I “appropriated” the title of this post from a litigation graphics consultant I heard speak recently at a Florida Bar function. I thought she was on to something with this simple, contrasting, perspective. Litigation is a “game” of strategy, and like good chess players, litigators are good at these strategies. They can move all of the pieces as they file and answer the pleadings, take depositions, attend hearings, and participate in mediation, and more. These traditional activities do resemble the strategic actions and decisions in a game like chess. The game changes, however, when it comes to playing “games” with fact finders/decision makers such as jurors, judges in a bench trial, or arbitrators when that is the game of choice. Perhaps less so with judges and arbitrators, i.e., professional fact finders, bringing the game to the jurors means playing the games they play. Jurors are much more likely to want visual presentations of information than are attorneys. They want the information to be clear, simplistic without obviously being “dumbed down,” and they want the information in sound bites rather than orations that drone on for what seems like days, even if only 10 minutes elapses. The fact that these things are true is nothing new; the point of this post is, however, that trial attorneys must realize the “game” is different and they must “up their game” to communicate with their audience. I’m not suggesting that all jurors will be video gamers. But, as Melissa and I reported in the findings of a study we did many years ago, jurors are different than attorneys in many ways. That study, Fauss, D.H., & Pigott, M.A. (1997). Attorneys and jurors: Do they have anything in common? Trial Diplomacy Journal, 20(3), 183-199 is one of many studies along these lines. Attorneys who do not know how to play by, or are not comfortable playing by, “juror” rules are more likely to attempt to settle a case that could be better tried to verdict, often, to the detriment of their client. Those who can adapt and play both chess and video games take on wins more than those who don’t.
There are many variations on the theme about which David has written. Lawyers play chess, while jurors play video games. Lawyers play golf, while jurors watch NASCAR. Lawyers drink fine wine, while jurors drink Budweiser. Lawyers drive Mercedes-Benz automobiles, while jurors drive Ford pick up trucks. Etc. Etc. Etc. The point of these endless, and seemingly trite, comparisons is that the life experiences of attorneys and the “average person” who is likely to be selected as a juror are vastly different. Furthermore, because the jurors are the ultimate decision makers in many trials, and because the jurors are highly unlikely to change their attitudes, values, beliefs, and personalities, not to mention their life experiences, during the course of a trial, it is the attorney who must learn to “play the hand that has been dealt.” In other words, in recognition of the fact that the case, in order to be won, must be appealing to the jurors, the attorney must look for ways to relate to them, including presenting information during the trial in ways that will be meaningful to people without legal training. I have counseled my clients on numerous occasions to avoid expressions that convey elitism, such as “We are headed for the back nine,” a reference meaningful to only those fortunate enough to afford the expensive past time called golf; instead, saying something like, “We are almost finished,” a statement most jurors will welcome with a sigh of relief. The attorneys who are savvy about how they appeal to the jury are usually more successful than their counterparts, who, instead of trying to relate to the average Joe or Josie, do everything they can to portray themselves as wealthier, more successful, more educated, etc., thereby alienating the people who will decide the fate of their clients. This post is not intended to portray trials, or litigation, in general, as games; rather, it is intended to inform the reader that people are different and it is important to recognize the differences among people when trying to persuade them to reach a desired conclusion. Tennis, anyone? How about bowling instead?
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