There’s something strange about how our brains work.  For some reason, our brains don’t seem to comprehend the word “Don’t” very well.  In fact, our brains have the power to completely ignore that single word while still hearing every other word in the statement.  It happens on a subconscious level.  When we hear the word “Don’t,” we ignore that word and follow the rest of the command.  If you’ve ever coached sports, you probably noticed the difference between telling an athlete, “Don’t miss this shot” vs. “You’re going to make this shot.”  When you tell players, “Don’t miss this shot,” they’re more likely to miss.  For some reason, “Don’t” gets lost in the shuffle, leaving only the command: “MISS THIS SHOT!”

The reason that happens is because our minds latch onto the strongest image available.  You use words to create verbal images.  The verbal images you create determine whether jurors focus on what you’re asking for, or if they focus on the complete opposite of what you’re asking them to do.  Here are some other examples of how words can affect imagery and outcomes:

Do you feel the difference between the right picture and the wrong picture?  You know that when you tell a guest, “These are our most expensive wineglasses — whatever you do, don’t drop them” that the glass will soon shatter on the floor.  But when you phrase the same request positively, it completely changes the picture you create in someone’s minds.  Changing the image changes the outcome.

As a trial lawyer, you’re a wordsmith.  It’s your responsibility to craft words with care and precision, creating verbal pictures that achieve your desired results.  You have an obligation to your clients to maximize the persuasive impact of your messages.  One simple technique you can apply to achieve that goal is to create the right pictures in your jury’s mind.  You can do that by phrasing your language in the form of positive images, rather than negative images.

Unfortunately, lawyers are notorious for using negative language.  Think about criminal defense attorneys, for example.  They don’t want their jurors to focus on the fact that their client isn’t testifying, because they’re afraid the jurors will think the defendant isn’t testifying because he’s guilty.  But what do these attorneys do?  They tell the jury, “Don’t hold it against my client if he doesn’t testify.”  Translation?  “If he doesn’t testify, you should hold it against him.”

Prosecutors and plaintiff’s lawyers make the same mistake.  They regularly ask the jury, “Don’t hold us to a higher burden of proof than required by law.”  What do you think the jury is going to do after they hear that?

Judges aren’t exempt, either: “Objection sustained.  The jury must disregard that statement.  Don’t pay any attention to that evidence.”  If you had all day to think about it, you couldn’t come up with a better way to highlight that statement for the jury.

Your goal this week is to find a better, more positive way, to illustrate your points during trial.  Spend a few moments thinking about your last trial and review how you asked the jury to think about your most important points.  How did you phrase your language?  Did you phrase your requests positively or negatively?  Did you ask for things you didn’t want?  The picture that you paint in the jurors’ minds is likely to be fulfilled.  What types of images are you creating?   Focus on creating positive images in your jurors heads, and the persuasive impact of your courtroom presentations will improve immediately.

When I began my career as a trial lawyer, I had no idea what books I was supposed to read.  There were hundreds of thousands of books in my law school library, but I wasn’t sure which ones were most important to developing my trial advocacy skills.  I read thousands of thousands of pages, looking for the best trial advocacy tips and techniques, and wasted a lot of time, energy, and money in the process.

Hopefully, this list will help you shortcut the process that I went through. In this article, you’ll find my recommendations for the books that a trial lawyer should read and digest.   You’ll note that I didn’t include books on trial advocacy, and that was done on purpose.  There are hundreds of trial advocacy books worth reading (as someone who dedicates yourself to improving your trial advocacy skills, you probably already have at least a dozen or more books on the subject, right?).  Instead, these books are intended to expand your horizons, maximize skills that weren’t developed in law school, and help you get the most out of your persuasive skills.

Influence, by Robert Cialdini
Want to know how to influence jurors?  This is the definitive text on the subject.  Includes persuasive techniques to improve your entire case presentation, from pre-trial preparations to closing arguments, as well as techniques for improving your pre-trial negotiations.

On Writing, by Stephen King
Great tips for telling stories and presenting more effective opening statements.  Replace the word "reader" with "juror" and you’ll feel like the book was written specifically for trial lawyers.

Remember Everything You Read: The Evelyn Wood 7-Day Speed Reading & Learning Program
You read thousands and thousands of pages while preparing for trial — this will help you do it faster and remember more of what you read!

