- Theodore O. Prosise Ph.D.
SPEAKING TO YOUR JURORS’ CORE: CORE TRIAL STRATEGIES FOR SUCCESS
The Holy Grail of trial persuasion is to speak to jurors in a manner in which they can adopt an advocate’s or witness’s words, language and themes when they think about the case and deliberate to a verdict. Language shapes our thoughts, justifies our feelings, directs judgment, and can be used to influence others. Try and make a judgment about a situation now that does not involve speaking to yourself, selecting words and phrases that account for a situation and justifies your judgment. In Case Strategy work we do for jury trials, clients often ask us to help them develop metaphors to describe a situation. This can be a useful thing to do, but there is something that can be even more useful and effective, and it is also based on metaphor. Language, as George Lakoff and Mark Johnson note in their groundbreaking work “Metaphors We Live By,” is at its heart metaphorical. They detail different types of metaphors that are rooted in human experience. One of the most central metaphor types, for the purposes of this article, is “orientational metaphor.” Orientational metaphors are a specific type of language that can have a strong effect on an audience and lead to improved understanding and attitude change
Orientational metaphors are rooted in our physical and cultural experience. Humans are physical beings, so it follows that our cognitive sense-making efforts are based to a large degree on the fact that we are corporeal creatures; we have bodies, physical connections to the things around us. Orientational metaphors are special; they are language choices linking spatial language to experiences/understanding. Simple ways to think about root metaphors that other more operational metaphors are expressed are simple things like “up/down,” or “inside/outside” as root metaphors. When we are optimistic, we may say “things are looking up.” In this blog, I have italicized words that are orientational metaphors used to express or convey my ideas or that are metaphors based on our experiences as physical beings. I have taken steps to lay the groundwork of describing the importance of the physical metaphor in symbolic terms in order to provide tools for trial advocates and witnesses to wield in court. So, enough of Metaphor 101 (get it?). How do I use these ideas, you may be asking, if you have had the patience to wade through the pedantic lessons above? Let me offer some examples of how it may not be a metaphor you are searching for in trial strategy, but rather understanding that employing orientation metaphors in case themes, witness testimony/examination and closing argument may be your best weapon with which to vanquish your opponent in court.
Again, the key is to speak to jurors in ways they can comprehend – making simple the complex – and in ways that allow them to recall and then use your language to make sense of the case, key events and judgment about right and wrong. Your struggle will be to provide these ideas that they can grab on to and run with in deliberations, handing them the baton that they can grasp and carry your themes into their deliberations is the key to successful jury trial outcomes. These orientational metaphors can be used as micro strategies as well as macro strategies. For example, if the witness needs to express all of their efforts to assist another (say an insured or an employee), they may explain and make sure the jury understands that they were “bending over backwards” in their efforts. I can tell you from a recent trial I was monitoring as part of a Shadow Jury we were conducting, that the jurors sat up, quite literally, and took note, quite literally, when our witness described himself as “bending over backwards.” It was a vivid phrase, evoking imagery of the efforts of a contortionist working hard, doing something out of the ordinary, acting beyond the normal efforts people make. This was a simple micro strategy to get a major point across to the jury.
In another case we had to craft a macro orientational metaphor to explain a large set of “bad documents/facts” in the case. It was a case involving a class allegation of race discrimination and there were many internal documents (as one might expect in a large company) that referenced managers engaging in insensitive comments or remarks. The key, however, was to help jurors understand where these documents came from, their purpose and nature. This was done with a macro orientational metaphor theme as a central part of the case strategy. The attorney in opening statements noted how “racism, unfortunately, exists throughout our society” (the accompanying nonverbal expression was arms drawn out to depict it is a broad, wide, social phenomena, widening the circumference of the issue). It, at times, “makes its way into the workplace” (as his arms and hands drew back from the wide to his torso). “This is why it is so critical that a company of our size monitor it, document it, assess its scope and perseverance so that it can be identified and addressed. So, the evidence will show that these documents are not reflective of systematic racism that originates within the company, but rather of the important efforts the company takes to address the issue that can seep into the workplace environment.”
Directionality of thought, motive and action can have a huge impact on the assessments and judgments people make about facts. In one case, our clients were struggling with how to handle a set of “bad fact” documents with some unfortunate language top management used to refer to their CEO. Emails were littered with references to “Ozob” (Bozo spelled backwards). They were calling the CEO a clown. In an authentic moment of discussion in the case theme meeting, one of the managers shook his head and finally summed up where the phrase came from. It was born out of their frustration with the “circus-like environment” the CEO had created. This was such a powerful explanation because it was a directional metaphor that explained the motive behind the action. It came from the actions and choices of another and its origin was not from a dark motive to trying to injure someone’s reputation.
These are just a few examples of how orientational metaphors can be so powerful in controlling the impressions of an audience, providing judges, jurors and arbitrators with the sense-making tools from your client’s perspective. These authentic strategies are based on a fundamental foundation of our cognitive processes, derived from our reality as physical beings. The orientational metaphors speak to the core of the jury because orientational metaphors are so core to our nature of how we have developed language to make sense of the world around us. These spatial linguistic strategies can be employed in opening statement case themes, expressed by witnesses or in examination questions, illustrated in trial graphics and marshalled in closing argument verdict maps to guide jurors through the verdict form deliberative process. You are speaking to the juror’s core when you are using words and phrases so fundamental to their experiences as human beings. That is the way to have them comprehend the complex, buy into or purchase your case strategy, and to access the idea from their mind and memory as they are judging the merits of the completing case frameworks, and advance your themes, language, facts and evidence in deliberations with their fellow jurors.