Facts. Reason. Logic. These are some of a trial lawyer’s essential tools. That’s the job: to become immersed in the facts of the case because the facts are the building blocks of sound legal arguments. President John Adams (who was also a lawyer) once said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” But over the years I’ve found time and again that while facts are indisputable, the way they are perceived by judges and juries can be drastically different depending on how they are presented.
Judges and juries are human. They are not guided by only reason and logic, and they don’t process facts like machines. Their wishes, inclinations and passions do influence how they decide when ruling on a case. While this concept has largely been socialized out of formal legal training, how a jury feels about a case can have an effect on its outcome. As a lawyer, I cannot change the facts of a case, but if I don’t present them well, it can affect how the jury feels about those facts.
Modern neuroscience has proven that the way information is presented can have an effect on decision making. A 2006 study by scientists at University College London found that “human choices are remarkably susceptible to the manner in which options are presented.” Maybe more importantly, it suggested a key role for “an emotional system in mediating decision biases.” In the study, participants were given $95. When told they could keep 40 percent of the money if they didn’t gamble, only 43 percent decided to actually gamble. But when told they could lose 60 percent of the money if they didn’t gamble, they gambled 62 percent of the time.
In this case, when the exact same information was framed with an emphasis on what participants would lose, rather than what they would gain, they were more likely to gamble. If one were to only use reason to make this decision, then the results should have been nearly identical regardless of the way the information was framed. But the emotional reaction to the fear of losing had a greater influence on participants’ decision-making than their reasoning skills did. The facts didn’t change, but the way the participants felt about the situation did. The larger point for trial lawyers is that even strong supporting evidence can be perceived negatively if it is not presented with the proper context.
That is why I believe a critical part of a litigator’s job is to identify ways to provide meaning to the facts. Only then can you win the hearts and minds of juries and judges. Over the years, I’ve experienced many different cases which have given me deeper insight into how to achieve this goal.
Take them on a journey
A simple recitation of the facts isn’t very meaningful to most jurors or judges. They can’t see or touch the facts, which makes it inherently less likely they’ll understand them. In order to be successful, litigators must use every tool at their disposal to put the jury in the shoes of their clients.
Years ago I tried a case involving a man who broke his pinky in an accident and was suing for damages. While a broken finger might seem like a relatively minor injury, this man was a violinist. He needed his fingers to do his job. I didn’t think the jury would understand just how important the smallest finger on the human hand was to this man by me simply telling them so, instead, I showed them. I brought in a skilled violinist to demonstrate how the pinky is used when playing. Thanks to the sight and sound of this demonstration, the jury had a completely different perspective. I won the case.
Keep them on their toes
In order to convince judges and jurors of your argument, you must first keep their attention. Occasionally, this means taking an unconventional approach. There’s a commonly held legal axiom that says you should never ask a question that you don’t know the answer to. But as I once found out, if you ask a question to which the answer is obvious, you may find an answer that is better than you could have imagined. In this case I found an answer that enraged a judge and changed the direction of a case.
This case appeared to be a fairly simple hearing on the award of counsel fees following a settlement in a securities fraud case. I represented the defense who had hoped to avoid paying the fees. During my cross-examination of one of the lawyers for the class, I asked him a perfectly innocent question. The fee application contained detailed entries for each time charge and disbursement. Many of the disbursements read, "o.t." And so, I asked, “What does the ‘o.t.’ represent on the line items which read, ‘Dinners for staff – o.t.’?”
I got the answer I expected when he said, “overtime.” I then followed up by asking, what the law firm's policy with respect to “overtime” was. I was surprised to hear the lawyer-witness report that every staff member worked part-time and was reimbursed for dinner every day because none of the staff members worked at the law firm during the day. They all began working at the end of the work day as each of them was employed full-time at other law firms. Therefore, when they began their day in the evening at their second job, they started with dinner and were reimbursed for that.
After hearing this, the judge blew his top. By the end of the hearing on the first day, he indicated he wanted an examination of each and every item on the fee application. He said he believed that claimants' counsel had attempted to perpetrate a fraud on the court. The court ultimately denied payment of.
I took a small chance straying from the regular line of questioning, but the result was a judge that was more invested in the case. His outrage led to a more thorough examination of the facts and a result that was more favorable for my client.
Be creative, not crazy
There’s a big difference between being creative with your presentation and trying to manipulate the jurors’ emotions. I once tried a case against a famous pioneer of early heart surgery, who was even featured on the cover of Time magazine for his accomplishments. I represented a merchant marine that had been operated on by this surgeon to repair a hole in the marine’s ventricle. The surgery went fine and the man recovered, but years later while getting an X-ray of his chest, he discovered that the doctor had left two suture needles in the sac around his heart. This is not supposed to happen. So the man decided to sue for negligence. The facts of the case seemed pretty simple: the suture needles were left in and they shouldn’t have been. But from a medical standpoint, there was rather convincing research showing there was really nothing unsafe about the suture needles being in this man’s chest.
Entering day two of the trial, mysteriously, the doctor didn’t show up to court. The next day, the doctor strolled into the courtroom as if nothing had happened and quickly took the stand. His attorney asked him where he had been the day before. The man explained that in order to prove there was no danger in leaving the suture needles in the body, he underwent a procedure to have needles put in his own chest. He went on to show through a series of x-rays, the progress of the needles in his own chest. The next day, the jury ruled fully in favor of my client.
If this were a television show, this act might have resulted in a victory for the defendant. But as I left the courtroom excited about my victory, one of the jurors stopped me and said, “You’re lucky. We were going to rule against you until that nut took the stand with the needles.”
Would the results have been different in any of these cases if emotions had not played a factor? Maybe not. But I do believe that litigators who do not understand that emotions are relevant to how people decide are doing a disservice to themselves, their clients and the legal system. In each of these cases the facts never changed. But the way the jurors felt about them did.