Winning. For a trial lawyer, it is everything.  In pursuit of that goal, litigators spend countless hours in preparation. But alas, jury trials are not won by hard work alone. Nor are they won by irrefutable facts, conclusive evidence, brilliant pre-trial motions or by having the law (or even the judge) on your side. 

To many, therefore, a jury trial is largely a gamble -- as reckless an endeavor as playing Russian Roulette. The eye-popping jury awards of recent years have not helped and trial lawyers have turned to pre-trial settlements, mediations and binding arbitrations as the new weapons of choice.

In fairness, many variables do spiral into play when 12 average citizens are ensconced in a jury box. But jury trials are really not crapshoots. There is logic to the way juries behave and once that logic is understood, the most seemingly inexplicable verdict becomes both explicable and predictable.

In construction cases where the sheer volume of technical details can often be overwhelming, this maxim still holds true. For no matter how technical or complicated a case, the true secret to winning is found not in the scientific evidence you present . . . but in the story you tell.

The Story Is the Key

Lawyers are logical thinkers. Trained that way, they present their cases fact-by-fact, brick-by-brick, bolster them with witnesses then wait for the jury to reach the logical conclusion. But time after time, the jury goes haywire and renders a verdict that leaves the trial team baffled. The reason is simple: the lawyers are doing inductive reasoning.The jurors are not.

Research shows that by nature, people tend to organize disparate facts and information into stories. In fact, if given a choice, 95% of people will use a story format in lieu of any other. It's one way we manage the chaos of our world.

In court, the process goes like this: jurors listen to your Opening Statement and discern a story therein. If you have actually told a story during Opening, that's great. If you haven't, jurors quickly cobble whatever information you did present into a story of their own. Throughout the case-in-chief, jurors continue to listen to the facts and evidence but they do so selectively, adopting the facts that "fit" that story and ignoring the rest. In deliberations, jurors will vote in defense of their chosen story, basing their decisions on the filtered evidence they've decided supports it.

What the jurors are doing is deductive reasoning. They are combining a story with filtered evidence to reach a verdict. This process poses a problem in any type of litigation but it is of particular concern during complex construction litigation. In construction litigation, the litigants are usually expecting jurors to apportion blame on the basis of technical facts and arguments. The trial team thus focuses on explaining the what: what technical errors were made, what structures didn't meet code, what improper design, materials or procedures were used.

Unfortunately, jurors may never understand those technical arguments and even when they do, they often discount them. Jurors tend to focus on why something happened, i.e., on the motivation behind the wrongdoing. They want to know why the contractor omitted the hoops and crossties. Was it to save time and save a dime? Or they'll wonder whether the plumbing contractor installed a different pipefitting from the one specified in the shop drawings because his supplier only stocked this one and he owed the supplier a debt.

In other words, while the trial team is focused on the technical issues, jurors are looking for the human story buried in the scientific facts.

Needless to say, this dichotomy in perspective can and does impact the outcome of a case. But is doesn't have to. What's a lawyer to do? First, tell the jury a simple story: who did what to whom (or to what) and why. Second, include only as much technical information as is absolutely necessary to make your story make sense.

Given the complexities of most construction cases, that may seem like a tall order. The technical issues are important. The solution lies not in omitting the technical aspects but in making the complex simple. When it comes to jury persuasion, how you present your technical information will determine whether jurors ever understand the story you plan to tell.

Tell Your Story Visually

So how do you present technical information to lay jurors? One of the best ways is to use visuals. As the saying goes, one picture is worth a thousand words and in technical cases, that adage certainly holds true. Images help people understand intuitively what they might never understand through verbal explanations alone.

Images also help jurors remember what they've heard. In fact, research shows that an audience that merely hears a presentation remembers only 10 to 15% of it three days later. In other words, in all but the very shortest of trials, jurors will have forgotten 85-90% of the facts and evidence you've presented by the time they reach deliberations. Should your trial last three weeks or three months, they'll retain even less.

Add visuals to that same presentation, however, and the numbers reverse dramatically: an audience will remember 70-80% of what it has both seen and heard. The reason is simple: people forget what they hear... but remember what they see. In fact, it is biologically wired in: making images is part of how Homo Sapiens make memories.

It goes without saying that getting jurors to retain the technical information you introduce at trial is crucial. Jurors cannot be persuaded by what they can't remember, but if the visuals you display are overly technical or complicated, jurors will be no better off. The trick is to make sure the visual message you deliver is simple too.

Make the Complex Simple

In construction cases where demonstrative evidence is frequently introduced during expert witness testimony, making the complex simple can pose a significant hurdle. The blueprints, shop drawings and schematics that engineers, architects and contractors routinely bring to court are way too complicated and technical for lay jurors to understand. Confronted with technical drawings such as these, jurors often tune out. They fear they will never understand them and simply don't try. (It's easier on the ego to give up than to admit you tried at something and failed.)

In an attempt to help jurors understand their testimony, expert witnesses often resort to using computer generated graphs. The assumption is that, like the expert himself, jurors will find "proof" in the statistical data. Unfortunately, that assumption is usually incorrect. People in non-technical fields have little or no experience reading graphs. Graphs therefore mean little to them. They are a foreign "language" few lay jurors speak.

The second "language" jurors rarely speak is math. They may have studied algebra, trigonometry or even calculus in high school but with nothing more to do in real life than to balance a checkbook or calculate a tip, they've probably forgotten most of it by now. Expert witnesses whose testimony calls for jurors to understand mathematical equations can expect to put the jurors to sleep. Most people can add, subtract, multiply and divide and that's all.

