Category Archives: Misc

How Well Do You Know Your Case?

How well do you think you know your cases? I don’t mean the deadlines for discovery or the legal rulings by the judge. I mean, how well do you know the value of your case to a jury? You spend day in, day out with the case so you would think you have a pretty good handle on it. But sometimes that makes it harder. It’s hard to see the forest through the trees. Sometimes, just sometimes, you may be wrong – even really wrong – about your case.

Let me give you a couple of examples. I will have to be vague to protect confidential information. I had an attorney come to me with a case regarding injury to a renter on another’s homeowner’s property. The attorney wanted to run a focus group. Great. He sent me documents to review. The rental property had a hot tub for use by renters. There were clips to secure the hot tub cover but the clips were broken. A “high wind strap cable” was provided to secure the cover. Also provided were instructions to lock the cover down to prevent trespass, although no explanation as to any danger of winds. The renters had previously used the property and used the cable. This time, however, the renters claim the cable was missing. A gust of wind hits, the cover snaps up and hits the renter in the head. As I reviewed the case, I could immediately see a very good likelihood that this would be a problematic case in ways that could not be fixed. I knew the homeowner had done enough to satisfy jurors. I spoke with the attorney. “Sir, to be clear, are you claiming that the negligence in this case is failure to fix the broken clips and failure to warn of the danger of the wind?” “Yes,” he replied. “Are you saying this isn’t a good case?!” He couldn’t believe it. I decided to let the jurors tell him as jurors are known to shock even me at times (see the next example). But lo and behold, I was right. There was nothing I could say to win the jurors over. Nothing. The attorney was shocked. Now maybe you’re not shocked. Maybe it seems obvious to you too. So is this attorney new? Uninsightful? Not good at trying cases and seeing the holes? No. In fact, he’s a seasoned, exceptional attorney. And his greatest power is also his greatest weakness. It may be your greatest weakness too.  I’ll explain more in a moment. Now for another example:

I was working on a medical malpractice case. A woman came into a hospital for a heart surgery. The surgery went fine except there is a 2 hour window without hospital notes for what exactly happened. The woman had a lot of blood loss and died a week later in the hospital. She had some bad pre-existing conditions such as obesity and high blood pressure. We tried the case to a mock jury. The jurors focused on her pre-existing conditions, obviously, but what surprised everyone was the fact that one juror in each focus group panel (we ran two separate panels) decided that the woman had a death wish and was ready to die because she brought her living will into the hospital. “She wouldn’t have brought that if she hadn’t already given up on life,” they said. And even more shocking was that the argument gained traction with other jurors. They decided that she was in such bad health to begin with that she had already given up so it was her fault she didn’t make it because she didn’t have enough will to live. Would you have known that was an issue in this case? Thankfully the attorneys were able to provide an easy remedy at trial by explaining that the hospital asks patients to bring in copies of living wills whenever they undergo surgery and showing the plaintiff’s zest for life. Problem solved. But these attorneys who knew the ins and outs of this complicated medical case really DIDN’T know their case – not the way jurors saw it.

I can almost guarantee that you don’t know your case either. And that doesn’t make you a bad attorney, it simply makes you human. One of the hallmarks of a great attorney is the ability to see the good in even troublesome clients and to be so optimistic and passionate about the case and the client that jurors believe your sincerity. But along with that ability to become so deeply devoted to your cases comes, by definition, an inability to see the forest through the trees. What may have seemed obvious to you in the first example may not be so obvious if it’s your case. How do you know what “obvious” things you’re missing in your current cases? You don’t know what you don’t know. What differentiates a great attorney from a stellar one is the ability to become encompassed in the case and get lost in it, along with the ability to ask for outside help to find and fix the holes. There’s simply no way for you to play both roles. That’s why consultants and mock juries exist. Because you can’t be both the advocate and see clearly.

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

Beating Preponderance – The Trouble With Battling Experts

I consult on many different types of cases from medical malpractice, insurance bad faith, personal injury, wrongful death – the list goes on. While every case is different, I notice a common theme in many of my consults. As I talk through the case with counsel, I look for potential holes. I try to see the case through the eyes of the worst juror for that side. Through asking questions, I often discover problems in a case that the attorneys never knew existed – sometimes so substantial that attorneys have had to settle the case or, if they’re lucky enough to still be in discovery, make some drastic changes. But even on the “good” cases, the ones that were worked up well and have a strong base from which to build on, I often see attorneys blinded by their story of the case.

Here is an example of the conversations that I seem to be encountering over and over:

Me: What is the defense side of the story?

Attorney: They say X, Y, Z. But they have nothing to back it up.

Me: Well what does their expert say?

Attorney: They will say A, B, C.

Me: How do you know that’s wrong?

Attorney: Because our expert says so.

While cases often are a battle of the experts, you need more than that. If you are the plaintiff, you must prove preponderance. If at trial all jurors hear is your expert versus theirs, that often ends in a toss-up. You may think your expert is better qualified or more likable and sometimes that’s true, but unless there is a glaring discrepancy between the quality of your expert versus theirs, changes are that jurors will count it as a tie. As a defense attorney, a tie may be enough. Legally, a tie would signal less than preponderance. But combined with other aspects of the trial such as your client or how the judge rules on evidence, you may still fall behind. No one wants to be in the position of trying a case that you win just by the skin of your teeth because that means you could just as easily have lost.

