Category Archives: Misc

A Twist On Damages

Your case: A 69 year old woman is hit from behind in a car crash.  Liability is admitted.  Damages are that the woman can no longer sit longer stand more than 30 minutes at a time without pain so she can no longer attend her weekly morning hikes with a church group.  She is widowed and has no children.  Whole person impairment rating is 10%.  Defense is arguing that damages aren’t that bad. 

Your (likely) damages argument: Walking is important to her.  Talk about how much they impaired her (using a whole person impairment rating).  Make some argument about how much that 10% impairment is worth.

Not a bad argument.  But sometimes it is stronger to argue not about how much the defendant took away from the plaintiff, but how much is left.  This is an old Moe Levine trick and although I’m not sure I would use it in 100% of the cases, it can be very strong.  For example, in the above case:

Your new damages argument: Talk about how a person is not what is taken away but what is left.  Defense can argue that what is left is 90% of her but you need to flip that around.  The important part is not the percentages.  If all this woman had to look forward to was that walk – her one chance to socialize, to be a part of something – and the defendant took that away, she is left with nothing.  She did not go from 100% to 90% – she went to 0%.  She is left with being cooped up in the house all day with no one around. 

Impairment ratings can actually harm your case.  If you have a normal person and you take away 10% of their ability to walk, they are still able to do most things.  Maybe they can’t run on a soccer team, but they can function in most areas of life.  If, however, you have a plaintiff who is already impaired to the degree that all they can do is walk with a cane and you impair them another 10%, they can no longer walk at all.  The fact that both people are impaired by 10% is irrelevant – you need to look at what is left, not what was taken away.  In a case where the plaintiff is already impaired,  most defendants then push the pre-existing condition issue and argue that they didn’t lose much more.  What is another 10% on top of an already existing 80%?  You need to argue that it’s not the extra 10% that matters – that 10% was allowing the person to function in life.  Now what is left is someone who is wheelchair-bound and can never take another step – can’t walk his daughter down the aisle, can’t feel the sensation of walking, can’t just walk into the bathroom and sit down…you get the idea.

Again, I’m not sure I would use this in every case, but examine your damages and what the person started with compared to what is left and you make the call.  It can be extremely powerful.

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Filed under Closing Argument, Misc, Opening Statement

Unreliability of Eyewitness Memory & How to Counteract It

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.

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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.

 

 

 

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

Have a Little Faith…In Jurors

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

 

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Filed under Misc, Opening Statement, Voir Dire

Detecting Lies During Voir Dire

There have been many studies done on lie detection and the results are often disheartening.  Most of us, including police officers, fare no better than chance at detecting a liar.  When it comes to your voir dire, this can be troublesome.  While much of lie detection is a gut reaction (if you haven’t read the book “Blink” yet, I highly suggest it), there are some things that you can look for and some myths you should be educated about. 

Myths:

  1. Liars Fidget.  Yes, maybe…but so do people who are telling the truth.  Often, good liars have learned to keep their bodies very still.  You could have a truthful juror who is simply nervous and fidgety.  Don’t assume a nervous behavior means they are lying.
  2. Liars Look Away.  Again, not necessarily.  Some liars will look you straight in the eye.  They may even have more direct eye contact than normal.
  3. Liars Won’t Have Detailed Stories.  Not true.  The stories are more likely to be overly detailed.

The most important things to look for in detecting lies are inconsistencies.  As humans, our bodies betray us – there are little tells that come out even if you don’t mean for them to.  Slight smiles when talking about something gruesome and horrifying or nods of the head when talking about something in the negative.  Look for these subtle body language cues. 

If you ask basic questions first, you can get a baseline reading off the person (such as asking about their family and work life).  When you ask more controversial case-specific questions and they react differently, that may be a sign they are lying.   If a juror is fidgety when talking about basic questions but then stiffens up when answering more case-specific questions, you need to consider that they are lying on the case-specific questions.  Watch for changes in tone of voice, body gestures, crossed arms, whether they look straight at you or not.  It is not the gesture in itself that matters – it is the difference from their baseline.  Watch for inconsistencies and you will fare much better than sticking to stereotypes of liars.

