Category Archives: Misc

Protect Your Case from Twitter

There has been much talk about the use of blogs for monitoring public opinion and shaping trial strategy during the Casey Anthony trial.  While that may be a useful strategy for high profile cases, you may wonder what impact the internet will have in your everyday run of the mill case.  It has a very real impact, just in a different way.

The dangers of the internet are becoming so pervasive that it is now imperative that you understand the importance of doing internet research.  Jurors are internet-savvy (even some of the older ones) and you can almost guarantee that at least one of your jurors will be going home researching every aspect of your case online.

If that one juror finds something harmful to your case, they will bring it up in deliberations and impact the rest of the jurors. 

Jurors will research you, your firm, your experts, your client, and even medical terms or other issues related to your case.  They will go on facebook, myspace, google, twitter, etc.  They will research arguments in your case – whether a 5mph collision can cause brain damage.  Whether brain damage can occur  without a concussion.  Whether there really is a policy that doctors have to do a differential diagnosis and rule out the most dangerous possibility first.  Guaranteed, they will find articles and websites that dispute your claims and because the juror found them online, they think the sources are neutral and therefore more trustworthy than your experts.

What they find on their own online will trump your evidence. 

So what do you do about it?  You need to know what is out there.  You cannot undermine what you do not know.   Either hire someone skilled at internet research or find someone in your office who is young and can dig deep on search engines.  That person needs to set aside multiple hours to research every aspect of your case and every person involved.  You need to know what is out there so that you can mention it during trial.  Know what arguments there are against you and have your experts explain the faults in those arguments so that when jurors come across it, they know why not to believe it.  These days, you can lose a case because of jurors doing due diligence to research on their own.  Your loss may have nothing to do with what goes on in the courtroom.  Recognize this danger and devote time and effort to online research – even before accepting a case.  The costs of avoiding it may be high.

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Should Your Client be in the Courtroom?

There are many cases on which I consult where the question arises, do you bring the client to the courtroom?  This is often an issue in brain injury cases and in cases of severe physical impairment, but it can be an issue in any case, such as soft tissue injuries.

The concern is that jurors will do one of two things:

  1. Either they will devalue the plaintiff’s injuries if the plaintiff looks and acts normal (or doesn’t seem to be in much pain), or
  2. They will see terrible injuries but view the client’s presence as a ploy to invoke sympathy.

Consider in addition to the above issues that if your client has horrendous injuries, the longer the jury looks at them, the more accustomed to them they become and the less disturbed they will be.

The problem with not presenting the plaintiff, however, is that jurors may hold it against you and if the plaintiff does have visible injuries (or severe enough mental injuries), you lose the chance to show jurors the extent of the damage.  The best way to know whether presenting the plaintiff will do more harm than good is to test the plaintiff’s presence in a focus group or mock trial (usually by video so as to preserve confidentiality).

Focus groups aside, however, why not ask your actual jurors during voir dire which they would prefer?  Tell jurors that you need to make a decision and you’re going to look to them for guidance. And then be honest.  Tell them about your client and the extent of
injuries.  Then explain that some jurors would require the plaintiff to be at trial so that you could at least see him/her and so that he/she is part of the process.  Others say that it’s unnecessary for the plaintiff to be here and that if you did bring him/her here, they would get the feeling that you were trying to play on their sympathy (which you tell them earlier on and throughout voir dire that you are not going to do).  Tell them that you are concerned that if you do bring him/her in, some jurors will say that you were trying to invoke sympathy and yet if you don’t bring him/her in, you’re afraid that some jurors will say you should have brought him/her here and will hold it against you and the plaintiff.  Ask them for help on that decision.  This will take the burden off of you and regardless of what you choose (you may have jurors disagreeing), you have put yourself off-code from being a typical lawyer
and they will understand that different jurors told you different answers.

In cases where your client is severely injured, the best solution is often to have the client present for voir dire and to testify, but quickly get them out of the courtroom at all other times.  This way, the jurors get to see and evaluate your client and yet do not have time to get accustomed to the injuries.  In such cases, it is easy to explain to jurors that your client is either in too much pain to stay in court all day and/or that his/her doctors have said that it would be mentally to difficult to hear all the testimony.

