Author Archives: Steve Welch

Word Choice Matters- Just Ask The Patagonian Toothfish.


The Patagonian toothfish is a species of cod icefish found in cold waters at depths of over a mile deep in the southern Atlantic, Pacific and Indian Oceans and around most sub-Antarctic islands. They weigh in as adults at over twenty pounds, and a few weighing in at over one hundred pounds have been caught. As you can see from the picture above, not a particularly handsome fish. Would you keep it and clean it if you caught one, or even order it in a restaurant broiled or blackened?

Chances are that you have ordered and enjoyed this fish in some really nice restaurants or fish markets. However, you ordered it under the trade name that a smart fish wholesaler came up with who was catching lots of the ugly fish with the unappetizing name.  You ordered “Chilean sea bass.”  Sounds much more appetizing than toothfish. However, there is no such creature as the Chilean sea bass.

The name Chilean sea bass was invented by a commercial fisherman and wholesaler named Lee Lantz in 1977. He was looking for a name that would make it attractive to the American market. He considered “Pacific sea bass” and “South American sea bass” before settling on Chilean sea bass. In 1994, the U.S. Food and Drug Administration accepted Chilean sea bass as an “alternative market name” for Patagonian toothfish, and in 2013 for Antarctic toothfish.

What can you learn about trials from this fish story? You can learn that the right words you use consistently during the trial make a difference. Do you refer to the impact where the defendant was speeding and ran into your client as an “accident?” If so, please stop. Accident carries a meaning more associated with unavoidable circumstances or lack or fault. Words like “impact,” “wreck” or “rear-ender” carry fault meanings and are just as easy to use, but you must be consistent.

Do you tell the jury in opening that they will hear from your “expert witness?” Please stop. Expert witness can carry a “hired gun” connotation. I learned this from listening to numerous focus groups. If your witness is a physician, then refer to him or her as “treating physician” or just “Dr. Smith.”  Is your witness an engineer? Then just say “John Doe, an engineer working for ABC Group.” If your witness is an economist, then it is “Professor Smith” or “Dr. Smith” if he or she holds the PhD.

These word choices do matter, especially in opening statement. With little to no voir dire in South Carolina, opening statement is the first chance the jury really gets to form an opinion about you and your client, so your carefully worded narrative story (hopefully told from the defendant’s perspective) needs careful planning as to word choice. Of course, you must still be authentic and sincere in every aspect of the trial, but correct word choice should not affect your demeanor.

In a recent series of focus groups done for a client, the facts were that the plaintiff was a former Wall Street money manager who had returned home to South Carolina and started a successful money management firm and trust company that was later bought by a large bank in an all stock merger. He was then under contract for several years with the bank with the title of “Vice President,” but was instructed that he was not to offer investment advice, but was to primarily make sure the clients who had been with his trust company stayed with the big bank.  At the end of this contract period, he was in his seventies and wanted to retire. Since his primary asset was the bank stock, the bank financial advisors recommended a financial derivative investment (which also paid off several million dollars owed to a bank subsidiary).  He signed off on it with disastrous results.

In the first focus group, he was called “Vice President” and “money manager.” The story was told to the focus group from his perspective, including his years on Wall Street and his trust company start up. The focus group was not sympathetic.

But he was not a money manager for the last five years of employment. He had no experience in derivatives, and was in his seventies and “retired” when the derivative was recommended to him. He was a “retiree” and a “customer” of the bank, who was owed the same fiduciary duty (“duty of trust”) that any other bank customer was owed. A consistent switch from “Vice President” to “customer” and from “employee” to “retiree” (and a story told in opening from the perspective of the bank employees) radically changed the focus group discussions. The subsequent trial resulted in the requested actual damages, plus a substantial award of punitive damages.

So how do you know what terms will be successful with the jury in your venue? One of the best ways is to focus group your case early on, even before you start your discovery, to get a good handle on the values and language of the jurors in your county.   The best results will come from professionally run focus groups, but even informal groups run by you or a member of your firm is usually better than no focus research at all.

