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Trial structuring and rhetoric
Whether a case is won or not depends as much on what the jury understands and feels as on the law itself. Some would say, more so, since jurors can be remarkably adept at reaching the verdict they think appropriate even when they must exercise some latitude in interpreting instruction about the law they receive from the Bench in doing so. The psychologists at Trial analysis Group help develop and test ways of presenting both factual and legal arguments in ways that are understandable, interesting and memorable, rendering them likely to capture a jury’s attention, and ultimately each juror’s vote.
The task is to blend facts, testimony, and argument in a way that makes contact with the life experiences, personal values and motives, and cognitive “schemas" that provide the lens through which a case is seen by jurors (and to some extent judges as well). We sift facts and arguments, search for useful and striking metaphors, parables, familiar historical events, and seek other rhetorical devices to provide a basis for understanding a case as an organic whole rather than leaving jurors with a bewildering morass of evidentiary minutia and conflicting contentions.
This description of the goals of trial preparation is one with which few skilled and seasoned attorneys would disagree. Yet as a trial date approaches, even attorneys who appreciate the importance of creating and testing a well structured presentation of their case may become too bogged down with other pressing matters to give this task the attention it deserves. Indeed, it is in the nature of the efforts that go into discovery and preparation of pre-trial motions that small matters demanding immediate attention become magnified, and even the best attorneys can lose track of the overall outline of the case.
Trial Analysis Group consultants can provide invaluable assistance in this regard, using frank discussions and focus group testing to develop larger themes and keep focus clear. In our experience, it is this service, all the while responding to real-time demands to develop specific arguments and rebuttals in dealing with potentially “bad facts” and potentially persuasive arguments available to the other side, that is most welcome. Less welcome initially, but potentially even more importantly, we help to anticipate what we believe would be the most persuasive framing of facts and arguments of the other side’s case. And, through careful analysis buttressed by focus group testing, we help attorneys to develop effective counter arguments and counter-framings.