How do you establish rapport with a jury?
It’s something I’m continuously working on. I look to a lot of different disciplines to find new ways to do it. That’s one thing we’re really strong on in my firm. I think a lot of lawyers stay focused on the law and traditional sources of trial advocacy, but we are completely different— hypnosis, NLP [neuro-linguistic programming]—anything to create rapport. I’ve picked up hand gestures that are conducive to connecting with people. The way you can phrase a sentence that is a little more suggestive. That’s really what I do. I try to tell a simple story and use some techniques that are proven to be persuasive.
Lawyers who do it well go into jury selection with the idea of forming a group. Lawyers who do it poorly go into jury selection with the attitude of “Here are the people I don’t want on my jury.”
Where could a lawyer interested in those techniques look for guidance?
I would start with Robert Cialdini’s book, Influence. This is the book on persuasion and it’s the first place to go. It changed my life when I read it. Also, a book called How to Make Anybody Like You, or something like that. Really, anything on persuasion, influence, and how people think. The field has exploded lately. If you go on Amazon and type in cognitive science or cognitive psychology there are tens of thousands of titles now whereas ten to fifteen years ago there wasn’t much. Most of the development is because of FMRI [functional magnetic resonance imaging], and the ability of scientists to study what’s going on inside of your brain as we talk. We now know what activates certain parts of your brain as we’re talking. There are a lot of resources not many lawyers look to that can tell you what works. For example, just staying the words “I’m going to tell you a story” activates a different part of your brain and puts you into a different place, but not many lawyers get up there and say to the jury “Let me tell you a story.” Instead, lawyers get up there and start spewing facts, but just telling the jury you’re going to tell them a story puts them in a different mindset. It’s as if they’re in their living room listening to one of their favorite TV programs.
Is simply telling a good story enough to win over a jury?
Of course not, and it’s certainly not a novel concept that you have to tell the jury a story. Every lawyer will tell you that, but I think it’s an incredibly important and underutilized tool. For plaintiff’s lawyers there is a guy named David Ball who has written a book called Damages. I would recommend anybody in any type of trial practice read it. He says he has interviewed more jurors than anybody out there and if you read his book you can tell. He’s tested pretty much everything, and what he’s done is—it’s meant for plaintiff’s lawyers—he’s written a template of an opening statement and closing statement that he says is the most persuasive way to do it. He says, do not start telling a story or advocating in any overt way until at least two-thirds of the way through your opening statement. As a plaintiff’s lawyer especially, when you walk into that courtroom the jury is pissed off. They don’t want to be there and they don’t trust you as a lawyer. So, if you get out there and start advocating and start telling fancy stories and using colorful metaphors before you earned their trust, it’s not going to work. What Ball says is to tell a chronological set of facts, one sentence per fact, and walk the story through. Present it almost like an editorial piece. Then, once you’ve shown that you are a straight up kind of lawyer, that’s when you can start to gently advocate. Basically, Ball says don’t advocate much until closing. When I read that, it really changed the way that I did things.
When do you begin establishing rapport with a jury?
I think you start in jury selection. I’ve seen a lot of lawyers do it poorly and very few do it well. Lawyers who do it well go into jury selection with the idea of forming a group. Lawyers who do it poorly go into jury selection with the attitude of “Here are the people I don’t want on my jury. I don’t want this gender. I don’t want this race. I don’t want this age group.” Then they seek to find them and then kick them off. As a lawyer, what does that say about you? That says you’re going into jury selection with a negative attitude searching to eliminate people. You can’t help but have that attitude leak into your body language; both in the way you talk and in the way you interact with people. So, you’ve come in with a negative frame, and they feel it, and it won’t work. I’ve learned this recently and I’ve tried to use it: you connect with an attitude of acceptance. When the panel of fifty, or thirty, or whatever the gross number of people is, come through that door, your jury is going to be a fraction of them, but accept all of them at the beginning. Smile at them and try to put yourself in a place where you hope that they all end up your jury. Start from a place of inclusion, and it changes your entire attitude. Talk about what makes them tick. Take them to a good place. If you start from a really positive, inclusion based frame of mind you can’t help but forming a group. Of course, you hope and pray that your opponent does it the other way, because then you are the one that has been building a tribe.
Alex Wheeler is a partner at the R. Rex Parris Law Firm where he leads the Class Action and Business Litigation practice groups. Mr. Wheeler has obtained over $400 million in verdicts and settlements over the course of his career and was selected to the 2012, 2013 and 2014 Southern California Super Lawyers Rising Stars List. We recently sat down with Mr. Wheeler to discuss establishing rapport with jurors, storytelling, and building the jury into a “tribe.”