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devil's advocate noun. a person who advocates an opposing or unpopular cause for the sake of argument or to expose it to a thorough examination. Are you using the devil's advocate question in voir dire? No? Well pull up a chair, 'cause you're gonna want this in your repertoire. I've been playing with the devil's advocate question for several years now and have found it to be an absolute must in my voir dire arsenal. Here is the basic gist: A devil's advocate question is where you ask the jurors a question that exposes a defense argument. For example, say you have an overserving case. A bar overserved a customer, that customer drove drunk, and someone was killed. The defense may say things like: "We didn't force him to drink." "He wasn't obviously intoxicated." Etc. A devil's advocate question then would sound like this: "Yeah, but, what about personal responsibility? No one poured the drinks down his throat." Or: "But could the bar really do anything? He didn't seem intoxicated." You take a defense argument and turn it into a question. But, you have to be careful. For example, NEVER use a devil's advocate question until you've rallied the jurors to your side.  For example, you wouldn't say:
"This is an overserving case. Which means a bar overserved a customer, and that customer drove drunk and killed someone. Who here thinks the bar couldn't do anything if he didn't seem intoxicated?" Aack! No. You might as well pack up and go home with that question. Instead, you want to ask the jurors if they think bars can play a part in preventing drunk driving. You want to ask why that's important. You want ask the jurors if bars should be held responsible when someone they overserved hurts or kills someone else. And, depending on how they answer (ie, if they are "with" you) you can THEN play devil's advocate with: "Yeah, but, what about personal responsibility? No one poured the drinks down his throat." Here's why this works: once someone communicates an opinion, if you challenge that opinion it strengthens their conviction that they're right. Social science backs me up on this. See this article and this one and this one. The devil's advocate question allows you to both a) bring up a defense point and b) strengthen the opinions of favorable jurors all in one. Just make sure you only use the Devil's Advocate Question if the jury is firmly rallied around your idea or the question can backfire. Click here to listen to my podcast on the Devil's Advocate Question. We are all about beginnings and endings. It's exciting to start a new project or finally reach a long-term goal. But whether it's weight loss, saving a certain amount of money or becoming a better trial attorney, the magic is in the middle. The middle, however, isn't as exciting as the beginning or end. It's not fun to try things and fail. It's not super sexy to not be great at something the first time you try it. But the middle is where you change and grow, and if you don't stop to enjoy the process of reaching your goal, you'll miss the best part. For example, I'm on a journey to lose weight. Sure, it will be nice to reach my goal weight eventually, but I'm loving the journey. I know it's hard to believe, but I am actually enjoying the entire process of losing weight. I'm learning how to love myself at any size. I'm learning how to show up for myself when I'd rather quit. I'm learning to keep commitments to myself. In other words, I'm becoming the person I want to be NOW instead of waiting until I hit my goal. How many of you embrace the journey to becoming the best trial attorney you can be? Although it can be hard at times, I'm telling you, what you're learning NOW is where it's all at. We all want to believe there's a pot of gold waiting for us at the end of the rainbow. We tell ourselves that once we meet our goal THEN we'll finally be happy. The problem is, it doesn't work that way.  Results don't bring happiness. Effort does. Doing the work to lose weight, save money, become a trial attorney is where the happiness is but most of us miss it because we're so focused on the end result. The journey is way more fun than the destination, but only if you embrace the magic in the middle.  I know it seems like you are doing an endless number of things both before trial and during.
