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How to not dumb down your complicated case

dumb_mainAttorneys sometimes talk about “dumbing down” their case before presenting it to jurors. Certainly, many issues need to be explained in an orderly and simple way, and that process could be called “dumbing down.” But, from my perspective, the expression misses the point of jury persuasion.

When you “dumb down” your case, you are trying to make your own knowledge and viewpoint clear to a less educated, “dumber” audience. The real point, however, is to present the case so that it looks persuasive from the jurors’ perspective, rather than from yours or your client’s.

Jurors’ viewpoints are inherently different than that of the trial team. The main challenge in preparing a case for trial is not simplifying the issues but rather figuring out the jurors’ perspectives and finding the correct angle so that you can shine a light that shows jurors the path to an outcome that is favorable to your client.

Finding the right angle, the most favorable light, is the most creative aspect of a trial lawyer’s job. And it would not be very inspiring (and also wrong) to think of jurors as dummies.

In a given case, the opposing parties present competing views of what the case is really about. It is usually more than “this case is about a broken promise” versus “no, it’s not.”

In the O.J. Simpson case, the competing views were “domestic violence” versus “racist police rush to judgment.” Jurors made their decision based on their experiences.

What is your case really about? This question seems easy at first, but if asked again and again during the life of a case, it is likely to produce at least slightly different answers.

Case study

Consider the following case, in which a city is suing a construction company for breach of contract on a public-transit project and the company is countersuing for wrongful termination of its contract.

What is this case about? It depends who you ask.

The city claims the case is about public safety. The city commuters tend to agree.

The company says the case is about the city mismanaging the project and micromanaging construction.

Potential jurors who have been fired or laid off feel that this case is about wrongful termination of workers.

For people who have had bad experiences with contractors, this case is about contractors not honoring their obligations and always going over time and budget.

Determining which of these answers would work best for your client is the creative decision by the trial team. You have to identify just one main issue that the case is about, the reason why this contract did not work out and everyone ended up in court.

If you have 10 reasons, you have 10 excuses. The theme of “this was a perfect storm” of all the bad things happening at once usually does not work with jurors.

Remember: The prosecutors in the O.J. Simpson trial claimed that they had “a mountain of evidence.” It did not help.

Clear need in patent defense

The cases that most cry out for simplification are patent disputes. But if you “dumbed down” a typical defense patent case, it would sound something like this:

“We do not infringe your patent because we have our own inventions and because there are three important differences between your patent and our product and, by the way, your patent is no good anyway because it is totally obvious and anticipated by multiple examples of prior art, and besides the patent is poorly written and not enabling; however, if we do infringe, the damages should be low.”

No matter how well explained each point is, the average juror takes away one thing: The defense sure has a lot of excuses, and many of them contradict each other.

To avoid this impression, the defense has to find an angle that allows it to line up the evidence in a story rather than as a list of their different litigation strategies. Before dumbing anything down, it is helpful to ask: Why would jurors care who wins this case? What is their interest as taxpayers and members of the public?

We often find that even the driest technical patent cases appeal to concerns and emotions that end up affecting the outcome.

In many cases, the party that has a better product has an advantage. In other cases, product safety is the key issue. In others, the character of the litigants comes strongly into focus, whether they are powerful players on the market or lonely inventors.

You might say that it is dumb for jurors to have these concerns, but speaking pragmatically, they are what they are, and you have to respect the process.

Shine light at correct angle

Jurors also tend to be impressed differently by different innovations: Something simple and clever tends to play better than complex improvements to existing inventions.

So, for complex inventions, the challenge is to find the simple and clever part of it. It is the jurors’ perspective that determines the light most favorable to the client. By shining the light at the correct angle repeatedly — and most importantly, by not waving it all over the place — the trial counsel can direct jurors’ attention to what the team believes are their strongest points.

If invalidity by reason of obviousness is indeed the strongest point (it rarely is, but it does happen), then the other arguments should line up behind it, providing support to the main storyline.

The heart of the matter

Rather than starting with multiple complex ideas and trying to minimize confusion for jurors, start with the issue that either feels to you or is — based on your jury research — the most important one for the jury in this case. State the issue in the most straightforward terms, and then add only those facts that jurors need to know to be able to decide that you are in the right.

This is the heart of your case. Taking this approach shows the facts in the light most favorable to your client. Everything else has the potential to either support your case or to obscure it

Jurors’ perspectives should help guide you in identifying which complex issues need to be explained fully, which can be simplified and abbreviated, and which should be dropped entirely.

And by the way, groups of lay citizens have repeatedly been shown to outperform experts, so they don’t deserve to be called “dumb.” Like any of us, individual jurors might behave in a dumb way, but small groups of diverse citizens are remarkably smart.

Galina Davidoff is a litigation consultant based in Boston.