An outstanding book, which I recommend to every trial lawyer who represents real people, is Twelve Heroes, One Voice: Guiding Jurors to Courageous Verdicts, authored by my friend and great trial lawyer Carl Bettinger.
In his book, Carl expounds the hero-centric story structure and its classic characters, among whom are the “hero” and the “mentor.”
Many a lawyer tries to be the hero in trial. This lawyer argues zealously, thunders about the courtroom, and hammers adverse witnesses hard — single-handedly trying to save the day, oblivious to the reality that, as Carl writes beautifully, only the jurors can save the day.
The heroes in the trial story are the twelve seated in the box. A wise trial lawyer does not try to play their hero role. Rather, the trial lawyer is their mentor or guide — much as Gandalf was the guide to Frodo, the hero. The trial lawyer guides the jury to make the heroic choice: the desired verdict.
It was written of Abraham Lincoln, the trial lawyer, “He had the happy and unusual faculty of making the jury believe they — and not he — were trying the case.”
And yet, from the time we stepped foot into law school to the present, argument is most prized. In the world of lawyering, if you can really argue then you are something special.
But think about the last time you were with friends or family and ended up in a debate over politics. Did your superior argument skill, your facts and figures, move the needle? At all?
Established beliefs are extremely hard to change. When established belief is confronted by contrary information this usually leads to polarization, not change. And so arguing, it turns out, is a weak tool for changing an established belief. Again, think about your own arguments over the years: is this true for you?
The most effective tool for dealing with another’s established belief is to find common ground with the other and then work with (not against) the other on that common ground.
In our focus groups we discover established beliefs that will rule in deliberations — either for or against the case — as well as motivations and sensibilities on which common ground may be established. Once the trial lawyer discovers these things, he or she can frame the case story (and yes, the closing “argument”) in a way most convincing to jurors, rather than a way convincing merely to the lawyer.