In addition, there are many resources available to help you work on the best word choice for your case. Words that you can consistently use from your opening narrative story through closing. Books like The Reptile (and its follow-up books and seminars like The Reptile in Focus Groups),  David Ball on Damages, 3rd Edition, and Opening Statement, Winning in the Beginning by Winning the Beginning by Gianni & Marcy, will help you get a handle on word choice, theme and narrative story telling.

The bottom line is that we now have research that proves choosing the correct words to properly convey your case theme and tell your well planned story narrative can mean the difference between a defense verdict and a substantial plaintiff’s award.   Sure, having focus groups or mock trials done professionally can cost money, but the return on investment can be huge. Even if you have to associate a firm that can afford the expenses to properly prepare the case, it is usually worth it to get the best result for you and the client.



How A Great Rock Concert Can Improve Your Next Trial.

th-1I have now watched attorneys doing opening statement in over one hundred trials and focus groups. I am always amazed at the number of attorneys who miss the importance of the first impression the jury has of the case. In states like North Carolina and Oklahoma, it is voir dire, with its opportunity to let the jurors hear the real equities of your case through properly worded, open-ended questions, while at the same time getting a feel for your authenticity and your belief in your case and your client.

In states like South Carolina, where there is really no valid voir dire, it is opening statement where the jury first gets to hear your narrative story, which lets the jury decide for themselves that helping your client is the right thing to do. But repeatedly, I see attorneys fall short of connecting with the jury, especially at the beginning of their case, and the result is predictable- a defense verdict. Don’t get me wrong, trying a plaintiff’s med mal or other complex case is difficult. But many attorneys make it more difficult by refusing to properly prepare.

If you have ever been to a great rock concert (or even a a modern country music concert with someone like Keith Urban or Brad Paisley), you know that feeling of loving the non-stop, up tempo music that seems to go on seamlessly and naturally. It’s like the band is playing  songs written with you in mind, and all the musicians and singers seem to fade into the background. No sour notes, no flat guitar solos, no drum beats out of time. Our trials should be like that.

But one of the main reasons the concert is so good is the immense amount of practice that goes into making it all look so “natural.” It starts with good song writing or selection, which is then “focus grouped” by playing the songs before small groups rather than big arena shows (why do you think major stars like Blake Shelton show up at small clubs in towns like Greenville, South Carolina and “tweet” to their followers about a free show that night- they are testing new material). Then hours of practice with the band to make sure each member knows their part. Sound familiar?

A trial has the same requirements. As the “band leader,” it is actually your responsibility to write the “songs,” focus the material before trial to fine tune it, and make sure the “band members” (trial presentation techs, paralegals, associate attorneys, etc.) each know their part. And most importantly, it is your responsibility to make sure that everyone (including you) practices, practices and practices some more so the jury sees your presentation as seamless and natural, just like a great rock or country show.

Do you write out your opening statement and focus group it before trial? Do you test your exhibits before focus groups to make sure the exhibits actually convey the point you want to make and move forward your theme or “brand?” Have you worked through with your trial tech the pages from the medical record you will need in opening or in direct exam of your first witness? Have you talked to your paralegal about what you expect before you start direct exam of the first witness? If not, shame on you. The jury expects these functions to look natural, as if it is all according to plan.  This is especially true of the Millennial generation, who expect you to solve the case in 60 minutes or less (the time frame of a television show).

Are you prepared to use appropriate technology in the courtroom? One of the anecdotal experiments we ran during selected focus groups was to have some “presenters” (attorneys) hold an iPad during the presentations, while the opposing “presenters” (attorneys) did not use an iPad. The  follow-up questioning (which asked which presenters were better prepared) consistanly came back with responses showing the presenters with the iPads as being the most prepared. This was true even if the iPad was not actually being used in the presentation, but just held for effect. The bottom line is that modern jurors expect a well-prepared, well-practiced voir dire and/or opening statement, followed by a case that moves seamlessly using appropriate technology. They expect engaging exhibits offered at the appropriate time to illustrate the point, with the central theme of the case kept out front (or “branded” in the slang of modern advertising lingo) until the end.

