By Dr. Ken Broda Bahm
It is the mantra of every political communicator trying to control the focus and avoid gaffes: Stay on message. In the current presidential campaign, however, that is easier said than done. Republican nominee Mitt Romney, for example, has had a particularly bad week. After some widely criticized comments on the attack on America’s embassy in Libya, Governor Romney was once more on the defensive after video surfaced featuring a number of eyebrow-raising comments from the candidate, including the statement that 47 percent of the current American population can’t be won and shouldn’t be worried about because they’re the ones “who are dependent upon government, who believe that they are victims, who believe the government has a responsibility to care for them, who believe that they are entitled to healthcare, to food, to housing, to you-name-it.” Since then we’ve seen a lot of criticism from Romney’s own party suggesting the candidate is “off message.” and several attempts to get the conversation back to the economy, to jobs, and to each candidate’s plans for the future. House Majority Leader John Boehner, for example, responded by reminding the media that the “election is about jobs, it’s not about anything else…let’s stay focused on jobs because that’s what the American people want us to stay focused on.”
What does this have to do with messages in trial? Just as in politics, where you focus can be a win or lose proposition. That is because where you spend your time is where jurors will spend their time, and what is central during trial will be central during deliberations. In that context, the trial issue that you consider to be a distraction from the main point could end up looming large in the decision. This post zeroes in on another illustration of the world of political messaging carrying some important lessons for trial persuasion, and provides some practical tips for keeping the focus where you want it and keeping the distractions at bay.
Let’s say that you are defending a products liability case and the judge has let in some damaging internal emails. For example, one of the researchers has called for a better product testing protocol. It has nothing to do with the product or the injury at issue, and the new procedure the researcher is calling for would have done nothing to change the outcome. Yet the plaintiff predictably seizes on the evidence as a smoking gun confirming the jurors’ worst expectations of corporate secrecy and callousness. The defendant obviously has to address the issue, but that focus needs to be judicious. The more the defense hammers the point, loudly declaring that “this isn’t the point,” the more it becomes the point.
Here are a few simple ideas for preventing the litigation distraction from becoming the trial focus.
One, Keep an Eye on Proportion
Think about what you feel is most important and where you are spending your time in opening, testimony, and closing. In the example above, let’s say that you’ve reached the conclusion that “80 percent of this case is whether the product meets government regulatory standards.” Good, but are you then spending 80 percent of your time on that point? If not, then you are sending your fact finders the message that other issues are at least as important.
What you are up against is the condition of distraction, and recent research indicates that it is a pretty formidable opponent. According to one study (Killingsworth & Gilbert, 2010), as much as 47 percent — there is that figure again — of one’s waking hours are spent in a distracted state, thinking about something other than the here and now. These researchers used an iPhone app to track the mental focus and happiness level of 2,500 volunteers at random intervals and found not only that distraction is close to a default state, but also found that distraction tends to be associated with dissatisfaction. Think about how you work. You are probably most happy when you’re focused, and least happy when you’re mulling things over. Audiences are the same way: most satisfied when you are able to keep them focused on the central issues and free from distractions.
Just be clear and honest with yourself about the difference. If it truly is a case weakness, then your fact finders are likely to see it as important. Calling it a “distraction” in that context will just reduce your own credibility.
Two, Control the Story
In one way or another, the story model addresses nearly all facets of effective trial communication, and this is another one. If you think about what a story does, it selects from the entire universe of what we could be focusing on in order to give us a specific place or scene, central characters, conflict, plot, and resolution. The way a story works is to control the focus by placing some things inside and leaving other things outside.
We can find no better example of the role of a story in controlling the focus than, again, in the political world. The storyteller Jonah Sachs, author of the book “Winning the Story Wars,” has written about the tales from the competing political camps fighting it out prior to the election. Looking back at the 2004 election, he quotes Democratic party consultant, James Carville, “They [Republicans] produce a narrative. We produce a litany.” In other words, while President Bush told a story about protecting Americans from threats both here and abroad, John Kerry focused on a list of issues, like clean air, schools, healthcare. The issues are substantively appealing, maybe even to a majority of voters, but they don’t hold and shape attention the way a story does.
So when you are working to keep your trial message focused on the substance and not the distractions, think about the structure of your story. Who are the main characters? Where does the scene take place? What are the dominant actions? All of these should point toward the substance and away from the distractions.
Three, Make Your Emphasis Visual
We’ve noted before that your fact finders’ distraction, or ‘mind walking,’ can be reduced through the use of well prepared and strategic graphics. More recently, we conducted our own controlled study showing the use of demonstrative aids help to make arguments perceptually more important and more central to mock jurors. Using two examples of animations relating to a personal injury/products case, we showed that using graphics measurably increases the issue importance of each particular alternate cause defense, particularly when the graphics are part of a continuous strategy of graphics use (showing images all the time, e.g., PowerPoint, instead of just using graphics here and there).
When our minds are more occupied on a point for example, both seeing and hearing about an issue at the same time, we are more likely to maintain focus and less likely to wander into distractions. In addition, your fact finders at the end of the case will be left with not only a verbal memory of what they heard, but also a visual memory of what they saw. In some ways, that visual memory might be stronger. That suggests that sometimes it is more strategic to not use visuals to explicate the issue that you consider to be a distraction, because that treatment may just end up making the distraction more memorable, and hence more important. Instead, focus your central graphics on the points you take to be the most important parts of your story.
We are used to thinking of the election as November 6th. But in half the country, absentee balloting has already begun, and by the end of next week, voters in 30 states will be voting already. What that means for Governor Romney is that there is less time to make up for lost ground. What it means for trial lawyers is this useful reminder: The election is always going on. The process of making up one’s mind doesn’t always have one discrete point of decision. Instead, it is fluid and cumulative. And that means that throughout trial, you need to keep the message where you want it and stay on that message.
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Other Posts on the Lessons of Political Speech:
- Take a Lesson from Political Campaigns: Going Negative Works (Partially)
- Learn From Your Wins and Your Losses
- Bad Stuff? Get It Out And Get It Over With
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Killingsworth, M. A. & Gilbert, D. T. (2010). A Wandering Mind is an Unhappy Mind. Science 12. URL: http://www.sciencemag.org/content/330/6006/932.short
Photo Credit: Gage Skidmore, Flickr Creative Commons