In this episode of the IMS Insights Podcast, we speak with senior trial advisor G. Christopher Ritter about the core values that motivate jurors and about connecting themes at trial.
Chris Ritter is a highly-sought senior trial advisor for the firm’s top clients seeking guidance and perspective on case theme development, persuasion graphics development, witness preparation, and focus group and mock trial research. Chris graduated from the University of Chicago Law School and actively tried cases for nearly fifteen years. He served as adjunct professor of law at the University of California, Hastings School of Law for twelve years, teaching courses in trial practice and evidence. Chris has advised clients for more than twenty years on over 500 cases throughout the country, with more than 100 mock jury and focus group projects. He is a prolific writer, drawing on this depth and breadth of experience to share best practices and guidance for clients and peers. Chris’ written works include three books published through the American Bar Association, and dozens of articles and case studies on topics including on persuasion strategy, trial graphics, witness preparation, and trial war room management.
Connecting Themes at Trial to Juror Types and Values:
Barber: I'm particularly interested in hearing your thoughts on how you connect the dots when you're working in trial summit scenarios. I know one thing that clients really enjoy about working with you, Chris, and with the team is the ability to connect the dots across a number of different tools, sources of information, perspectives across a case.
Can you talk to me about how these juror types and juror values get connected to form things like themes in the trial setting?
Ritter: Yeah, sure. The human brain is, and I don't have the science I just have observation. I suspect, every once in a while, it's funny, I'll say. I had a case where there was this not guilty by reason of insanity case. We had a psychiatrist and a very well-known neuroscientist, and I was giving him my theories and I said, "I have no basis for this whatsoever." And it was reassuring to hear them say, "Well, actually, that's not far off." These are routers' theories, but I think there is some basis to it. I think that people are multi-dimensional and so all of this stacks upon each other and then it flows in and out, but the core values are something that help motivate people, but learning can take place in the abstract. You have to have what I call a toe hold.
Ritter: You have to have something that gives the ability for someone to get started in coming to an answer and we all have these horrible dreams of walking into calculus class and having never taken any of the classes. There is some basis for that. You can't learn you can't do unless you have the toeholds. One of the things that I think the brain does is when it's inundated with information, which jurors are, lawyers are, we all are, it does two things. On a conscious level it very much memorizes, pays attention to the details. That is where most lawyers are forced to spend their time. I don't think lawyers are any different except that that's where they're required to spend their time as part of discovery, etc.
Ritter: There's also, and we often use an image of an iceberg, below the surface there are a lot of things going on in the brain to make sense of those facts, to provide the toeholds that allow people to make sense of what's happening. Those buckets, as I refer to them are what we're trying to use in order to develop the toeholds, the beginning. These toeholds, these buckets can be almost anything. They could be stories, they could be analogies, they could be, I like to jokingly say that I had a misspent youth watching too much Monty Python and I think I can use Monty Python to explain a lot of different things. They are the common buckets that you and I share, that allow us to not only make sense for ourselves, but then to be able to communicate our understanding to others.
Barber: Sorry, Chris. Almost like the archetypes that we see in the structure, the storylines. Like Star Wars follows a storyline.
Ritter: Yeah. I don't know enough to even comment really intelligently but for what I know, for example of Young and Campbell and some of the other folks that have come to that, I believe that to be very important. Or some of the novelists Willa Cather, for example, writes about how human stories are very much like the songs of a lark. The same sounds that get repeated for thousands of years, but in different combinations, but they're still the same sounds, right?
Barber: Mm-hmm (Affirmative).
Ritter: I think she's very right about that, and there are others who have been much more academic in their approach of talking about there being nine types of stories or whatever. I don't know that far. I think what all of them are saying is that as human beings we share certain core values, we share certain experiences, we share certain archetypes, we share certain abilities of spontaneous response to certain stimuli. The mental mining process or the process of going in and figuring out where those are is really an attempt to make use of those. I will add to you; the jury system would not work without these. If you had 12 people, imagine 12 people from 12 different planets who had nothing in common that came together to answer questions.
Ritter: Then give them something they've never heard anything about. I doubt they would be able to reach a consensus. Remember, don't forget, it requires a minimum of a super majority, if not unanimous agreement for 12 people. The only way that you're going to get that, you're never going to agree on the way they get there, but what they will do is they will use common tools to effectively come to the same result.
