Category Archives: Trial preparation

Why Should You Keep Old Jury Lists?

This post is not strategy-related, but as a practical matter, I often run into an issue when working on focus grouping a case that can be easily solved.  I’d like to save you the money and headache.  It’s very simple.  Please keep every jury list you get from every trial in every county (as long as they list addresses of the jurors).

The reason is simple.  I often get called in by attorneys on cases that do not have the budget for a large focus group but where the attorneys really want to see what jurors will do with the case.  There are many ways to cut down on the cost of a focus group.  One of those main ways is to cut out the recruiter.  I mean no disrespect to recruiters out there – they do an amazingly hard job and when there is room in the budget, I 100% recommend using one because they can get random recruits and screen better than any other method.  That said, if you don’t have the money, it’s better to work around that cost and still be able to run a focus group.  While you can recruit jurors off Craigslist or putting out a newspaper ad, I always forewarn attorneys that those methods will not yield a random sample.  People who go on Craigslist to look for odds and ends jobs are often young and unemployed – not to mention that they have a certain  mentality that may differ from your jury pool.  Newspaper ads tend to attract the older, retired crowd, which is fine for a couple of your jurors but again, this will not match your demographics.

My preference, second to affording a recruiter, is to recruit by mailing letters to random people in the county and having them call in to get screened.  When I do this work for attorneys, I cut the recruiter’s fee in half.  And if you’re not hiring someone like me, you can always do this for yourself (although be sure you know how to properly recruit and screen or you may slip up on one word and not know you’ve tainted the focus group).  The problem is always where to get the list of names.  Listings from the DMV and voter registration would be wonderful as that is how jurors are chosen, but personally I’ve had very little luck getting anyone to release those records to me.  A phone book is okay but again, you get many older people responding and may have to fill in some of the younger slots by other means. 

And this is where my suggestion lies.  If you have old jury lists, those are lists of people randomly chosen from that county – a perfect representation of the demographics you are after.  If you keep all your jury lists (and you will need multiple, trust me, as you probably need to mail out 500 letters to get 20 good participants), then when a case comes up and you need to run a focus group either with a consultant (though I may be the only consultant that would take on the recruiting job this way) or by yourself, you will have the lists you need to cut down on costs. 

One word of caution: Do NOT mail to the same people more than once.  If you’ve used a juror once, do not re-use them.

So, bottom line, please keep your jury lists.  And if you have any attorney listservs you participate in, you may want to spread the word or have your trial lawyer associations pile lists so that attorneys can borrow from them when needed.

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Are You Stealing Emotions Away from Jurors?

With the holidays upon us and families gathering, I thought I would post on something that relates to both normal life and relations with family or friends as well as to the courtroom.  Afterall, what is a family gathering without some turmoil!

In our normal lives, we understand the concept of allowing people to feel their own emotions.  When raising kids, you may have the painful realization that the more angry you get about the rebel your daughter is dating, the more she will cling to him.  When fighting with a spouse, you may realize when everything calms down that you are actually more effective at getting your way when you do not scream and yell.  The adage “you get more bees with honey than with vinegar” holds true, but can often be easier said than done.  If you are angry toward another person, that person doesn’t have to focus on their own anger anymore because you are occupying that space.  Instead they focus their emotional energy on being resentful of you or simply continuing the destructive behavior because they are blind to the consequences. 

These life relationship lessons are transferable to the courtroom.  If you get angry, jurors feel less need to do so themselves.  They unconsciously figure that anger is checked off the list.  If you yell at a witness who is lying, a justice has been served.  The scales are balanced and they didn’t have to do anything for it.  If you get angry toward the opposing party in your case, you take that emotion away from the jurors.  They are then left with emotionless facts.  It may seem counter-intuitive as people instinctively feel that to get others roused up, they need to show the same emotion.  The opposite is true.  Show jurors the facts that lead them to be angry, but remain calm.  This makes them feel that there is still an injustice or imbalance that they need to rectify.  By showing them facts and allowing them to come to emotional conclusions on their own, you leave them free to build up anger and take it out on the opposing side. 

There are some exceptions to this, but very few.  When in doubt, stay calm.

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Mistakes in “Polarizing” – Are You Hurting Your Case?

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.

 

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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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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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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

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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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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