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Your foreperson is the most important juror…or is he/she?

Often, the loudest and most persuasive voice is not the foreperson, yet they lead the jury.

In the Trump trial, the foreperson has been chosen as juror 1. We hear a lot of speculation in this trial and others: Will the foreperson lead the jury to a defense verdict? How do they influence discussions?

In reality, however, the foreperson is often moreso a moderator of discussion and notetaker than they are influencers. Leaders are the more vocal and persuasive jurors, which often does not align with being foreperson.

In some instances, jurors will elect a someone who seems fair and even-tempered to be foreperson. Other times, someone who otherwise would have been more vocal is elected (or volunteers) for the position, but in realizing their job is to moderate a discussion, they will step back from the podium and allow others to speak first.

A juror who is a leader by experience (lawyer, doctor, etc.) may become foreperson and still be influential, but I would argue that they are influential because of their experience rather than their position as foreperson.

When looking at mock trial videos or talking to jurors, focus on the voices, not the position.

Further, there’s a difference between a leader and an outspoken juror.

Finding the possible leaders is essential for a good jury selection, but identifying them isn’t always so straight forward.

There are jurors who have leadership roles in life, expertise about the subject matter, jurors who are outgoing and friendly and seem to take the lead on opening the door or helping other jurors. These are all possible leaders.

But what about the overly talkative juror? Often, these aren’t so much leaders as they are wild cards and nuisances to the other jurors. Just because a juror talks a lot does not make them a leader, though they can (and likely will) have a strong voice in deliberations. The difference is that they are less likely to sway votes as they are to be shoved aside and cause annoyance to other jurors.

Whether these jurors will cross the line into being a problem is a matter of degree and spotting them is often more art than science. Sometimes you can tell by the way other jurors react to their speaking time during jury selection. Is this juror an automatic strike? That depends on your other options, how unpredictable they are in their leanings, and whether their radical and loud views will hurt you by becoming the spokesperson for your side. The point is, watch these jurors carefully. Just because you think they are vocal and likely to vote your way does not mean they are leaders who will actually help your cause.

Workdays are one of the consultant’s best-kept secrets…

They are one of the best, most efficient, most cost-savvy ways to use a consultant.

They’re really not a secret, but rather far under-appreciated and under-utilized.

During a workday, you have full access to the consultant, which means you can accomplish several objectives simultaneously.

For example, you can work up more minor cases, run them through the consultant back-to-back, and receive framing help on several cases that share in the cost. Consulting help doesn’t have to be all-or-nothing, and work days are one of several fantastic ways to get help on smaller cases without breaking the budget.

You can combine case framing with work on opening statements, voir dire, or even call in a witness to do some witness preparation.

If done in person, you can work on personal skills, such as voir dire coaching, do in-person witness prep, work together on opening PowerPoints, and run through cases.

If you would like to set up a workday, contact me at jessica@trialdynamics.net or call 303-653-2233

Did you know that I answer smaller scale questions without a fee?

Why would I give away time for free? Perhaps I’m crazy, though I don’t think that’s the case.

For one, it pays down the road so it’s not entirely selfless. Some of those donated minutes turn into business. Others don’t and that’s okay.

Second, it allows me to genuinely offer help and make cases stronger, especially on smaller cases where professional help isn’t affordable.

Third, sometimes a little direction provides a big boost but isn’t worth the billing headache.

Fourth, it opens the door for many into the world of jury consulting which, in the end, helps everyone.

Do you need help? Try me. I may just do it for free.

Discount code $200 off for TLU Huntington Beach June 5-9: 200TRIALDYNAMICS www.tlubeach.com

Do you think your angering facts will overcome causation issues? Think again.

Let me be clear. I am not talking about disputed causation, as is present in most cases. I am talking about a pure lack of causation.

Sometimes, I get cases where the causal link is very attenuated and weak, yet the case has other anger-inducing facts. The attorneys seem to gloss over the causation issues, assuming that the negligence itself, combined with the defendant’s conduct or behavior, will prevail and result in a verdict.

While this can happen in some instances where jurors are so blinded by their anger that they create the outcome they want, it’s a mistake to assume you have a strong case simply because you have good facts. Anger-inducing facts certainly help bolster a case and can overcome other bad facts (and disputed causation), but they may or may not overcome a lack of causation.

Jurors are generally pretty good at dissecting the elements of a case. If causation is too weak, they will often find negligence but still return a defense verdict based on causation.

The best way to determine whether your causation argument is too weak is to test the case. If you need a copy of my free guide on conducting your own focus groups when you can’t afford a professional, let me know.

We can also help with case analysis. A couple of hours spent with a jury consultant can be beneficial in pointing you in the right direction.

Contact me if you would like to discuss assistance with a case.

**If you would like to attend TLU Huntington Beach June 5-9, you may use my discount code for $200 off: 200TRIALDYNAMICS

Let’s talk about anchoring.

Everyone knows the importance of anchoring a damages ask, but did you know that anchors are non-specific?

For example, you only need to mention large numbers, whether dollars or anything else, to anchor a higher dollar figure. You can talk about the number of medical errors per year, the number of brain cells, or the number of reported crimes – you get the point. Any large number will anchor.

So, what does that mean in practice?