Barber: I have to ask you, because you just mentioned a term and I know not all of our listeners are going to be familiar with it. Can you explain what exactly mental mining is?
Ritter: Yeah. Well, let me just tell you, I'll share a secret that some people know. The term mental mining came about because Andy Spangler, my good friend, and partner, he and I were working together and I made mention about brainstorming, and Andy said he hated that term. He said, "You have to come up with something else." I kicked it around and went through a process I didn't know of it, but I went through a process that I now call mental mining, and I came up with the term mental mining. I don't know if anyone else has ever come up with it, but that was the term that I came up with. The more that I thought about it, the more that I thought it was actually much more descriptive of what was really going on instead of brainstorming.
Ritter: You can think of it as brainstorming, but I think you could hopefully think of it as brainstorming on steroids. It is much more systematic, it's much more focused, it's also, I think, designed to really pull out ideas. Here's how this works. I made mention to you that the brain does two things. It makes conscious decisions, it makes conscious ways of organizing facts, but at the same time, it's putting stuff into the buckets, it's putting stuff down into the ground, so to speak. Mental mining is the process of going in and mining those concepts to pull those concepts out and I always am afraid that I sound, either too violent or that I sound too California warm and fuzzy.
Ritter: It's the process of effectively going in, figuring out what those buckets are, and then figuring out how to populate those buckets. Bringing them up from the subconscious to the conscious so that they become tools and then quite frankly, become a latticework or a framework that you can consciously build on, to then be able to convey ideas to other people based on concepts and ideas that they themselves are likely to have in a subconscious way. This is not intended to sound like Voodoo or anything like that, if you think about it, what it is, is it's an element of storytelling, and it's an important element of storytelling and storytelling is one of the tools that we as trial lawyers use to teach.
Ritter: What it really is, is a way to find what those buckets are, how to use them, and ultimately provide the toeholds as I say to explain. Taking it out of the hypothetical and into the real, mechanically, the way this works, and the simplest way is for you to find somebody who I call a critical listener and this is somebody who, I jokingly say it's the difference between my mother and my wife. When I was a kid coming home with artwork, for my mother, it was the most beautiful piece of artwork that she'd ever seen and she was not critical about it. She was incredibly openly loving about it, and it went immediately on the refrigerator without any meaningful, critical comment, and that's the way it should have been, don’t get me wrong.
Ritter: My wife, on the other hand, who also is very supportive, I don’t want to suggest she's not is much more willing to say, "That doesn't make sense. I don't understand that." You're looking for somebody who is willing to challenge you in a meaningful way. That critical listener is somebody who, to some extent it could be anybody, the more they are experienced a little bit with your subject matter the better, but you don't want them to be so buried into it that they too don't have the flexibility of beginner's mind that let them see...
Barber: Or possibly emotionally connected to it, right?
Ritter: Yeah, exactly. As my mother... Again, I’ve got to be very careful. I love my wife very emotionally connected to it but she also has the ability to know that she can very lovingly say, "I don't know what the heck you're talking about."
Barber: Yeah, it's good. Say it, Chris, you're dancing on some dangerous territory, the mother and the wife there.
Ritter: Yeah, that's right. You said this thing can be edited. Anyway, the process is basically, if I was with you, I'd say to you as the lawyer, "Tell me your story. Tell me what happened." Far too often the lawyer will start off by saying, "A contract requires an offer, an acceptance and consideration." And my immediate thought is stop. That's not a story. A story is, there was a guy that came up with something that was very valuable and spent years and years developing it and wanted to then get the benefits as he should have or she should have from that work. They went to someone, they trusted someone and that trust was betrayed and they ended up being screwed up in a variety of different ways. That's a story and obviously, to the extent you can then fill it in.
Ritter: As you fill out the story, you will also find yourself and I've never seen this not happen, the person who's telling the story, will start hitting on some of those buckets and they'll say things like, "It was like the time when I was a kid..." And they'll tell a story or they'll say, "It's like the time that my grandfather told me bla bla bla." Or, "My grandmother told me about something had happened in our family." Those things often lead to broader truths and broader themes that can also help serve to teach. It's an opportunity to really find a way to go in and figure out how you yourself have organized. Both the listener and the person telling the story will be constantly looking for what gets triggered as a result of hearing certain associations. That's the process of mental mining.
