What Should Trial Lawyers Know About Marketing and Psychology – 3 Suggestions

With millions, or billions, of dollars at risk, companies use an immense amount of data to influence sales decisions. Companies can’t afford to leave the choice of their product or service to chance.  The same is true of many political campaigns – no politician wants to let her opponent win the battle of influencing the choice of which candidate should win an election.

This type of influence and persuasion is not limited to consumer-goods companies or politicians.  Trial lawyers can learn a great deal from studying some basics of marketing and social psychology.  After all, just like businesses and politicians, we are asking jurors to make a choice.  Admittedly, there are important differences (we hope) between choosing shampoo and choosing whether an injured plaintiff will prevail at trial, but there are important similarities also.  In this post, I want to describe 3 principles that trial lawyers can use to maximize the effectiveness of the way they present their cases to jurors.

Reciprocity –   Reciprocity is the idea that someone is more inclined to buy something if you first provide them with something of value.  This principle is behind all sorts of marketing.  Just think of all the gifts and freebies that you get over an average year.  In a trial, this principle can help in jury selection.  For example, when you want jurors to lose their fear of self-disclosure, it helps to do some disclosing yourself first.  That’s just one of the many ways to use the principle of reciprocity.

Visual Evidence– Visual evidence is particularly important today, as jurors have become more and more accustomed to seeing messages displayed in visual ways.  From opening to witness exams to closing, visual evidence should be used throughout.  And, just as important, keep it simple, and use the same visuals repeatedly so your message stays focused.

Commitment – Commitment refers to the principle that once someone commits to something, he is far more likely to do it.  In the case of jury selection, jurors should be asked to commit to certain rules that may be important, at least generally.  For example, a lawyer may ask a potential juror if she is in favor of caps on damages in every case.  If the answer is no, it may be wise to emphasize that point during closing. It would be difficult for that juror to later go into the jury room and say she is in favor of caps.

There are whole books that could be written on this subject, but these are three principles that seem important during just about every jury trial.  Please share in the comments any ideas and suggestions that might help all of us lawyers who are trying cases.

Ego Keeps Lawyers From Trying More Cases

I was just reading the latest edition of AAJ’s Trial Magazine, which covers a lot of psychological territory. One of the articles is by Rick Friedman, a very successful trial lawyer who’s written books on trying cases and often lectures to other lawyers about trying cases.  He isolates one factor as the one that seems to keep lawyers from trying more cases – ego.  He calls it the fear of losing, but that fear is driven by ego.  Every trial lawyer is afraid of losing because losing would not only hurt his or her client, but it would also diminish that lawyer in the eyes of his peers. Friedman also refers to this fear as the cancer of comparison – the comparisons that every lawyer makes to his or her peers.  It is the same human problem that has always been with us.  All of us want to appear smarter, stronger, better than those around us. Lawyers are not immune to this.

But we must fight the tendency to let our egos and fears keep us from trying cases, even cases where the odds seem insurmountable.  Friedman says “Corporate America is not afraid of the handful of lawyers who appear to “never lose.’ What would cause fear in corporate boardrooms is a generation of lawyers willing to risk losing – willing to set their own egos aside and fight for their clients in court, even when the odds are against them.”

Good stuff, and worth a careful read.  Then, once read, thrown it away and go try some cases!


What Should a New Lawyer Do to be Ready to Actually Take Cases to Trial

Some of my students this semester asked me a variation on the same question  – what they should do to become good trial attorneys?  They want to know what books I recommend, what strategies work best, and which cases are best-suited for trial.

My answer is that becoming a good trial attorney is largely a matter of geography.  Just as being a good basketball player requires that you change your location from bench to court as often as possible, so too does trial work require that you move yourself from your office to the courthouse.  Trial lawyers try cases.  It’s that simple.  Well, almost that simple.

Let’s take the basketball analogy a little further.  A person who wants to get better at basketball does so by actually playing.  But of course that isn’t all. Good players spend a lot of time practicing and thinking about the game.  There’s a reciprocal process going on – better practice leads to better play, better play helps you see what works so you can focus your practice.  But the 2 main ingredients stay the same- playing the game, and preparation.  So we can revise the formula a bit – trying cases plus thoughtful preparation (revised as experience dictates) are necessary ingredients for the aspiring trial lawyer.

Trials are not basketball games, but if they were one of my mentors could probably be the Steph Curry or LeBron James of trial work.  Often I would ask him what books I should read and what seminars I should attend to become a better trial lawyer.  He would usually patiently say that those things are great but ultimately you have to actually go try cases.   That’s why being a trial lawyer is largely a matter of geography.  I used to think that way of thinking was outdated.  I don’t think so any more.

Don’t misunderstand me – reading books is vital, and so is attendance at seminars.  I’m not encouraging that lawyers avoid those things.  In fact, I love to read books on trial techniques, psychology, persuasion, communication, and cognitive science.  But all that knowledge has to be translated into action, and trying cases is the way we do that.

Today, there’s been an enormous increase in the number of books written about trial work and related fields.  There’s no shortage of books or friendly experts willing to tell lawyers how to try cases.  But there is a shortage of trials.  Very, very few cases on the civil side go to trial.  So, to get better at trial work, get out and actually try some cases.

Books On Trial Advocacy

The summer usually sets a slower pace for law practice as lawyers and judges take some time off to be with their families before school starts back up.  I have always found it to be a good time to catch up on my reading.  I’ve been reading more and more about decision science and persuasion lately and some of the books I’m getting into this summer include (1)  The Art of Thinking Clearly by Dobelli, (2) Persuasion by Cialdini, (3) Thinking Fast & Slow by Kahneman and (4) Show the Story by Bailey.  I also want to read at least one book by Dan Ariely on behavioral economics, which I understand to be economics based not on assumptions of rational decision-making but on the actual psychology of decision-making.

And of course I’ll be re-reading Confederacy of Dunces, one of my all-time favorite books.

One of the reasons I’m reading these books is that I like to read about how people make decisions, particularly in group settings.  I can only think that would help in jury trials.  The goal of jury trials is to get the truth out as fully and simply as possible, without being manipulative or cloying.

The other reason I’m reading them is because lawyers tend to take ideas they’ve read about in Psychology books or journals and apply them a bit too loosely to trial law, with little empirical support.  For example, I’ve heard lawyers in seminars take some of the ideas on attribution and apply them to jury trials with no real support in any studies of actual or mock trials.  I would prefer to see actual studies of how a real jury or even a well-controlled mock jury made decisions.  Juries are special groups, and their decisions may or may not mimic the way other groups make decisions.

Please feel free to comment about these books.  I’d like to get other folks’ thoughts on good books for trial lawyers.  Hope everyone is having a great summer.