The X-Factor at Trial: The Power of Authenticity (and “The Boss”)

Justin Shur. Photo by Elliott O'Donovan.

Last week, I saw Bruce Springsteen perform live. The show did not disappoint. Of course, as a lifelong fan, I may be a little biased. I still remember the first time I heard Springsteen. I was in seventh grade and my older sister played a live bootleg recording of “Thunder Road” – I was hooked. Throughout the years, and many musical phases, Bruce has remained a constant in my life, or at least my playlists. Still, in all that time, I never made a connection between “The Boss” and my work as a trial lawyer – until last week.

The day of the show, I was invited to pitch a client who was in search of counsel to try a complex, high-stakes case. As we walked from the reception area to the conference room, the client shared that he too had tickets to see Bruce that night. As Springsteen fans do, we enthusiastically traded stories about the concerts we had been to over the years. But as soon as we sat down, the client turned to the business at hand: “What do you think makes an exceptional trial lawyer?” he asked.

I started to rattle off a list of skills: The ability to navigate the courtroom with ease and confidence. The ability to conduct surgical cross-examinations, and deliver a mic-dropping closing argument. The client cut me off – “I understand all that,” he said. “What I want to know is, assuming a lawyer possesses all those skills, what puts him or her over the top with a jury? What is the X-factor?” My answer: Authenticity.

The client looked at me skeptically, understandably so. Authenticity is one of those buzzwords that is frequently overused, often without much meaning. To be clear, I explained, I’m talking about the ability to convey a sense of genuineness that allows you to communicate with people in a way that resonates with them. “Like Bruce?” the client asked with a slight grin. Admittedly, while certain leaders came to mind when I thought about authenticity in this context, the leader of The E Street Band hadn’t been one of them. But it dawned on me: The client, even if only teasing, was on to something. So I went with it.

“Bruce is a perfect example,” I said. Five decades into his career, Springsteen continues to genuinely connect with people from all walks of life and across generations. My teenage daughters even know, dare I say like, Bruce’s music. (Of course, it didn’t hurt that Taylor Swift performed onstage with Springsteen lyrics written across her arm for inspiration.) The key to Bruce’s appeal all these years: Authenticity. The same authenticity that is essential to winning at trial. Intrigued, the client said “Okay, I’m listening.”

“In Bruce We Trust”

Authenticity at trial is vital, I explained, because it’s inextricably linked to trust. And trust is crucial to persuading jurors. Each day in the courtroom, the jurors are sizing you up. They’re asking themselves: Can I trust this person? If you’re able to win that trust, jurors will undoubtedly be more receptive to your views and arguments or at least more willing to engage with them.

But earning the jury’s trust is no small feat. After all, we’re talking about a group of strangers who are often cynical about the legal process and lawyers in particular, viewing them through the lens of negative stereotypes – slick, arrogant, or worse. While unfortunate, and largely undeserved in my experience, this can be a significant barrier to building trust with jurors. Authenticity breaks down that barrier. For one thing, I explained, exhibiting authenticity requires being open and transparent, which instills a sense of trust with any audience.

Take Springsteen, for example. Over the years, Bruce has been open and transparent with his audience. He talks not just about his successes, but his struggles too: from his fraught relationship with his late mentally ill father and his own battle with depression to his fears and insecurities as an artist, husband and parent. That type of honesty resonates with people. As one fan in a Springsteen documentary summed it up: “In Bruce we trust.”

Exhibiting authenticity requires being open and transparent, which instills a sense of trust with any audience.

The same principle applies at trial. There is a natural tendency to focus on the strengths of your case. And for good reason. But it’s just as important that you’re open and transparent with the jury about the challenges too – whether a bad fact or legal obstacle. Only by authentically owning those vulnerabilities and addressing them head-on will you earn the jury’s trust.

Of course, the converse is also true. If jurors see you as holding back the truth, you’re doomed – they will distrust you and, by extension, your case. I saw this play out in a recent trial, where our client was accused of making unlawful political contributions. A key issue in the case, I explained, was whether our client was aware of the campaign finance rules he supposedly violated. Typically, campaigns provide donors with a contribution form to educate them on those rules. Our client, however, was never given that form – a critical fact the government hid from the jury, hoping it would never come to light. But we made sure it did, delivering a significant blow to our opponent’s case as reflected by the verdict.

In every trial, the lawyers are competing for the jury’s trust. If jurors perceive you to be authentic, you will win that contest. The jury will see you as a trustworthy guide who they can follow. They will look to you for the facts and how they should be understood. And that can make all the difference.

"Risk Being Your True Self"

Authenticity, I explained, also enhances your ability to grab and hold the jury’s attention. This, of course, is critical to success at trial. After all, you may think you’ve scored points by impeaching the other side’s key witness on cross-examination or by exposing, in summation, a flaw in your opponent’s theory of the case. But none of that matters if the jury isn’t paying attention and engaged.