Think and Grow Rich, by Napoleon Hill
The entire book should be mandatory reading for everyone who enters the business world, but there are great lessons for trial lawyers, too.  Focus on Ch. 1 (Desire) to see what it takes to become a great trial lawyer, and Ch. 9 (Power of the Master Mind) for assistance improving your trial advocacy skills.

How to Win Friends and Influence People, by Dale Carnegie
If you intend to make a career out of persuading jurors, you probably already have a dog-eared copy of this book on your bookshelf.  You’ll learn more about pre-trial negotiations and trial advocacy from this book than you did from your entire law school education.

The Art of War, by Sun Tzu
If you believe that trials are war and the courtroom is your battlefield, this book will help you prepare your battle plan for success. 

The War of Art, by Steven Pressfield
Each morning, as soon as you wake up, "Resistance" attempts to keep you from being the best courtroom advocate that you can be.  This book shows you how to break past "Resistance" and excel at your profession.

Man’s Search for Meaning, by Viktor Frankl
Losing a trial is not the end of the world.  This book will help you get through the rough patches, especially if you lose a case, lose a client, or get dissuaded with the practice of law.

Quick and Easy Way to Effective Speaking, by Dale Carnegie
You speak for a living, so why not improve your presentation skills?   Loaded with great tips for improving your presentations to judges and jurors alike.

The Memory Book, by Harry Lorayne
If the correct objection or impeachment fact isn’t instantly available to you during trial, it’s worthless.  This book will help you improve your memory so that you can be more effective during trial.

The New Way Things Work, by David Macauley
An effective method of getting your ideas across involves the use of diagrams or images.   In this book, David Macauley shows you how hundreds of devices work.   With a combination of words and images, he makes difficult concepts easy to understand.  Using the same techniques, you can help your jurors understand complex issues and facts in your case.

Aesop’s Fables, by Aesop
This book contains dozens of valuable themes for use in your next trial.   By weaving these fables into your closing argument, you’ll help jurors immediately understand the underlying values of your arguments and see why your client deserves to win.

I’m sure that there are dozens of other useful books that I overlooked.  If you know of a book that other trial lawyers will find valuable, please take a moment to post a comment including your recommendation.

“Your closest exit may not be the one in front of you.”
“Your seat is a flotation device.”
“If we start hurtling to our deaths, oxygen masks will descend from the ceiling…”

If you’ve flown more than once, you’ve probably ignored this exact same message, haven’t you?  It’s the standard safety video they play before your plane taxies down the runway.  All of these videos sound pretty much the same, and I’d heard the instructions hundreds of times.  But, much to my surprise, this time I was actually paying attention to the video.

I wasn’t paying attention because I needed a refresher in safety instruction.  With as many miles as I’ve flown, I can probably recite those safety instructions word-for-word.  No, I was watching it for a different reason.  But before I tell you why I was paying attention to the video, let me give you a little background history…

This was my fourth flight in less than three days.  Out of my four flights, every single plane had been late.  The couple sitting in front of me hadn’t had a single plane depart or arrive on time, either.  The guy sitting next to me?  He’d been on four planes in two days, every one of his flights had been late, and his last flight had been completely cancelled.  They’d given him two options: wait until the next day to fly home, or fly to an airport 140 miles away from home and drive back.  Collectively, our flying experiences had been miserable.

This final flight was no exception.

We’d boarded the plane like cattle, squeezing ourselves into seats designed to comfortably accommodate pygmies or small children.  Our flight was booked solid, so the overhead bins were jammed to overflowing.  Although I was seated in row 11, my bag was halfway to the back of the plane.  We’d been scheduled to leave at 9:35 PM, but here we were, over an hour later, still sitting on the tarmac and waiting to depart.

Which brings me to the reason why I was paying attention to their safety video.

In addition to telling us the safety instructions, the video was basically serving as a promotional piece to tell us how wonderful the airline was.  The video was filled with smiling faces, and every passenger depicted in the video seemed to have plenty of legroom.  They showed a plane with enough space in the overhead bins to place all of your carryon luggage and a spare briefcase or two.  Finally, they showed a quick view of their departure board, where every plane seemed scheduled to leave on time.

I turned to a woman seated to my left and commented, “What airline are they flying on?  Lots of legroom, plenty of overhead space, and the planes leave on time…  Can I switch to that airline?!?”  (In all fairness, I won’t mention the name of the airline that I was traveling with, but here’s a clue:  The majority of their flights are in U.S. Air space…)

The problem was that my experience didn’t measure up to their advertised experience.  It wasn’t even close.  (Which isn’t uncommon…  When was the last time you had a fast food burger that looked like the one in the advertisement?)