If you want to know more, look up some work by lie detector Pamela Meyer and I’m sure there are many others.

 

 

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Filed under Jury Research, Misc, Voir Dire

A Look At the New Argumentative Theory of Reasoning

In one of my previous posts, a reader asked about a new theory called Argumentative Theory or Argumentative Reasoning.  I thought it would be helpful and enlightening for some if I posted the basics of this theory.  Although this theory meshes well with older concepts such as confirmation bias, the theory in itself was just recently published in Behavioral and Brain Sciences in an article written by Hugo Mercier and Dan Sperber titled “Why Do Humans Reason?  Arguments for an Argumentative Theory.”  I do not necessarily endorse this theory.  I merely provide information as food for thought.

The theory states that humans reason not to discover truth or work toward that end goal, but rather to win arguments.  Reasoning therefore may not seem “reasonable” at all – it can be very irrational and actually lead people further away from what we normally would consider rational.  This is where the theory meshes nicely with confirmation bias.  Confirmation bias states that people will alter information to fit their prior beliefs, sometimes forgetting information that is inconsistent with their beliefs or exaggerating information that is consistent with their beliefs.  With Argumentative Theory, people may be doing the same thing for the same purpose – to hold fast to their beliefs and make the world around them conform to those beliefs.  This theory challenges the idea that reasoning should lead to better decisions.

The theory also meshes well with other evolutionary theories such as those espoused by David Ball in his book, Reptile or Rapaille’s Culture Code.  Under Argumentative Theory, the evolutionary reason for reasoning is to help us convince others of our arguments and to be on guard when others try to convince us of theirs.  This is a self-preservation mechanism.  If your view of the world is wrong and you are making decisions based on that view, then you are in danger.  If you can convince others that your view is correct, however, you are safe. 

Putting the theory into practice for trail strategy purposes, you need to be aware of the pre-existing beliefs of your jurors.  Try to make the case fit within those beliefs.  Read Rapaille’s book and understand what codes are associated with various people or things within our society.  Run focus groups and find out what jurors think about topics associated with your case.  If jurors believe that doctors are caring, competent people, then show that you agree with those views and then show how the defendant doctor did not conform to those ideals.  Contrast what the defendant doctor did with how other doctors acted. 

Realize that jurors are going to argue to keep their world consistent.  Work within that consistency and you will do a much better job at “arguing.”

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Filed under Focus Groups, Jury Research, Misc

How Well Can You Predict the Outcome of Your Case?

In my years of studying jurors, I have come to find attorneys just as intriguing.  Attorneys know their cases extremely well.  So well, in fact, that it hampers their ability to predict the case outcome, which ironically is precisely the thing that they study the case so intently for.  The objective of taking on any case is to win – whether that means a good sized settlement, a motion to dismiss, a protective order, or a verdict at trial.  Attorneys work countless hours toward that objective, but in becoming so familiar with the case, they become dissociated from the people who are deciding the case and are hearing the facts for the first time.  Things that became important to the attorney over the course of time and which he/she thinks are the cornerstones to the case can be completely irrelevant to listeners, such as mediators, jurors, or judges, who have much less familiarity with the case.  If the purpose is to persuade these listeners, attorneys need to learn to rely on strategies for preparation other than their own intuition.

Attorneys consistently make decisions about their cases based on their own predictions.  They decide whether to mediate, whether to take a settlement or reject it, and whether to proceed to trial all based on their inner predictions.  If attorneys are poor predictors of case outcomes, they may accept low settlement figures or reject adequate offers to settle.  To become better attorneys and better serve clients, attorneys need to become more accurate predictors.  One way of doing so is learning whether previous predictions were correct.  Mock trials can test these predictions as can post-trial juror interviews. 

