resonate even more powerfully for the Plaintiff .
Focus groups are the engines driving Trial Science as they are the testing grounds for Trial Science theories ; and their myriad uses in allowing attorneys to test any part of the case make them indispensable in major litigation . Additionally , multiple studies in Trial Science show that the use of Trial Science techniques is equally powerful in a nonjury trial where the judge is the factfinder .
4 . Introducing The Trial Story During Primacy
The importance of introducing and persuading jurors to accept Plaintiff ’ s trial story as their own during primacy cannot be overstated as Trial Science teaches that evidence received during primacy has an undue effect on final judgment . It also teaches that more compelling evidence is required to change beliefs than to create them .
Trial Science teaches that the trial story must be introduced and initially supported by hard evidence during the primacy portion of the trial . Primacy begins with the first contact between jurors and principals in the trial . Primacy continues with supplemental juror questionnaires , if permitted , and continues during voir dire examination , if permitted , during which Plaintiff ’ s
52 x The Trial Lawyer counsel can begin sowing the seeds of the trial story .
The most significant events of primacy are the opening statement and the first witness . Plaintiff ’ s counsel and the first witness must coordinate to present and sell a simple and compelling trial story , to encourage jurors to adopt Plaintiff ’ s trial story as their own .
Opening statement provides the lawyer the best opportunity to introduce the trial story . In doing so , counsel should emphasize portions of the trial story that can be supported by the first witness with hard evidence . When the jury sees that the statements made by Plaintiff ’ s counsel are immediately supported by hard evidence through the first witness , this will gain the trustworthiness of jurors and help the veracity of Plaintiff ’ s trial story . Jurors will also be motivated to adopt the Plaintiff ’ s trial story as their own , which is the Plaintiff ’ s major goal during primacy .
Trial Science teaches that during the primacy portion of the trial , each juror forms their own trial story about the case . They will use their trial story as a filter for all new evidence that is submitted and when the confirmation bias comes into play , jurors will seek evidence that confirms their trial story and reject evidence that is inconsistent with their model of the case . Compelling evidence that disagrees with their trial story may be rejected or , if sufficiently compelling , they cause the jury to modify the trial story .
Obviously , the best thing that can happen for the Plaintiff is for the jurors to adopt the Plaintiff ’ s trial story as their own .
Finally , Dr . Milton Erickson , a leading psychologist , teaches us the importance of synthesis and consistency in communicating the Plaintiff ’ s trial story . We communicate in three ways : verbally , non-verbally and vocally . Of these methods , verbal communication accounts for only 8 % of the delivery of our message ; vocal communication accounts for 37 % of the delivery of our message ; and nonverbal communication accounts for 55 % of the delivery of our message .
Inconsistencies between the three messages can lead to loss of trustworthiness of the speaker . When training the Plaintiff to function as a storyteller , be certain to ensure that his verbal message , his vocal message , and his nonverbal message are completely consistent with each other . Focus groups are useful in identifying inconsistencies in the message and provide an excellent tool to verify the appearance of veracity of the Plaintiff .
Trial Science is a gift to the trial bar from brilliant scientists such as Dr . Daniel Kahneman , who died recently , and we are fortunate that they share their brilliance with us to use for the benefit of our clients .