives a guarded prognosis, especially in regard to time and completeness of relief of symptoms, because it is quite well known that these cases tend to hang on and become chronic even when properly treated for the acute strain, and that once they become chronic, they are frequently more difficult to relieve than are similar cases in which there is no evidence of arthritis.” [p. 393; Fractures, Dislocations and Sprains, 5th Edition, by Key and Conwell]
  • Quote 10 “More than one-third of all spines roentgenrayed for any purpose have shown congenital abnormalities. Most of these do not cause symptoms, but congenital defects are probably an important factor in producing weakness of the architecture of the spine, leading to points of lowered resistance to strain. In these patients, the spine is probably more vulnerable to injury than in normal persons.” [p. 1032; Arthritis and Allied Conditions, 4th Edition, by Comroe]
  • Quote 11 “Roentgenographic evidence of degenerative changes in the spine is found almost universally in patients past the age of fifty years. Such changes vary considerably in severity, however, and significant symptoms are produced in only a small percentage of cases.” [p. 583] “Only about five percent of individuals past fifty have clinical symptoms.” [p. 531, Arthritis and Allied Conditions, 4th Edition, by Comroe]
  • Quote 12 “Since the roentgenographic findings described above frequently are asymptomatic and may appear as a physiological manifestation of aging, one must not accept these findings without careful appraisal of the symptoms and signs. In the absence of actual mechanical impingement or compression of nerve fibers by narrowed intervertebral discs, one must proceed cautiously before attributing symptoms to degenerative joint disease. Even when these changes are present, each case must be evaluated by the composite picture of all factors.” [p. 540; Arthritis and Allied Conditions, 4th Edition, by Comroe]
  • Quote 13 “The period between the injury and the production of traumatic joint disease may vary from days to several months. Pain and limitation of motion may persist for years following a single strain or contusion even without obvious anatomic change.” [p. 855; Arthritis and Allied Conditions, 4th Edition, by Comroe]
  • Quote 14 “It must be kept in mind that trauma may precipitate other forms of arthritis (rheumatoid, tuberculous, syphilitic, pyogenic, gouty, etc.), the traumatized joint often being only the first joint involved. Also, any form of joint disease (but especially degenerative joint disease) may be aggravated following trauma.” (Degenerative joint disease, hypertrophic arthritis and osteoarthritis are all one and the same disease. They are merely different terms used to describe the same condition.) [p. 853; Arthritis and Allied Conditions, 4th Edition, by Comroe]
  • Quote 15 “Injury produces a twofold effect on joints: (1) mechanical damage such as a capsular tear, detachment or laceration of cartilage, articular fractures, compression, splitting or detachment of articular cartilage, etc., and (2) joint reaction of such trauma.” [p. 855, Arthritis and Allied Conditions, 4th Edition, by Comroe]
  • Quote 16 “The primary pathologic reaction is a synovitis. The synovia, however, rarely is affected alone. When articular structures other than the synovial membrane are injured, pathological changes resembling those of degenerative joint disease result almost invariably. Such changes are hastened by overweight (in weight-bearing joints), overuse or the continued pres-ence of loose bodies.” [p. 855; Arthritis and Allied Conditions, 4th Edition, by Comroe]
  • Quote 17 “Roentgenogram are often of little help toward making a positive diagnosis. They are of great assistance, however, in ruling out conditions such as neoplasms or tuberculo-sis.” (Also fractures, and troublesome abnormalities and arthritic changes.) [p. 403; Handbook of Orthopedic Surgery, 4th Edition, by Shands]
  • Quote 18 “From a pathological standpoint it must be realized that this disease is chronic and cannot be cured. Since worn or damaged cartilage regenerates poorly, at best, and since osteophytes cannot be reabsorbed, such changes, once manifest, are irreversible and permanent. Nevertheless, much can be done to relive symptoms and to prevent, or at least retard, progression of the pathological conditions.” [p. 550; Arthritis and Allied Condi-tions, 4th Edition, by Comroe]
  • Quote 19 “That this disease (degenerative or hypertrophic arthritis) does exist in the spine is undisputed, but it is necessary to review carefully the history, physical examination, laboratory tests and roentgenogram (x-rays) before such a diagnosis is made. Often marginal lipping is the result, rather than the cause, of disease in the spine. Thus, lipping often has been demonstrated following degeneration of the intervertebral discs.” [p. 537; Arthritis and Allied Conditions, 4th Edition, by Comroe]
  • Quote 20 “For many years I have been increasingly annoyed by the tendency of my conferees to stigmatize as ‘psychoneurotic’ any symptom complex for which an organic cause could not be easily demonstrated. I cannot accept as true that authors’ (Gay & Abbott, J.A.M.A. 152:18, Aug. 29, 1953) statement that ‘a persistent psychoneurotic reaction’ is responsible for prolonged disability in victims of whiplash injuries. The authors’ own statements make this improbable. They mention the probability of various degrees of rupture of intervertebral ligaments and admit that herniated cervical intervertebral disc was clinically diagnosed in 26% of their series.I have personally observed innumera-ble automobile collisions ranging from trivial to the severest. For some years I was one of the autopsy surgeons (full time) to the coroner, Los Angeles County, California. I have performed autopsies of quite a number of persons who were killed by the worst of whip-lash injuries — ‘broken neck’. I have performed autopsies on at least a dozen persons in whom the skull was completely dislocated from the spine by such injuries. In hospitals I have seen quite a number of very serious but non-fatal fractures of the cervical spine by whiplash injury. Drs. Gray and Abbott describe the less serious, non-fatal whiplash injuries. Even in the less serious whiplash injuries, who can say how much intervertebral ligamentous tearing exists? Who can say how much hemorrhage occurs at the site of the injury and how much subsequent fibrosis and adhesions develop around nerve roots or into or between cervical muscles? Certainly such things may be expected to result in some degree of prolonged or permanent impairment. Even worse, who can say how much or how little trauma of the cervical cord in incurred?Certainly the x-ray cannot give the answers to these questions. By the same token early treatment and physiotherapy may be expected to minimize sequelae, and delayed treatment can be difficult or futile. Prolonged immobilization–necessary or unnecessary–could be expected to similarly result in prolonged or permanent difficulty not detectable by x-ray.