People as a whole often either over or underestimate their abilities on tasks.  This is not specific to attorneys.  Many attorneys are overly confident in their abilities to predict outcomes.  This is due to many factors.  Attorneys are supposed to be advocates for their clients.  In doing so, attorneys display a confidence about their position.  This confidence can, over time, skew the attorney’s reasoning and make him/her overly confident about the likelihood of success.  It is human nature to become more confident in a goal when expressing confidence to others.  The more one espouses one’s beliefs, the stronger those beliefs become.  Further, attorneys wish for a good outcome.  In wishing for something, they convince themselves that it is true.  This is a strength for zealous advocacy but a weakness when it skews the attorney’s ability to predict and therefore make sound decisions.  Attorneys may also exhibit overconfidence due to a failure to recognize that they are not fully in control of the outcome.   Judges, mediators, and jurors have their own minds.  To the extent that attorneys do not incorporate those individuals’ control over the outcome, they disillusion themselves in making decisions or forming strategies.

A study done by Goodman-Delhunty, Granhag, et. al., tested attorneys’ abilities to predict case outcomes.[1]   Participants consisted of 481 litigating attorneys, the great majority of which were civil litigation attorneys.  The attorneys were asked what a win situation would be in terms of a minimum goal for the outcome of the case.  They were also asked what their degree of certainty was for achieving that minimum goal or better.  In 32% of the cases, the final outcome matched the minimum goal set by attorneys.  In 24% of the cases, the outcomes exceeded the attorneys’ minimum goals.  In by far the majority, 44% of the outcomes were less satisfactory than the minimum goals.  In a large proportion of the cases where the minimum outcomes were not met, the attorneys erred on the side of being over confident.  Further, the higher the confidence level, the more off the attorney’s prediction was from the outcome.  The study also found that experience had no effect on the ability to predict case outcomes: Experienced attorneys were no better at predictions than were inexperienced attorneys.    

If attorneys are so bad at prediction case outcomes, thereby often making poor decisions regarding their handling of the case, how can attorneys do a better job for their clients and themselves?  The answer lies in relying on input from people who are not handling the case.  Attorneys are too ingrained in the case to predict what the decision-makers will do with the evidence.  Focus groups and mock trials give attorneys an opportunity to test their predictions and to see what people distanced from the case find important.  If done before mediation, focus groups and mock trials can direct the attorney as to whether to settle and what range of settlement figures are acceptable for that case based on what jurors would do at trial.  Without the input from outside sources, the majority of attorneys will make decisions which will create an outcome that is less favorable than even their minimum goals. 


[1] Goodman-Delhunty, Granhag, et. al. (2010) Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes. Psychology, Public Policy, and Law, 16(2), 133-157.\

*This article was originally published in Trial Talk magazine

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Filed under Jury Research, Misc, Trial preparation

Lessons from the Deliberation Room

When you go through law school, socialize with other attorneys, and draft motions directed to attorneys and judges, you can easily lose the perspective of the rest of the non-legal world. When you go to court and have to convince a jury of lay people, you may overlook some things that come as second nature to you. I came across a blog post by an attorney who was seated on a personal injury trial. Below are some excerpts from his blog along with my commentary. I suggest reading the entire blog post, however, as I will not cover the entire post. The full post can be found at http://mnbenchbar.com/2011/07/role-reversal-a-lawyer%E2%80%99s-jury-service/ 

“Once deliberations started, things got really interesting. My fellow jurors immediately elected me—“the lawyer”—as foreperson.”

Although it is very rare that an attorney, especially a litigation attorney, make it through jury selection, there is a larger point here. Any juror who could be an expert in the topics related to your case are likely to be leaders based on their knowledge. The jury will turn to them to impart advice to the rest of the group. If you believe this juror will see the case in a light favorable to you, then keep him/her on. However, if you are at all skeptical, you should strike them as you never want a leader to be against you.

