The Benefits (and Occasional Perils) of Using Statistics in Trial

A few weeks ago, one of my #TrialTwitter friends asked whether anyone had experience with using statistics in opening statement. It prompted an interesting conversation, but there’s only so much one can share in a 140-character tweet. Hence, this blog post.

Are statistics ever appropriate for opening statement, witness testimony, a hearing, or even an MSJ? Absolutely. In fact, your presentation (or brief) can actually be more persuasive if it includes statistics. But a statistic isn’t persuasive or powerful simply because it exists. A statistic is persuasive and powerful because of the way it’s incorporated into your trial story.

Here are five tips to help ensure that the statistics you use are persuasive and memorable.

1. Choose Carefully

It’s important to choose the right statistic for the right reason. Just because a statistic is important to you does not mean it will be important to your audience. Statistics are most memorable (and, therefore, powerful) when they are directly tied to your message or supporting evidence. It’s best to identify the key takeaways you want to communicate and then find a supporting statistic because you want the jury to remember your message, not just the number.

For example, in a federal trial a couple of months ago, the plaintiff’s counsel repeatedly referred to a statistic in opening (and throughout his entire case) that referenced the financial impact of trucking accidents in America. He clearly believed it supported his request for almost $30 million in damages. I disagreed. I thought citing the statistic so early in trial – before any evidence or credibility had been established on either side – was likely to be perceived by jurors as a money-grab. The dollars were clearly important to counsel, but the jury would likely have found statistics related to the odds of being involved in a trucking accident, or the number of fatalities, more memorable.

Ultimately, the jury wasn’t persuaded by the plaintiff’s evidence or damage request, and delivered a defense-friendly verdict.

2. Connect the Dots

Don’t assume your audience will make the connection between the actual statistic and the point you hope to make. Jurors (or any audience, for that matter) will be influenced more by the “here’s-why-it-matters” information than they will by the number itself. Tangible statistics are more powerful and persuasive.

For example, a Centers for Disease Control and Prevention study claims that approximately 900,000 Americans die each year from cardiovascular disease (CVD). But what does that mean? Is that a low number? A high number? If your goal is to make it seem very common and a high risk, perhaps it would mean more to jurors to share that the CDC also reports that every 40 seconds, someone dies of CVD. “So, that means in the eight minutes I’ve been speaking,” the attorney might say, “12 people have died of CVD.”

3.  Be Precise

Sometimes in trial, the “spirit of the message” is more important than the precise details of the message. Not so with statistics. If you’re going to cite a statistic, be sure to couple it with the source, the date, and the sample size (if relevant).

For example, telling your audience, “Research shows that approximately 2% of federal defendants had their cases decided by a jury” is an interesting nugget, but leaving out the details could cause jurors to question the veracity of the information. Sharing greater detail can have more impact:

In 2016, the administrative office of the United States Courts noted that there were 77,318 federal cases on file, but only 2% of those cases were ultimately decided by a jury.

The greater detail you provide, within reason, the more credibility and reliability your statistic will have. And if your opponent cites a statistic without the source or date of the study, you might want to do a little digging. It may not be nearly as credible as you initially think.

4.  Give It Life

Stories persuade. Statistics can also persuade. Combining the two together can really take things up a notch.

For example, if you are defending a neurosurgeon against allegations of a medical mistake, rather than sharing a generic statistic about the number of brain surgeries that are performed each year in America with success, why not couple that statistic with a story of a successful surgery your client performed? That successful surgery opened a world of possibilities, for the patient, the patient’s family and all the people the patient can continue to positively impact.

Giving your statistics life can breathe new meaning into them, and increase a juror’s ability to empathize or identify with your client.

5.  Less Is More

Finally, just because you can find a bunch of fabulous statistics does not mean you should use them all. Incorporating one powerful, well-presented statistic can have a much bigger impact than sharing a handful of numbers with little context or poorly executed delivery.

The most illustrative example of this I could find is compliments of Cindy Griffin’s book, “Invitation to Public Speaking,” which used the following as an example of death by statistics. I think we can all agree the important message here (whatever it is) is lost in a sea of numbers:

Based on these 2008 figures, we can say of the 1,393 males between the ages of eighteen and twenty-one with incomes above $24,000 a year and less than two years of training who attended this event more than three times but less than five, 743 drove their own vehicles, 259 rode with friends, 128 took the bus, and 11 walked. This leaves 252 unaccounted for. Now, let’s look at the 2010 date. These figures change slightly.

Telling the Bigger Story

When used sparingly and in the proper context, statistics can be a powerful tool of persuasion. They can help us tell a bigger story and attach our trial themes to a context that is more relatable to jurors.