    The neck being a highly mobile structure, it seems reasonable to expect that any post-traumatic fibrosis around nerve roots or into or between muscles, even though rather slight, could be expected to give more prolonged symptoms than elsewhere along the spine. It seems to me that one should be very reluctant to categorically state that ‘More than half the patients in this series…were seriously handicapped in this way, i.e., by ‘persistent psychoneurotic reactions’. Many symptoms are due to real factors that cannot be objectively demonstrated. Not a few persons die of causes that cannot be demonstrated by the most thorough autopsy. Such persons do not die of psychoneuroses.” (underscoring supplied [p. 974; Journal of the American Medical Assn., Vol. 153, No. 10, Nov. 7, 1953 – Letter to the editor from John H. Schaeffer, M.D., Los Angeles]

Top of Page

h. Adapting Standard Arguments – There are numerous standard arguments which have been developed over the decades which can be readily assimilated by counsel to your individual case. The following are simply a few of the more useful:

  1. Pain and Suffering:
    1. Measuring Physical Pain and Suffering. How do you measure the reasonable value to be placed upon the physical pain and suffering of the plaintiff. One way is to determine what we will pay to avoid physical pain. In our society, we think nothing of paying $30.00 for a novocaine shot in order to avoid thirty minutes of physical pain in the dentist chair. If we will pay one dollar per minute to avoid physical pain, is $5.00 per hour enough to compensate for the constant enduring of physical pain?
    2. Constitutional right to be free from pain. Even the state which can, under our constitution, inflict death, cannot inflict physical pain.
    3. Pain is life’s window into hell.
    4. Job ad – catastrophic injury:Ladies and gentlemen assume that tomorrow we run an ad in the Houston Post that reads as follows: ‘Job avail-able, no experience necessary. No education necessary. Pay: $100.00 per day. Only two conditions: first, you must suffer pain every waking moment of your life, and secondly, you can never resign.’ Ladies and gentlemen, how many applicants do you think would apply for that job?
    5. Minimum wage:Ladies and gentlemen, we pay $4.20 per hour for the most menial tasks in our society. Shouldn’t this be at least the very minimum compensation for the constant suffering of physical pain?
  2. Value of Human Life:In maintaining a summation notebook, keep current examples of the value placed on human life within our society. For example:When Jessica McClure was trapped in the well in West Texas, the entire country was breathless for 56 hours while Herculean efforts were made to save the child’s life. The country breathed a collective sigh of relief when the young child was saved. At no point did anyone stop to inquire as to the cost of these efforts and whether the life of the child was worth the cost.
  3. Full Justice:Ladies and gentlemen if this lawsuit concerned the death of that magnificent racehorse Seattle Slew in an automobile accident instead of the death of this husband and father, the owners of Seattle Slew would be in this court as plaintiffs seeking 10 million dollars and that would be what full justice would demand. Why, because 10 million dollars was paid to purchase the horse. If the jury decided, after hearing the evidence, that despite the fact that 10 million dollars was actually paid for the horse, that 10 million dollars was just too much money and awarded only 5 million dollars, that would not be justice. That 5 million dollars would represent half justice and anything less than full justice is injustice. We have proven that full justice demands 5 million dollars in compensation to the widow and children of this fine man and anything less than that amount will not represent full justice. Therefore, when you deliberate on damages in this case, please remem-ber that you agreed on voir dire examination to render full justice in this case; that full justice demands at least 5 mil-lion dollars to compensate this plaintiff, and that anything less than full justice is injustice. For the use of this argument in a summation, see page 78, infra.