“I thought it made sense to start our deliberations by trying to separate the plaintiff’s back and neck injuries from her alleged shoulder injury. But several of the jurors wondered why we would use this approach. “The lawyers said her back and neck injuries were not at issue,” one of my fellow jurors said. “To me, that means they’re not part of the trial. We aren’t supposed to award her anything for back and neck injuries…While it was true that the lawyers had said the back and neck injuries were “not at issue,” that was a phrase that I could recall uttering in court, too. When I said it, I meant that both sides agreed on a certain fact or point of law. I did not mean that the fact or point of law was not material to the case.”

Legalese can be very dangerous – even to the point of nixing out entire categories of damages. Realize that when you say things like “not at issue,” jurors have no idea what that means. Make sure that in closing, you follow the format set out by David Ball in his Damages books, wherein you massage the jury instructions, explaining them all in plain English. The danger here is that you may think parts of the instructions are plain English already. Do not assume. Test the instructions in a mock trial or hand them to some younger kids and ask what they think it means. Then apply the plain English instruction to your case. Here, you would have to explain that “not at issue” simply means that it is not argued about. It means both sides agree these injuries exist so you, the jury, do not have to decide that, you accept that they are injuries and your job is to decide how much money it will take to make up for them.

“Jurors were intensely curious about facts that had been hinted at, but not fully developed. For example, there was a single sentence of testimony about the plaintiff’s impressive weight loss since the accident. If she was heavy at the time of the accident, could that have contributed to her shoulder pain? There was no evidence presented at trial to help answer that question, but that didn’t stop the jurors from wondering.”

Often there are small inconsistencies or issues that you don’t spot in your own case because you are too close to it. Focus groups and mock trials help immensely in revealing these issues to you before you step in a courtroom.

“The jurors who had been in car accidents—including myself—saw the collision through that lens. “My accident was worse than hers, and I didn’t get hurt,” one juror said. Interestingly, during voir dire, the judge and lawyers had not asked the potential jurors about their experiences in car accidents in general. They only asked whether jurors had been involved in car accidents where someone was injured. As it turns out, it would have been equally enlightening to hear about the jurors’ experiences in car accidents where no one was injured. After all, a juror who has a car accident where everyone comes away unscathed might be more likely to doubt the alleged injuries of a plaintiff, especially if the juror’s accident was more violent.”

This is evidence of the power of good questioning. Many believe that open-ended questions are anything that does not require a “yes” or “no” answer. Truly open and useful questions, however, do not lead in any sense. Start by asking jurors what experiences they have with car accidents or what comes to mind when they think of a car accident. The less you lead them, the more likely you are to get useful information. Sometimes the most useful answers are answers that your questions would have blocked.

“One eye-opening aspect of deliberations was the importance of the exhibits that were with us in the jury room. I took on the task of going through the medical records one-by-one, reporting to the group any significant information. (Later, another juror double checked me.) More than the live testimony, this process allowed the jury to create a narrative and a time line that helped with deliberations. For example, our review of the medical records confirmed that the plaintiff had not complained of shoulder pain until long after the collision. It also showed that the plaintiff’s existing rotator cuff tear became no bigger as a result of the accident. Also, we saw that the plaintiff was involved in several accidents over the past 15 years, and visited a lot of providers about a host of medical issues—facts that had been mostly suppressed during the trial.

First off, notice that exhibits are powerful and if done correctly, they can be of great use to jurors. Be careful, however, of what your exhibits show. If a bad fact is going to become known through exhibits in the deliberation room, you need to bring up the bad fact yourself during trial. Otherwise, you can be seen as trying to hide something and jurors will hold it against you much more than if you had divulged it. Similarly, many exhibits in today’s world are not even part of the trial. Some of the most powerful exhibits are what jurors find on the internet. In David Ball on Damages 3, there is an appendix that talks about thorough internet searches on topics, parties, and witnesses in your case. If you don’t know what is out there, you can easily lose trial based on facts never brought in the courtroom.