The lay jurors' unfamiliarity with math extends to accounting principles and spreadsheets too. Presented with damages calculations, jurors may not know that numbers shown in parentheses should be subtracted. They may also be confused by totals that are offset to the right. If your damages expert's typical "wall of numbers" can be reduced to a simple chart showing numbers added or subtracted vertically (as we all learned in grammar school), jurors will find it easier to understand. Using green ink to show income and red ink to indicate losses will make the bottom line crystal clear.

For both the expert witnesses and the trial team, the solution to communicating with jurors lies in finding simpler, less technical ways to illustrate the evidence. Graphics consultants and their creative teams can help. Through the use of color, layout, icons, text and animation, consultants can recreate technical drawings and "translate" them into jury friendly demonstratives. The best graphics consultants will help the expert witness simplify his message then choose the visual medium (whether graphics, animation, interactive multimedia, video or 3-D models) best suited for getting that message across.

Speak to the Only Audience that Counts

All of this brings us to the underlying problem: your expert witnesses may be consciously or unconsciously speaking to the wrong audience. And who might that audience be? An audience of their peers.

When you think about it, the universe of construction experts is relatively small. Many experts have worked together on projects or have faced each other in court time and time again. Small wonder then that they may be worrying that their peers are judging their performance in the witness box from the other side of the aisle.

Playing to the wrong audience may be a tendency of expert witnesses but it quickly becomes a problem for the trial team. An expert witness spouting "technospeak" on the witness stand will quickly lose the jury and may ultimately lose the case. In fairness to your experts, they're used to consorting with colleagues or Ph.D. candidates to whom technical jargon is as familiar as English is to you. They thus have long standing habits to break. But break them they must. The only people an expert witness should strive to impress are the people in the jury box.

Here are two possible solutions: instruct your technical witnesses to use the "Ten Year-Old Rule." That's the rule broadcast journalists follow when reporting on technical subjects (and in fact on all subjects) for 60 Minutes, 20/20 or the Nightly News. They use language so simple even a ten year old child can understand it. Reporters thus ensure that their listening audience no matter their age, level of education or sophistication will "get" the scientific explanation the first time around.

In court, using the Ten Year Old Rule keeps technospeak to a minimum and increases the odds that jurors will understand the testimony well enough to retain it into deliberations.

To help expert witnesses master the Ten Year-Old Rule, ask them to explain their technical subjects to their grammar school aged children or grandchildren. They will quickly discover the extent to which they must truly simplify the script.

Or, in the alternative, videotape your experts making "dry run" presentations to the office secretarial pool. If the secretaries' dazed looks don't do the trick, play back the videos. When experts see themselves talking over their listeners' heads, they'll finally become conscious of habits that were probably unconscious until now.

Less is More

Some technical witnesses will resist "dumbing down" of any kind and will balk at simplifying either the language or the substance of their testimony. Their concern -- understandably -- is that they will undermine the scientific validity of their presentations.

The reality is that some scientific details can be omitted with impunity. It's a little like baking a cake: you can leave off the frosting and still have a "cake." The same holds true with science. Jurors may not need to know graduate level structural engineering to determine why a building collapsed during an earthquake. They may need only a rudimentary understanding of how concrete behaves in compression and tension to be convinced that missing hoops and crossties may have played a significant role.

One good way to simplify complex science is to substitute "real life" examples for technical explanations. A jury that needs to know about "G" forces to understand how an earthquake affects a building may never need to hear the technical explanation of gravitational force at all. Show them a racecar driver being thrown back in his seat instead and they'll get the point. Run a video of kids being flattened against the spinning wall of an amusement park ride and they'll "get" centrifugal force too.

Real life examples are powerful teaching tools because they operate within the jurors' normal frame of reference. They are less intimidating than technical illustrations and may even be entertaining.

A structural engineer testifying in an earthquake related case on the South Pacific island of Guam used this technique to great advantage. Charged with explaining the difference between brittle and ductile response, the expert showed two illustrations of "giants" dressed in loincloths. In the first drawing, the giants tugged on a palm tree; in the second, they strained to move the Washington Monument. The palm tree bent in a graceful curve; the Washington Monument snapped off at its base and toppled over. The jurors understood the science and the expert's testimony ultimately helped win the case. His images had made the lesson painless and the humor had left an indelible impression on jurors' minds.

Indelible Impressions: The Ultimate Goal

The more frequently you can bring the presentation of the evidence down to the level of everyday life experience, the better. A case story, told in terms of common experiences, will help jurors identify with your client. A technical subject explained simply will present fewer details for jurors to remember. Or more likely, to forget.

Start with the simplest technical concepts then progress to the harder ones. Most people learn best when taught incrementally, on a need to know basis. Tell them only what they need to know right now to understand this witness' testimony or this bit of evidence. Repeat the key technical concepts -- and your key story points -- often. It may be days, weeks or months before the jury will get to use what it has learned at trial.

Most importantly, draw conclusions throughout trial. Don't rely on jurors to deduce what the facts, evidence or data mean. Frame the issue right from the start in Opening Statement. Draw conclusions out of your witnesses even as they begin their testimony. Reinforce their conclusions in the titles of their demonstrative exhibits. Re frame your conclusions during Closing Argument.

As educators often say, tell them what you're going to tell them. Tell them. Then tell them what you've told them. Why? Because that's the way jurors have been trained to absorb information: conclusions first, supporting documentation second, with a reiteration of the conclusions at the end.

© The Strategic Image 2004