Top of Page

L. Persuasive Communication of Power Themes – Individuals send messages out on three levels. Lawyers are basically wordsmiths. For years we have been concerned about what impact words and phrases we should use or what analogies we could make to drive a point home. In essence, our focus as lawyers was on what “we said.” Unfortunately, words alone are the component of communications which contribute the least to the overall impact or persuasiveness of a message. When social science researchers talk about words alone, they use the term “linguistics”. When they talk about how a person says the words, voice modula-tion, intonation, pauses, etc., they use the term “paralinguistics.” Nonverbal communication is everything else that goes along with the message such as facial expressions, eye movements, body movements, etc. For our purpose we shall break a message down into three components, but for ease of understanding, we shall use lay terms. Those three components are 1) verbal-words alone, 2) voice – how you say it, and 3) nonverbal – body movements, facial expressions, etc.

When social science studied the impact of a message as relating to those three channels of delivery, the results were quite surprising in terms of the impact of a message. Words alone account for only 8% of the impact! How we say it or voice alone counts for another 37%. But the majority of the impact persuasiveness or believability of a message, 55% relates to the nonverbal content. Therefore, the majority of a message’s impact comes from its nonverbal content. This is not to say that all three parts of a message are not important. Of course you have to have the right words. Of course you have to use impact words and phrases. Of course you have to drive home points home with analogy. But even when you do that effectively, you cannot ignore the fact that how you say it, how you move, where you stand, and how you use eye contact in giving the message plays a primary role in determining whether or not that message is going to be believable and persuasive.

Messages are received and processed through one of three primary channels or representational systems. Even when we are focusing on what we are saying, how we are saying it, and making sure that our messages are sent effectively on all three levels; we may still not communicate effectively. To communicate effectively we must understand that human communi-cation is a two-way process. A message must not only be considered as to how it is sent out, but we must look at how the messages are going to be received. In essence, we must be aware of the person or group of persons to whom we are sending the message. This is often referred to as having a “they focus”. That is, most lawyers have an “I” or “we” focus. They focus on themselves, the judge, the law, the facts, etc. Many lawyers do not realize that they should be focusing on only one group in the courtroom and that is the jury. To be really persuasive one has to be constantly aware of the jury’s changing moods, attitudes and reaction. It is part of having a “they focus.”

Messages are received not only through preconceived notions, ideas, and beliefs, but they are processed through what social science calls a primary channel or representational system. There are three recognized channels by which people process information with. Those channels are 1) visual, 2) auditory, and 3) kinesthetic.

The person who is using a visual channel sees the message in his minds eye. He visualizes the information in order to understand it. On the other hand, if the person is using an auditory channel to process the information, he has to hear it in order to understand it. In essence, in his mind he hears the information, repeats it, or says it to himself in order to process it, remember it, and store it. This person is said to be using the auditory channel or representational system. Some people use the kinesthetic channel to process information. That is they process information through their guts or with their feelings. People using this kinesthetic channel have to touch an object to assess it and understand it. Most people are using either the auditory or visual representational systems to process information most of the time.