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

Do Jurors Get “Poisoned” During Voir Dire?

Attorneys are often worried about asking questions in voir dire that elicit responses that are harmful to your side of the case.  For example, I hear plaintiffs attorneys worry about asking questions regarding tort reform because they are afraid that jurors will start talking about costs of insurance rising and how lawsuits are chasing doctors out of town.  The fear is that these comments will taint the neutral or good jurors.

My suggestion is not to worry about poisoning jurors on the panel.  Your role in voir dire is to elicit information and you certainly want to hear the bad comments so you can dismiss bad jurors.  Jurors who are favorable to you will not change their opinions simply because a stranger sitting next to them spouts off opposing viewpoints.  If a person holds a fairly well ingrained opinion, they have formed that opinion based on their life experiences.  That opinion has already been challenged by media, friends, and family.  An hour-long voir dire (if you’re lucky to even get the much time) will not change their opinions.  If a juror is neutral on a matter or has not formed any deeply rooted opinions on the topic, they may be swayed by what other jurors say but not to the point of danger to you.  Their opinions will not have been ingrained and they can be easily swayed back to your side during trial.

The most important things to remember during voir dire are:

1. You should listen much more than you talk.  This is a time for you to gather information, not feed jurors facts about your case or try to start convincing them.

2. You need to appear as non-lawyerly as possible.  Jurors hate attorneys and this is your first impression.  Do not under any circumstances argue with a juror about their opinion or try to change it.  You will alienate yourself from the rest of the panel, including your good jurors.

3. Bring out those bad facts and get jurors to commit to their opinions solidly if they are bases for cause challenges.  That will give you a much better chance at removing more of the bad jurors and ending up with neutral or favorable jurors who will then appreciate your openness to different attitudes and trust you more as you begin to present your case.

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Filed under Misc, Voir Dire

The Correct Use of PowerPoint & Graphics

As technology as become increasingly prominent in our lives, it has leaked its way into the courtroom.  Some technological advances are extremely helpful when used properly and can be detrimental when used improperly.  So what is the best way to use technology in the courtroom?

Effective Use of Bullet Points. 

  1. Learning Style: There are some attorneys who like to use bullet points throughout opening.  This is not an effective use of a graphic.  Firstly, technology should offer your listeners something extra that you on your own cannot provide.  Simply putting your opening up on a large screen for jurors to read alongside you does nothing to tap into their other methods of processing.  When people are reading something, they are still utilizing the auditory part of their brain, so simply because you have put it in a readable format does not change the brain’s method of processing.  You will still miss the visual learners.
  2. Frequency: Bullet points should be used sparingly.  For example, to list Rule violations of the defendant (which I suggest you do on physical exhibit board that can stay present in the courtroom the entire time rather than through a computer snapshot that disappears when you finish reading).
  3. Timing: Also keep in mind that any time you put something in front of jurors to read, they will be reading as you are talking.  They will tend to read the bullet point, miss what you are saying, and then stop listening as they assume they have all the information they need in that one bullet point.  If you must use a bullet point, put up only one at a time and only put it up after you have finished talking about that point.

Graphics

There is much research to show that people learn better when you access all parts of their brain at one time.  If you can access someone’s  visual part of the brain at the same time that you access their auditory part of the brain, you have a better chance of them remembering and understanding the point.  A good graphic is a picture that is easy to understand without any type of label within the first 3-5 seconds of looking at it.  The graphic should be able to tell a story without any explanation.  Run your exhibits and graphics by mock jurors ahead of time to find out if the graphic tells the story you intend!  Then add a tag line on the top that asks a question that the picture answers, such as “Why Didn’t the Plaintiff See the Hole in the Ground?” along with a photo of how conspicuous the hole is.

Technology can be very helpful – if used correctly.  Do not use it just for the sake of keeping up with the times.  Make sure you are using it to your advantage.

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