Power of the Self-Protective Mechanism

I was running some focus groups this past weekend on a negligence case where the main issues were causation and damages. Without breaking any confidentiality, I’d like to share some of the juror viewpoints. In one group, jurors ultimately found causation but felt that money doesn’t do much good so why give any? (This is typical as you probably know). The other group started off going in a similar direction until one juror in particular started speaking up. Here are parts of the conversation:

Juror 1: That’s the hope that if we catch this one, they will put out a policy to prevent this from ever happening again.

Juror 2: It might be us for all we know.

Juror 1: Let’s send a signal to [Defendant] and to their corporate offices. We have to send a serious signal by virtue of a dollar amount that we as a society will not tolerate negligence of any kind…Let’s send them a serious signal…A serious signal is in the millions where they can taste it. Let them hurt now..All of us could end up [here]. At least we could consider we had a small part in making a difference.

Juror 1 convinced 6 of the 8 other jurors to go along with him. How much would you love to have Juror 1 on your jury?  His motivations are simple. While punishment may seem like the primary goal, the punishment is only secondary to his own safety. He sees the defendant’s negligence as something that could affect him and so his only way to remove himself from the danger is to try to end the danger itself by sending a message to the defendant. This was all without any punitive damages arguments in the presentation. So that I do not overstep any boundaries, I won’t go into detail on a public forum of how to best formulate your case so that jurors start thinking in this manner but certainly study David Ball and Don Keenan’s Reptile and/or contact me individually. I simply wanted to share a pertinent moment from my weekend with jurors. Hopefully it makes a few of you smile.

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Jurors United? Something to Consider During Jury Selection

The jurors in the Drew Peterson case are drawing some media attention. While it seems to be out of a movie (Runaway Jury, in fact), the jurors coordinated clothing for a month during the trial. One day it was yellow, another day blue, another day green. Some days it was business suits and other days sports teams jerseys. They have also alternated red, white, and blue, in what may or may not be a sign of patriotism. Without talking to the jurors, no one really knows what this all means. Some say it means the jurors are not taking their jobs seriously. I would doubt that from my multitudes of interviews with jurors, a great majority of whom took their jobs very seriously. What it does show, regardless of the message, is that the jurors are united and getting along.

Does that mean there will be a verdict? Possibly. The odds are higher that there will be a verdict when jurors unite than when there is dissent amongst them. But it is possible that they all get along wonderfully yet disagree on some parts of the evidence or the law.

There is one lesson to point out in this. When you pick a jury, be conscious of the dynamics of the group rather than only focusing on individual jurors. If you want a hung jury, try to put clashing personalities on the jury together. If you want a cohesive group who is more likely to reach a verdict, try to get jurors whose personalities and backgrounds mesh well. Jurors form relationships over the period of a trial and just like any relationship in life, it can be harmonious or tumultuous. Spouses that fight all the time rarely make any decisions together. The same goes for jurors.

What will the verdict be in the Peterson trial? Only time will tell. But I would place money on the fact that if there are disagreements in that jury room, they are being worked out in a civilized fashion with respect for the system and each other.

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What To Do (And Not Do) With Short Voir Dire Time

Voir dire time in many places is now limited to 15-30 minutes (if you get attorney-conducted voir dire at all!). Aside from filing motions for extended voir dire, arguing with the judge, asking for more time when your time is about to be up, and many other suggestions for getting more voir dire time, I want to address some ideas of what to do when you are stuck with such a small amount of time.

There are some very good attorneys and consultants who will suggest using scaled questions (those are questions where you have people give answers on a scale of 1-5 or 1-10, etc.) in such situations. They suggest coming up with some questions about tort reform or specifics about your case and go down the line of jurors asking where they fall on the scale.

I would suggest something different, however. I understand the need to get as much information from jurors in such a short amount of time but my fears in using the scaled method are:

  1. Unless you have really tested the questions and reliability of the scales, you may learn absolutely nothing. I often use scaled questions on my intake forms for focus groups and most of the questions asked have no correlation to the juror’s ultimate opinion. Many jurors who say they are in favor of caps, for example, will go way beyond their maximum dollar amount when they hear the facts of the case. Further, you don’t know why the jurors hold such beliefs or how ingrained the beliefs are unless you talk to them.
  2. You give up any chance you have to become likeable and create rapport with the jury. If all you do is go down the line and have jurors shout out numbers at you, the jurors learn nothing about you and you learn very little if anything about them. Jury selection is a time for you to create a bond with the jurors. Jurors are already degraded by being given a number instead of a name, herded like cattle, and told where to sit. You only add to their degredation by having them give numbers instead of answers.

