Montana Lawyer June/July 2024

JURY ECONOMICS

Escaping “Lawyer Brain” in Jury Presentations THOMAS M. O’TOOLE, PH.D & KEVIN R. BOULLY, PH.D

We all know law school, the prerequisite for becoming a trial lawyer, is a consider able commitment of time and money. It is also a commitment to see and think about the world in a different way. Law students commit to learning an entirely new frame work for evaluating things that happen in the world as well as unique ways to write and talk about that framework, adopting unusual terms such as “opine,” “exculpa tory,” and “malfeasance,” words the average person may never hear in their lifetime. Indeed, to go to law school to become a lawyer is to embark on a journey to a new world. It is not unlike moving to a new country to learn a new language, culture, and rules of society. This training serves lawyers well. It gives them the tools to manage the litigation process for their clients, arming them with all the right words and phrases to effec tively argue at a hearing before the court or in a written filing. It gives them what we call “lawyer brain,” which is essential for the job. But then there is that 5%-10% of the time that lawsuits make it all the way to trial. There, everyday people who know little to nothing about law school, who do not understand “lawyer brain,” become the critical audience lawyers must communicate with and persuade to vote in favor of their client in the deliberation room. Suddenly, what has worked for lawyers all their profes sional lives becomes a barrier to achieving what their client needs because they are stuck speaking a language that few if any jurors understand or can relate to. In this month’s column, we want to talk about breaking out of “lawyer brain” and developing a communication style that resonates with jurors, one that is both

persuasive and engaging. It is often referred to as a “folksy” style, but in our combined 40+ years studying juries, the most effective communication style that we have seen and studied relies on a particular set of skills. As with any skillset, it takes time and practice to hone. Here are the common habits of the best and most effective folksy attorneys we have come across. 1. They speak in stories and have a conversation with the jury rather than lec ture them or tell them what to think. Jurors don’t want to be lectured or told what to think. The best courtroom litigators we have seen feel like they are talking with you, not at you. Their style is conversational, like a neighbor or friend telling you about something interesting going on at work, and like that neighbor or friend, they mostly tell stories. One common example relates to is sues where lawyers have to address errone ous but common beliefs that jurors might hold. Many attorneys might be tempted to tell jurors why their beliefs might be wrong and educate them, which creates a hierar chy of the “smart lawyer” above the “dumb jurors.” Folksy litigators tell their own story

of discovery, revealing how they learned the key issues in the case and how what they had assumed or initially believed turned out to be wrong. This fundamentally changes the dynamic. The folksy attorney is not tell ing jurors they are wrong. Instead, they are acknowledging that they got it wrong and telling the story of how they learned from their misbeliefs, educating jurors along the way. 2 . They speak in understandable language and relate to jurors. Many attor neys might describe their expert by saying something like, “We retained Dr. Smith in this case, and he has opined that…” Folksy litigators avoid this kind of technical speak, instead saying something like, “We sat down and talked to Dr. Smith and here’s what he thinks.” This might seem like a silly distinction but when lawyers speak in language that is uncommon or abstract to jurors, it widens the gap between speaker and audience. It makes it difficult for jurors to identify with the attorney which decreas es credibility, likability, relatability, and consequently, persuasiveness. 3 . They give jurors personal tidbits

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