A few years ago, I started watching TED talks on YouTube. TED stands for Technology, Entertainment and Design and started in 1984 as a non-profit bringing people together from these three worlds to share ideas and information. TED started with a convention on the west coast and has now turned into several national TED conferences and TED Global. There is also a TED Talks video site which contains over 1500 talks you can view on an unbelievable variety of topics.
Almost all of these talks are made to large audiences at TED conferences by scientists, writers, performance artists, architects and a number of other people that typically never really speak in front of crowds. They are recorded, are all 18 minutes or less, but each is fascinating and holds your attention from start to finish even on video, utilizing the spoken word with various visual aids like music, video clips, professional exhibits, etc. I wondered how all these people were able to be such great communicators, so I did a little research and found out. It is a simple lesson that many of us as trial lawyers can benefit from. They each must follow the TED requirements of intense preparation, extensive editing and consultation with TED’s professional story tellers to fine tune the presentation and work on the visuals aids and exhibits.
Unfortunately, many trial attorneys today still believe they can stand up in opening and get their message across by reciting a list of what the evidence will prove, followed by a brief explanation of the burden of proof, topped off with a heartfelt “thanks” for serving and keeping an open mind during the trial. That may have been the norm in the 80′s, but today’s juries are turned off by such presentations. They expect a narrative they can easily follow with audio, video, computer graphics, the works. So how does TED make it work every time?
The preparation starts long before the speech. About two months before the conference, speakers must submit an outline, which is then worked into a script. The TED team then works with the speakers to hone the presentation by brainstorming on things like anecdotes to add or ideas for visuals. A month before the talk, the speakers have to do a Skype rehearsal. The presenter gives the talk and gets feedback from the TED team on structure, pacing and clarity. The speakers have to then practice, with a stopwatch, in front of a mirror and then in front of just regular people, non-experts, to get feedback and to get the talk down to 15 to 18 minutes.
A day or two before the conference, the speakers have to do a dry run on an actual stage with countdown timers running to get comfortable with standing on the stage and projecting. Sometimes the TED staff creates noise or other minor interruptions to help prepare them in case things don’t go totally as planned (imagine that). The TED experts work on the theory that the “training” takes over when the unexpected happens.
So how does all that translate into help for a trial attorney that wants to capture the attention of 12 people in a positive way? There are at least three points that trial attorneys can come away with to drastically improve their opening statements:
1. Write out and edit your opening. You would be shocked at the number of attorneys that pay us good money for focus groups or mock trials, but refuse to write out their opening statements. There are any number of excuses given like “I’ll do it before trial” (which they won’t) or “I’m more comfortable using an outline, but I get all the information in” (which is not true). The bottom line is that the only way to make sure you get everything necessary into opening with a good narrative, in the right order, and supported by the right exhibits based on “what the evidence will show” is to write it out, edit it, get feedback from third parties and edit again.
2. Practice, practice practice. Again, the days are past where jurors were satisfied with a nice hello from the plaintiff’s attorney, followed by a few statements about the case. Jurors expect much more, and the defense bar understands this and prepares accordingly. Jurors expect an opening that will keep their attention with more than just words. They need a combination of slides and professional looking exhibits to kick in the visual parts of the brain. Hopefully you are prepared enough ahead of time to get a stipulation on most of the documents like medical bills and records or the contracts at issue so that you can use some of the evidence in opening. But to make it all work seamlessly with your technology takes practice. Ideally you can give a version to a focus group, or at least a group of lay people that do not know you. Get objective feedback. It is worth the money on a big case to have the group listening to your opening debriefed by a good trial consultant or other third party. Put your ego aside when developing your opening. You would much rather have honest feedback, even if its hurts your pride.
3. Use the right technology, but make sure you have it mastered. One of the keys to developing good rapport with modern juries, especially Millennials, is keeping the evidence moving forward at an even pace that keeps your theme out front and your narrative moving forward authentically, but in a way that keeps the juries’ interest. That requires the use of at least basic technology to make sure the jury has focal points to tie in the visual learners with the auditory learners. But the slides, exhibits, demonstrative video and other aids need to be done professionally and serve a real purpose. It is acceptable to use a simple blow up of a medical record, on poster board or on a document projector, or even juror notebooks so each jury member has a hard copy to follow during the testimony. But modern juries also benefit from the effective use of simple programs like TrialPad in the courtroom that allow highlighting, underscoring etc. of documents and exhibits as you exam or cross-exam a witness. Jurors are now more comfortable with exhibits projected wirelessly on to video monitors or a big screen. But it is imperative that you, or a member or your trial team, master the technology. Repeated technical glitches hurt your credibility, which in turn harms your case.
Go to the TED website (www.ted.com/talks) and pick a topic that interests you. Watch several of the videos. You will be amazed at how informative they are, and at how much information you will probably retain from watching. But also remember that most of the people you will be watching are not professional speakers, and a few had a phobia of public speaking prior to participating in the TED talk. Many people comment that the TED speakers make it appear simple and natural. That is the beauty of great preparation and practice. It makes the difficult seem effortless. And to a jury, that type of well-crafted opening is much more effective than an outline and a smile.