For one, you can still anchor your damages request even in states where you cannot ask for a certain number. You can do this by mentioning large numbers throughout the trial. Get witnesses to testify about large figures relevant to the case or their practice field. Use statistics in closing.

Second, you can (and should) anchor throughout the trial. Often, attorneys will anchor in voir dire, opening, and then in closing, but there are often days or weeks of trial testimony in between. Instead, work on anchoring through experts. The hospitalist can testify to how many patients come through that chain’s doors yearly. In a brain injury case, the doctor or neuropsychologist can testify about how many brain cells there are in the human brain. The trucking expert can testify to how many trucks are on the road across the country any given day, how many miles are driven per year, or how many minutes drivers spend behind the wheel. Find anchors that fit and trickle them in throughout the trial.

One caveat: Whenever possible, your anchor should be higher than the damages you seek (but not so high that they seem like an outrageous anchor). If you have several anchors throughout the trial, you can have one or two that are lower and still properly anchor, but the rule of thumb is to have them be higher than your ask.

If you need help with case framing and finding anchors, reach out.

**I will be teaching and sponsoring at Trial Lawyers University in Huntington Beach June 5-9. If you would like to attend, you may use my discount code 200TRIALDYNAMICS for $200 off registration: www.tlubeach.com

I will be sponsoring, speaking, and running a workshop at Trial Lawyers University in Huntington Beach in June. If you have never been to one of these conferences, you are sorely missing out. They are by far the best conference for hands-on learning from the best in the profession. I have never heard of a single participant complain that they did not get more than their money’s worth out of it. I highly suggest you sign up (and quickly as hotel rooms are selling out at the main smaller hotel which is where you would want to be for quick access and the best networking). You can use my code TRIALDYNAMICS for $200 off admission.

When working up damages, dig deeper.

The client can no longer work. The damage is loss of income, right?

Yes, but it’s far more.

You may have guessed that the real damage is loss of self-esteem. Often, however, it doesn’t end there. You need to work with the client and ask three-levels deep:

“What did your work mean to you?”
“It was my identity. I was the provider to my family.”
“Why is that important?”
“Because I wanted to provide stability.”
“Why is that important?”
“Because I grew up in an unstable household where we never knew where money was coming from or how to pay for food. I never wanted my kids to experience that.”

All of a sudden, the damages are no longer about lost income and even loss of self-worth falls short. It is now about failing to provide a different life for their children and worry about how the lack of stability will affect their mental wellbeing.

This applies to any damage: Inability to listen to music or garden. Inability to socialize or drive. It’s very different explaining that the plaintiff can no longer garden compared to stories about how gardening was an escape from abuse or a way to prove competency.

This preparation requires spending time with the client, delving deep, and asking the right questions.

Attention Los Angeles attorneys!

I will have one day of “down time” between a trial and a speaking engagement where I will be stationed in Los Angeles on June 2nd. If you have ever wanted to work with me, this is an opportunity for some in-person consulting help without having to cover travel costs.

This is a chance to work on skills that don’t transfer as well over Zoom, such as voir dire coaching, witness preparation, opening statement practice, or even focus groups for a fraction of the normal cost.

If we have never worked together, I will offer any remaining slots to new clients for free initial consults. This is your chance to get some help in preparing your case for trial, finding persuasive themes, and properly preparing for voir dire and opening statement.

Slots are first-come, first-serve. You can reach me at Jessica@TrialDynamics.net

Are you bad at “picking” juries? Perhaps that’s not the issue…

First, there is a valid debate these days on whether we select or deselect jurors. If you follow Sari De La Motte, your goal is to invite jurors onto your jury who share the vision of your case, and deselection is a byproduct of that process. If you follow more conventional methods (David Ball and others), you search for “bad” jurors to remove from the panel.

I would argue that jury selection should be a bit of both, weighted to one side or another based on your personality, the time you are given, and your skill level (all of which can be shifted and improved, but not usually within a week of trial!).

But far more critical than those considerations are your comfort, skills, and abilities when it comes to (1) crafting useful questions and (2) delivering those questions in a manner that elicits truthful responses, incites dialogue, and gains juror trust. This is no easy feat, and perhaps because of the time and devotion required to learn how to accomplish these two “simple” things, most attorneys gloss over it.

Instead, they ask, “who should I eliminate?” or “Do I have a good jury?” or “Did I mess up by leaving someone on?” However, none of these questions matter if you have not yet done the work to learn HOW to do a proper and effective voir dire. The vast majority of attorneys who hire me to come and “pick their jury” have yet to learn these skills and, though it would be more work, should be putting money into having me (or someone else qualified to do so) train them on delivery, methodology, and connection, rather than focusing on the end goal. You must first pave the path before you can meet that end goal. Will a jury consultant see the good and bad jurors better than you? Perhaps. But, we would have a lot more information if you conduct a clear, connection-based voir dire. The vast amount of information you can gain from a carefully crafted voir dire that is ALSO delivered well may be shocking if you have never done so.

Critically important is the fact that voir dire is essential not only for selecting your jury but also for setting you up for opening and the rest of trial. Aside from the jurors you pick, a poorly conducted voir dire will taint the rest of your case.

Don’t focus on the strikes…yet. Instead, focus on the skill, and the strikes will reveal themselves. In addition, you will then have set the foundation for trial.