August 25, 2011 · 3:13 am
Juror deliberations are complicated dynamic processes. The whole of the group is greater than the sum of its individual parts. Often people think that deliberations are a series of compromises – and in some ways, they are. On some issues and in some groups, jurors compromise on damages figures and charges. But not all of deliberations are compromises. Sometimes deliberations result in the exact opposite of compromise – a polarizing of attitudes.
Polarization means that jurors who started out with more middle of the road attitudes (just slightly leaning to one side) when put into a group setting become more extreme in their viewpoints. This means that you can have a group of jurors who individually are fairly open-minded and undecided but who end up extremely opinionated when they enter a room with other jurors and begin discussing the case.
Part of the reason for polarization is that once a juror expresses his/her viewpoint, they are much more wed to that viewpoint in public because there is a stereotype that weak people change their minds and “give in” or admit they were wrong. No one wants to be weak. David Ball and his partners have done numerous years of research on jurors and the primitive brain (Reptilian brain). Their research tells us that the weak member of a group is in danger for their lives. It is a strong human drive to avoid being seen as weak. Therefore, jurors may stick to a viewpoint they espoused early on even if they later feel differently. The result can be a group of jurors who are so split on values that you end up with a hung jury.
One way to prevent this is to explain to jurors how to deliberate. Groups that start deliberations by discussing their views on the evidence rather than taking polls on verdict questions tend to be much more collaborative and polarization is much less likely. Suggest to jurors that when they get into the deliberation room, they first and foremost go around the room and discuss their views on the evidence without taking votes.
Polarization also has implications for how you conduct and read into focus group research. Realize that if you do a non-deliberation type of focus group (or survey research), the results can be misleading when put into a group setting. Jurors do not decide cases in isolation and the group dynamics make a difference. That is not to say that those non-deliberation types of research are useless – they certainly have their separate purposes – but do not assume that you know how your deliberations at trial are likely to turn out if you rely solely on individual responses.
August 18, 2011 · 7:31 pm
Attorneys are often worried about asking questions in voir dire that elicit responses that are harmful to your side of the case. For example, I hear plaintiffs attorneys worry about asking questions regarding tort reform because they are afraid that jurors will start talking about costs of insurance rising and how lawsuits are chasing doctors out of town. The fear is that these comments will taint the neutral or good jurors.
My suggestion is not to worry about poisoning jurors on the panel. Your role in voir dire is to elicit information and you certainly want to hear the bad comments so you can dismiss bad jurors. Jurors who are favorable to you will not change their opinions simply because a stranger sitting next to them spouts off opposing viewpoints. If a person holds a fairly well ingrained opinion, they have formed that opinion based on their life experiences. That opinion has already been challenged by media, friends, and family. An hour-long voir dire (if you’re lucky to even get the much time) will not change their opinions. If a juror is neutral on a matter or has not formed any deeply rooted opinions on the topic, they may be swayed by what other jurors say but not to the point of danger to you. Their opinions will not have been ingrained and they can be easily swayed back to your side during trial.
The most important things to remember during voir dire are:
1. You should listen much more than you talk. This is a time for you to gather information, not feed jurors facts about your case or try to start convincing them.
2. You need to appear as non-lawyerly as possible. Jurors hate attorneys and this is your first impression. Do not under any circumstances argue with a juror about their opinion or try to change it. You will alienate yourself from the rest of the panel, including your good jurors.
3. Bring out those bad facts and get jurors to commit to their opinions solidly if they are bases for cause challenges. That will give you a much better chance at removing more of the bad jurors and ending up with neutral or favorable jurors who will then appreciate your openness to different attitudes and trust you more as you begin to present your case.
August 14, 2011 · 9:14 pm
As technology as become increasingly prominent in our lives, it has leaked its way into the courtroom. Some technological advances are extremely helpful when used properly and can be detrimental when used improperly. So what is the best way to use technology in the courtroom?
Effective Use of Bullet Points.
- Learning Style: There are some attorneys who like to use bullet points throughout opening. This is not an effective use of a graphic. Firstly, technology should offer your listeners something extra that you on your own cannot provide. Simply putting your opening up on a large screen for jurors to read alongside you does nothing to tap into their other methods of processing. When people are reading something, they are still utilizing the auditory part of their brain, so simply because you have put it in a readable format does not change the brain’s method of processing. You will still miss the visual learners.
- Frequency: Bullet points should be used sparingly. For example, to list Rule violations of the defendant (which I suggest you do on physical exhibit board that can stay present in the courtroom the entire time rather than through a computer snapshot that disappears when you finish reading).
- Timing: Also keep in mind that any time you put something in front of jurors to read, they will be reading as you are talking. They will tend to read the bullet point, miss what you are saying, and then stop listening as they assume they have all the information they need in that one bullet point. If you must use a bullet point, put up only one at a time and only put it up after you have finished talking about that point.
There is much research to show that people learn better when you access all parts of their brain at one time. If you can access someone’s visual part of the brain at the same time that you access their auditory part of the brain, you have a better chance of them remembering and understanding the point. A good graphic is a picture that is easy to understand without any type of label within the first 3-5 seconds of looking at it. The graphic should be able to tell a story without any explanation. Run your exhibits and graphics by mock jurors ahead of time to find out if the graphic tells the story you intend! Then add a tag line on the top that asks a question that the picture answers, such as “Why Didn’t the Plaintiff See the Hole in the Ground?” along with a photo of how conspicuous the hole is.
Technology can be very helpful – if used correctly. Do not use it just for the sake of keeping up with the times. Make sure you are using it to your advantage.