An important point to remember here is that the person with whom we are communicating uses all three representational systems to process information at one time or another. What we are concerned with is what is the primary channel being used when we are trying to communicate with that person. Most people tend to favor one channel over another. Some people use the visual channel most of the time. On the other hand, some people use the auditory channel most of the time. But do not forget that people switch channels from time to time. Still identifying a person’s primary method by which he or she processes information can be a critical asset if we want to communicate effectively.

The reason it is critical to know the channel which a person generally processes information is that if we use that channel to send that information, it makes it easy for the person hearing the message to understand and retain the information contained therein. Therefore, whether we are communicating with the opposing counsel during negotiations, or a judge drawing a pretrial conference, or the jurors during the trial we should try and ascertain the primary representational system that person is using at that time. If we do this, we can send a message out which communicates easily with that representational system and therefore the person is much more likely to understand the information, accept it, and believe it.

We should consider two methods by which we can identify a person’s primary representational system or channel for processing information. The first is to listen to the words a person uses when they are sending out a message. Words and phrases people use can reveal that person’s primary channel for processing information. Secondly, when we give that person information to process, we can watch their eye movement pattern. Neuropsychologically, the eye patterns differ when information is processed differently.

Top of Page

First we will start with a chart taken from “Court-room Communication Strategies” which list verbal predicates a person uses depending upon the channel from which they are sending the message. Notice that the verbal person uses words and phrases like “see what I mean.” Whereas the auditory person will say often things like “do you hear what I am saying.” A kinesthetic person will use phrases like “I want you to feel right about this.” Practice identifying the channel by which a person with whom you are communicating is processing a message. If you use the same verbal predicates back, you will then be matching that person’s channel for processing information or representational system and the other person will feel very comfortable with you. You increase the probability that they will accept your message and that it will have greater impact.

Further, one can assess a person’s representational system by watching the eye movement patterns of that person. Before checking the eye pattern movements of a person, however, you have to give them information which you ask them to think about or process. Be sure that they are processing information when you check their eye movement patterns. A person’s eye movements, if they are not processing information, can be insignificant. If one is processing information visually, the eyes move up to the right or left. Therefore any time the eyes move up, either right or left, one can assume that the person is processing the information visually–he is seeing it in his mind. If on the other hand while the person is processing informa-tion the eyes stay even and move from side to side, one can assume that person is processing information auditorially – he is listening to the information in his head. On the other hand, if a person’s eye movements are down, it generally means the person is trying to get in touch with his emotions. He or she is processing the information kinesthetically getting in touch with his or her feelings about the information.

Remember it’s a two-way process, therefore, it is crucial to always have a “they focus.” One can be sending out a message beautifully, communicating with impact on all three levels. But if one does not have a “they focus”, the great elocution may fall on deaf ears. The message cannot be sent with impact until we are sure of a person’s attitude, beliefs, and representational system to whom we are sending the message. This is why we should always think of the jurors or anyone else with whom we are trying to communicate as a loving, caring, fellow human beings. Jurors should not be just a number. We should know by memory each jurors first and last names. In your mind, think of them by their first names. We should have positive feelings toward them so they can have positive feelings toward us. This type of “they focus” is necessary when we want to communicate with another human being whether that be our opposing counsel, the judge, the juror, or anyone else.

1. Non Verbal Communication – Aristotle taught that orators could “heighten” the effect of their words with suitable gestures, tones, dress and dramatic action. Cicero, Rome’s greater orator said “delivery is a sort of language of the body-the management, with grace, of voice, countenance and gestures. Demosthenes, Greece’s greatest orator taught that delivery is the greatest pathway to success and successful oratory. He listed the three most important ingredients of oratory as action, action, action. Shakespeare’s advice to actors was “suit the action to the word.”

You can often tell the experienced from the inexperienced lawyer by the way they handle objections. When an objection is made against evidence being offered by an inexperienced lawyer and the judge rules against him, the inexperienced lawyer hunches his shoulders forward, and looks nonverbally whipped. He is visibly shaken. The experienced lawyer understands that the jury has a difficult time distinguishing between the plaintiff and the defendant. Jurors have no idea of the significance of legal objections and particularly do not understand the difference between “sustained” or “overruled”. The experienced lawyer knows he should always look like the winner no matter what happens. Whatever the judge says after the other counsel has objected, whether it is sustained or overruled, it should not matter nonverbally. Counsel should deliberately hold his head high, look at His Honor and say “thank you” no matter what the ruling. The jury will think you have won even if you have lost. Never lose face in front of the jury. Always remain confident and in control.

a. The Importance of the Pause – Often, the most important thing an attorney can say is nothing. The pause for dramatic effect has been used by great orators over a number of millennia. The pause serves two major purposes for the orator:

First, the pause allows the statement immediately preceding it to soak in thoroughly; and secondly, the pause will recapture the minds of those who have strayed and cause those who have been listening to pay more close attention to the statement that follows the pause.