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All Eyes on You & Your Client

I’ve been following the Casey Anthony trial daily for a few reasons.  For one, I know the consultants working on the case so I’m always watching for any tv interviews they decide to do.  Second, I’m intrigued by the case just like the rest of the nation.  Third, it’s always interesting to me to see how the media portrays trials.

While listening, I have heard news commentators talk often about seeing Casey’s parents and brother in the elevator.  The commentators discuss their demeanor and speculate as to what that means – do they really think their daughter is guilty?  Are they all uniting to save her from the death penalty?  Is Casey’s mom journaling during trial or taking notes to rehearse her testimony?  Just now, I heard a commentator talk about how Casey’s brother, Lee, was seen eating by himself at a sandwich shop during a lunch break.  Discussion followed regarding whether that meant that he was distancing himself from his parents, are they now not as united?  The speculation is unreal – and this is all regarding family members, not the defendant herself (who definitely does not evade scrutiny as every eyebrow raise and tear is analyzed).

There is an important message in this.  Although this is a major publicized trial, do not for one second think that jurors in your case think any differently.  To them, the case they sit on is a major trial.  They will analyze every movement from you, your client, and your client’s friends or family.  If jurors see you or your client outside the courtroom, they will be watching, taking it all in, and speculating.  It all feeds into their stories.  So…be very careful of what you say and do.  Make sure your client and his/her family knows how to act in and out of the courtroom.  Nothing goes unnoticed.

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“12 Angry Men” In Real Life

Sometimes movies have good lessons.  “12 Angry Men” had a few.  Below is a short snippet from a 9th Circuit Court of Appeals order.  I will also provide the link to the full opinion but wanted to briefly mention a couple of lessons from the below-referenced case:

OPINION

REINHARDT, Circuit Judge:

Consider two scenes:

Scene One

Juror #8: I just want to talk.

Juror #7: Well, what’s there to talk about? Eleven men in here think he’s guilty. No one had to think twice about it except you.

Juror #10: I want to ask you something: do you believe his story?

Juror #8: I don’t know whether I believe it or not — maybe I don’t.

Juror #7: So how come you vote not guilty?

Juror #8: Well, there were eleven votes for guilty. It’s not easy to raise my hand and send a boy off to die without talking about it first. . . . We’re talking about somebody’s life here. We can’t decide in five minutes. Supposin’ we’re wrong.

Scene Two

Juror #6: I said . . . this is a very important case and we should be very convinced that if the defendant is found guilty that it is beyond a reasonable doubt. . . .

Foreman: We have spent some time now trying to understand the reasonable basis for his doubt, and I personally did not yet understand it . . . . I would say that two-thirds of the jurors have tried to persuade— have actively tried to persuade . . . him that his current view is incorrect.

Juror #4: Well, I guess he believes from the evidence that he’s seen that there hasn’t been sufficient proof. . .

Juror #5: I think the question may have been raised: “Do you have a political agenda?” I think [it] might have been in the heat of the argument, because it does get heated back and forth from a bunch of different people. It may have been said.

Juror #9: Well, he said this is a serious thing, and I don’t really feel that there is enough cause for — or something to that effect. . . What he said was, “I wouldn’t want to take anyone’s freedom away, unless,” you know, “I was sure that certain things took place.” . . . .

The first passage above is dialogue from the classic Academy Award-winning 1957 film, Twelve Angry Men, in which Henry Fonda plays a holdout juror who, over two tense hours, convinces his eleven peers that the defendant in a murder trial should be acquitted. The second excerpt comes from the transcript of proceedings during the petitioner’s murder trial, in which each juror was examined and cross-examined, seriatim and mid-deliberation, after it was reported that one juror was taking a different view from the others. In the end, the trial court dismissed that juror on the ground that he was “biased” against the prosecution. With an alternate juror in place, the jury returned a guilty verdict. Twelve Angry Men made for great drama because it violated the sanctity of the jury’s secret deliberations by allowing the audience into the jury room. It was, of course, a work of fiction. We are presented here with a similar intrusion into heated deliberations involving a holdout juror, except that this one took place in open court, and it resulted in a woman being convicted and sentenced to life imprisonment after the holdout was dismissed. Under the precedent that existed when petitioner’s conviction became final (and exists today as well), the trial court’s actions violated the petitioner’s Sixth Amendment rights, as incorporated with respect to the states under the Fourteenth Amendment. We therefore conclude that petitioner is in custody in violation of the Constitution, reverse the judgment of the district court, and remand with instructions to grant the writ.