Don’t make the same mistake with your jury.

In your opening statement, you’re presenting them an image of what they should expect to experience during your trial.  But many lawyers seem tempted to oversell their cases during opening statements.  They talk about evidence that will “probably” get admitted, about statements they’re “pretty sure” will be be admissible, and develop theories of their cases that will “likely” come to fruition.

Don’t fall into the trap of overselling your case during opening statement.  What happens when your case doesn’t live up to the image you created?  Even though you present a legally sufficient and persuasive case, when you hold yourself up to a higher standard, that’s what the jury will expect.  If you don’t attain that standard, they won’t come back with a verdict in your favor, even if that standard is higher than what the law requires.

For example, imagine a criminal trial where the defense attorney promises to prove his client is “innocent.”  Why do that?  He doesn’t need to prove the guy’s innocent, he just needs to show why the government is unable to prove their case beyond a reasonable doubt.  When he assumes the extra burden of proving that his client is innocent, the jury will hold him and his case to that higher standard.  If he can’t prove the defendant is innocent (even if he proves that there’s a reasonable doubt in the case) his jury may vote “guilty” because they think he’s failed to prove his case.

Don’t make it harder to prove your case than it needs to be.  You’re better off underselling your opening statement and letting the jury discover your case is actually stronger than they thought it would be during opening statement. Unlike the airline message, where the actual experience didn’t live up to the hype, you can’t afford to present an image you can’t live up to or make promises that you can’t keep during trial.  Present a strong opening statement, but then overdeliver on your promises during your case in chief.  When your jurors discover that your case has exceeded their expectations, they’ll return with the only possible verdict — the verdict that favors your client.

One of the first and most important rules of effective advocacy is this: “Know Your Audience.”  Before you walk into any advocacy situation, you should be able to answer three important questions:

1. Who are you speaking to?

2. Who are you trying to persuade?

3. Why?

Often, there are several audiences (not all of whom are physically in the courtroom): The judge, the jury, opposing counsel, your client, the opposing party, the appellate record, the press, yourself, the local bar, the general public, family or friends, your law partners, courtroom observers, etc.

But which audience will you be addressing?  Which audience do you need to persuade?  Many lawyers make the mistake of not understanding which audience they’re supposed to be addressing.  Here are a few guidelines to help you evaluate your audience and ensure that you do your best to persuade them.

Learn as much as you can (ethically) about your audience. Google them.  MySpace.  Facebook.  Talk to colleagues.  Read the judge’s previous opinions.  Know the appellate court’s composition and the direction they’ve been heading.

Look directly at the person you’re trying to persuade. Don’t make the mistake of talking to your notes or talking to your flipchart.  Make direct eye-contact with whoever you need to persuade.  If the eyes are the “window to the soul,” you don’t want to shut the blinds.

Remember why you’re there. Don’t make the mistake of arguing to impress your client, so that it looks like you’ve put on a “good show.”  You’re there to win.  If that means you need to be understated, be understated.  If that means you shouldn’t cross-examine a witness, say “No questions.”  If that means you need to let your partner handle a witness, sit silently and let him conduct the cross.  At the end of the day, your client doesn’t want a show — they want to win.

Don’t argue to the press. When the cameras enter the courtroom, your ego can push aside your common sense. There’s nothing wrong with wanting your moment in the spotlight, but don’t let it happen at the detriment of your client’s wellbeing.  If you need to argue to the judge or the jury, that’s who you need to address.  Don’t fall into the trap of talking to the cameras or acting larger than life so that it will play well on the evening news.  Keep your eyes and argument focused on the decision-maker in the case. (”Mr. Wilcox, can you speak up?  The TV cameras can’t capture what you’re saying?”  “With all due respect, your Honor, I don’t care — I’m not talking to them.  I’m talking to these folks in the jury box, and they can hear me just fine.”)

Use language that includes everyone in your argument. For example, I like football analogies…  but not everyone I’m trying to persuade enjoys (or understands) them.  That doesn’t mean I completely exclude them from my argument, it just means that I don’t exclusively depend upon them.  I find other arguments to include, so that there’s something for everyone to use.