Top of Page

Often, inaction is the most effective means of non-verbal communication, i.e., the use of the emphatic pause.

The major uses of the pause during oratory include the following:

  1. To arouse the anticipation of the listeners;
  2. To stress importance of each phrase;
  3. To accentuate humor;
  4. To allow the rhetorical question to be answered;
  5. To initially capture the attention of your audience;
  6. To emphasize the theme during repetition;
  7. To dramatize a climactic ending.

Consider the following brilliant use of pause in the delivery by Winston Churchill of two of his most famous sentences (slant lines \ indicate pauses)

Never \ in the field of human conflict \ was so much owed \ by so many \ to so few.

Let us, therefore, \ brace ourselves to our duties, \ and so bear ourselves \ that, if the British Empire and its commonwealth \ lasts for 1000 years, \ men will still say, \ ‘this \ was their finest hour.’

In structuring the use of the pause, a simple guideline is to use the pause as punctuation in the sentence. Without punctuation we would have a stream of consciousness run on sentences which run the risk of failing to convey to the reader the message which the author wished to convey. Similarly, speeches without pauses fail to utilize all of the tools available to the speaker in order to most effectively convey the message.

b. Pacing the Jury – In addition to using verbal, vocal and non-verbal cues to create the appropriate mood for your case, it is necessary to pace the jury during summation. The attorney has paced the individual juror during voir dire and he has watched the jurors closely during trial. The attorney knows which jurors relate to one another, which jurors like humor, and what cues elicit desired responses, and what phraseology and verbiage to use. He also has some information regarding their background. Pacing in summation is based on weaving that information into the phraseology and nature of the summation. The nature of the summation is based on the intensity of the emotional impact to be conveyed to the particu-lar jury type that you are facing. A conservative upper class jury will not be persuaded by a summation loaded with emotional impact. On the other hand, a bluecollar-type jury is more likely to react favorably toward an emotional summation containing a strong theme, pictures and impact words and phrases. All of these factors should be considered when pacing the jury in summation.

c. Movements and Gestures – Movements or gestures form part of the style of summation. The more flamboyant the attorney’s style of delivery, the more movements and gestures are used. Some movements and gestures are essential. An effective summation cannot be given by staning in one spot, rigid and stiff. On the other hand, too much uncontrolled movement is distracting. The speaker who paces back and forth in an uncontrolled fashion, like a caged lion, actually distracts the jurors with his movements and gestures.

No attorney should use gestures or movements with which he is totally uncomfortable. A background in some type of public speaking is helpful in developing appropriate movements and gestures. Most communities have toastmaster clubs or other such clubs where the neophyte attorney can develop important speaking skills. He will find that the practiced gestures become more natural as he learns to use his movements to correctly emphasize important points.

As effective means of developing gesturing skills is by the use of videotaped practice sessions. This allows an individual to learn about his own style and gestures and how to use them most effectively. If we attempt to communicate through the nonverbal channel with inappropriate and improperly timed gestures, jurors will perceive a lack of authenticity, at least on the subconscious level. Generally, most of the attorney’s movements during summation ought to be restricted to the upper torso. He can move from side to side, but generally should be stationary for many moments at a time, never appearing to be nervously pacing. Movements of the upper torso appear more like gestures of nervousness if made too close to the body. Arm and hand movements need to be full and robust, and certainly at no time should the attorney stand with his hands in his pockets. Nor should his hands be clasped tightly behind his back as such movements are distracting and definitely affect credibility. The only object which should be held during summation is one you intend to use, i.e., a piece of evidence to be shown to the jury or a pointer of some type used as an extension of your arm. A collapsible-type pointer is recommended because it looks more professional and projects an air of authority and competence.

d. Touching the Client – The jury searches for and is impressed by an apparent relationship between the attorney and the client. This is particularly true where the attorney is representing an individual rather than a corporation or some other nonpersonal entity. If the attorney is representing an individual in a personal injury claim, some physical touching of the client is essential during the course of the trial and during summation because touching is interpreted as a sign of affection. Although it is nonverbal, it will surely be picked up by the “Sherlock Holmes” of the jury. It is a nonverbal cue that can only be narrowly interpreted. It projects the attorney’s belief in the client and the warm relationship that exists between them. Touching projects that the attorney, like the juror, has feelings about and empathy for human beings and their suffering.

