Your Trial Message

Mention the Payoff to Help Your Decision Maker’s Attention

By Dr. Ken Broda Bahm:

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Back when I used to teach public speaking, I would tell my students that their speech introductions needed to contain four steps:

  • Gain attention
  • State your purpose
  • Mention a “payoff,” or clear benefit to the audience
  • And preview your main points

I still think it is good advice for anyone beginning a presentation or an opening statement. The most counterintuitive part of that quartet might be the third piece: Provide a payoff. If the need for that part of the message is a little unexpected in a legal communication context, it could be because we make the mistake of presuming attention. After all, the judge is supposed to listen as part of her job, the jury has been sworn in and knows they’re supposed to pay attention, and the CLE audience has chosen to show up: Can’t the speaker assume everyone is paying attention? The short answer is “no.” Even if the audience wants to pay close attention (not a given), that attention can still be a challenge if the audience does not see a clear benefit to the information in the beginning and throughout the presentation. Think of it as an exchange: Your audience is giving you their time and attention, what do they get in return?

A recent study on memory provides support for the idea of highlighting that benefit. A group of Swiss researchers (Igloi et al., 2015) published the results in the journal eLife. The study looked, in part, at the effectiveness of giving small rewards (correct answers got you a Swiss Franc) with the information, reasoning that “Rewards may act as a kind of tag, sealing information in the brain during learning.” Turns out, it works: Even three months later, those who received rewards along with the information had better recall. But, of course, advocates can’t actually pay jurors or judges, not even with Swiss Francs. But you can use the power of persuasion in order to help judges and jurors see the personal benefits to the information. Why would there be a personal benefit to the information? After all, they are resolving someone else’s dispute. But if you add in the circumstance that judges and jurors are doing a job, and the reality that most people want to do their job well, then information can be personally beneficial if it helps you do your job. In this post, I’ll identify five ways of highlighting a kind of payoff that can help judges and jurors do their jobs.

Five Payoff Messages to Increase the Memorability and Usefulness of Your Facts and Arguments

Think of the juror or judge doing their best to attend to the stream of information coming their way. If the implied envelope for your information is “Here’s some more information,” the motivation to really process it can be low. But if the envelope is “This information will really help you do your job,” then there’s a better chance they’ll perk up and take notice. Here are five ideas for highlighting that message.

1. This Simplifies

The most useful information will be information that helps to boil down the case and make it easily digestible.

Ladies and gentlemen of the jury, this case is certainly understandable, but it isn’t simple. We know that you can all master the details, but it will take some work. And here is one document that will make it easier. This document, more than all the other correspondence, and in some ways more than the text of the agreement itself, boils down the elements of the deal into five simple bite-sized pieces. Let’s take a look…

You don’t want to risk appearing to condescend to the jury, but you do want to stress the benefits of simplicity.

2. This Moves the Story

The benefit of a story structure is that it can provide an intrinsic motivation: Even without other benefits, we will naturally want to know what happens next and how the story ends.

This, ladies and gentlemen, is where the story takes an interesting turn. Up to this point, the relationship between the parties was cordial, professional, and businesslike. But all that changed when the “send” button was hit on this email message I’m about to show you. 

When the information is presented as a key plot point, and not just as another entry on the timeline, it warrants extra attention.

3. This Revises Your Assumptions

Existing beliefs are powerful, and we’re all more likely to stick with them than to revise them, but in the particular courtroom setting, fact finders also want to be skeptical and careful. If a fact helps to revise an erroneous assumption, then it is an important fact.

Now, you might assume that a powerful company, with armies of lawyers and executives, would have scrutinized this deal with a magnifying glass, and would have spared no effort in making sure that every detail was spelled out in concrete terms. But if you assume that, then you would be wrong. Let’s take a look at some of the problems that made it through…

By framing the information, not just as another piece of evidence, but as an unexpected or surprising fact, it is more interesting and rewarding to the listener.

4. This is the Keystone

Sometimes understanding one fact can be key to understanding a host of other facts, and emphasizing that relationship to jurors can highlight the benefit.

Looking through the entire timeline, there is one question that might be perplexing: Why? Why would rational and responsible businessmen consistently take actions and make choices that are contrary to the deal they’ve already signed? Understanding the motive, it turns out, is key to everything else. And the motive is clearly spelled out in this next document. 

The keystone fact isn’t just important in its own right, it is important in being able to explain a large chunk of other facts.

5. This is a Shortcut, or an Easy Way Out

The volume and complexity of information in a civil case can be high, and the thought of processing all of it can be daunting to a jury or a judge. Sometimes, however, a piece of information can serve as a shortcut creating an escape hatch from that volume and complexity.

Now, you can go through all of these documents and all of these timeline entries, asking at each stage which party is following the agreement and which party isn’t. If you do take that long road, I am sure that you will be thorough and careful. But the alternative is to take a close look at this document right here: If you understand this one, then I think you’ll see that the agreement was functionally void very early on in this story. And if that is true, then you really don’t have to wade through all the rest.

As with benefit #1, you don’t want to risk insult. It is not that the fact finder couldn’t or wouldn’t take the more complex route, it is that they shouldn’t have to.

The additional factor that the Swiss researchers looked at was the power of a nap. It turns out that a little rest between learning and recall helps as well, along with the reward. Unfortunately, adding juror naps is probably an unlikely reform. But the finding regarding rewards should encourage a shift in perspective. The argument shouldn’t be, “This fact is important because it helps my case,” it should be “This fact is important because it helps you do your job.”

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Other Posts on Attention: 

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Igloi, K., Gaggioni, G., Sterpenich, V., & Schwartz, S. (2015). A nap to recap or how reward regulates hippocampal-prefrontal memory networks during daytime sleep in humans. eLife, e07903.

Image Credit: 123rf.com, used under license