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.
I edit a lot of opening statements. A lot. And one of the most common mistakes I see is inserting negatives into the story structure. For example, stating that the defendant did NOT check the pressure in his tires or the defendant did NOT take the patient’s blood pressure. There are a few reasons why putting negatives in your opening story hurts you:
- Time Stops.One of the rules of good storytelling (see David Ball’s book on Damages 3) is that every sentence must move the story forward in time. When you state that a defendant did not do something, you don’t move the story forward. Time stands still. Unconsciously, you lose some ground with your jurors whenever you stray from good storytelling techniques.
- The Unconscious Can’t Tell a Positive from a Negative. When you say the doctor did not check the blood pressure, all the unconscious hears is that the doctor checked the blood pressure. You’re working against yourself when you do this.
- It’s too Adversarial. As a plaintiff’s attorney, you do not want to be adversarial early on. Jurors do not trust you. To say that a defendant did not do something sounds adversarial even though saying the same thing with positives would sound neutral.
So, what do you do when you have a negative to insert into the story? You need to show by implication what the defendant did not do without saying so. This is laid out in more detail in David Ball’s Damages 3 book.
Example 1: If, for example, you need to show that the defendant did not check the patient’s blood pressure and that is a crucial part of your liability story, then start with a rule stating that “When a patient exhibits X, Y, or Z signs, a doctor or nurse must check the patient’s blood pressure every 2 hours to ensure the safety of the patient.” Then when you get to that point in the story, you say:
“11am. Nurse Judy comes into the room. She checks the patient’s pulse and notes it in the file. She checks the patient’s pupils and notes it in the file. She changes the patient’s wound. She leaves the room.”
Example 2: Let’s take another example. Say you have a case where a car malfunctions due to repairs made at by a mechanic. Orient jurors in the beginning toward the rule the mechanic broke, for example, “a mechanic must make sure to check the X valve whenever they change the oil. Expert Mechanic will tell us that this is important because the car can blow up if the valve is not checked.” Then start your story and when you get to the point where the mechanic skips that step, you say,
“Roger changes the oil. He screws on the cap. He lowers the hoist. He calls the customer to say the car is ready for pickup.” Jurors know by implication that he did not check the valve.
If you have oriented jurors toward the rule ahead of time, they will be on the lookout for the point where it was broken. When you allow jurors to infer the action themselves, they become much more trusting of the conclusions they draw than if you had told them outright.
If you are a Plaintiff’s attorney and have not yet read Rick Friedman’s “Polarizing the Case,” I highly suggest it – and this post probably won’t make much sense until you’ve read it, although some of my comments apply to trying cases in general. The premise behind Polarizing is to make a defendant and his/her paid opinion witnesses (note: not “experts”!) choose between saying your client is a liar regarding their injuries or pain or saying your client is telling the truth and the injuries and pain do exist. In coaching various attorneys in case strategy, I have gotten the feeling that many attorneys are seeing “Polarizing” as the next great gimmick and are anxious to use it. It is a wonderful technique, but you need to understand the premise behind it and use it only when appropriate.
The following are some mistakes I commonly see:
1. Wrong Case: Not every case is good for Polarizing. Firstly, the defense must be in some way calling your client a liar – usually though malingering claims. If they are fighting you on liability and causation issues but not really contesting the pain your client is feeling, then Polarizing is not appropriate. The defense must be pointing fingers at your client and arguing that the pain is not real or that your client is reporting more pain than he/she really has, etc. It’s possible to have a Polarizing case when the defense contests liability if they are arguing that your client is lying about his/her version of the events, but usually Polarizing is used for damages issues.
2. Wrong Client: Not every client is good for Polarizing. If your client has anything that will tend to make jurors doubt their sincerity, you cannot base your case on jurors either believing or disbelieving your client. If there are Facebook photos that show your client river rafting when he is claiming serious back pain, do not Polarize. If your client was filmed in video surveillance doing anything inconsistent with the injuries, do not Polarize. If your client will not come across as completely genuine and truthful on the stand, do not Polarize.
