Watch for Inconsistencies

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.





Filed under Focus Groups, Jury Research, Misc, Trial preparation, Uncategorized

2 responses to “Watch for Inconsistencies

  1. I wanted to share a truly “relevant” story about inconsistency destroying a case. I’ve told it to every single client prior to deciding whether to settle or proceed to trial: Client driver and girlfriend rear ended, minimal damage/minor impact/soft tissue Allstate case. Liability admitted. Girlfriend settled prior to trial. Client is very nice, quiet, neck and back injury, solely chiropractic treatment. All’s well, I thought, and girlfriend testifies as to impact being like a bomb went off in the big Oldsmobile (big chrome bumper). She seems very nice and when she drops her glasses, I pay no attention. The jury does. The only question they ask during deliberations? Do we have to award anything at all, despite that it’s a hearing in damages! They award $1.00. Why? Girlfriend settled prior to trial, they know. She bent over to get her glasses, and never winced, or showed any sign of injury, so she must have lied about her injuries, and by association, my client must have lied too. Bend over, case over. At least I got my costs, and a great motivating story of caution.

    Jeremy Vishno
    Vishno Law Firm
    Fairfield, CT

    • Jeremy,

      Good point. The other related concept here is that jurors are ALWAYS watching you and your client. They look to see if a plaintiff claiming back pain can sit throughout the day, how they walk, how they stand, etc. They watch how they interact with court staff. They look at family members in the audience, what they wear, whether they seem to be there to support or to get their hands on the money. Every little thing matters.

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