[Here is a link to the full opinion: http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/07-56127.pdf]

I have two comments, one relating to the opinion, and one relating to a comment of a quoted juror.  Regarding the opinion itself, I give the judge credit for understanding that holdout jurors are a fundamental part of our legal system.  Expecting that all jurors will come to a consensus on every case is not only unreasonable but it also implies that all minds think alike – which is the very antithesis to the purpose of having a cross-section of the community. 

Secondly, notice that the juror says, “I wouldn’t want to take anyone’s freedoms away unless I was sure that certain things took place.” [Emphasis added]  This comment is common in both civil and criminal lawsuits when plaintiff’s attorneys or criminal defense attorneys are not clear throughout trial about the burden of proof.  When you try cases, make sure that jurors understand that they do not have to be 100% sure of anything.  Ask in jury selection how sure they would have to be to make a decision in this case – 80%? 70%?  What is their line.  In civil cases, you can get challenges for cause based upon these answers.  Make sure you reiterate the burden in opening, through witnesses, and in closing.  Jurors cannot think backwards, so if you only hit on the burden once in voir dire/opening, they forget it by the time you mention it again in closing and by that time, they have analyzed all of the trial evidence through a lens of “am I sure?”  Particularly in civil cases, preponderance is one of your best weapons.  Don’t forget to use it!

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Juror Interviews

For those who don’t know, I send out periodic email newsletters.  The newsletters often contain trial tips that are too secretive to post on an open forum.  Toward that end, I am about to start launching a series of newsletters based upon juror interviews I have done in the past.  I will pick quotes from jurors and explain what the juror is really saying, how it relates to your trial strategy, and what should be done to correct such problems and prevent jurors in your cases from saying the same thing.  Because the information is confidential (even though I will be changing names), I feel more comfortable sending it out to people I know rather than displaying it on the web.  Therefore, if you are not yet on my newsletter list but wish to receive these emails, please contact me directly.  Please send me a link to your firm’s website as I need to ensure that those who receive my newsletters are doing plaintiff’s work.  Send your email to trialstrategist@gmail.com

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Subtlety is Key

Imagine a conversation with a significant other.  You want to spend money on a big television and they want to putting the money in savings.  They approach you as follows: “Honey, you’re being ridiculous!  The economy is in the toilet and you want to go spend money frivolously?  How can you possibly make that uninsightful of a decision?!”  Chances are, you will become even more entrenched in your decision to buy a television.  Their judgmental approach hits a button and turns you off to seeing any rationale on their side.  Suppose instead, they approached you in a more open, subtle manner: “Honey, I know the television is important to you.  I will support whatever decision you make, but please consider the importance of savings and how that might help us later.”  Much different tone and probably a much different result. 

Jurors are like anyone else:  They do not like being told what to do or how to feel – and ESPECIALLY not from plaintiff’s counsel.  People who come to opinions on their own hold to those opinions much more adamantly than people who have been told what their opinions should be.  If the defendant was being reckless, tell jurors the plain facts and let them decide that the plaintiff was reckless.  They will be much more angry about it if they notice it than if you point it out with condescension in your voice. 