But when it comes to communication, you're really only doing three things. Teaching, storytelling and dealing with resistance. Teaching Teaching is where you impart information. You teach throughout trial. For example, if your case involves angiograms, you begin your teaching in voir dire by asking jurors about their familiarity with specific medical terms in your case. "Who here has any familiarity with angiograms?" "Was your father's angiogram that you just mentioned diagnostic (performed to diagnose a problem) or interventional (performed to fix a medical issue)?" Etc. You teach in opening when you tell the jury what angiograms are and how they're used. "An angiogram is where the doctor punctures the femoral artery..." "There are two types of angiograms. Diagnostic and interventional. Diagnostic angiograms are performed when..." Etc. But you also teach in closing when you show the jury how to fill out the verdict form and clarify what the legal terms mean. And during trial? Your expert witnesses teach on the stand. Storytelling You begin storytelling in voir dire by listening to the juror's stories and experiences. You continue storytelling by telling two stories in opening: the story of how the defendant caused the harm, and the story of the effect of that harm on the plaintiff. But you also tell a story in closing; the story of the plaintiff, projected into the future, where they received no help from the jury. And during trial? Your lay witnesses tell stories on the stand. Deal with Resistance You deal with resistance in voir dire by discussing the very things that are detrimental to your case. You deal with resistance in opening when you undermine the defense arguments. And in closing you deal with resistance when you teach the jury how to deal with resistance from fellow jurors in the verdict room. And in trial? You deal with resistance when you conduct your cross exam of the defense's witnesses. Why is This Important? It's important to understand the three things you're doing at trial for two main reasons: First, it helps simplify things. If you know you're teaching, storytelling or dealing with resistance, you can organize your content that way so that it all comes together at the various points at trial. Second, it informs what body language you should use. Teaching requires you adhere to presentation rules: proper stance, gestures, visuals, etc. When you're storytelling, however, you throw those rules out. Now you can and should "act." Bring the characters to life. And when you deal with resistance? Adopt the same tone of voice jurors might use should they vocalize their thoughts out loud. "Shouldn't he have told someone?" they might be thinking in a sex abuse case. So say it, just like they'd think it, with proper inflection. This creates a connection between you and the jurors. Trial can be overwhelming. Simplify your communication by focusing on these three things. If you've conducted a voir dire that gets jurors interested in the principles in your case, then your jury should be eagerly anticipating your opening to learn more. Don't blow this chance to inform and inspire jurors by making these three mistakes: Too Long. Most opening statements are too long. When your opening is too long, jurors get bored. Opening should be a preview of the evidence and jurors should be left wanting more after you're done. In addition, you want to "hum the tune" of your trial theme in opening so that as the other players (witnesses) sing that tune throughout trial (badly, and often out of tune), jurors remember the original. When you're opening is too long, jurors forget the original song and you start to lose them. Too Complex. Most opening statements are too complex. When your opening is too complex, jurors get confused. Names, dates, medical terms the jurors don't understand, stories out of order, tons of visuals...all of these things add to a juror's confusion. When jurors get confused, they go inside to try and figure it out, which means they stop listening to you. If they do figure it out, they'll miss the last few minutes of content you delivered, and if they don't figure it out, they feel stupid. Too Legal. Most opening statements are too legal. When your opening is too legal, jurors don't care. And I'm not just talking about legalese either. I'm talking about words like "vehicle" instead of "car." Or "collision" instead of "crash." When you use this type of language no matter how "off code" you're trying to be, you clearly communicate to jurors, "I am a lawyer." Instead, create an opening that is short, simple and sane. Short. Condense your opening as much as possible. Short openings communicate, "this is a very simple case that can be decided easily." If you need a 2-hour opening, fine, but really make sure that's the case first. Simple. Clarify terms for jurors. Remove names and dates. Use the lowest number of visuals you can get away with. Make it easy on jurors to follow along. Sane. Clean up your language. Use "car," "crash" and other non-lawyer words. Talk like jurors talk. When you make your opening short, simple and sane, you communicate to the jurors that you have confidence in your case. Half of what you throw into your opening you don't need. So ditch it. Jurors don't commit to content; they commit to people. So make sure your content isn't getting in the way of your connection to jurors. Give this podcast a listen to learn more.   Have you ever been told you need to, "Own the space?"
What does that actually mean? Let's first discuss what we mean by "space." We tend to think of space as what is contained within the four walls we're communicating in. But space is not contained by walls. You can enlarge or shrink the space, affecting how it feels to others. How? By bringing awareness to it. Have you ever gone out to eat with someone and felt as though they weren't "there?" One of two things are possible in that scenario: they are either in their head, shrinking the space so small that you feel left out, or they have taken in the entire restaurant into their awareness making you feel lost in it. How you think about space affects how it feels. Most presenters, when standing in front of an audience, are in their heads, and it shows. When you're thinking about your content or nervous about what you're about to say, you appear small and constricted to others. However, when you expand your sense of space, bringing in the entire room and its occupants, and maybe even the hallway outside or the entire building, you expand. You appear large and in charge to others. But you not only have to increase your awareness of space, you have to move as though you belong there. That means no side-stepping, no backing up, and no sashaying. (But do send video if you do this.) Just turn and walk normally. Use big gestures and pausing. This communicates to jurors, "I belong here. This is my space. Welcome." And THAT is what it means to "own the space." Even if you are, however briefly, borrowing it from the judge. ;) To learn more, give this podcast a listen. |
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