Jon Katz at Underdog discusses campaigning by soundbites, relating it back to the use of soundbites at trial.  Of course, the most famous one is the late Johnny Cochran’s, “If it does not fit, you must acquit” in the O.J. trial.  In politics, the soundbite means all, recognizing that people generally lack the tolerance to pay attention to a position or argument that requires more than 10 second of focus. 

But at trial, we have a captive audience.  It’s not like our jurors can get up and go to the fridge, thus missing the balance of our brilliant oratory, right?  While true, it similarly doesn’t mean that the fact that they are forced to sit in one spot and look at us means that they are (1) paying attention or (2) processing what we are saying.  And for anyone sitting in on another lawyer’s trial, we all know how the mind has an uncanny ability to wander during their, ahem, speechifying.

Since we are all keen observers of politics, we are astutely aware of the fact that most political soundbites are vapid.  Jon uses a clip from my Senator, Hillary (who I’m a little displeased with at the moment for not responding to the invitation to attend my son’s Bar Mitzvah, which is just plain rude), to make his point.  Notably, by using Hillary, he removes any challenge of playing politics to make his point.  The soundbite in this clip is that “people are invisible to the current administration.”  Well, perhaps that’s true, but you can bet that you’re just as invisible to Hillary, who is a very important person and doesn’t have time to listen to your concerns either.  Nice sound bite.  No substance.

The difference at trial is that we have an adversary there to remind the jury when we employ a soundbite that lacks substance.  And they should.  Just as we are there to do the same when the prosecution relies on the old saws to suggest guilt and wrongdoing when the evidence doesn’t do the trick. 

One problem for lawyers is that most of us aren’t very good at soundbites.  We like to talk.  We like to talk at length.  We justify it by proclaiming the need to explain things to the nth degree.  We like to back it up with examples.  Sometimes lots of examples, even to “prove” the most obvious points, thereby treating the jurors like ignorant 3 year olds who can’t comprehend the slightest concept without belaboring the point ad naseum.

Recently, I took over a case on appeal from a younger lawyer, and asked him a number of very specific questions about the case.  He droned on with me, stating the obvious (though non-responsive) answers and then giving me examples of the obvious.  Numerous examples.  After giving him free rein for a few minutes, I finally told him enough, I understood his point without the ten minutes of examples. 

He bristled at my rebuke, telling me he was trying to help.  I thought to myself, if I was sitting on his jury, not only would I have zoned out on him after the first three minutes, but I would want to punish someone for making me listen to this dud.

When I teach a CLE on media training, I emphasize the need to express oneself in soundbites.  During an interview, we get maybe 30 seconds of air time, and 20 second will be eaten up with the question.   Someone will invariably tell me that it’s not always possible to answer a complex issue in 10 second.  True, but the other option is to be denied the opportunity to have any say at all.  Those are the only choices, so if you want to have any impact, find the core of your point and get it out.  Make it punchy, clear and brief, or don’t bother.