The caveat regarding touching the client is that it must always be appropriate and almost incidental. The sex and age of the client and the attorney must be considered to avoid all sexual connotations potentially associated with the touch-ing. The young male attorney should never touch a young female personal injury client, nor should a young male client be touched by a young female attorney. An older fatherly-type attorney may appropriately put his arm around or touch the client of either sex. An older female attorney can be seen as mothering younger client by her touch. The touching of older clients by younger attorneys, regardless of the sex, is usually permissible as long as the touch can be inter-preted as indicating that “I believe in this client,” or “I have feelings for this client.”

e. Dressing for Summation – As the trial progresses, the attorney’s dress should become progressively more conservative. An attorney representing a seriously injured client in a civil case will be making a somber summation emphasizing the serious injuries and damages suffered by the client. Appropriate dress for the delivery of such a somber message approximates the visual image of the minister who has come to the house to tell the widow that her husband died in an accident. The attorney wants to be identified with the archconservative banker-type, dressing in dark blue or gray. As discussed previously, the attorney’s dress obviously varies according to the sex and personality of the attorney.

Top of Page

2. Mood Transference Well trained actors and orators create moods by the use of verbal, vocal, and non-verbal cues. The words they choose to use and how those words are used, combined with eye movement and gestures, can be an effective means of mood transference. Great actors repeatedly create a mood every night, sometimes for years, while doing a Broadway show. The great actors do not go through the emotional turmoil of feeling that mood night after night, rather, they create the mood by pure acting.

However, this is where the actor and the advocate part company. For example, in order for a plaintiff’s attorney to fully and completely generate empathy in the hearts and minds of jurors with the plight of the paralytic plaintiff, it is necessary for the attorney to understand, appreciate and feel that plight at a gut level. Merely verbalizing the words, describing the horrors of paralysis is not sufficient because it is absolutely essential that the verbal content of the summation be consistent with the vocal and non-verbal behavioral cues which the attorney conveys to the jury.

In order to maximize the consistency between the verbal, vocal and non-verbal communication on the issue, the attorney must fully empathize with the client’s plight, i.e., feel the loss. This is because, whether we realize it or not, whether we attempt to control it or not, the attorney, during summation, will transfer his mood to the jury through behavioral cues, voice inflection and verbal content of the persuasive speech. One of the reasons that the jury system in America works so magnificently is that the collective wisdom of the jury far outweighs the persuasive talents of counsel. The lawyer who attempts to mislead the jury through the power of oratory, without substantive evidence, will most often be spotted by the jury because the non-verbal behavioral cues are inconsistent with the message which the attorney is attempting to convey.

There is a definite role for a more profound understanding of the channels of communication with juries. For example, the plaintiff’s attorney who is attempting to persuade the jury as to the seriousness of a client’s injury, at the crucial point of conveying sadness, should lower his eyes towards the left side while gesturing downward with the left hand, in such a manner as to cause the jurors to lower their eyes towards the lower right hand corner. This eye position of jurors allows greater accessibility to kinesthetic communication and opens the jurors up for experiencing the emotional feelings which counsel has attempted to convey.

Making emotional statements also affects the breathing patterns of the attorney. The more depressing the news, the more slowly the rate of breathing. Therefore, conveying a sad mood requires the attorney slowing the breath-ing rate while breathing more deeply. On the other hand, indignation or rage about a person’s conduct is best conveyed by more rapid shallow breathing. These behavioral cues are communicated to the jury more effectively than the verbal content of the message, particularly when the verbal and non-verbal messages are inconsistent.

Pacing and Leading to Create a Mood Transference

Transferring a mood in the courtroom is the process of leading jurors to experience a particular emotional state. This state might be a state of anger, empathy, or pity. Or, the attorney may want the jurors to view everything in a very logical, detached type of perspective. In almost every instance, the attorney is probably trying to counter the emotional state that opposing counsel is attempting to create.