If this all sounds like too much work, or something you are not really willing to do, then do not be surprised by a defense verdict. Modern jurors are attending really good concerts, seeing 3-D movies and watching television shows that have great writers and directors who solve the mystery in an hour or less. They have graduated from schools that taught them with tablet computers, smart phones and smart boards.  So do not be surprised when your opening that starts out ”Ladies and gentlemen, thanks for your time and let me explain to you the burden of proof” does not connect. Would you watch a television show or movie that started out that way? Neither would your jurors. In the courtroom they cannot change the channel, but they can tune you out.

Let TED Teach You How To Prepare An Opening

TED image 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 ( 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.

What A Jury Really Wants From You.

juryWhether it is a civil or criminal case, the members of the jury really want the same thing from you as an attorney. In our contemporary culture, many members of the voir dire panel are jaded, believe all plaintiff’s lawsuits are frivolous, and all defendants are guilty. For that reason, you as the attorney walk into the courtroom under suspicion at best, and are an ambulance chaser at worst. In order to get past this, you must go “off code” as soon as possible. To make that happen, the jury needs at least four things from you.

1. To Be Able To Hear And Follow, From Voir Dire/Opening Statement, A Real “Story”Narrative They Can Identify With.

As trial lawyers, we spend much of our time making sure we are on top of the law, deposition preparation, expert witnesses and other parts of the legal side of the case process. Unfortunately, we short change the factual side of the case. That can be a tragic mistake. The research from numerous sources clearly shows that engaging the jury in opening statement with a chronological story (often best told from the perspective of the defendant in a civil case) has the best chance of engaging the jurors and starting the process of filtering the evidence in your favor. David Ball’s book Damages, Third Edition, provides both instruction and research documentation of the need to be able to open with a good story. This principle was brought home to me recently during a series of focus groups I was running for a client. The client had agreed to try this approach in opening statement to a focus group panel. The client had spent some time writing out a good chronological story that was told from the perspective of the defendant. I got caught up in the story until about eight minutes in when the attorney suddenly said, ” you will find out the importance of my last statement later when I tell you why it was wrong for the defendant to do that.” Not only did I stop paying attention to the story she was telling, but I did not like the fact that she was, in essence, telling me to dislike the defendant before I had heard the defense side of the story. If a good story is told correctly, the jurors will not only pay attention, they will feel like they made their own decision about fault.

2. To Like Both You AND Your Client.

A jury’s view of both you and your client begins long before voir dire. It begins in the parking lot when you or your client pulls up to walk into the courthouse. I can tell you from listening to over a hundred focus groups that in today’s culture many jurors do not like anyone who smokes, or is loud, or is dressed inappropriately. Not only should you make sure your client understands this, it is vitally important that you follow through daily to make sure your client does not act or dress inappropriately. I talked to an attorney a few years back who lost a soft tissue car wreck case on facts that really should have led to a plaintiff’s verdict. One of the jurors did him a favor by talking to him in the hall after the verdict and telling him that his client (a young woman) could not ask for a recovery for back and neck pain, while wearing four-inch heels to both days of trial. Jurors pay attention to small details. You should too.