Barber: Then I would presume, as you're identifying that story arc, you're able to start to also think about the values that your jurors are driven by, right? Then you can start to connect some dots.
Ritter: Yeah, absolutely, and that's why I was suggesting the human brain and the humans are very complex. We have certain core values that motivate us to act. Those core values are triggered in a variety of different ways by certain stimuli. Also, oftentimes they are shared core values... Excuse me. They're often shared experiences that we have with other people. I want to make it very clear that those shared experiences make it possible to accomplish two things, it makes it possible for us individually to understand what it is and why we're reasoning the way we are. It also gives us the vehicle with which we then take that understanding and communicate it to somebody else.
Ritter: Those are the benefits of being able to find those kinds of toeholds, those kinds of themes. I also want to get very clear that the mental mining process is not just a sit around and play a Rorschach test to come up with whatever kinds of associations you can, it's also designed to be very, very project specific. There are certain things that we're looking for as part of this. The legal theories, obviously, pretty much come from the law, but then we're looking for the factual theory, what happened? I wanted to be able to lay out in a chronological order, what the events were. I put them in chronological order, because it's the best way to see if we're missing anything.
Ritter: It needs ultimately to be a straight line, in the sense that you can't have alternatives, you can't say, "Well, either this or that." We need to work those out. We're working on developing the factual theory, we're also working on what I call the plot, which is different than the factual theory. The plot is the order in which you'll tell the story and there are different orders. Sometimes chronological works, sometimes going backwards works, sometimes hopping around works, sometimes thematically works, but we're looking for the vehicle through which the story can be told to the plot. We're also looking for the themes. What are the big uniting principles that help make sense?
Ritter: We're looking for where the black holes are, where we need to spend more time developing it, where the experts need to be focused. It's not just a sit around therapy session, it has some very concrete objectives that come out of finding these things.
Barber: Mental mining, that is usually a pretrial session, right?
Ritter: Yeah. I described mental mining as being a verb and a noun. The noun is a thing. A mental mining session is the noun. That is four to six hours of sitting down and forcing yourself and forcing others to go through the process that I just described. It's a concentrated effort. Mental mining the verb, the act of thinking this way, should permeate every single thing you do in a case. You may not be formally sitting down and thinking about it, but your mind will be constantly thinking about what the connections are, how these things connect, how do I explain something? How do I simplify something? That physical/ mental act, that verb should be taking place constantly.
Ritter: Then you distill it down into the noun by pulling everybody together for a distinct period of time and go through the mental mining session. As I say, mental mining the verb, all the time, mental mining the noun is discrete efforts to sit down and really focus on that one aspect of what you need to make sense of the world.
Barber: Really, it could be at any stage throughout trial?
Ritter: Yeah. It could be at any stage and it's like composting, it does better with time, and I sometimes refer to it as mental composting. Spreading it out over a period of time is helpful as well. I want to emphasize forcing yourself, and I mean that in a polite way, to sit down and do it in a mental planning session is crucial. Because so many lawyers, just anyone, so many people whether they’re lawyers or otherwise, just by day to day activity, don't force themselves to do that. Right? I'll get to it eventually or I've got this great idea. I should remember it or I'll come back to it eventually, etc.
Ritter: Forcing yourself to actually do it for four to six hours, maybe even multiple times, forces you to take advantage of that ability to concentrate and the benefits that come from concentrated effort at a specific time with a specific group of people.
Barber: I want to go back to something you and I had had a discussion on a while back. It was the idea of graphics because I want to keep talking about the idea of connecting the dots, because I think that that's really interesting the ability that you bring or colleagues bring to clients is this ability to connect the dots in a way that's not really industry standard right now or you may be able to go to a graphics vendor or you may be able to go to a jury research vendor, but being able to have multiple sources of information and perspective and bring them in a clear view, it does provide some advantage. I want to dig into that a little bit with you. Also, before it falls out of my mind, I want to ask about graphics-
. Barber: Let me ask you, I want to ask you about graphics because one of the most interesting things I remember speaking with you a while back about was the idea that graphics don't necessarily mean there is something incredibly slick or polished that it's really about the concepts and without sharing anything confidential, can you talk to me a little bit, tell us about what the real value is and the visual representation of that story that you identify, if that makes sense.
