Trials are complicated affairs. Trials by their very nature require a unique and often disjointed means of presentation. Moreover, trials often take days if not weeks to conclude. Given these circumstances, combined with the short attention spans of today’s jurors, it is incumbent upon us as trial lawyers to do all we can to steal the attention of our jurors. To do this we can look to the teachings of theater. Trial consultant David Ball, who has a strong background in theater, instructs us to use the same concepts, employed for ages in theater, in our trials. To accomplish this we can use visceral communication in trial.
Visceral communication is that type of communication which directly impacts the listener on an emotional level. No logic is required to establish this emotional impact. The basis for a person’s emotional reaction is found in evolution. Essentially, we are programed to respond to survival-determinative forces such as sex, revenge, violence, amongst many other forces. This results in a wide variety of forces or concepts which create deep emotional arousal in the listener despite what might be a lack of corresponding logic supporting this arousal.
Concepts which create this arousal include such things as secrets, hidden facts, danger, sex, jealousy, betrayal, conflict, reunion, greed, cheating, fraud, abuse of power, exploitation, deception, infidelity, manipulation and revenge, amongst many others. Think about some of the movies you have seen. These movies contain these viscerals which arouse emotion and interest in the viewer. When we think about how we will present our case to the jurors we need to think of how we can present our evidence within the framework of strong visceral communication. To this end we may want to create a strong general theme based on good viscerals. For example, let’s say you are handling an injury case where your client has a legitimate and serious injury. Add to this the fact that liability is clear in your case. In these circumstances the defense may have no choice but to fall back on calling your client a “malingerer”. The defense tries to persuade the jurors that your client is exaggerating. Using these facts we can turn the defense’s own argument on its head by making the case about “unfounded accusation” or “lack of responsibility”. These big picture themes create an emotional reaction in the juror.
The emotional reaction you cause in the listener does a couple of things for you in trial. First and foremost it creates interest for the listener. As stated, trials are long arduous affairs, we need to keep the jurors interested, especially when it is our portion of the case. When you create emotional reaction in the jurors they become emotionally involved and thus naturally interested in the facts of the case. This is the same thing that glues you to a good movie or book. The second benefit of the visceral communication method is that you can use the emotion of the jurors to fuel a strong verdict. It is one thing for the jurors to simply follow the jury instructions and find that liability does exist and that your client was injured and thus there should be some level of compensation for those damages. However, if you can create anger in your jurors by playing to their emotions then this same verdict doubles or triples. The jurors now are making decisions not just because they are told to do so but rather based on their own emotional reaction which can be very strong and thus motivating.
Another good visceral you can employ in an injury case is that of greed. Say for example, that in your case the defendant is a large corporation. That the plaintiff was injured after being dutifully employed and loyal to this same corporation for years. Then say the corporation decides not to admit responsibility for your client’s injuries. Here you can create a theme of “greedy corporation puts profits over people”. You are now playing to a theme which resonates in the hearts of the jurors. The case at this point becomes something larger than simply an injury and compensation. The jurors now become angry at the defendant because they see greed and lack of responsibility on behalf of the corporation. The jurors now seek justice in the form of a strong plaintiff’s verdict.
Beyond using visceral in your general theme, you can additionally use them throughout the case. To do this you use what Davd Ball calls “mini-viscerals” throughout the case, some of which may be the same as your general visceral theme and others which may be different. So, say for example you are cross examining a specific witness. After you write out your cross examination think about how you can change the language of your questions so as create viscerals. Once you determine what visceral to employ in your questioning you need to expound on that visceral so as to make it larger for the jurors. Going back to the example of the corporation who doesn’t want to pay for its’ own employee’s injuries, you could make betrayal the key visceral you employ in a given cross examination. To do this you want to expound on the concept of betrayal in your cross examination. You would ask questions which direct attention to how long the employee has worked for the company, how faithful the employee had been to the company, how the employee hadn’t been late in years, and the like. In this way you build up this visceral of betrayal. By doing this you feed on the jurors’ emotions. The jurors are now glued to your cross examination. The jurors watch intently to the examination because your line of questioning plays to the jurors’ emotions. In addition, you receive the added benefit of angering the jurors. Directing their anger at the defendant.
As stated above, this information came to be by way of legendary trial consultant David Ball. For a thorough understanding of this type of information and more see any of his seminars or pick up any of his publications. This particular information came from his publication, Theater Tips and Strategies for Jury Trials.