Persuade Through Showing, Not Telling

A case study from my trial files.

Plaintiff was diagnosed with Type II juvenile diabetes in his teens. Despite countless admonitions from physicians, dieticians and nurses, he was non-compliant with his diet.

In his twenties, he did something illegal (I can’t remember what) and was jailed for six months. The jail's family practice physician diagnosed diabetic retinopathy for the first time. Plaintiff contended that the physician committed malpractice for not diagnosing it sooner (even though plaintiff had been followed by an ophthalmologist on the outside who had not diagnosed it). I represented the company aligned with the physician.

The jail kept records of all the snack food that plaintiff bought at the jail’s commissary during the six months he was incarcerated. He bought a lot: moon pies, pork rinds, top ramen, Kit Kats, Hershey bars, you name it. I put the commissary records into evidence. At the suggestion of a co-defendant’s lawyer, I decided to show, not tell, the jury what plaintiff had bought. The argument went to plaintiff’s contributory negligence.

I sent my paralegal out to buy every single item on plaintiff’s commissary list. It took him an entire weekend, as he had to go to multiple stores to purchase everything on the list. The junk food filled my kitchen table. I wanted the jury to see it in a familiar container so they could gain a sense of how much food this really was. I tried one of my children’s oversized, plastic lattice-worked laundry baskets. Perfect. The jury could see the junk food through the lattice work and there was so much food I could mound it on the top.

During closing argument, I put the basket mounded with junk food on a table in front of the jury. I actually staggered (unintentionally) under its weight. As I talked, I was watching a young juror in the front row who was studying to be a nutritionist. I believe this was the first time I actually saw someone’s eyes grow as big as saucers.

I could have asked the jury during my closing argument to review the commissary records, which had been marked as an exhibit. Instead, I showed them what they represented.

When you negotiate, think of ways to show what you mean. It can be a persuasive way to make your point.