Some attorneys seem to have a natural ability to make themselves understood. They are able to connect with their audience while laying out central points that are clear, resonant, and influential. Other attorneys may be just as organized, prepared, and ultimately accurate…but still not able to get jurors to that point of understanding and using what they say. It can be a subtle thing. The more I’ve thought over the years about the habits of truly persuasive litigators, I have come to think that one factor it comes down to is the “cognitive load” that they’re putting on their audience. Ultimately, the question is not, “Is it understandable?” Rather, the question is, “How much mental effort do they need to devote in order to get it?” They may ultimately get it, or they may not, but even when they do, there is a tendency to distrust conclusions that are more difficult to arrive at and to maintain.

So I suspect the advantage of that first attorney I describe comes down to doing many small things along the way that make the content understandable and truly easy to follow, agree with, remember, and use. One of these small things is what I call the “Loop back” or a short and direct return to part of your point to make sure that its importance is clear. Those who do this are likely to do it as a small communication habit, not because they are conscious of it as anything like a “strategy,” but it is nonetheless important. Instead of providing the reasoning evidence that supports your claim and then just moving on, it is better to add in a short return to say things like, “And what this means is…” and “This is important because....” Even when that information has already been covered, supplying it again, right as the juror or judge is receiving the meat of your argument, can convey a big advantage in reducing the cognitive load and adding to the influence of your point.

Four Steps

We have previously written about a simple four-step refutation pattern to use in responding to the other side. A more general sequence for advancing and nailing down your own claim is as follows:

Headline: Your argument in a short and direct declarative sentence.

Relevance: Connect this issue to the larger context, or the reason why you win.

Support: Provide the information that tells your audience why they can believe that this is true.

Impact: Finally, return to the punchline that re-emphasizes why this point has strengthened your case or weakened theirs.

Three Examples 

Let’s look at a few examples of that sequence in different contexts, phrased as it might be in closing argument.

Their Expert’s Concession

Their own expert admits that the revised design would not have necessarily prevented this injury. 

That is critical because it goes to the question at the heart of this case: Is the design at fault? 

So the expert was asked, “Can you rule out this kind of injury with the revised design?” Her answer, under oath? “No.” 

And remember, this is their expert, and she is agreeing with our central point. 

The Inconsistency

The Plaintiff says that he fully trusted and relied on our client, but his actions do not back that up. 

It matters, because this case really comes down to the issue of reliance: Did the Plaintiff automatically follow our client’s advice? If there was no reliance, there cannot be fraud.

So what did he say when we asked why he waited so long to invest? He said that it was to check on other market indicators. 

So in a case about reliance, this is clear confirmation that his habit was to rely on other information. No reliance, no fraud. 

The Smoking Gun 

This letter makes it clear there never was an agreement. 

It is the foundation of their entire agreement that there was a clear and valid contract. So if there wasn’t, their case crumbles. 

So let’s look at what the letter says: “In the event that we reach an agreement….” So as of May 12th, the timeframe where they’re asserting breach, there was no agreement yet. 

No agreement means no contract. And no contract means no case. 

In each case, the objective of this loop back is to carry the argument all the way to the goal line, the part that says “This is why we win,” so that jurors don’t have to fill in any of that content on their own.

One Caveat 

A final consideration in deciding how often and in what style you want to loop back to re-emphasize your point is that jurors are somewhat sensitized to lawyers being repetitive. In my experience, that is the number one complaint that released jurors offer in post-trial interviews: The attorneys were too repetitive. But I believe that repetition is common because it is essential. Jurors may be overestimating their knowledge, or may not appreciate that they need to hear something a certain number of times before it sticks. So the lawyer who is too perspicacious might be streamlining at the cost of comprehension and persuasion. Still, attorneys should be sensitive to that perception of too much repetition. So don’t repeat the point in the same words every time, and don’t stack your repetitions all at once. The sequence described above can help detract from perceived “repetition” while still reinforcing a repeated emphasis.

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