It is very important that you understand how to create a mood or emotional state that jurors experience in the courtroom. Your opening statement and closing argument, as well as everything that has transpired in the courtroom, has to support the way you are trying to lead the jurors. Keep in mind that these are not individual strategies to be used by themselves, but to be used collectively. The following sections discuss how to transfer feelings, factual information, and visual information.

a. Transferring a Feeling – Before we can understand how to transfer a feeling, it is important to understand what behavioral cues tend to go along with a person experiencing a particular feeling. When you want jurors to experience the state of extreme empathy, the trauma of a tragedy that has taken place, the deep emotional feeling and concern for a family that lost a loved one, then you must not only display certain behavioral cues, but you must lead the jurors to use these cues themselves. If you have already established rapport with the jurors, when you use these behaviors they will begin to pace you. Of course, this is the true test of your being able to lead the jurors. If you want jurors to experience a particular state as you are presenting your opening or closing statement, for example, you need to use those behaviors (vocal, verbal, and nonverbal cues) that correspond with the particular drama that you are trying to create. Too often trial attorneys will deliver a very emotional argument in terms of the verbal content and not use the correct vocal and nonverbal behav-iors. If the verbal content is in itself emotional, but the vocal and nonverbal behaviors are not, the attorney will not be able to transfer an emotional state to the jurors. Given a contradiction between vocal and nonverbal behaviors and verbal content, jurors will believe the behaviors. Therefore, your behaviors will nullify the effect of the emotional story or picture that you are trying to paint.

Top of Page

For example, to convey a feeling of empathy for a tragic emotional experience of your client you will want to utilize the following behaviors:

  • A slower voice tone
  • A lower voice tone
  • Extremes in vocal patterns from soft to loud
  • Dropping the eyes to lower right
  • Using left-handed gestures and hand movements that pull the eyes of the jurors down to their lower right
  • Using a slower movement pattern
  • Using a slower breathing pattern
  • Using dramatic pauses

Beginning with the first item on the list, it must be recognized that a slower voice tone correlates with a depressed emotional state. When a person is experiencing a feeling, his voice pattern tends to become slower and his vocal tone tends to drop lower. This is the way we express concern.

By using extreme vocal tones of going from soft to loud, you will be able to create the drama that is associated with feeling. This means being able to develop the voice so that it will go through all ranges and all types of pitch patterns. An individual can best process kinesthetic information when the eyes are dropped down to the lower right. It increases the jurors ability to experience what you are describing. You must remember that if you are not genuinely feeling the effect that you want to create, it will be impossible for jurors to feel that same state. You need to bring about the particular behavioral state by feeling the emotion you wish to transfer. Drop your eyes down to the lower right, collapse the upper chest cavity as though you have sighed, and let out your air. Theses are the appropriate nonverbal cues to use to create a feeling of tragedy.

The next step is to make sure the jurors start to process the information on a kinesthetic or feeling level. To do this, use lefthanded gestures. Keep the gestures low enough so as to pull the juror’s eye contact down into their lower right hand corner. When done properly, they are in the mood to process kinesthetic information. Therefore, you want to deliver your most important and dramatic lines when their eyes are in this position. Save this type of motion and gesture for the key points.

Slower movement patterns are also indicative of conveying an emotional state to jurors. To convey the tragedy, therefore, you do not want to be fast or flip. Rather, you want to be slow and draw it out when describing it.

A very critical consideration with the kinesthet-ic transference of mood is the use of slower breathing pattern. When a person is feeling emotional, he usually breathes from his abdominal cavity, there are more pause patterns, and he tends to sigh. In order to convey and transfer this feeling, you will need to use the same behaviors.

The other feeling that counsel may want trans-ferred in certain very limited situations is when counsel is trying to instill anger on the part of the jurors. In other words, arousing their feelings so that they are angry at an injustice that has taken place. Anger has several other behavioral characteristics that go with it. In order to transfer or display the characteristics of anger, the following behavioral patterns must occur:

  • A fast vocal tone
  • Usually a higher vocal tone
  • Louder vocal tone
  • Eyes moving straight across
  • Direct eye contact
  • Gestures that are midwaist to upper level
  • Gestures that are firm and definite
  • Quicker movement patterns
  • Decisive movement patterns
  • Dramatic pauses

The sense of conveying anger has an altogether quicker movement pattern. When a person is angry, he tends to breath in his upper chest area, so his breathing pattern is very different. He moves at a different rate. In order to motivate people to become angry, both the attorney’s speech patterns and movement patterns must be quicker. To convey anger, you have to come forward and be aggressive in your behaviors. Do not be afraid to point, as long as you are pointing at opposing counsel or his client. Never use the pointed finger at your own people.

