PBS recently repeated two episodes of Ken Burns’ epic masterpiece The Civil War, and it motivated me to write this post. I started this blog as a place to put in writing all the crazy ideas that float through my over-active brain. I find if I don’t force myself to write them, I forget all or part of them. Thus, I want to put down ideas like this which I have ruminated about for awhile.

I like to study other forms of art and see how they seek to persuade. One of my favorites is business books on selling and persuasion. I intend to discuss them separately in a future post. Today let’s talk about documentaries.

I love documentaries. Film is the most persuasive medium of our era. It is also one of the best forms of learning. Well, a combination of learning and entertainment. My theory is that trial lawyers should study documentaries and understand the techniques that allow these films to move and ultimately convince an audience. These films sell a point of view, and that is our job as well. We need to learn from the masters. We need to tell stories, and they are the expert storytellers. A true story, not a Hollywood blockbuster type of story, but a story infused with authenticity. A serious type of entertainment. The audience takes them seriously. Just like they take our case more seriously.

My favorite all-time television series (well, second favorite – Brideshead Re-visited was first) was the magisterial Civil War by Ken Burns. His documentary captured our attention with compelling stories that made us look at the war an entirely different way. He personalized it. He used multimedia to make all his points.

Burns brilliantly combined many forms of media in his film. Voice-over narrators reading letters, fresh live footage of battlegrounds and other places, still images like photographs, paintings, maps, and prints, anecdotal stories, and even a 104-year-old woman reciting memorized epic poems. I loved the words from old letters, the rare stained photos, and Sam Waterson movingly reading the Gettysburg Address. Burns interspersed commentaries by well-known historians. Shelby Foote was brilliant. You felt like you were sitting with him in his living room listening to him tell the stories in that delicious southern drawl. And tying it all together is the honeyed narrative voice of David McCullough leading us through the scenes.

This is an important lesson for trial lawyers. Our most important currency is human attention. How do we get it and then keep it? You can’t persuade a person who is not listening to you. And today there are so many distractions. People can’t focus for long periods of time. They want to get out their iPhones or Blackberrys and start typing. So you need techniques to keep the jury’s attention. Watch how Burns does it by mixing up all the media. This keeps the eye and mind engaged. We never get bored because something new is popping up. We need to learn from him.

So I like to use many forms of media as well. We have the flat screens for video and documents. Then use poster board on an easel, or move to the blackboard, or whiteboard, and start drawing. Also the typical hard copies of exhibits. We need to mix it up. Keep interest high.

I read one review of the film by a student saying in his history class he never learned anything about the Civil War until he watched Burns’ film. He said: “Now I really felt it,” exactly what we want the jury to do. To feel it. Burns brought the war vividly to life. People felt it. It wasn’t a dry re-telling of ancient history. It was like we were there. We could feel what those soldiers and the rest were going through. This is how people get it. And don’t we want the jury to get it? Learn from Burns and others how to communicate using all the media available to you.

The PBS-type documentaries, which give a balanced treatment of any subject matter, is not the only way to tell the story. Some documentarians, just like trial lawyers, have a viewpoint to sell. My all-time favorite agitprop documentarian is Michael Moore. His point of view is always on the screen. He is pushing his agenda. He presents the facts in a light most favorable to his point of view. He makes no claim of pure objectivity. Despite that, his films are highly persuasive. He can change minds. Fahrenheit 9/11 abundantly proves that point.

Moore approaches his art far different than Burns. You never see Burns in The Civil War or his other films. Moore is always front and center.  He appears in his everyman uniform of disheveled clothes wearing a ragged baseball cap, inserting himself into the story, and aggressively pushing his liberal anti-capitalist point of view. And his style, appearance and theatrics help make his point. Who can forget him wrapping crime scene tape around the Goldman Sachs office building? Or continually trying to interview GM CEO Roger Smith? Or cringe watching his interview with a partially senile Charlton Heston?

Another great film for our purposes is An Inconvenient Truth by Al Gore. Before this film, everyone thought Gore was a dry and unconvincing speaker. Yet the film showed an entirely different Al Gore. He was persuasive and convincing. The multi-media show in the film made him so. The huge screen he stands in front of and uses for his demonstrative is magnificent. I would love to have it in my next final argument. He is able to mix up the materials and throw them up on this huge screen so they are right in your face. You are compelled to accept his arguments.

I particularly like something he said about the process: “I guess the thing I spend more time on than anything else in this slide show is trying to identify all those things in people’s minds that serve as obstacles to understanding this. And whenever I feel like I have identified an obstacle, I try to take it apart, rolling away, move it, demolish it, blow it up. I set myself a goal: communicate this real clearly. Person by person.” Isn’t that part of our job? To figure out where the jury has an objection to our argument and change those minds, person by person?

In this film, Al Gore delivered a final argument; one we can’t match in a courtroom with all its confining rules, but it is a form to aspire to.

Another type of persuasive documentary is The Last Lecture by Randy Pausch the professor from Carnegie Mellon University. He gave the famous last lecture which is posted on YouTube and accessed millions of times. If you haven’t seen it, watch it right away. Brilliant. Touching. Emotional without the tears. And you can’t but end up loving the guy. His lecture went viral because of his communication skills and the different types of media that he used in his lecture. There is a lot to learn from.

There is a more controversial example – Leni Riefenstahl. We can’t overlook her work for Hitler and the Third Reich, and she is justly condemned for that, but we can admire her brilliant film work. Triumph of the Will is a highly persuasive piece of Nazi propaganda on the Nuremberg Rallies of 1932. The film is mesmerizing. Then she went on to film the 1936 Berlin Olympics and created Olympia. Also a tour de force. This woman did ground-breaking work in these films. She only made two films that were released internationally, and because of her work with the Nazis she never got any further opportunities after the war. She turned to photography and put together many beautiful volumes of her pictures. We may not like the subject matter of these films but we have to admit their compelling nature.

If anyone has other good examples, please let me know. I think we trial lawyers can learn from these films. The directors use many different types of media to tell a compelling story. The story is foremost, and the job of technology is to support it. But the new technology aids us with telling our clients’ stories and we ignore it at our peril. Why let the other side tell a better story?