Season Your Case... Don't Drown It
Yesterday at a mock trial, I watched a capable defense lawyer talk himself out of verdicts he should have won. He was prepared, he knew the record cold, and he had built a demonstrative for nearly every point he intended to make. Boards, blowups, a physical model, a timeline that unfolded like a stage set.
Each one of them was well made. Together they buried him.
When the jurors deliberated, not one of them complained about having too many exhibits. That is never how jurors talk. Rather, they called him "performative." Worse, they said he was talking down to them.
Performative is the word jurors reach for when they mean the opposite of authentic. Authenticity is not a nice quality to have in front of a jury. It is the first thing they measure; they measure it before they understand a word of your case, and it is nearly impossible to recover once they decide you do not have it.
Jurors do not evaluate your demonstratives. They evaluate what your demonstratives tell them about you, and what you think of them.
A pinch of salt makes a piece of fish taste more like itself. Too much, and all you taste is the salt; the moment that happens, you stop thinking about the seasoning and start wondering about the fish. Nobody buries good fish under salt. That inference is automatic, and you do not have to know anything about cooking to make it.
It is exactly what those jurors did with the props at the mock trial.
They did not reject them one at a time. They observed the pile and questioned the case underneath it.
Demonstratives are seasoning. Used lightly, they make the case taste more like itself and accentuate what is best in it. Used heavily, they tell the jury there is something in the dish you would rather they not notice.
Now, take the second criticism, the one lawyers never see coming. Every demonstrative carries an implicit premise: you would not have followed this without my help. A couple of well-chosen demonstratives genuinely help, and jurors will appreciate them. Ten of them read as an assessment of the jury's intelligence, delivered in public, by a stranger who is about to ask them to trust his or her judgment. Jurors will forgive a dull lawyer. They will not forgive one who talks down to them and then asks for their confidence in the same breath.
Notice where the instinct comes from. The case was complicated, so the attorney reached for more visual support, believing he was lightening the cognitive load on the jury. The jurors experienced the opposite. Each additional prop was one more signal that the case could not be explained without help, and a case that cannot be explained without help begins to look like a case that cannot stand without it.
None of this is an argument against demonstratives. Some cases cannot be tried without them: a chronology no juror can hold in memory, a schematic no witness can describe in words, a number that means nothing without proper context. The failure yesterday was not the number of demonstratives used. It was that few of the demonstratives were necessary to make or accentuate a point. The case was complicated, but not so much so that every point had to be made with a prop.
Season the case. Do not drown it.
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