Montana Lawyer June/July 2024

about themselves that establish char acter. Whether they like it or not, law yers are characters in the story of their trials. The only question is whether they are likable or unlikeable charac ters. As part of their storytelling style, folksy litigators reveal tidbits about themselves here and there. In voir dire, they might quickly reference how they have two daughters and how they are always disagreeing on some basic issue. In direct examination of an expert, they might quickly reference some common experience they have had to help the expert build on that anecdote in their efforts to explain a complex subject. The key to this strategy is whether its goal is genuine or artificial. If the goal is an artificial attempt to make yourself a three dimensional human, it often feels disingenuous and falls flat. As soon as you make it a genuine disclosure to encourage interest and reciprocation among your juror audience, you in crease your chances jurors will see you as a three-dimensional human being 4 . They throw in random details that are memorable but not essential to the legal issue. The best stories are the ones that incorporate interesting and memorable details, even though those details may not be essential to the overall storyline. Instead, these details help the audience better visual ize the story being told. Folksy lawyers do the same. They throw in random details that improve the story even though they may have no effect on the legal argument. We once watched an attorney, who was trying to shift the critical focus to a particular individual in the case, repetitively refer to the blue suit this individual was wearing at a key moment in the case. The fact that the individual was wearing a blue suit had no bearing on the legal issue, but it made it a lot easier for jurors to visualize that moment, which in turn, made that key moment a lot more memorable for jurors. Folksy lawyers grab onto these random details and repeat them over and over again. They help put jurors in the place where the action takes place, and that helps them experience the story and engage

with it more directly, breaking down the barrier of lawyer and audience and creating a common experience. 5 . They focus jurors on what does and does not make sense in the big picture. Folksy litigators tend to care more about “what makes sense” than what the evidence actually proves. They know what makes sense is more compelling to jurors than what the evi dence shows if the two are in conflict. Even more important, the “what makes sense” framework simplifies issues by giving jurors an easy way to evaluate them by applying their own common sense and experiences. It also helps to bridge evidentiary gaps and encour age jurors to fill incomplete stories with common sense narratives that can help them see the case from your perspective. 6 . They tell jurors what they are doing. Folksy lawyers are fantastic at providing jurors constant roadmaps for what they are doing, which ensures jurors are always on the same page. They do not leave jurors behind. They take them by the hand and walk them through the boring and the complex. They take jurors on a journey telling them along the way why they’re turn ing here and there. Specific examples include a preview of the main points at the top of the opening statement, and questions in direct and cross examina tion that are more intended to guide jurors than they are to elicit answers from the witnesses. In opening state ments and even in closing arguments, it can mean very literally telling the jurors, “Now I’ve been thinking about this issue and how to better explain what happened, and here’s where I ended up…” 7 . They acknowledge the weak nesses of their case. Research has repeatedly shown that acknowledging weaknesses in arguments (or strengths in the opponent’s arguments) en hances the speaker’s credibility as well as the persuasiveness of the message. Yet, we probably don’t even need to cite research here. Most people intui tively understand that the individual who can acknowledge weaknesses in their arguments (or strengths in the

arguments of their opponents) comes across as more reasonable, which ultimately makes them more influen tial. Folksy attorneys are not afraid to make these concessions because they are confident in the overall strength of their case theory. They understand that the goal is to win the war, not every individual battle. 8 . They are helpful and gracious. The world is full of jerks and perhaps even more important, the world is full of people who are fed up with jerks and ready to send them a message. The data is clear. Jurors are angry and dis trustful. They are tired of unwarranted rudeness and aggressiveness, and they will hold it against lawyers who engage in it. Too often, we take for granted the statement that “lawyers represent their clients.” In trial, they literally do. A lawyer’s personality or actions are symbolic of the character of their cli ent. A lawyer who is uncaring conveys to the jury that their client is uncaring. Folksy lawyers recognize this and work hard to be helpful and gracious. They avoid snark and are kind to others in the courtroom. When issues arise in the court, they offer to help. We recently watched an attorney on the other side of a case struggle with their projector during opening statement. When they paused to try to fix it, our attorney offered to let them use ours instead. This was just one example of the friendliness conveyed throughout trial and it makes a difference in how jurors evaluate the parties. Each and every one of these skills can be achieved without a genuine motive of connecting with jurors as human beings, but when you are genuinely motivated by curiosity, connection, and kindness, your folksy skills will develop and land much more easily, especially when you’re working hard to escape the “lawyer brain” your law school so effectively trained into you. 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.

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