Don’t make an ASS out of U and ME. We don’t all rely upon the same assumptions, so make sure you understand which assumptions your audience will depend upon when making their decisions.  It’s dangerous to assume that your audience relies upon the same assumptions that you do.  Are you assuming that the judge knows all the details and procedural history of the case?  Are you assuming that the jurors know what an “element” is?  Are you assuming they know who the “plaintiff” is?  Don’t assume they do.

Envision the conversations they’ll have when the case is over. What groups do your audience members belong to?  How strong an influence do those groups play upon the person’s decision making?  Will they face social ostracism if they decide the case a particular way?  After the trial is over, the jurors will talk to their friends and family about what happened.  They’ll have to explain their decision.  Envision that discussion, and then imagine what arguments you can you give them  so they can defend their decision.

Know their reasons for deciding. What needs does your audience have?  A judge wants to reach a fair decision; to be upheld on appeal; to follow the law.  The jurors want to do their duty, to reach the right verdict, and to protect their preconceived thoughts and beliefs.  The audience will change their opinion fortheir reasons, never for your reasons.  They need to act consistently with their beliefs and attitudes.  They don’t want to appear incongruent or intellectually dishonest.  Give them a reason to decide in your client’s favor that also upholds their personal belief system, and they’ll be more likely to vote for you than if they have to jump through loops of logic to justify their decision.

Whether you like it or not, jurors will judge you based upon their first impressions.  Your first impression determines whether the jurors will listen to you, how much they’ll like you, and whether or not they’ll find you credible.  A bad first impression isn’t necessarily set in stone, but it will take a tremendous amount of effort to overcome their initial “gut reactions,” so that means a negative first impression can taint every other interaction you’ll have with jurors.

So, if first impressions are so important, why do so many attorneys present such lousy first impressions during opening statement?!?  Think about the last 10 opening statements you heard.  Out of those openings, how many times did you hear the lawyer take advantage of the power of “primacy” to create a powerful first impression?  Probably not many, right?  In most cases, attorneys completely waste the first moments of their opening statements.

A Tale of Two Openings: Identical Facts, Different Outcomes

It doesn’t mater how important your case is.  If you don’t capture the jurors’ attention in the first moments of your opening, they may pay less attention (or no attention) to what you say.  For example, look at the first 144 words (about one minute) of the prosecution’s opening statement from one of the most famous cases of the 20th century, the O.J. Simpson murder trial:

Your Honor, Judge Ito, Mr. Cochran and Mr. Shapiro and Dean Uelmen, to my colleagues seated here today in front of you and to the real parties in interest in this case, the Brown family, the Goldman family and the Simpson family and to you, ladies and gentlemen of the jury, good morning.   I think it’s fair to say that I have the toughest job in town today except for the job that you have.  Your job may just be a little bit tougher.  It’s your job — like my job, we both have a central focus, a single objective, and that objective is justice obviously.  It’s going to be a long trial and I want you to know how much we appreciate your being on the panel.  We appreciate the personal sacrifices you’re making by being sequestered.  We understand that can be difficult.

Why does the prosecutor think that the jury’s job will be tough?  Don’t they think they’ve got a good case that will persuade the jurors?  Rather than grabbing the jurors’ attention and demonstrating the strength of their case, the prosecution begins by essentially saying, “This is gonna be long, it’s gonna be painful, and you’re gonna have a hard time reaching a verdict.”  The next few minutes aren’t any better.  By the time he eventually gets around to talking about the murder, there’s a substantial risk that the jurors tuned him out, because he didn’t give them any reason to listen to him.

Now compare that example with the first 148 words (again, about one minute) of the opening statement given in the civil case:

On a June evening, the 12th of June, 1994, Nicole Brown Simpson just finished putting her ten-year-old daughter, Sydney, and her six-year-old son, Justin, down to bed.  She filled her bathtub with water.  She lit some candles, began to get ready to take a bath and relax for the evening.  Nicole then called the restaurant and asked to speak to a friendly young waiter there.  Nicole asked this young waiter if he would be kind enough to drop her mother’s glasses off.  The young man obliged and said he would drop the glasses off shortly after work, on his way to meet his friend in Marina Del Rey.  The young man’s name was Ron Goldman.  He was 25 year old.  With the glasses in hand, Ron walked out of the restaurant, walked the few minutes to his apartment nearby, to change.  He left the restaurant at 9:50 p.m.