3. To Trust You And Your Witnesses (Which Means They Must Like You And Your Client-See 2, Above).

Likability and credibility are related, but not the same thing. In real life, we like certain people, that if we were being honest, we do not really trust. Just think of that cousin, friend or colleague that is fun to listen to tell a story or a joke, but we really feel like he or she has a tendency to “embellish.” Not a good thing for a trial lawyer. Modern juries do not want to hear emotional pleas or righteous indignation in opening statement. They want to hear understatement, off code phrases like “I am not asking you to trust me yet.” The Millennials especially do not want to see arrogance, anger, rudeness to the defense or any other behavior that detracts from the case itself. Do not promise to much in opening (which makes a good narrative story even more important). Be prepared, write out your opening statement and get it down to 22 to 25 minutes which you can deliver with a few good demonstrative aids for the visual learners. Credibility is about positive body language, following up consistently on what you say in open court,and continuity in message and evidence. Even your use of technology in the courtroom can add or detract from your credibility. If the video deposition of the defendant you are playing for the jury in your case-in-chief stops ten minutes in (and your tech person cannot get it to work), more than just the testimony of the video witness is called into question.

4. To Feel It Is Just and Proper That Your Client Recover.

Even if you are David and the defense is obviously Goliath, the members of the jury still need a reason why it is OK for you too throw that big rock and hit Goliath between the eyes. There are numerous outlines and materials that give guidance to plaintiff’s attorneys as to ways to empower the jury to help the wronged plaintiff. From Bettinger’s Twelve Heroes, One Voice to Pixar Studios story rules, there are many ways to achieve the goal. It is about a good story (see number 1 above). A plaintiff that is trying his or her best against difficult odds. A defendant that is standing in the way by not being honest about the facts, or altering the records (if you are extremely lucky) or arrogant. It takes work to develop this part of the case, but it is always worth it. The difference between a $100,000.00 verdict and a $1,000,000.00 verdict is often this piece of the puzzle. Jim Lees, a plaintiff’s attorney from West Virginia, has a great example he shares from a med mal case he tried in Tennessee. Physicians misdiagnosed cancer and the plaintiff was at stage four by the time a diagnosis was made. Jim took the time to go spend several days with his client in her home with her family and follow their routine. At church on Sunday, he talked to their pastor who told him that when the plaintiff was going through chemo and lost her hair, she missed church for two Sundays in a row for the first time in several years. The pastor came to see her and she told him she was embarrassed to be seen in church with no hair. The pastor gave her a ball cap with the name of the church and the church logo on it, and told her to wear it the next Sunday, saying that with the ball cap no one would notice her lack of hair. When she came to the worship service the following Sunday, all 1000 people in the church auditorium put on the exact same ball cap on cue when the pastor acknowledged her presence (the pastor had handed out caps to everyone coming into the service along with instructions on what to do that morning). The pastor came to trial and related this story. The resulting verdict was one of the largest in Tennessee history in a med mal case. But Jim would never had known of it if he had not done the legwork.

Yes your case is about meeting your burden of proof on the evidence, and making sure the case gets to the jury. But the jury needs a reason to move past the “frivolous lawsuit” tag. It is your job as the trial producer/director to make sure the jury gets what they need to render justice for your client. You cannot know how to present your client to the jury unless you spend time with him or her. Witnesses preparation takes days, not just a few minutes before going on the stand. Exhibits that get your main point across for the visual learners take time to design and prepare. Focus group review of your case early on, with a mock jury before trial, can be expensive, but is well worth it on substantial cases. Making sure you have proper technical support at trial is not something that can be left to the last minute. Defense attorneys know which plaintiff’s attorneys bring it consistently. It is up to you to make sure that the next report from a defense lawyer to the carrier points out that trial with you as the attorney for the plaintiff is a risk.

PowerPoint Works In Trial (But Not Like You Think).

Powerpoint example

As trial lawyers, we have numerous options as to how we “communicate” our point. Since we know that people learn in different ways, we have more than just our voice in opening statement to get our point across. We can use programs like TrialPad or Sanction, throw a document on the Elmo presenter document camera, or just wing it with our voice (not recommended). We have been told for years now that the generic PowerPoint bullet slide is almost counterproductive, and should not be used at trial as they are not effective generally with jurors. But PowerPoint (or Keynote for us Mac users) can really make a difference if used properly. The problem is, too many people use these PowerPoint “bullet point” slides (see above), which become a turn off to the viewer. However, when slides are well-crafted, graphic demonstrative aids using up-to-date presentation technology, jurors tend to not only get the point, but think more highly of you in the process.

