Articles / Reviews

Book Review Continued

Joshua Karton,
Trial Consultant,
Communication Arts for the Professional.
Regular faculty at the Gerry Spence Trial Lawyer College
and Consultant to the U.S. Navy JAG Corps

I've seen Eric Oliver in live seminars refuse to capitulate to this demand for quick answers, and it can frustrate. Some lawyers, the ones who habitually check their watch, will become irritated. And the irony is that what is frustrating them - and I believe this book makes it so clear - is his profound respect for the human being-ness of the jurors, and in his process for learning how it will help or harm the client. He is not saying in those seminars or in this book, "Look, see what I can do!" He is saying, "Look, see what you can do." But you have to be willing to truly inquire of the jurors, truly listen, not categorize them based on insufficient or impatient triage, not assume they've heard what you think they should think from having heard what you've said, not assume you know from superficial, socially compliant answers what lies beneath.

Eric Oliver's solutions are the fruits of his very difficult labors, but it is clear he trusts that anyone willing to till this soil, willing to take the necessary care, can achieve the same harvest. If you've been one of those "just-gimme-the-answers" frustrated attorneys at the live seminars, and doubt the modesty to which I am referring, look at Chapter 7. Eric describes a trial consultant, watching a live video-feed with the audio turned off; paying close attention to the body language of a group of mock jurors assembling to deliberate. This trial consultant is able in a matter of seconds to accurately predict who will lead in the deliberations; who will follow; who will wait. This trial consultant is watching a silent movie of spontaneous behavior, and has learned how to read the cues for what will determine group decision making. This trial consultant, the book's author does not tell us, is Eric. I know: I was there and saw him do it. This book outlines how he knows where to watch, when to listen, what and how to ask.

Can this all really be taught to the advocate? In the last chapter of Facts Can't Speak for Themselves, a very gifted attorney who has worked with him describes an in-chambers follow up to voir dire in which two women, each with the same past experience, reveal themselves sufficiently for one to be struck by the defense, and the other by the plaintiff. The attorney's explanation seems to encapsulate what Eric's methodology addresses: "The difference seemed to lie in how they processed their own experience, not just having had it." Same experience, different jurors. How can you know? Eric Oliver shows you how.

I recently shared the dais at a seminar with a renowned attorney - Eric talks about him in this book - who demonstrated a technique for conducting a small focus group. The focus group participants delivered to this hotel ballroom filled with attorneys a wealth of what they were there to offer. An attorney at the back of the room was so infuriated at the truth they were honestly sharing that he began to yell at them. He hurled a "How-in-the-hell-can-you-believe-that?" question at one of them, and I was sent over with the hand-mike to this participant so he could answer. He mimed to me, "No-way!" was he going to try to defend himself against that! This attorney was there because he felt he'd lost contact with "today's juries." He has lost contact with good manners and common sense. He needs to stop arguing, stop trying to win his point, and learn how to discover and respect the stories swimming in the juror's minds and hearts. And then, cast the net of the story he tells so as to gather and protect theirs.

I want to tell him "You need to read Eric Oliver's The Facts Can't Speak for Themselves." And then, oh, the places you'll go!

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