Source of article 2's Company - Magnus Insights.
I “appropriated” the title of this post from a litigation graphics consultant I heard speak recently at a Florida Bar function. I thought she was on to something with this simple, contrasting, perspective. Litigation is a “game” of strategy, and like good chess players, litigators are good at these strategies. They can move all of the pieces as they file and answer the pleadings, take depositions, attend hearings, and participate in mediation, and more. These traditional activities do resemble the strategic actions and decisions in a game like chess. The game changes, however, when it comes to playing “games” with fact finders/decision makers such as jurors, judges in a bench trial, or arbitrators when that is the game of choice. Perhaps less so with judges and arbitrators, i.e., professional fact finders, bringing the game to the jurors means playing the games they play. Jurors are much more likely to want visual presentations of information than are attorneys. They want the information to be clear, simplistic without obviously being “dumbed down,” and they want the information in sound bites rather than orations that drone on for what seems like days, even if only 10 minutes elapses. The fact that these things are true is nothing new; the point of this post is, however, that trial attorneys must realize the “game” is different and they must “up their game” to communicate with their audience. I’m not suggesting that all jurors will be video gamers. But, as Melissa and I reported in the findings of a study we did many years ago, jurors are different than attorneys in many ways. That study, Fauss, D.H., & Pigott, M.A. (1997). Attorneys and jurors: Do they have anything in common? Trial Diplomacy Journal, 20(3), 183-199 is one of many studies along these lines. Attorneys who do not know how to play by, or are not comfortable playing by, “juror” rules are more likely to attempt to settle a case that could be better tried to verdict, often, to the detriment of their client. Those who can adapt and play both chess and video games take on wins more than those who don’t.