As it turns out, there is actually a peer-reviewed, published study discussing the use of properly prepared PowerPoint slides versus non-use in the trial setting. The research from Jaihyun Park and Neil Feigenson tends to prove that most jurors “get it” better when the slides are used. See “Effects Of A Visual Technology On Mock Juror Decision Making,” Applied Cognitive Psychology, Vol. 27, issue 2, pages 235-246, March/April 2013, at Using a fact pattern based on a racial discrimination case (plaintiffs were Afro-American employees- defendant was a big railroad corporation), the authors used almost 200 participants.

As best they could, they tried to hold the attorney presentation constant (including video presentation, arguments and language) and created versions with the attorney either using appropriate slides in opening statement, or not, depending upon the control. In other words, there were four versions of the experiment with different, but similar, participants. One in which the plaintiff used slides but defendant did not, one in which the defendant used slides and the plaintiff did not, one in which both plaintiff and defendant used slides, and one in which neither plaintiff nor defendant used slides. To see the slides and the transcript of the opening corresponding to each slide go to: and click on the link at the bottom of the page.

The results were quite clear. Whichever attorney used the PowerPoint slides tended to get better marks from the “jurors” showing the participants tended to “recall the [plaintiff/defendant] lawyer’s statistical evidence more accurately and to think better of the [plaintiff/defendant] lawyer’s level of preparation, competence and credibility.”

There are probably several reasons for this, including the fact that modern jurors, especially Millennials, tend to view the smooth use of technology as a reflection of competency. There are numerous studies that support the ELM or “Elaboration Likelihood Model” when studying human communication. The theory suggests that message receivers follow a “dual” process in sifting through or processing information. See Cacioppo and Petty (1984), “The Elaboration Likelihood Model of Persuasion.” NA Advances In Consumer Research, pages 673-675. At times human brains actually carefully think through the information submitted to reach a conclusion (the central route), and at times the brain just relies on peripheral “cues” to assume credibility of the source (the peripheral route). In other words, sometimes we “read the book,” sometimes we just “judge the cover.” But in reality we do both everyday. In anecdotal work during focus groups and in discussions with observers of a trial (post verdict), we have found that even Baby Boomers tend to be effected by the seamless use of good technology in trial presentations. The Millennials are even more subject to the ELM effect. Why do you think even local news anchors hold an I-Pad (they are not looking at) while they stand in front of updated, high tech sets- we tend to trust those folks we feel have a good handle on complex technology.

The bottom line is that attorneys, especially plaintiff attorneys, start out a jury trial with jurors who are close- minded and believe that attorneys are not trustworthy and will try to “manipulate” the juror. Anything we can do to add to our credibility is a plus. The key is to make sure that the PowerPoint slides being used actually display the information in a professional, graphic way that actually assists those “visual” learners, while not distracting the other jurors attention. So how do you know what works? Test it. Focus groups are for more than just getting to see what a group of people generally think about the facts of your case.

Getting a complex case to trial before a jury in today’s world takes more than just a smart lawyer with a good theory of the case and a good expert. In the last few years, many of us have seen cases lost even though the plaintiff clearly had the best experts and the facts favored a plaintiff’s verdict. Modern jurors are complex and are still buying into the “frivolous lawsuit” tort reform media campaigns. In order to get the best results, cases need to have as much of the presentation as possible tested beforehand, and then presented with the best demonstrative aids using seamless presentation technology. Fumbling around in court with a large flip pad, poorly designed poster board exhibits or presentation software that works sporadically reflects badly on both the attorney’s credibility and message.

So the best path is to research, refine, refocus, and reframe in order to relate to the jury in your particular venue. Hard work is usually rewarded, but in modern jury practice, that hard work is no longer just about writing good opening statements or knowing the law better than even the judge. It includes making sure that you are presenting your message with the best use of technology and graphics.