by: Dr. Ken Broda Bahm
From a lawyer’s eye view, it is often a matter of arguing, convincing, and proving with evidence. But from a juror’s eye view, it may well be a matter of wading through an unfamiliar lexical landscape in order to comprehend enough to make a responsible and respectable decision. The adversary model prioritizes persuasion, but litigators need to remember that the simple act of teaching can be an essential first step for two reasons: 
- No fact-finder will be convinced of or argue for what they don’t understand; and
- It is easier to distrust and dismiss an advocate for being biased than it is to set aside a teacher who is telling you something you need to know.
Anne Reed’s excellent Deliberations column recently made the case for reducing jargon in order to improve juror education, but there are a few other implications that flow from an educational focus in litigation:
- Expert witnesses communicate best when they are engaging professors rather than motivated advocates.
- While you need to convey persuasive themes early in your opening, consider building in a clear and interesting “teachable moment” early in opening, possibly using a well-designed demonstrative.
- Education depends on motivation. It is easy to assume factfinders want to understand your case as badly as you want them to understand it. But they don’t. If an arcane dispute between two behemoth corporations functionally requires jurors to become accounting experts in order to decide the case, then don’t count on their willingness to do the hard work of comprehension. There had better be a principle at stake that jurors care about, or they won’t bother.
A recent example serves as a reminder of just how much the need to inform can take temporary precedence over the need to persuade. A Plaintiff in a Madoff-style financial fraud had a case that depended on jurors understanding a complex distinction between an investment and a loan involving a financial instrument that at times behaved like both, or neither. While there were parties and experts lined up to provide comprehensive and accurate descriptions of this distinction, for the Plaintiffs’ attorney, the solution came in the form of a simple four-cell cartoon that created a clear and memorable version of that difference. Ultimately, the cartoon worked, and most of all, positioned counsel in the credible position of being the one able to save the jury’s sanity by giving them that simple explanation.
So on your next case, ask not just “how can I persuade?” but also, and often first, “how can I teach?”
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