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How to Grab and Hold Your Jury in the Simplest to Most Complex Case

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How to Grab and Hold Your Jury in the Simplest to Most Complex Case The Art of Presentation in the World of the Short Attention Span: How to grab and hold your jury in the simplest to most complex case FEDERATION OF DEFENSE AND CORPORATE COUNSEL 2012 SUMMER MEETING WHISTLER, B.C. Civil Rights & Public Entity Liability/Trial Tactics, Practice & Procedure July 31, 2012 7:45-9:00 am Authored by: Robert Christie Christie Law Group, PLLC Seattle, Washington Todd Raskin Mazanec, Raskin& Ryder Co., L.P.A. Cleveland, Ohio Kile Turner Norman, Wood, Kendrick, Turner Birmingham, Alabama Robert Christie, Esq. Robert Christie is the founder and president of Christie Law Group, PLLC, a boutique litigation firm in Seattle, Washington. He brings 30 years of trial experience and expertise to CLG. AV Rated in Martindale Hubbell and a Washington Law & Politics “Super Lawyer” since 2000, Mr. Christie is a 1977 graduate of the University of Washington and a 1980 graduate (cum laude) of the University of Puget Sound School of Law. He began his career as a law clerk to Honorable Vernon Pearson, Division II Court of Appeals. Mr. Christie has tried cases throughout Washington State and the U.S. District Courts in Washington and Alaska. In his appellate practice, he has argued appeals in all divisions of the Washington Court of Appeals, the Washington State Supreme Court, Ninth Circuit Court of Appeals, the Federal Circuit Court of Appeals, and U.S. Supreme Court (on briefs). Mr. Christie writes and lectures frequently on risk management issues, and also serves as a mediator. He chairs the civil rights subcommittee to the Washington Pattern Instruction Committee. A Federation of Defense and Corporate Counsel (“FDCC”) member since 2009, he chairs the Civil Rights and Public Entity Liability Section. Todd M. Raskin, Esq. In 1980, Todd co-founded Mazanec, Raskin& Ryder Co., L.P.A. He served as the Managing Partner and President of the firm throughout its first twenty years. During that time, the firm grew from two attorneys to thirty, with offices in both Cleveland and Columbus, Ohio. Todd is a resident of the Cleveland office; however, his practice extends throughout the state of Ohio in state and federal courts, as well as before state and federal administrative agencies. He works in the area of civil rights, healthcare/nursing home defense, professional legal liability, and professional liability. Throughout his career, Todd has tried more than one hundred cases to conclusion. He has achieved success on behalf of his clients in the Ohio Supreme Court, as well as courts of appeals and trial courts throughout the state. Todd spends a lot of time in the federal courts; where he has successfully represented clients in the Sixth Circuit Court of appeals, as well as federal district courts throughout Ohio. Todd is a proud member of the FDCC, including membership in the civil rights and public entity liability and trial tactics sections. Kile T. Turner, Esq. Kile Turner is a partner in the Birmingham, Alabama, litigation firm of Norman, Wood, Kendrick & Turner, where he began his career in 1994. Mr. Turner is a graduate of the University of New Mexico and the Cumberland School of Law. While in law school, he was the winner of the Williams Trial Competition, and a Director on the Trial Advocacy Board. Mr. Turner has tried over 70 cases in state and federal courts at all levels in every area of Alabama. His practice encompasses all aspects of civil litigation, including insurance (coverage, bad faith and expert witness opinions), construction, products liability, transportation and commercial litigation. Mr. Turner is an active member of the Federal of Defense and Corporate Counsel (FDCC), where he serves as chair of the Trial Tactics Committee. He has also been an active member in DRI, serving as a member of the Annual Meeting Steering Committee and has served as Chair of the Young Lawyers Committee. In 2006, Mr. Turner was named one of Birmingham’s “Top 40 Under 40” and he has been named an Alabama “Super Lawyer” from 2008-2011. Introduction How long is your attention span? Have we lost you already? Are you motivated to pay attention to our message? What is in this for you? These are questions that lawyers must face when presenting information to any audience. We focus here on jurors as our target audience. The modern juror lives in a world of media and information overload. Movies, news programs, and the inundation of electronic information have forced us all – jurors included – to develop ever shorter attention spans as a means of survival. How can we as lawyers prepare presentations that capture and hold juror attention when providing them with information critical to our case? This paper is offered in conjunction with our joint