When you conduct voir dire, make jurors feel welcome to voice their opinions.  Explain that diversity is what makes this country great – the diversity of religious beliefs, political beliefs, etc.  Tell them that you will not judge them on what they believe, you just want to have a good and honest discussion.  When you get to opening, state the rules and facts of the case.  Do not put in any adjectives or adverbs.  Let the jurors fill those in for themselves.  As you examine witnesses, keep a calm and neutral tone.  Your job is to show jurors the facts and let those facts anger them.  In closing, tell jurors that they are the ones who get to decide how important this rule violation is.  If they feel it is an important rule, then their verdict should reflect that.  If they think the rule is unimportant, then their verdict should speak to that instead.  Give them the choice, let them feel free to make a decision. 

When I was growing up, my father would always say, “Let your conscience be your guide.”  I hate it, but it always forced me to look inside myself to come to the same decision I knew he would have preferred (the right and noble one).  Let the jurors follow their consciences.  You are the messenger to give them enough data on which to base their decision.

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Dealing with the CSI Effect

You may have heard of the “CSI Effect.”  It is a more recent phenomenon that is so named because it is caused in good part by television shows such as CSI and Law & Order.   Jurors often coming into the courtroom with inaccurate expectations about how trials work, the way cases are presented, and what attorneys are expected to present to prove a case.  These shows depict trial as exciting, succinct, and full of drama.  They also tend to have defining moments whereby all doubt is erased by one central piece of evidence.  As a result, jurors have a tendency to overestimate the availability of technical, scientific evidence and hold it against you if you do not have it.  They have come to expect presentation of DNA evidence, computer records, and other types of exacting and conclusive evidence at trial.  In reality, we all know this kind of technical evidence is rarely available.  When a case is so clear-cut, there is no need for a jury trial. 

This effect has been seen for some time now in criminal cases due to the advent of fingerprint evidence and DNA evidence.  Now, however, the CSI Effect is showing up in civil cases as well where such technical proof is even harder to come by: 

  • For example, in a case concerning violations of an equal pay statute, jurors in a focus group got stuck on why the government doesn’t have copies of who sent what emails to whom and what was said in them.  The jurors assumed that there are always copies somewhere of computer files that can be presented to conclusively tell the true story.  One of the jurors even reasoned that because the FBI can take computer hard drives that have been blown up and reconstruct them to find terrorists, there must be a way they could find email files in this case.  The fact that the evidence wasn’t presented meant to this juror that the government didn’t want the jurors to see it.  This shows the great overestimation of jurors of the availability of such hard evidence. 

There are ways to deal with the CSI Effect in trial.

It is worthwhile to address jurors’ expectations about proof in the case at the outset either in jury selection or in opening statements (or both).  Since jurors expect some kind of conclusive or technical evidence in even the least technical cases, do not pass up the opportunity to speak with jurors about their expectations in any case, regardless of how much science is involved.   Jurors’ grandiose ideas about proof in a case can be tackled head on by telling jurors that television shows often depict trials in a certain way and that they should know what to expect in a real trial.  It can be explained that an absence of proof does not mean that the evidence does not exist and that jurors should not be waiting for that one piece of conclusive information that will make the case clear; if the case were that clear, it would have been settled outside the courtroom.  The jurors are there because there are conflicting stories and conflicting evidence and it’s their job to sort through the confusion and ambiguity.   By telling jurors that they won’t be hearing the type of evidence that television shows such as CSI would lead them to expect, some of those expectations can be dispelled and they will not wait around for the exciting “aha” moment.

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Dealing with Juror Misconceptions

The law is daunting.  Half the time, attorneys don’t even understand what legal writings mean and yet every day, we ask lay persons to decipher legalese.  The verdict on a case can greatly depend on jurors’ comprehension (or lack thereof) of the law as well as their preconceived notions regarding what the law is. 

