Montana Lawyer February/March 2025

Building Effective Phraseology for Your Jury Presentation THOMAS M. O’TOOLE, PH.D & KEVIN R. BOULLY, PH.D JURY ECONOMICS A recent text from a friend tried to capture “all corporate jargon in one paragraph”:

In reality, there were not two actual sets of books, which was the client’s initial concern: Is this technically accurate? But we did not need it to be literally true. The phrase is powerful and memorable, and immediately conjures corporate duplicity and misconduct. We had enough to clearly establish that there were different sets of numbers, and we could show that only one set of numbers was shared with our client while all the other numbers were kept internal and never shared. The “two sets of books” stuck. In our mock trial research, the defense simply could not shake itself from the narrative conveyed by this simple phrase used repeatedly throughout the plaintiff’s presentation. The “two sets of books” highlights the first function of ef fective phraseology at trial. It evokes narrative that speaks to jurors’ everyday understanding of the world. It draws on ideas they have about the world that favors one side and invites them to apply those simple and compelling narratives to the case at hand. Put another way, effective phraseology can be a shortcut to establish a persuasive narrative at trial. Another function of effective phraseology is to convey organization or hierarchy. Perhaps the most popular phrase across all the mock trials we have conducted over the course of our careers is “captain of the ship.” As deliberations begin, the mock jurors try to identify who they believe is the “captain of the ship.” We’ve seen them engage in all sorts of fascinating analysis to reach those conclusions, sometimes in a spectacu larly erroneous fashion. But once they’ve found their “captain of the ship,” the hierarchy and organization of the case and parties is established and that becomes a filter for how ju rors evaluate everything, with the “captain of the ship” most often bearing the bulk of the blame for what happened. In the famous words of Spider-Man’s Uncle Ben, with great power comes great responsibility. Interestingly, we worked on a maritime personal injury case a few years back where the plaintiff was literally the Effective phraseology can be a shortcut to establish a persuasive narrative at trial.

“Let’s circle back and blue-sky this paradigm shift by leveraging our bandwidth to drill down on the low-hanging fruit, but only if we can move the needle without boiling the ocean. At the end of the day, we need to disrupt the synergy of our core competencies and pivot the deliverables into a thought-leadership ecosystem that aligns with our key performance vegetables.” Most folks have no idea what that paragraph actually means, yet it immediately evokes a clear image of corporate life and for most, a visceral reaction of one kind or another. We have all heard at least a few of the phrases in that para graph and can visualize a boss, client, or colleague using them in a recent meeting. Perhaps it was one of us, or even you, who threw them out in a recent meeting. Regardless, the point is this kind of phraseology is powerful because it immediately connotes familiar ideas about the world. It sets the scene and conveys narrative through its reliance on common tropes. Attorneys should focus on this kind of phraseology as they prepare their case presentation for trial. A simple, memorable, and compelling phrase can lock the audience into your client’s narrative structure and make it difficult for the other side to shake the audience free of those ideas about the case. We saw this several years ago in a case on behalf of a plaintiff accus ing a corporate defendant of fraud. In discovery, the plaintiff found the defendant was conveying certain accounting infor mation to some people (including the plaintiff), while internal communications showed that same accounting was inaccurate and emails showed various alternative accounting numbers. In our case strategy development session with the client-plaintiff, we suggested the client adopt the phrase “two sets of books” to describe what was happening with the corporate accounting. A simple, memorable, and compelling phrase can lock the audience into your client’s narrative structure and make it difficult for the other side to shake the audience free of those ideas about the case.

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