I fly United Airlines on average a couple times a week. On a recent return home, I witnessed something remarkable before takeoff. All around me, people were watching the safety video! Contrast that with what is more typically the case: all the business people and vacationers chatting, reading, or taking a late opportunity to update their social media status by phone as the boring set of safety instructions on seat belts, exits, life preservers, and air masks play in the background almost unnoticed. The extra attention this time was due to novelty. The United Airlines video being played in this case was their latest “Safety is Global” (version II) that is designed to combat the very human tendency to tune out. So to break through the boredom, the safety message offered a potpourri of unexpected details: a selfie-obsessed llama, a Chinese New Year dragon blowing smoke, a Scottish bagpiper with an infant strapped to the back, and a theater decked out with airplane style seating.
United Airlines isn’t the only one hopping on this trend of spicing up the safety video. Delta, for example, has one that offers up a number of sight-gags, like a squirrel storing nuts in the overhead compartment and a magician making smoke disappear. New Zealand Airlines might take the originality prize with their “Most Epic Safety Video,” a complete Middle Earth-themed message featuring Hobbit’ director Peter Jackson and actor Elijah Wood. But for likely effectiveness, I still like United’s the best because it doesn’t rely on humor as much as it simply employs the incongruous or the unexpected. I don’t know if it has been studied or not, but I think travelers are more likely to watch that one even after repeated viewings. As you might expect, there is a lesson in this for trial lawyers. Like the airlines, lawyers also need to convey information that is critical, but at the same time often dry and repetitive. Jurors, like passengers, are likely to tune out. Lawyers can’t use the same methods (as long as judges are unlikely to allow you to conduct examination wearing a Loch Ness monster suit), but can apply the same philosophy. In this post, I share seven realistic ways that attorneys can employ novelty in order to cut through the boredom during trial.
- Say the Unexpected
At a message level, say something the jurors don't expect. Compliment the other side. Agree with at least part of what the other side has said or will say. Admit to something safe (e.g., that the jury is likely to conclude anyway). Call a witness, and then ask just one critical question before surprising your jury with a "Thank you, nothing further."
- Ask Rhetorical Questions
Activate your jury's imagination by framing your point as a question. "So, at that stage, what were the company's options?" Then pause, and let them think, before guiding them through the steps to answer that question. Frame your main points as "key questions to answer" rather than "key points to accept," and you invite more activity and less boredom on the jury's part.
- Reward Process
More broadly, acknowledge that the jury is not just passively listening to your argument and then accepting or rejecting it. Instead, they like to believe that they're engaged in their own investigation. So help them out by talking about the paths they would take and not just the destinations they should arrive at.
- Use Stories
A narrative is a natural antidote to boredom, so the more pervasive you can make the story, the better. Instead of occupying just one part of your opening statement, the story should infuse the case presentation generally, including your order of witnesses, your examination outlines, and your graphics.
- Move Around
If the judge lets you, get out from behind the lectern. If you can find an excuse, get the witness out of the witness box as well. The need to interact with a demonstrative exhibit - a flip chart, diagram, or a model -- can serve as an effective reason for both counsel and witness, and both of you earn an opportunity to regain attention to appear more like a teacher and less like a lawyer or witness.
Demonstrate something live instead of just talking about it. That could mean drawing on a flip chart instead of just showing a demonstrative that was made in advance. The process of drawing is more interesting even if the result is simpler and less sophisticated. For an expert, it could also mean recreating an experiment or a calculation instead of just talking about something that was done earlier.
- Employ Analogies
The brain likes to see patterns, parallels, and similarities. So even when you lack a perfect analogy, using parallel situations or even just small metaphors in your language will heighten the interest and appeal for the listeners.
Of course, attorneys know they need to grab attention. But I am not sure we all appreciate the full extent to which this is a continuous battle for jurors' attention. Boredom is a powerful adversary. In that context, "gaining attention" isn't something you do just at the beginning of your opening statement. Instead, it is something you need to work at continuously throughout trial. The longer the opening statement, the examination, or the case, the greater the need to think about how jurors will be continuously engaged.