Studies Show Judge’s Instructions Do Not Override Juror Preconceptions

There have been studies done on the effect of crime categories on the verdict.  If the legal (crime) category at issue is one for which the juror has no prior knowledge or experience, then they are faced with the daunting task of learning this abstract information.  Where jurors do have prior knowledge, as is often the case with legal categories such as kidnapping, murder, negligence, etc., such prior knowledge is likely to interfere with legally accurate decision-making. (Pennington & Hastie, 1991)  When mock jurors were asked to list features of various crimes, the features they listed were often incorrect, incomplete, or irrelevant under the law. (Pennington & Hastie, 1992)  This is understandable as many legal definitions of crimes are contrary to common sense.  For example, most people assume that kidnapping includes some sort of violence or prolonged capture while the legal definition requires neither.  Studies show the influence of these types of prior knowledge persists despite hearing judge’s instructions on the law.  The studies showed a tendency for mock juries to vote guilty more often for crimes that followed their preconceived notions of the crime definition than for crimes which legally met the definition of the crime but were atypical of common sense ideas of the crime definition.  Further, in evaluating evidence, mock jurors were more willing to accept evidence that was consistent with their knowledge of the crime category than they were to accept knowledge that was inconsistent.  Thus, expectations about what is typical of a type of crime influences the inferences jurors make to fill gaps in the evidence. (Smith & Studebaker, 1996)

What Can You Do About It?

What, as practitioners, can we do to combat this phenomenon?  The studies say that judge’s instructions did not alter the results.  But instructions from the judge are often as confusing as the original jury instruction.  During closing, you need to explain the pertinent portions of the laws relevant to your case in plain English.  For burden of proof, for example, show jurors the instruction and explain that all it means is “more likely than not.” 

This does not address the issue, however, of jurors evaluating evidence throughout trial based upon their preconceived notions about the law.  You do not want jurors seeing the case through a lens that is harmful to your position.  By the time you get to closing, it is too late; jurors cannot re-process all the case information to evaluate it under the correct lens.  Instead, start asking jurors about the laws in voir dire.  For example, tell them that in cases like these, they will be asked to decide on a verdict based on a standard of “more likely than not”, which is very different from “beyond a reasonable doubt.”  Ask what problems they will have with that.  This not only gives you valuable information regarding which jurors to strike, but also alerts jurors to the law of preponderance.

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Filed under Jury Instructions, Misc, Voir Dire

What is Juror-Proof?

Welcome to JurorProof.  There are two kinds of proof:

  1. Legal proof, which is the proof needed to satisfy legal elements of a claim.  This is relevant when making arguments to the court or writing briefs and motions, etc.
  2. Juror-proof, which is needed to get jurors to find in your favor.

Who Authors This Blog?

This blog is run by Jessica Hoffman Brylo, J.D., M.A., an attorney and trial/mediation consultant as well as President and Owner of Hoffman Brylo Consulting, LLC (www.hoffmanbryloconsulting.com), a full-service trial consulting firm.  This blog is meant to aid litigators in preparing cases for mediation or trial.  Many attorneys do not understand the need for consultant input before a case goes to mediation, but mediation is often entirely about who can predict what a group of jurors will do with the case.  The more convincing one side can be regarding the merits of their case as seen through the eyes of the potential jury, the more leverage they have in settlement.  Which brings me to the purpose of this blog…

About Juror-Proof

Attorneys often make the mistake of thinking that the two kinds of proof are one in the same or overestimating the degree of overlap.  Jurors do not care, for example, whether you have proven duty, negligence, causation, and injury.  They do care that your client is an upstanding person.  They care that your client drank the night before, even if it has no relevance to the claim or to causation.  And they certainly do not care that it is legally improper for them to consider insurance.  Unless you understand what jurors care about, you do not have the proof you need to win your case.

So how do you find out what juror-proof is for your case?  Multiple ways.  Focus groups and mock trials are by far the best way to determine what juror-proof is for your case IF they are done in a scientifically reliable fashion.  Many attorneys make the mistake of relying on focus groups they conduct in-house without the use of a trained consultant.  I caution that those results may be misleading if the focus group was not conducted properly.  Without a budget for a focus group or mock trial, however, many consultants bring to the table their experience in studying juries and working on numerous cases.  With that background, they can often help draft opening statements or closing arguments or do a simple case analysis to tell the attorneys what areas they see as being problematic and how to get around those hurdles.  Thirdly, I hope that reading this blog will be of assistance.  From time to time, I will post on here my own thoughts as well as link to articles that seem relevant.  Welcome to JurorProof!

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