Doesn’t he do a better job of grabbing your attention and making you want to continue listening?  That’s why you want to grab your jury’s attention, preferably within the first 15-20 seconds of your opening statement, and give them a compelling reason to listen to you.  Don’t squander this opportunity by wasting their time describing how a trial works, re-introducing yourself, or thanking them for their time.  During the entire trial, the jurors will never be more interested in what you have to say than during these first few moments of your opening statement.  Yet how many times have you heard attorneys waste the first moments of their opening statement with empty phrases like these:

• “This is what we lawyers call an opening statement…”
• “I appreciate the time and the attention that I know you will devote to this case today…”
• “Opening statement is our chance to tell you what the evidence will show…”
• “My name is James Minster, and it’s my privilege to represent Kyle Lauten…”
• “An opening statement is like…
  —- a roadmap…”
  —- a recipe…”
  —- the table of contents to a book…”
  —- the cover of a jigsaw puzzle box…”
• “Jury service is an honorable tradition, and I want to thank you for taking time out of your busy schedules to serve on this jury…”
• “Opening statement is my chance to show you how the pieces of the puzzle fit together…”
• “Before I begin, let me remind you that what Mr. Wadsworth said is not evidence, and what I say isn’t evidence, either…”[This last phrase is the worst of the bunch.  Why not go ahead and tell the jurors, “Ignore everything I say, because it doesn’t count”?!?]

Do any of those statements grab your attention, compel you to listen to the rest of the case, or persuade you to find in favor of their clients?  What a wasted opportunity!  During trial, you’re in a constant battle for your jurors’ mindspace.   If you don’t give them a compelling reason to listen to you, something else will attempt to occupy their thoughts.  In the back of their minds, they’re wondering how long the trial will take, whether their spouse will remember to pick up the kids from daycare, what’s happening at work while they’re gone, and a thousand other random thoughts.  They do their best to push those thoughts out of their heads, but if you don’t engage them, those thoughts will creep back in.  That’s why it’s essential the first words out of your mouth say something significant, so the jurors want to listen to your entire opening statement.

Before you can create persuasive and attention-grabbing opening lines, you’ll need to follow Yoda’s advice and “unlearn what you have learned.”  Here are three quick and easy guidelines for things not to say in the initial moments of your opening statement:

1. Don’t Introduce Yourself (Again)

When the trial began, the judge told the jurors who you were.  Then you probably introduced yourself again during jury selection.  Why would they want to hear you talk about yourself again during opening statement?  Your client’s story is the star of the case, not you.  At the end of the trial, it won’t matter if the jurors forget your name, forget your face, or even go out of their way to completely erase all memories of you from their memory banks.  When the trial is over, the only thing that will matter is whether or not they see (and believe) the story of what happened to your client.  So don’t waste any time talking about yourself during opening statement – you’re not that important.

2. Don’t Suck Up

Another common mistake is the gratuitous “thank you” designed to ingratiate you with the jury:

• “Thank you so much for being here…”
• “My client and I really wanted to thank you for performing your civic duty today…”
• “Jury duty is a special privilege and the most sacred of your citizenship duties…”
• “I appreciate the time and attention that I know you will devote to this case today…”
• “Jury service is an honorable tradition and I want to thank you for taking time out of your busy schedules to serve on this jury…”

The biggest problem with these types of statements is that they’re often insincere.  Too many lawyers attempt to curry the jury’s favor with hollow praise.  This tactic rarely works, because jurors easily see through the insincerity.  There’s nothing wrong with (sincerely) thanking jurors for their service, but wait to express your gratitude until sometime later during your opening.

3. Don’t Describe How an Opening Statement Works

Some lawyers begin by telling the jurors what an opening statement is:

• “An opening statement is my chance to outline for you what the evidence will show…”
• “This is my chance to show you how the pieces of the puzzle fit together…”
• “An opening statement is like a recipe for a cake…”
• “This is what we attorneys call an opening statement…”

Thanks to the countless legal thrillers and jury trials on TV, your jurors have more than a passing familiarity with the legal system, so there’s no need to describe how a trial works or how an opening statement works.  Don’t bog the jurors down with this information.   Besides, none of that information helps the jurors see the events that led up to trial or shows why your client deserves to win.

Remember: These first few moments are your best chance for grabbing the jury’s attention and getting them to listen to you.  Don’t squander that opportunity on something that won’t help you win your case.  Give them a reason to listen to you within the first 15-20 seconds, and your jurors will be hooked for the rest of your opening statement!