Montana Lawyer February/March 2025

captain of the ship. He alleged the large corporate defendant who owned the ship had been negligent in creating a safe environment on the ship (and that the ship was not seawor thy), which resulted in his injury. Notably, the captain was away from the helm at the time of his injury, leaving it un manned while he carried on casual conversations with deck workers. Highlighting that the plaintiff was the “captain of the ship” helped the defense in many ways. First, it made it easy to convince jurors the plaintiff was negligent since he had abandoned the helm, which jurors thought no captain should ever do (their images of a captain always at the helm of a ship were too difficult for the plaintiff to shake). Second, the jurors concluded that it’s the captain’s duty to assess the seaworthiness of the ship before taking it off the dock. Consequently, the defense focus on the plaintiff as “the captain of the ship” caused his seaworthiness claim to backfire on him. Finally, we found that jurors simply held the plaintiff to a much higher standard than they likely would have had the plaintiff been a deckhand rather than the captain. The third function of a compelling label is to establish the basic rules that apply to the issues in the case. There are many in the plaintiff’s bar who have adopted this as an essential component of their case strategy. Seattle trial at torney Rick Friedman wrote a book about this that has led many plaintiff attorneys to adopt the strategy, though the concept is certainly not limited to plaintiffs’ cases. We can only imagine how many defendants in pedestrian injury cases have argued the importance of “looking both ways before crossing the street.” Phraseology that establishes the rules that apply to the issues in the case can be particularly effective in complex cases. Years ago, in a case involving price-fixing and collu sion claims against our client, we found our defense argu ments were too complex for most jurors. Even if they un derstood them as our attorneys spoke, it was unlikely they would remember the necessary details and/or be able to re-articulate them in the deliberation room. Consequently, we reduced the defense to two simple rules that became our repetitive phraseology throughout trial. The first rule was that “the cost of making a product can never exceed the price we sell it for.” The second rule was that “supply should never exceed the demand.” The attorneys used these simple phrases repetitively throughout their presentations. These two rules were simple, easy to understand, and came across to jurors as painfully obvious principles that should drive the decision-making of any business. The fourth function of a compelling phrase is to help soft-sell an argument that might otherwise be difficult for jurors to digest. We once worked for a defendant in an out door recreation case involving highly sympathetic parents as plaintiffs who had lost their young child. The evidence showed the defense had grounds to factually argue the par ents were at least partially to blame for what happened to their child, but it was also obvious this kind of finger-point ing ran a very high risk of causing juror anger and backlash. As we discussed the case narrative and themes with our client, we came up with the phrase, “an overwhelmed family

in an overwhelming situation.” The facts in the case were that this family had never engaged in this outdoor recre ation activity and when they showed up that day to do so, they brought the family dogs and a host of other things that were not necessary for the activity. The facts that provided grounds to put blame on the parents were just that: they made a series of decisions that made the situation so much more overwhelming for them than it otherwise should have been. Consequently, we adopted this repetitive phrase about “an overwhelmed family in an overwhelming situation” as a way for jurors to reach the conclusion on their own that the family had made some poor decisions without our client ever having to directly point the finger at the plaintiffs and directly blame these grieving parents for the loss of their child. The soft-sell phrase was effective. This is exactly how a couple of the jurors described the situation after they ren dered a complete defense verdict. Finally, a compelling phrase can quickly reframe the case for jurors. We worked on a qui tam case for a defendant accused of fraud and the evidence definitively showed that some key projections were wrong. We had no way around these terrible facts until we adopted the simple, repetitive phrase that “failure is not fraud.” Consequently, we em braced failure as a key theme, which the client had previ ously been reluctant to do. Afterall, who would ever think “failure” would be an effective way to describe a defendant’s actions at trial. However, the “failure is not fraud” phrase resonated with several jurors who successfully reframed the discussion about the erroneous projections. As you try to identify effective phraseology, there are a few things you should consider. The first is obviously famil iarity. An effective phrase immediately encapsulates some thing jurors already know and understand about the world. Ideally, it should be a phrase – or a simple turn on a phrase – that jurors already know. Second, it should be simple and easy to digest. If it requires cognitive effort on the part of jurors to make sense of it, it is not an effective phrase. This is why so many metaphors used by attorneys fail. They often require too much work to make them fit. Third, effective phraseology is memorable. If you were to ask mock jurors after your presentation to write down everything they remember from that presentation, your phrase should be one of the first things they write down. An effective phrase should stand out from everything else, remaining salient in jurors’ thoughts about the case days or weeks later. Finally, effective phraseology should evoke compelling narrative. Your phrase should immediately call to mind a narrative that resonates with jurors and is easy for them to project on to the case. Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO. An effective phrase immediately encapsulates something jurors already know and understand about the world.

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