So what’s the solution? You need to present your story of the case, but you cannot ignore the other side’s story. You need to address it and not just by having an expert who says their side is wrong. Why is it wrong? What steps did their expert miss in doing the analysis? What inaccurate assumptions did their expert base his/her opinion on? Why is your expert’s analysis more valid? When testing for a TBI, did the medical examiner follow all protocols regarding lack of distractions during testing? Did they rule out other causes of the symptoms? Did the police create a report by following proper police protocol in terms of being unbiased and interviewing the parties? Did your life care planner take into account the fact that once someone lives to a certain age, they are more likely to live longer whereas their planner relied on life tables? You need to explain to jurors why the other side came to different conclusions. In most cases, both sides have paid experts. To point out how much the expert is being paid is fine but it usually equals out between the two sides and jurors understand that experts need to be paid for their time. You need to address not only your story but disprove theirs. This is not always possible, but I see many cases where it is possible and the attorneys simply haven’t taken the time or thought to figure it out. Don’t assume that having an expert who counters the other side’s expert opinion is enough. You need to show why they are wrong.

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Filed under Burden of Proof, Misc, Trial preparation

Keeping Jurors Awake and Interested

On my days off, I walk into my nearest courtroom and watch jury trials. I look for how long it takes me to figure out what the case is about and how long the attorneys keep my attention. The results are often poor. Yesterday, I walked into a case I believe was a contract dispute about payment for a custom made motorcycle. The plaintiff, the motorcycle designer, was on the stand. His demeanor was calm and he was clear in his speech but the presentation was so dry and boring that after 10 minutes I felt myself wanting to doze off. I looked at the jury of 6. One or two men were nodding and paying attention – presumably they knew a bit more about motorcycles or had some personal interest. Another two or three were turning in and out, at least pretending to look interested as their eyes glazed over. And one woman wasn’t even pretending to be interested. She was completely checked out and bored.

Trials often involve some tedious questioning about topics that are not normally of interest to jurors. There’s nothing you can do to eliminate the need for some “boring” testimony, but you can make it less boring and grab jurors’ attention. At every opportunity, have the witness and/or yourself do something interactive. Even if that means something as simple as writing things on an easel as the witness is talking – such as the pros and cons of doing something a certain way.

In the case example above, the attorney could have either brought in a motorcycle as a demonstrative exhibit or at least had photos of the motorcycle where the witness could have gotten out of his seat to move around and point to things. This helps make the witness into a teacher as well as creates an interactive moment to keep jurors’ attention. He could have had various motorcycle parts cut out with Velcro on the back and showed the jurors why some parts wouldn’t fit while others worked perfectly by switching out Velcro pieces.

Other ideas for other cases include counting out the number of pills a client takes in a day or a week and putting them in glass containers so jurors can see how much it adds up to over a month or a year. Have witnesses come off the stand to point to exhibits or even better, to draw on them. Create a posterboard where you place a red dot next to a standard or rule that the defendant broke each time a witness agrees with a rule violation. Have a physical therapist come off the stand to demonstrate the exercises he had your client go through.

At every opportunity, get the witness off the stand, doing something interactive, and entering into a teaching mode. The jurors will stay interested and your experts will have more credibility as teachers than as paid witnesses.

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Filed under Jury Research, Misc, Opening Statement, Trial preparation

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!

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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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Lessons from a Defense Verdict

A few weeks ago, I watched some very seasoned attorneys try a negligence case.  I was only able to watch one day of testimony but spoke with many other attorneys and lay people who were able to catch the opening and other witnesses that I missed.  I wanted to track this trial simply because the attorneys are known to be phenomenal.  The jury returned a defense verdict.  Although there are many factors that contributed to that verdict, including a tough fact pattern, I want to dissect the few issues that I noticed which I believe contributed in some fashion to the loss.  I do not want to mention any attorney names or case facts as I don’t want to embarrass anyone (these really are wonderful attorneys).  I hope this post will focus you on a few basics so that you don’t make the same mistakes in your next trial.

1. Speak in layperson’s language.  Although this is basic for many trial attorneys, it bears mentioning as even the most seasoned attorneys seemed to have forgotten this rule.  The attorneys in this particular case spoke about the incident and the equipment involved in technical terms.  All through opening and the first few witnesses, equipment was referred to by technical names and every person in the audience that I spoke with was as confused as I was.  The terms were only defined when the defense attorney cross-examined the second witness and asked the witness to define what the term means.  By that point, the jurors were likely confused all through opening and the first two witnesses.  This poses two problems: (1) opening is critical in your ability to convey a clear, concise story as jurors will view the rest of trial through the lens you provide them and if that lens is foggy, you lose a lot of ground, and (2) as written and spoken about by David Ball and Don Keenan through their work on the Reptile, jurors see anything confusing as being dangerous and untrustworthy.  That is certainly not how you want to be viewed at the start of trial.

2. Order of Witnesses.  I just wrote about the ordering of witnesses in my last post, but will mention again the importance of knowing what your witness will say and how they come across on the stand.  The first witness should be infallible.  In this trial, the first witness almost caused a mistrial by mentioning previous accidents.  He was uncontrollable and even the attorney mentioned that he and the witness had not spoken other than on the phone.  Do not chance your first witness on someone you’ve never met or prepped.  Make sure they are strong and that cross will not harm you.

3. Be Polite.  This one I have to praise these attorneys for.  When the judge admonished them to do something or to stop asking the witness the same question, they said “Thank you, Your Honor, you’re absolutely right” and then they moved on.  Staying so calm does two things: (1) It draws less attention to the objection than if you make a big deal of it, and (2) It portrays you as a like-able person.

Again, I’m sure there were many other factors that contributed to the defense verdict, but the above issues most likely had some part in it.  Make sure you don’t fall into these same traps.

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Filed under Jury Research, Misc, Trial preparation

What to Consider in Ordering Your Witnesses

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.

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