Ritter: Yeah, no. It does. Let me just talk a little bit about graphics and then that'll give me some time to think as I'm doing it about an example. Graphics have multiple levels of power. The most obvious power is when you see something, it triggers a response in the person's brain who is viewing it. They get it, they see it, they have the ability to have some concept upon which to base their further analysis. That could be an object, I now know what this particular piece of equipment looks like so I can go on from there. Graphics serve a lot of different purposes, and they have power on a bunch of different levels. The most obvious one is that you see what I call a pretty picture and I mean that in a slightly pejorative manner, which I'll explain in a minute. And that triggers a response or that triggers a thought and that allows you to see something you may not otherwise see. The reason that I use pretty picture in a somewhat pejorative manner is not that graphics shouldn't be pretty, they should be, they should be extremely well designed, etc.
Ritter: I think far too often people think of graphics as the benefit of graphic just being the pretty picture. To me, the most important aspect of the graphic is the process of creating that graphic. Whether you ultimately use the graphic or not, whether you ultimately use stick figures, whether you use 3D animation, whether you use a variety of different ways. Because forcing yourself to create a graphic forces your brain to think differently, it forces your brain to think visually as opposed to what I call word land which is where most lawyers live. Also, a graphic, the most important thing that someone can do is to give you an eight and a half by looking at a piece of paper and say, "You can't use anything more than this and you've got to convey the concept to you."
Ritter: It forces you to concentrate on time and space and what's important and what's not important. You can put a million things down on that sheet of paper and it'll be completely unusable. You can just rapidly put something down on the paper that doesn't make sense, and it could be completely unusable. The way that the paper metaphorically and the pencil works is you start putting stuff on, it starts you thinking in one direction that may or may not lead you the right way. You may erase it, you may go back, but the fact that you're thinking differently, you're thinking in images and you're thinking, how do I explain this, not necessarily, entirely, verbally? Is an important thing to do.
Ritter: Now, clearly, with a graphic, the graphic will also give you an opportunity to talk. It's not like Pictionary, where you hold up a graphic and somebody has to figure it out, but it's a manifestation of clearer form of thinking that gives you the ability to then talk about something that's important. That to me is the most important part of the graphic, which is the process of thinking and I often tell people who have a lot of money, just paying for expensive graphics will not make your case better. And for people who don't have any money, the public defenders are the people I work with just thinking that you can't afford graphics is thinking of the pretty picture.
Ritter: Forcing yourself to think graphically will end up with a much better case even if you just go up and start drawing on a whiteboard. That's the importance of graphics and then I don't know exactly what the question was because you got cut off but I did get that part of the question.
Barber: I was looking for an example of without any-
Chris Ritter (42:55):
]. That's right.
Barber: ...without anything confidential. Yeah.
Ritter: Yeah, I'll tell you say an example, and this is actually where I started developing the concept of core values. Core values are present in every single case. It's not every single core value, but they’re present in every case and some combination. The easiest way to see a core value is to have an extremely emotional or difficult case. The case where I started developing the concept of core values is probably one of the most tragic cases that I've ever worked on. It was a profoundly schizophrenic mother who ended up drowning three children in San Francisco Bay because she was absolutely morally certain that God had told her that that's what she wanted her to do or he wanted her to do or she, whatever the gender maybe, he wanted her to do.
Ritter: I was working on the defense team to... She did it. We knew she did it. She was never going to go free, but the question was, is she going to go to prison or is she going to go to an institution where she hopefully stands some chance of getting some treatment? We’ll do that by convincing people that she's not guilty by reason of insanity. That was of the core values, but one of the things that we did when we started talking about that is that we started talking to people about schizophrenia and we noticed that a number of people... I think, I don't mean it as a criticism, but they justifiably were skeptical of schizophrenia. Is this woman just a beast who's trying to use some kind of excuse to get out of it?
Ritter: This is where the concept of science as a core value came in. It turns out that as we started talking to somebody, somebody said, "Well, schizophrenia is an imbalance of two chemicals, acetylcholine and dopamine." I was like, "Okay, that's good. So it's a chemical imbalance?" "Yeah." Then what's really weird about it is if you have too much of one and not enough of the other, you're schizophrenic, but if you have too much of the other and not enough of one or whatever, basically the opposite, you have Parkinson's. All of a sudden that started going into our brains and we started thinking about, well, same two chemicals, why is it that people with one combination, will look at Michael J. Fox and Muhammad Ali and go, "That person has an illness. That person is sick.”?
