Monthly Archives: May 2012

Where You Are Losing Leverage With Preponderance

Preponderance is one major foundation of all civil lawsuits. If jurors truly made their decisions on the basis of more likely right than wrong for liability AND damages, there would be many more plaintiffs verdicts.  David Ball has done wonderful work in his Damages books teaching attorneys how to weave preponderance into a case from voir dire through closing but there may be one major area where you’re missing the leverage preponderance gives you.

My father is a neuropsychiatrist.  He has been deposed before and testified at trial.  Recently he was deposed about a prior patient of his. Afterward, we had a discussion about preponderance.  He told me that the attorney asked if various things were more likely true than not, a phrase he has become very familiar with after listening to me talk, but that the meaning of the phrase never really sunk in.  When he was hesitating on a question, the attorney asked if it was just 50.001% true and it clicked – more likely than not means only 50.001% – and he quickly answered the question that of course it was at least that probable!  When I asked what he thought “more likely than not” meant, he said it obviously did mean 50.001% but that without the percentage being directly pointed out to him and without time to really sit and think about the meaning of the phrase, it just meant a lower standard than “beyond a reasonable doubt.”  In asking a few other doctors about their perceptions, I got the same answers.

You may be losing ground with your own experts as well as cross-exam of the defense experts if you are not clearly pointing out that “more likely than not” means 50.0001%.  While it’s obvious that the phrase can mean nothing more than that, I’m finding that many people do not think hard enough to put it in those terms. Make sure to explain what it means in percentage terms and if a witness is waivering, remind them that it only means 50.001%.


Filed under Burden of Proof, Voir Dire

Maximizing your Budget for Voir Dire

The more I am called in to help attorneys with jury selection, the more I realize their money may have been spent better elsewhere. Am I advocating that having a consultant attend voir dire is a waste of money? Absolutely not. But unless you are skilled enough at conducting voir dire, you may not be able to elicit the attitudes from jurors that your consultant needs in order to guide you as to which jurors are good or bad for your case. I have attended one too many voir dires where the attorney was confusing, wasting much of their limited voir dire time trying to re-explain themselves to the jurors who sat with furrowed brows or failed to nail down cause challenges thereby losing multiple opportunities to make their peremptories go further or asking questions in a format that elicits only the politically correct answers.

Here is my suggestion. Gather 12 people and bring them into your office. They don’t need to match your venue’s demographics because you don’t care what they say, you only care that you have bodies to practice on. Pay them in pizza. Have another attorney play judge and try to rehabilitate your jurors after you set the grounds for cause challenges. And finally, have your consultant there to critique you during the process. Practice staying on schedule, getting jurors to talk to one another, getting jurors to give you “bad” answers, and getting jurors to strongly commit to cause-challenge answers. Don Keenan and others have been suggesting this, but I know not nearly enough attorneys are doing it because I am at all of your voir dires!

I would much rather send an attorney into voir dire prepared and without me than to be unprepared and have me there but not elicit information I need to be helpful. If you have the budget to do a voir dire focus group and have a consultant at voir dire, by all means, do both. After all, the focus group should only take a few hours. But if it’s one or the other, I would STRONGLY suggest using your consulting budget on voir dire practice. Besides, it will pay off not only for that case, but for any future case. That is money well spent!


Filed under Jury Research, Misc, Voir Dire

My Experience as a Juror

A few weeks ago, I received a summons for jury duty. Unlike most potential jurors, I was very excited (for obvious reasons). I knew my chances of being picked were slim to none but depending on the case and how many more risky jurors the attorneys had to eliminate, I thought I had something to hope for.

Tuesday night, I called in praying the automated recording wouldn’t immediately dismiss me. I was told to call back the next day after 10:30am to see if they were going to need my round of jurors to show up at 1:00pm. I felt on edge all night. I was glad to not have been dismissed but left anxious they would dismiss me by phone the next morning. I’m pretty sure at this point, my jury experience was the exact opposite of 98% of jurors. At 11:00am, I learned they were calling us all in. At this point, I began to wonder if this was some high-profile case since it was a Wednesday instead of Monday and they were seeming to need tons of jurors. I figured I would be willing to sit for a 2 week trial but beyond that it would affect my business too much. (This all assuming they would take me, of course!).

The moment I arrived at the courthouse I tried to observe my feelings and surroundings so I would have a better understanding of what jurors feel. These observations are helpful in guiding attorneys on what to say during the introductory phase of jury selection in acknowledging what jurors are dealing with and empathizing with them.

My first thought upon arriving in the parking lot was “my God these spaces are small. If my car gets dinged while doing jury service, I will be one unhappy camper…or juror.”  I walked through security and into the jury room where there were hundreds of hard seats with jurors sitting and reading or watching television. I was slightly heartened by them providing television to entertain and not just re-running the jury service video.

By 1:15, a judge entered and spoke to us about the importance of jury service. I thought she did a very nice job in explaining how no one wants to be here but thanking everyone for showing up and explaining how jurors have more power than anyone in the country when they sit on a trial. This fits nicely with Carl Bettinger’s Hero-Centric story structure. I hoped jurors believed it when she said it but figure many probably thought “yeah yeah, when can I go home?” After the judge spoke, they played the jury service video. Most of it was boring and I had a hard time concentrating as they explained basics such as who each party is in the courtroom. They also had past jurors talking about their experiences, which I thought was a nice touch as they all acknowledged not wanting to serve but finding the process intriguing and worthwhile.

We were told there were two criminal trials going today, each only two days in length. I assume many jurors had a sigh of relief at this news. Personally, I was let down since I would love to sit on a bit longer trial to get the real effect – 4 days or a week, maybe.

Ten minutes later, we were split in two and my group was led to the courtroom. I was impressed at the speed of the process. I anticipated I would be sitting for hours in the main jury room before being assigned to a case and was pleased it went so fast. Granted, I wasn’t called in until 1:00, so maybe my experience is skewed. As we walked in and sat in the pews, I looked around to see if I recognized any of the attorneys or the judge. Thankfully, no recognition.

The judge talked for what seemed quite a long time about the jury process. Some of what he said was great, such as harping again on the importance of jurors, explaining why the parties all stand when we enter and leave the courtroom, and telling us we were more powerful than even him, the judge. In my mind, I was seeing a setup for Bettinger’s hero story developing – assuming the attorneys would run with it – and for Ball and Keenan’s Reptile if the attorneys could explain how that power allows jurors to keep the community safe. Some of what he said was drawn out – explaining the order of the trial, some basic laws, etc. If I was losing interest, I can only imagine what other jurors were feeling.

Finally, they began calling names. My fingers were crossed, and as each name was read, I could feel the relief of the jurors surrounding me that they weren’t called at the same time as I hid my disappointment. The attorneys were given 15 minutes for voir dire, which I think is terrible but unfortunately not uncommon. The attorneys did a great job in being like-able although I was highly confused by the DA’s questioning which seemed to single out cause strikes for the defense. He was young, so maybe he wasn’t exactly sure of what he was doing. They both focused mostly on burden of proof and the main issue in the case (that the defendant ran from the cop and whether his running made him guilty regardless of any other information). There were a few cause challenges and each time I hoped my number would get called while everyone around me hoped theirs wouldn’t. In the end, no such luck. On the way out, there were comments like “I’d like to know what happens to that guy…but I’d rather read about it.” I was disappointed, but glad that I at least got to experiences some part of the jury system. Any hands-on experience is helpful in relating to jurors. Fingers crossed for next year!

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Filed under Misc, Uncategorized