In complex civil litigation, there’s a lot to manage: a huge wealth of people, events, documents and detail to encourage your fact finders to know and remember. All of them, or nearly all of them, will be important. But some need to stand out. If you’re able to really nail down a key fact, it can serve as the North Star for your fact finders, whether they’re jurors or a judge, arbitrator, or mediator.
So, how do you nail it down and ensure that it isn’t lost? You can tell them, “This is important”, but that tactic can lose impact when its overused, and it could even induce more mental counterargument against that fact. Instead of just conveying your key facts and hoping that your audience understands their importance, it is better to have a strategy for making them stick like glue. It comes down to how you frame it, using some basic but essential techniques. In this post, I will share five ways to make your key points sticky.
Center It in Your Story
Lawyers are trained to learn by rote memorization, or by analytically breaking down, branching, and combining topics. The rest of the population tends to learn through a story. So, the best way to make a fact or argument stand out is to make it a feature in the narrative. Make it part of the plot, a character, or a turning point in the story:
In this case, the Contract Revision is so important that you can divide time into the two phases, “before,” and “after.” So, I am going to mark this timeline – “before CR” for the period of time before they tried to unilaterally revise the terms, and “after CR” for what happened next as a result.
Embed It in Your Theme
If you’re using a theme correctly, then you have a boiled-down nugget that captures your case, rolls off the tongue, and sticks in the mind. It should be your frequently-used touch point. If it highlights the central fact that you want fact finders to remember, then it becomes a frequent reminder.
SmithCo did not give up on Ms. Jones. Instead – by not reporting, not participating, and not following the policies – Ms. Jones gave up on SmithCo.
Lawyers often know the value of the courtroom prop. One of my favorite examples is the unopened and distinctive envelope that sits for days on counsel table before its contents are ceremoniously revealed. The goal is to center and hold attention. Common courtroom demonstratives do that as well, albeit less dramatically. You want to take a central fact, and ask, “How do I make this something jurors can picture in their minds, and not just remember?” and you can apply even to abstract facts:
In this exhibit, you can see a picture of a stopwatch. There is a set amount of time on it. In this case, it started running on February 18, 2017. And it stopped on that same date two years later. The name of this stopwatch is “Statute of Limitations.” And the simpler idea is this: Time’s up.
Bake It Into a Metaphor
As a technique, metaphors have a special relationship to how we think. That is because we understand new things in terms of what is known. Tying a new idea to something we can already relate to makes the new content seem more familiar and more trustworthy to us.
At the start of a race, runners are lined up on the starting line. They can’t move until the gun goes off. For Dr. Brown, that starting gun is something called the “indication,” or the physical signs that a given medical condition is likely present and needs to be treated. Until that starting gun — the indication — is present, it is both unnecessary and potentially harmful to start treating. Don’t run until you hear the starting gun. Dr. Brown waited for the starting gun, didn’t move until she heard it, but once she heard it, she was off.
Use Primacy, Recency, or Both
We remember what is first and what is last. These attention effects – primacy and recency – are simple but powerful considerations in how we structure our messages. Primacy, or first impression, is the longer-lasting effect and works due to the novelty of just meeting your audience and the heightened attention they’re applying at that stage. The recency effect, in contrast, is of shorter duration, but is more powerful while it lasts. It does matter what words you leave ringing in your fact finders’ ears.
Opening: Good morning. I’m going to get around to the introductions and the overview, but I have one critical question to put in your mind first….
Closing: …When I stop in a moment, you are going to hear the instructions and walk into that jury room. And the final word, that was also the first word in this case, is this….
Image credit: 123rf.com, used under license