section presentation. Our goal is to provide you with helpful and practical suggestions that can be used in any case, large or small, to make visual presentations more interesting and capable of holding a short attention span. So set your focus here – I said here, please. Some Facts Have you watched an old movie lately? The pace seems painfully slow. We have adjusted our sense of timing with the change of the “average shot length” (ASL). Film scholar Barry Salt has studied this metric and published way more information that you might want to know on his web site, www.cinemetrics.lv. Here is the bottom line – average shot length has shortened. The action film Ben Hur, released in 1959, has an ASL of 8 seconds overall, with the heart pounding rowing scene shortened to 1.2 seconds. The Bourne Supremacy, released in 2004, has an ASL of 2.4 seconds on average. The difference in pace is stunning. Are TV commercials getting shorter or is that just me? It is not just you – they are. Economics have driven the change, but attention span research and a metric called “day- after-recall score”1have driven the average commercial length from 60 seconds in the 1950s to 15 seconds today. In his article entitled Why TV spot length matters2, Charles Young of Ameritestdiscusses attention span of a TV audience in a way that directly translates to our effort as trial lawyers to grab and hold our jurors’ attention to our story: “What is important for capturing the attention of the conscious mind is not the raw content of the ad but the amount of meaning it contains . The true test of the significance of the information in an ad is how much attention, either conscious or unconscious, the audience decides to allocate to it. Only the information in an ad that is important to the audience is transformed into thoughts and emotions that ultimately come together to form the meaningful memories that nourish brand.” His study shows that a 15-second commercial has 83% of the effectiveness of a 30-second commercial. 1Millward Brown has coined this metric for use in their branding and marketing research. Check out their interesting web site, www.millwardbrown.com. 2http://www.ameritest.net/images/upload/Why_TV_Spot_Length_Matters.pdf There is a lesson here. Less, well presented, can be better than more. Grab and hold your audience, form meaningful memories that nourish your brand – your story. Create “day- after recall.” How much time to you spend every day managing different forms of electronic messaging and has it increased over time? Of course it has – you might be checking your messages now. Have we lost your attention? IM, social networking, emails, tweets: need we say more. We develop survival skills to cope with the inundation of messages seeking our attention – we shorten the amount of time spent on each, we master the art (at least we think so) of multi-tasking. Our attention span to each input is shorter – it has to be that way. Our wiring changes, literally. Jurors live in this world as well.3 We need to factor this into how we present information to them. 3 Looking for an emails statistics report? You can find one at http://www.radicati.com/wp/wp- content/uploads/2012/04/Email-Statistics-Report-2012-2016-Executive-Summary.pdf. Juror Expectations: Risks of Going Without Visuals For those of us that handle death cases, the TV show CSI has changed what jurors expect to see at trial. Even jurors with limited formal education have become increasingly sophisticated in understanding the technological changes to visual media.4 Jurors expect visuals. The average male juror spends 2.7 hours per day watching television – a medium rich with visual content and transitions, a medium that is comforting and familiar. We all know the studies contrasting the retention level of information presented visually versus verbally. Story telling is at the heart of what we do as trial lawyers, but telling stories with good pictures is better than presenting an image-free novel. What will motivate a juror to listen to you? They are stuck in their chair. Be fair with their attention span. Don’t drone on. Demonstrate, through the connection of imagery and words, that you are there to help them understand the evidence. Help them decide in your favor. The Federal Rules of Civil Procedure and the Federal Rules of Evidence have yet to specifically address the use of technology in the courtroom. However, one of the earliest opinions that specifically mentions PowerPoint is Industrial Recycling Services v. Rudner, 2002 WL 1821952. In Rudner, the defendant objected to the plaintiff's expert's use of a PowerPoint presentation in this case for professional negligence against its accountants relating to commodities trades. However, this opinion provides little insight because the presentation was never admitted into evidence and only used as a visual aid for the expert's testimony.
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