3. Wrong Timing: There is debate amongst consultants as to when to start Polarizing. Rick Friedman tends to advocate using it early on in opening and making the case all about choosing whether your client is lying or not. Others, like David Ball and myself, tend to wait until later in opening to start Polarizing. In my opinion, the Polarizing techniques seem too adversarial for you to use early in opening. Jurors don’t trust you yet so to ask them to believe not only you, but your client, is risky. I prefer to wait until the end of opening to discuss Polarizing issues. In some cases, an attorney will tell me they are not sure how much the defense will really push a malingering issue or what they will say about it. In those cases, I do not suggest using Polarizing in opening or anywhere at trial until you know the defense has pulled the trigger. If you push an advocacy issue of accusing the defense of game tactics and they never play that game, you seem disingenuine. Be certain that the defense is going to push the lying issue before you bring Polarizing into the case at all.
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
You’re creating the story of your case for opening and trial. You have a situation where a business allowed an unsafe condition to exist on their land and as a result, your client got hurt. You get to the point in opening where you start to tell the story and you say, “the defendant failed to fix the problem. They never put up warning signs…” You may not have realized it, but you have already compromised your story.
There are two principles to keep in mind when telling a story, whether in opening or questioning witnesses or closing:
1. Acts are more powerful than omissions because jurors forgive omissions much easier than conscious acts or choices. In focus groups and juror interviews, you consistently hear jurors say “well, it was just an accident” or “anyone could forget that” and so on. This is because as humans, we understand that no one can think of everything every time, so we let people off the hook for forgetting something. If the same scenario is framed as a conscious choice, however, it is much harder to forgive because it feels deliberate and intentional. So, in the above example, you should tell the story as “the defendant sees the pot hole. He examines it and CHOOSES to walk inside. He DECIDES to start setting up his shop for business. Six hours later, the plaintiff comes to shop at the defendant’s store….” This sets up jurors to see that the defendant knew about the condition and CHOSE to ignore it and do other things that were more profitable instead. This applies to any type of case: “the driver chose to drive through the red light” or “the doctor chose to ignore patient safety rules when he did x, y, z.”
2. The unconscious mind does not know the difference between a positive and a negative and therefore will always interpret something as the positive. For example, if you say “the driver did not stop for the red light,” the unconscious crosses out the negative and only hears “the driver stopped for the red light.” Whenever possible, frame your sentences as positives, such as “the driver saw the red light and kept driving.”
These may seem like small changes, but to the unconscious mind, they make a huge difference.
Time and again, you have probably been told to “tell a story” during opening. People remember things best in story format. But not just any story – it has to be told right. There can’t be too many details or the story structure gets lost. Each sentence has to move the story forward in time; otherwise, you’re telling details, not a story. It must move chronologically (with very few exceptions). Sometimes it is nice to hear proof of what happens when one side tells a coherent story and the other side does not. Below are excerpts from post-verdict juror interviews I have recently done on a case. The plaintiff’s attorney told a story and the defendant did not (or at least not a coherent one that followed the rules of storytelling). I will remove any names or case information to preserve confidentiality.
Question: Tell me about the Plaintiff’s opening
Juror 1: I remember initially it seemed kind of goofy because they had already said these people admitted liability and they painted this dramatic picture, which I’m not saying it wasn’t…I understand now why he did it because he was able to give a picture of all the inter muscular damage that was probably done at that particular moment.
Juror 2: It was long. He went over the details of the case and I was confused because the defendant admitted he was wrong. It was a case about a man whose life was drastically altered.
Question: Tell me about the Defendant’s opening
Juror 1: It kind of felt to me like he just didn’t have a story he wanted to tell. It was more like choppy statements than a story.
Juror 2: I honestly don’t remember specific details of it. He just tried to paint the picture that none of this was connected with [the plaintiff’s] problems now.
Notice how neither juror remembers much about the defendant’s opening. Without a good story, their minds had nothing to grasp hold of. When you write your opening, make sure the story comes through. Follow good rules of storytelling and jurors will remember what you say. They will view the rest of the case through that story lens and shape evidence in their minds to fit with it. If you do not give them a good solid story on which to base the rest of their evaluations of the case, you lose a lot of leverage.
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.
- 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.
- 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).
- 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.
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.
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.