Ritter: I mean that in a pejorative sense, but they've got an illness and yet same two chemicals, different combination which causes schizophrenia, people look at it and say, "I wonder whether that's really a true physical condition or not or that's a true condition or not." That ultimately turned into a wonderful graphic, a very simple graphic that had a teeter-totter with two little beakers, each one representing one of the chemicals. Obviously this is clearly illustrative, it's not actual. In one instance there was too much acetylcholine and not enough dopamine so that the seesaw shifted and we noted that that would result in, I think in that instance it was Parkinson's disease.
Ritter: Then we use the same seesaw, the same illustrations to shift over to show that in the opposite when there was too much dopamine you ended up with schizophrenia. It's an easy concept, I can describe to you, but I can also show you that graphic and you immediately get it because you're familiar with the various elements, you're familiar with how a teeter-totter works. You understand that what I'm trying to show by way of imbalance. You immediately get the notion whether consciously or not that, "Yeah, you're right. I do see Michael J. Fox is having a real illness. Why would I not see schizophrenia as being an equally valid illness?"
Ritter: That may seem very intuitive for a lot of people, but there are people, particularly my parents' generation, the good Midwesterners, there's nothing that a good talk can't cure. Right? Being able to be able to show that there's a scientific basis getting people to think visually from something which could otherwise be very... One, could be missed, we would have completely missed it if we hadn't just been doing the mental mining session where we're talking about, "Let's talk about schizophrenia and where it comes from. We could very easily have completely missed it. There may have been other defenses where that was raised, but it was the first time I'd ever heard it being raised.
Ritter: Then the other thing by forcing ourselves to think visually, we're able to take what has now taken me five minutes to explain to you, in literally 30 seconds and almost irrefutably. That's the power of the graphic tied to a specific case.
Barber: I want to address the elephant in the room. We're in the middle of a global pandemic. We just ran a survey and 98% of our clients right now are working from home or from a location other than their normal offices.
Ritter: An undisclosed location that they don't want to tell you about.
Barber: Right. This sounds really interesting, but if I'm looking to advance my case, can I do a mental mining session remotely?
Barber: How does it work?
Ritter: Well, the short answer is yes, and a further evidence of that is that we're continuing to do them. We did mental mining sessions through video links in the past would be before we were confined to our youngest kid's bedroom or whatever. We have experience doing them, but yes, it can be and the... Look, would I prefer to be in a room with you right now talking to you one-on-one? Yeah, absolutely. There are a lot of advantages to that, the human contact. For example, I can go all day in the mental mining session, I can't go more than about four hours on the phone because you just don't have that interaction. But the short answer is yeah, you can do it.
Ritter: You can have these discussions we've been doing on some major cases, we've been doing it on some very complex cases, we've been doing it in a way that people are not losing ground and are able to be in a better spot. I like to say, the court's going to look to you for your case to be in a better spot before the shutdown than it was... Excuse me. The court's going to be looking to you to see your cases better after the shutdown than it was before.
Ritter: So, yes, it can be done and candidly, it probably should be done. I recognize a lot of the underlying clients are concerned about finances and I don't trivialize that, but the point is going to come where the courts are going to reopen and they're going to expect work to have been done. So let's do it. The other advantage to be honest with you is so much easier to schedule. Getting six people to be available all at one time is a lot easier than it used to be.
Barber: What I was going to say, it sounds like jury research is able to be conducted in a fully virtual environment and so there's quite a bit that can be done right now to keep advancing.
Ritter: It can and I think anything that can be done in a small group setting can certainly be done on video and I think it can be done effectively on video.
Barber: But Chris, thank you. I think-
Ritter: Thank you. The hour has gone first. I've enjoyed talking with you and we can do it again sometime.
Barber: Yeah. Chris, it was really great speaking with you. I really appreciate you being our guest today and it's just always really eye-opening and thought provoking to speak with you, so thank you.
Ritter: Well, thank you. You personally are always someone fun to talk to, so thank you for including me and I look forward to the next one.
Barber: Appreciate it, Chris. Take care.