Springsteen is a master of audience engagement. One of the things that makes his shows so engaging is his willingness to go off-script to connect with the audience. Whether it’s taking impromptu song requests from the crowd or inviting fans onstage to sing or play with the band, it’s in these unscripted moments that the audience is most engaged. Because they’re real and authentic. Or because, as Bruce likes to say, you “risk being your true self.”

For the same reason, unscripted moments can be a powerful tool at trial. Take, for example, our closing argument in a multi-defendant securities fraud case. In advance of the argument, I explained, we had developed a meticulous plan. That included using timelines, graphs and other charts to help the jury make sense of the thousands of exhibits and months of witness testimony in the case. But then, just like Bruce, we called an audible (well, maybe not just like Bruce).

On the day of the argument, due to delays beyond our control, it wasn’t until after five o’clock that I stood to deliver our summation – after the jury had already heard hours of argument from the other lawyers in the case. As I approached the jurors, I could see they looked tired and irritated. And when they saw all the charts, their reaction was palpable: One juror folded her arms as her eyes glazed over, while another closed his eyes and slouched down in his seat. So I ditched the charts altogether, and instead opted for a presentation that felt more like an intimate, one-on-one conversation. As the argument progressed, there was a noticeable change: The juror who slouched down in his seat now sat up and was making eye contact, and the juror whose eyes glazed over had unfolded her arms and was now leaning in to listen.

Don’t get me wrong: At trial, it’s important to have a thoroughly, even obsessively, prepared game plan. But it’s equally important to be able to pivot and improvise when the situation calls for it, whether it’s responding on the fly to a curveball (like an unexpected evidentiary ruling or surprise piece of witness testimony) or the need to leave your mental script to recapture the jury’s attention (as was the case in that securities fraud trial). By embracing those moments, you can create the type of authentic engagement where jurors feel invested and will listen to you and your case – not because they have to, but because they want to.

The “Magic Trick”

Perhaps most importantly, I explained, authenticity is essential to effective storytelling. To persuade a jury, you need to do more than just marshal the facts. You need to be able to convey those facts in a memorable and meaningful way. Storytelling can do just that, so long as it feels authentic.

Springsteen’s songs are authentic storytelling at its best. He calls this his “magic trick.” To perform it, he utilizes several techniques. For starters, Bruce employs relatable themes that resonate broadly: from coming-of-age angst and rebellion (“Growin’ Up”) to the transformative experience of parenthood (“Living Proof”) to confronting mortality (“Last Man Standing”). Building your story around a relatable theme can be equally effective at trial – especially in a complex case.

A few years back, I explained, we were hired to try a patent infringement case. When I first asked what the case was about, I received a lesson in the application of wave-particle duality. Huh? Not only was it difficult to understand (without an advanced degree in physics), it was deathly boring. But we were able to make our case accessible and appealing to the average juror by presenting evidence in the context of a relatable theme: a David vs. Goliath tale, where our client, a small company, was battling for their rights against an industry giant who stole their idea.

You can create the type of authentic engagement where jurors feel invested and will listen to you and your case – not because they have to, but because they want to.

Another hallmark of Springsteen’s storytelling is his use of imagery. His vivid lyrics transport listeners to mythical places like the “rattlesnake speedway in the Utah desert” (“The Promised Land”). And bring to life such colorful characters as “Madame Marie,” who “the cops finally busted … for tellin’ fortunes better than they do” (“Sandy”). By employing the same technique at trial, you can create an immersive experience empowering the jury to not only see the world through your client’s eyes, but to empathize with their situation and ultimately align with their position.

Bruce’s stories also resonate emotionally. Whether it’s the grief experienced after the loss of a loved one (“You’re Missing”), the strong bonds of friendship (“Blood Brothers”), the bittersweet state of nostalgia (“Glory Days”), or just the frustration of not being able to find something to watch on TV (“57 Channels And Nothin’ On”), Springsteen’s stories tap into the emotions of his audience. So must your story.

In any trial, to persuade jurors you need to connect with them on an emotional level (yes, even in a case involving quantum physics). Because whether we like to admit it or not, we’re all emotional by nature. Juries are no exception. In making decisions, jurors don’t rely on logic and reason alone. But through the “magic” of authentic storytelling, you can reach jurors’ hearts and minds.

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And just like that, my time was up. The pitch ended with the client thanking me and telling me he would be in touch. Of course, that evening as I made my way to the show, I played it all back in my head – much like the way I do during jury deliberations – wondering if my message had landed. But I didn’t have to wait long.

Later that night, I received a text: “What did you think of the show?” the client asked. “One of the best,” I replied, although I couldn’t quite put my finger on why. Maybe it was the thrill of seeing Bruce and the band live for the first time since the pandemic. Or maybe it was the joy of watching my daughters experience their first Springsteen show (they even knew the words to some of the songs – thanks, Taylor!) But when I looked down at my phone again, I saw the client already had the answer: “The power of authenticity.”

About the Author: Justin Shur is a partner at the national litigation boutique MoloLamken.