Written by In his article, Trial Theory and Blind Poetics, Steven Lubet says that the central dilemma of litigation is that memory is visual, but communication is verbal. He concludes that visualization is the key to persuasion.
He explains that witnesses testify using words; then the jury visualizes scenes based on the words that the witness is using. This process is never complete nor is it reliable – words can never capture the full experience that the witness is trying to convey, and the jury is going to place the limited facts conveyed by the witness into a mostly imagined re-visualization that is mostly based upon each juror’s individual experiences and memories. In other words, each juror hears the testimony through their own unique filter, and may visualize something different than what the listener intended; in fact, each juror may visualize something different than the other jurors.
Lubet says that the trial lawyer’s goal, then, is to carefully choose the right words to create the desired visualization in a juror’s mind – which will lead to understanding and hopefully to the desired result. Visualization, therefore, is the key to persuasion. The lawyer, who has not personally experienced the events that are key to the case, is likened to the blind poet Homer (who may or may not be blind, and who may or may not have written the Illiad and the Odyssey) – Homer’s use of vivid visualizations, simile and metaphor, allusion, and careful description, are an incredible example of effective visualization accomplished through words alone. Lubet uses several examples, like this excerpt from the Illiad:
Just as he shot past the matchless runner Achilles
speared him square in the back where his war-belt clasped,
straight on through went the point and out the navel,
down on his knees he dropped—
screaming shrill as the world went black before him—
clutched his bowels to his body, hunched and sank.
You can see the action becoming slow motion as the runner dies, feel his horror and pain as he falls, a sequence of events that the author likely never saw himself and yet was able to convey vividly through his choice of words.
I agree that visualization is an essential component of effective communication and persuasion, but I believe that it is more accurate to say that the key to persuasion is emotion, which can be created by effective visualizations. Decisions are made based on emotion and not logic, then logic is used to justify the decision that has been made – understanding this opens up a new dimension to the art of persuasion. The trial lawyer’s goal is to carefully choose the right words to evoke the desired emotion in each juror’s heart – which will lead to understanding and the desired result.
Last year some associates and I were working on this theory, and experimenting with trial prep by mapping out the desired emotions we wanted to convey at each stage of our client’s story. Outline the case by emotion rather than by chronological facts, then fill in the outline with the facts/events/visualizations from the case that would effectively create each emotion.
I would say, then, that the trial lawyer’s goal is to carefully choose the right words to create 1) the desired visualization in a juror’s mind; and 2) the desired emotional response.
Also, I would say that Lubet’s central dilemma of litigation, that memory is visual, but communication is verbal, is based on a false premise. Depending on what researcher you listen to, anywhere from 50% to 80% of all communication is non-verbal. If you believe that communication is only or even mostly verbal, no matter how great of a wordsmith you are, you are losing most of your potential for effective communication. We have to understand that, not only do we create visualizations through the words we choose, but also most of our communication is visual to begin with. To be effective, we must show the jury, not just tell them.
In trial prep, in preparing for effective communication with a jury, psychodrama is an invaluable tool. Re-enactment of events using psychodramatic methods not only allows us to find the story of our client, or the witness, or the alleged victim in a case, but it allows us to find the right scenes that we need to show to the jury. It allows us to find the right words to paint a picture of those scenes for the jury. It allows us to find and express the real emotions that flow from those key events in a person’s life. It allows us to show the jury, instead of just telling them.
There is no rule that prevents a witness from coming down off of the witness stand to show a jury what happened. Rule 401 of the South Carolina Rules of Evidence, regarding the admissibility of evidence, says:
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
There are times when a re-enactment, or when the witness leaving the witness stand, will help the trier of fact to understand the evidence being presented, when it would make the existence of a fact more or less probable. Although it is not appropriate for every event or scene that a jury needs to see, it is entirely appropriate for some events because there is no way to effectively verbally convey a visualization of some scenes without actually showing the jury, whether it is in opening statement, closing argument, or through a witness who is testifying.
We effectively convey our client’s story to the jury by: 1) choosing the right words to create not only the right visualization but also the appropriate emotional response; 2) understanding that communication is not entirely verbal; and 3) whenever possible, showing the jury instead of telling them.
