By A.S. Dreier

A.S. Dreier is an attorney and the author of "Strategy, Planning, & Litigating to Win."

It is not “facts” or laws that determine verdicts, but rather lawyers who understand how to shape perception—or how to prevent it from being misshapen. This is why McDonald’s paid millions of dollars when a woman spilled their coffee on herself. This is what allows Jodi Arias and Oscar Pistorius to claim they shot people without committing murder.

Certainly, Jodi Arias’ alleged actions before the killing and her alleged contradictory statements about the situation create a negative perception that seems insurmountable. How could there be any perception other than guilt? But remember, many people asked the same question before the O.J. Simpson murder trial—yet despite the vast weight of evidence available there the result was an awe striking not-guilty verdict.

Many attorneys fail to appreciate the role of perception. During Simpson's trial, it appeared that prosecutors Marcia Clark and Christopher Darden were such attorneys. Their key opponent, defense counsel Johnnie Cochran, clearly was not.  He understood that a bloody glove seemingly linked to his client, and DNA evidence are only damaging if the jury perceives them to be.

For the prosecution, the glove and DNA demonstrated Simpson’s guilt. To the defense these demonstrated incompetence and racism in the Los Angeles Police Department. Logic favored the prosecution’s perception. Yet, due to Cochran’s skill and the prosecution’s lack, at the end of the trial, the jury shared Cochran’s perception. And the perception the jury adopts determines the verdict.

We have seen similar events unfolding in Oscar Pistorius’ case, with the government removing the key investigator from the case for reasons of alleged misconduct (Mark Fuhrman flashback, anyone?). CNN.com has also just published an article about the gun culture and high crime rates in South Africa, foreshadowing a reasonable context for Pistorius’ actions—the context of a person living in fear of violent crime.

We may not have personally experienced “living in fear,” but it is a concept for which we can conjure a mental model or “schema.” People think in terms schemata (schemata are the plaural of schema). If I say, “birthday cake” I do not need to explain that it involves frosting and candles, because that is part of your “birthday cake” schema. If, however, the cake involves, say, vegetables (which are not part of the schema), I will need to include some explanation (like "vegan" or "for a rabbit") or listeners will be confused or skeptical.

Where perception plays a role in trials—and what effective trial attorneys focus on—is which schema the jurors apply. With the right schema, the most unconvincing story makes sense.  With the wrong schema, people end up on death row, only to be proven innocent later by DNA evidence. And while schemata change (e.g. our trials no longer condemn people to burn as witches), other schemata persist that result in wrongful convictions, and there may be no DNA evidence to later prove innocence.

So, litigation requires putting out the schema that favors the attorney's client.  If I say “Buffy’s car broke down, but she fixed it,” you will have one expectation if your schema for Buffy was “girly-girl, princess” (in which case she probably called the auto club). You have a very different expectation if the schema you plugged Buffy into was “tomboy who hung out in a garage” (in which case, she probably opened a toolbox and fixed the engine herself).  Similarly, when a juror hears that a forensics team discovered some evidence, it means one thing if they are picturing a team of clean-cut, Ivy League G-Men, and another thing if they are picturing amateurs, incompetents or evidence-planting racists.

Effective attorneys focus on the perceptions the jurors attach to the plaintiff, defendant, witnesses, the evidence and situations, and even the opposing counsel and themselves. If Oscar Pistorius' case comes to a trial, his attorneys have fertile ground in which to plant helpful perceptions—shooting through a door without asking questions is reasonable for a person living in fear, and any evidence that he actually did something criminal (if any such exists) might be explained by the allegedly “rogue” lead-investigator who was removed from the case.

Despite the decisive role perception plays in trial outcomes, many attorneys miss it—the prosecution’s unconvincing display in the Simpson case is not uncommon. Both attorneys and legal academics fail to grasp the base reality beneath our profession's veneer of truth and justice. When "Strategy, Planning & Litigating to Win" laid out how attorneys can shape the perceptions of both opposing counsel and of jurors—in short, when it explained the role many attorneys play, or defend against, in creating a verdict—a noted law professor attacked it as an “unfair” approach to trial practice. Yet, it is not an approach to practice. It is the core of our system of justice and a demonstrable, albeit undesirable, reality.

Perceptions shape verdicts. Trials are not now and have never been about facts, because we only rarely know what facts are (legal texts actually refer to juries as “the finder of fact”), and even what is accepted as “fact” only has meaning within a context. While having a lawyer who is clever and who knows the law helps, the lawyer every innocent deserves - and the prosecutor every victim like Nicole Brown Simpson, Caylee Anthony, and Trevor Alexander deserve - is one who knows how to make the jury perceive the situation as it happened. And all those seemingly-inexplicable verdicts you hear of are explained by attorneys who knew how to make the jury perceive what their client needed perceived—not necessarily the truth or justice we would prefer.