Top of Page

The best way to practice the transference of a kinesthetic feeling is to first take the feeling that you are trying to convey and put yourself in the same body position and state of mind. Before going into the courtroom, you should experience whatever state you are trying to convey on a personal level. For example, to convey the feeling of anger, practice being angry. Practice feeling the emotional state yourself and try to perceive behaviors that you have in that state. Observe yourself. When you are unhappy, notice what you do. When you are happy or carefree, notice your behaviors. Also become a watcher of people and study basic human nature. You will notice the behaviors that people use in displaying anger or passion or empathy are very similar. All you have to do is understand those behaviors, use them, feel the state, and then transfer the mood to the jurors.

b. Transferring Factual Information – There are times when you want to convey to jurors that the information being presented is just factual. The last thing the attorney wants to do is lead jurors into an emotional state. In order to do this, you need to follow several behavioral cues. These cues include the following:

  • Keeping the eyes level
  • Keeping the breathing pattern even
  • Using a moderate rate of speaking
  • Avoiding extremes in vocal tones
  • Keeping all behaviors in moderation

If you want jurors to treat information as a matter of fact, you must treat it as a matter of fact. The behaviors you use for transferring factual information to jurors are very nondescriptive and moderate. The eyes stay at an even level, neither moving up or down, just appropriate eye contact. Breathing tends to be even so jurors will not see an extreme in the breathing patterns. The one risk that is run in transferring factual information is that it can become boring. Thus, when you do transfer information that is factual, you will want to break it up by emphasizing key points or making something more exciting simply to maintain the attention of the jurors.

c. Transferring Visual Information – In many types of cases, there is a need to describe a picture, scene, or event for the jurors. This definitely involves the transfer of visual information. Some jurors will pick up these visual pictures very quickly because they will be visually oriented. Other jurors who are kinesthetically or auditory-oriented will need the attorney’s help in obtaining the transfer of information. Behavior cues used to transfer visual information include the following:

  • Using quick vocal tones
  • Breathing in the upper chest
  • Keeping the eyes moving up to upper right or left
  • Using gestures that are above the waist and expansive
  • Pointing up to a chart
  • Maintaining a fast pace

Using these behavioral cues is most appropriate when the attorney is telling a story. If the attorney asks the jurors to picture or focus on some object, he should pick up his rate of speech, pull his hands up and get the juror’s eyes moving to the upper right and left. Remember, what you are trying to do with the eye movement pattern behaviors of the jurors is to keep their eyes in the quadrant corresponding to the state you want them to experience. When you want them to have an emotional feeling, you want their eyes going down to the lower right. When you want them to have an auditory or more factual type of feeling, you want the eyes level. To visualize or picture a particular event, you want the eyes moving to the upper left or right. To do this, you need to point up.

One way of getting jurors to visualize information is through the use of charts or graphic displays. With the proper use of a chart, the attorney can induce the proper eye movements. If you want the jurors to be assisted in visualizing or seeing what you are saying, make sure that you are using hand motions to pull their eyes up. Point to the uppermost part of the chart, or to the top of the screen. This will pull their eye contact up. Try to keep the chart high enough so that when you point to it you are pointing in an upward direction. If you want the jurors to visualize an event, you should never pass out material to them. When they are looking at such material, their eyes are looking down.


The subject of jury bias, beliefs and values is one of critical importance to the trial attorney. In this era of media, political, tort reform and public attacks on the justice system in general and lawyers in particular, jurors enter the panel with more types of bias and more deeply entrenched biases than ever before in the history of our Republic.

At the same time, judges are limiting time for voir dire examination of prospective jurors despite the fact that the need for juror information is greater than ever.

It is hoped that the information in this paper will help to open new avenues for coping with the multitude of biases which confront trial lawyers and their clients today and will assist in achieving a higher level of justice.

1published by Medical Malpractice: Law and Strategy, Volume 11, number 10, August 1992.

Table of Contents
Previous Page

Top of Page