March 27, 2012 · 6:17 pm
Trial is approaching and you have a long list of witnesses to organize. How do you know who goes first, second, third, and last? Ordering witnesses can feel like solving a rubik’s cube – one witness falls into place and it knocks three others out of order. Not to mention that trial is unpredictable so you need to leave room for some flexibility. Because there are so many moving parts to a trial and witness schedules, every case is different, but here are some factors to consider in ordering your witnesses:
- Primacy and Recency. Primacy states that what is presented first is remembered best. Recency states that whatever is presented last is remembered best. The idea is to start and end strong. These are general psychological principles that interacts with many other principles so it’s not always so simple, but they something to consider. Start and end your trial with effective, powerful witnesses. To a smaller extent, try to start each day with a strong witness or slip one in right before a weekend break so it will be the last thing jurors hear before the leave to contemplate the case.
- Content. Your first witness should be able to set the stage for jurors and give them a big picture of what happened. The trial is a story and you need to start off solid by having someone who can get jurors to understand the overall chronological progression of things. The first witness should also be virtually infalliable. You don’t want to start your trial on a weak note.
- Personality of Witness. Jurors get bored. Try to space out witnesses who will be talking in a similar tone. If you put one monotone witness back to back with another, your jurors may be asleep. Try to have witnesses who are more interactive and who will be standing up to demonstrate something break up the monotony.
- Time of Day. Most jurors are more alert in the morning. After lunch, blood sugar levels peak and then drop and they get mentally tired. Even in focus groups, I always notice that my afternoon groups are much more dreary and slow moving than my afternoon groups. Try not to have a strong witness go on right after lunch – in fact, it’s a good time to put on weak witnesses so they can be easily forgotten (or never heard in the first place).
Again, of course all of this can only be followed to a certain extent. Professional witnesses have time constraints, out of town witnesses can only come on specific days, and the trial may move faster or slower than you anticipated, requiring you to move things around. That said, keep these guidelines in mind. The closer you can stick to them, the more effective you will be.
March 9, 2012 · 6:46 pm
This post is a plug for focus groups – not necessarily done by me, although I welcome the opportunity always – but done by anyone who knows how to do them well and get you reliable results. This post is a collection of quotes from a couple of my past focus group projects. I have left out all party names to protect confidentiality. I hope to convey the importance of doing focus groups before you get surprised at trial. What follows is a brief description of the case and then some juror comments:
Case Background: Medical malpractice case against a hospital. Plaintiff lost large amounts of blood during a 5-6 hour surgery. Surgeon and nurses did not find or fix the leak for a while. Plaintiff died a month later still at the hospital of kidney failure related to the blood loss. Plaintiff had pre-existing conditions and was overweight.
- From the Mouths of Jurors: “I think she had a death wish because she was in bad health anyway and she brought in a living will when she entered the hospital. If you have a living will and you bring it to the hospital, you’re giving up on life.” [Note that this issue showed up in both focus groups with 1 or 2 jurors in each group believing the Plaintiff wanted to die and therefore awarding no damages]
Case Background: Brain injury from car accident case. Plaintiff still holds a job as a professor at a community college. All doctors and all neurological testing shows brain injury. Pre-existing anxiety which was controlled by taking Xanax.
- From the Mouths of Jurors #1: “I think he had a drug problem. Taking Xanax that long over time could cause a brain injury or his symptoms.”
- From the Mouths of Jurors #2: “I think he had a drinking problem. My father was an alcoholic and he died from the alcohol use. He often forgot things too so I think the plaintiff’s issues are from drinking.” [No evidence of drinking at all]
Case Background: Car accident case with back and neck injuries. Plaintiff is on morphine multiple times a day to control the pain.
- From the Mouths of Jurors: “I think she wants money to be hopped up on morphine her whole life…she’s on morphine for dramatic effect and will probably quit when the lawsuit is over.”
[Remember this case next time you assume that jurors will believe your client is severely injured because of the amounts of pain medication they are on]
Please don’t do disservice to yourself or your clients. Jurors will often latch onto issues in your case you didn’t even know existed. By finding out what those issues are ahead of time, you will save yourself a surprise verdict or simply make a more compelling argument.