Acts vs. Omissions – A Small But Powerful Difference
You’re creating the story of your case for opening and trial. You have a situation where a business allowed an unsafe condition to exist on their land and as a result, your client got hurt. You get to the point in opening where you start to tell the story and you say, “the defendant failed to fix the problem. They never put up warning signs…” You may not have realized it, but you have already compromised your story.
There are two principles to keep in mind when telling a story, whether in opening or questioning witnesses or closing:
1. Acts are more powerful than omissions because jurors forgive omissions much easier than conscious acts or choices. In focus groups and juror interviews, you consistently hear jurors say “well, it was just an accident” or “anyone could forget that” and so on. This is because as humans, we understand that no one can think of everything every time, so we let people off the hook for forgetting something. If the same scenario is framed as a conscious choice, however, it is much harder to forgive because it feels deliberate and intentional. So, in the above example, you should tell the story as “the defendant sees the pot hole. He examines it and CHOOSES to walk inside. He DECIDES to start setting up his shop for business. Six hours later, the plaintiff comes to shop at the defendant’s store….” This sets up jurors to see that the defendant knew about the condition and CHOSE to ignore it and do other things that were more profitable instead. This applies to any type of case: “the driver chose to drive through the red light” or “the doctor chose to ignore patient safety rules when he did x, y, z.”
2. The unconscious mind does not know the difference between a positive and a negative and therefore will always interpret something as the positive. For example, if you say “the driver did not stop for the red light,” the unconscious crosses out the negative and only hears “the driver stopped for the red light.” Whenever possible, frame your sentences as positives, such as “the driver saw the red light and kept driving.”
These may seem like small changes, but to the unconscious mind, they make a huge difference.