If you’ve spent any time interviewing jurors, you know that eyewitness testimony holds great weight. And if you’ve spent any time researching cognitive psychology, you know that eyewitness testimony can be very unreliable. I want to briefly discuss the research and then will talk about implications for your case.
Elizabeth Loftus is one of the leading minds in the field, along with Garry Wells and a few others. She ran an experiment in 1989 where she showed subjects a video of a car accident at an intersection where there was a stop sign. Half of the participants later received a suggestion that the traffic sign was a yield sign. When questioned about what traffic signal they remember seeing in the video, participants to whom the yield sign was suggested reported remembering the yield sign instead of the stop sign, suggesting that the suggestion of the yield sign altered their memory of the original event. I am certainly not suggesting that this happens every time – there are many factors that increase or decrease the chance that a memory gets altered, such as how focused the participant was on that particular item (if the subject found the stop sign to be particularly important, they are more likely to focus on it and be less vulnerable to the yield sign suggestion).
Perhaps the scariest part, however, is not that the memory was altered, but that a person’s confidence level in their memory is not correlated with accuracy. This means that you can get an extremely confident witness on the stand who will win over jurors but is inaccurate in their recollections.
Much of the studies on memory and testimony relate mostly to criminal cases where there can be police suggestions in lineups or interviews that alter the memory. But the problems can also appear in civil cases where people are questioned by police, attorneys, and put through numerous depositions.
So what can you do about it? You certainly cannot prevent the altered memory and you may not even have the ability to know when or how it happened (unless you have a criminal case where there are more clear factors such as suggestions that are implanted at the lineup). But consider informing your jurors of these psychological phenomenon. Experts like Elizabeth Loftus testify in cases and can point out to jurors the factors that make memory more or less accurate, giving them things to look at other than the confidence of the witness.
In my last post, I talked about trusting jurors. The flip side to that is that you need to be trustworthy. There are many elements that go into being trustworthy, such as:
- How you present yourself in court
- How you treat witnesses and court staff
- How honest you are in voir dire (and how little you use voir dire as a means to persuade rather than gather information)
- How much you ask for in damages and what you ask for (be reasonable!)
- How consistent your story is
There are many other factors but I want to briefly talk about the last element. Pennington and Hastie are credited with developing what is now termed the “Story Model” of jury decision-making. There are several elements that go into making a good story and as jurors listen to a case, they construct several stories. One or two win out in the end. One of the elements of a winning story is consistency.
If jurors sense any inconsistency in your story, you lose credibility. Be aware of inconsistencies in testimony as well as issues you may not always be on the lookout for. For example, if you are claiming back injuries and ongoing pain, does your client shift in the chair during trial? If your client has neck pain and loss of mobility, is he/she still driving? Jurors will not only spot the inconsistency but will be angry that your client is an unsafe driver who cannot look where he/she is going and therefore is putting that juror in potential danger. Will jurors hear about a settlement with one defendant and yet your client claims to have no money to get treatment? Jurors will assume the money from the settlement could have gone to treatment and often then surmise that your client is not really motivated to get better.
Often you will need an outsider’s eye to spot these things. You may be too close to the case. If you don’t have the budget for a focus group, run your case by some non-legal friends or strangers. See what questions they have and what troubles them. The less inconsistencies you have, the more jurors will be able to trust you and your story.
I often come across attorneys who have trouble trusting jurors. I can’t blame them – it’s hard to give up control over your case to the minds of 12 strangers who may have no previous knowledge of the law. But you will get further by putting faith in your jurors than distrusting them.
For example, if you don’t trust your jurors, you may be more inclined to exaggerate your damages in anticipation of jurors cutting them down. While jurors do use damage arguments from attorneys as anchors, they will be less inclined to cut your damages if they feel you are being genuine and that the amount you are asking for is fair. Do not under any circumstance include items in your damages that can seem overreaching.
In jury selection, be open and honest about the problems with your case. When you then ask jurors to be honest with you, they will be much more inclined to be open. In addition, you will have disclosed the worst up front so there will be no surprises later and jurors will begin to trust you based on your openness. During opening and again in closing, tell jurors that you trust their decision. Guide them toward the verdict you want and certainly explain the law and how your case fits into it, but ultimately trust them to decide the right verdict and amount.
The wonderful Moe Levine is a perfect example. This short youtube video will probably educate you more than I could ever type: http://www.youtube.com/watch?v=b0P7EoKrW1o&feature=mfu_in_order&list=UL