My suggestion is to use whatever little time you have getting jurors talking. If you’re a plaintiff’s attorney, you probably want to focus on tort reform and just get them spouting off about frivolous lawsuits and greedy attorneys. Let them see you listening and thanking them for their answers. They will feel a whole lot better about you if you spend your 15 minutes with them asking questions and facilitating a dialogue than giving scaled answers. That’s not to say that you can’t use one or two scaled questions within the discussion or ask a couple of hand raising questions to find out which jurors to start the conversation with, but the main focus should be on getting to know the jurors as people and them seeing that you have an interest in them.

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Keeping Jurors Awake and Interested

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.

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Filed under Jury Research, Misc, Opening Statement, Trial preparation

Why Only Positive Statements in the Opening Story?

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:

  1. 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.
  2. 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.
  3. 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.

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Confidence is Key

In doing some Voir Dire Coaching sessions with young attorneys and dropping in on trials in my area, I have noticed that many attorneys lack confidence. With tort reform, consultants such as David Ball have come out strongly and suggested not appearing like an attorney – don’t dress in black, don’t be cocky, don’t advocate too early. I second all of that, but I fear that some attorneys are going a bit too far and appearing weak in an attempt to avoid seeming demanding and overly zealous.

There is a difference between appearing confident and appearing cocky. The former is good, the latter is bad. In my Voir Dire Coaching sessions, I recruit some mock jurors and allow attorneys to practice their voir dire while I interrupt and coach them along the way. At the end, I ask the mock jurors for feedback about the attorney: Did he/she seem like a greedy plaintiff’s attorney? Do you trust him/her? What could he/she do better? I have had a few jurors say the attorney didn’t seem confident. One juror stated, “I would follow her [meaning me] into a fire, but I wouldn’t follow you.” That says it all. You need to command the courtroom and be in control. Jurors need to trust you and believe you are competent so they can follow you. If you are following Carl Bettinger’s “Twelve Heroes” book, you know that you need to be their mentor. Mentors are strong, not weak. No one wants to follow someone who is uncertain.

When you conduct voir dire, be strong and confident, but also warm and humble. When you do opening, be clear and concise, but do not argue. When you introduce documents, be sure you know how to do so without stumbling. If you are new to litigation, consider focusing only on being like-able and confident instead of trying to follow David Ball, Carl Bettinger, Rick Friedman, and all the others. It may be too much and if you are overwhelmed, jurors will see it. You need to be their leader – calm, assertive, confident, like-able. Going “off-code” for an attorney, as Ball and Keenan would say, does not mean seeming inept or unsure of yourself. Jurors look to you for guidance. Be sure you can provide it.

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Where You Are Losing Leverage With Preponderance

Preponderance is one major foundation of all civil lawsuits. If jurors truly made their decisions on the basis of more likely right than wrong for liability AND damages, there would be many more plaintiffs verdicts.  David Ball has done wonderful work in his Damages books teaching attorneys how to weave preponderance into a case from voir dire through closing but there may be one major area where you’re missing the leverage preponderance gives you.

My father is a neuropsychiatrist.  He has been deposed before and testified at trial.  Recently he was deposed about a prior patient of his. Afterward, we had a discussion about preponderance.  He told me that the attorney asked if various things were more likely true than not, a phrase he has become very familiar with after listening to me talk, but that the meaning of the phrase never really sunk in.  When he was hesitating on a question, the attorney asked if it was just 50.001% true and it clicked – more likely than not means only 50.001% – and he quickly answered the question that of course it was at least that probable!  When I asked what he thought “more likely than not” meant, he said it obviously did mean 50.001% but that without the percentage being directly pointed out to him and without time to really sit and think about the meaning of the phrase, it just meant a lower standard than “beyond a reasonable doubt.”  In asking a few other doctors about their perceptions, I got the same answers.

You may be losing ground with your own experts as well as cross-exam of the defense experts if you are not clearly pointing out that “more likely than not” means 50.0001%.  While it’s obvious that the phrase can mean nothing more than that, I’m finding that many people do not think hard enough to put it in those terms. Make sure to explain what it means in percentage terms and if a witness is waivering, remind them that it only means 50.001%.

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Filed under Burden of Proof, Voir Dire

Maximizing your Budget for Voir Dire

The more I am called in to help attorneys with jury selection, the more I realize their money may have been spent better elsewhere. Am I advocating that having a consultant attend voir dire is a waste of money? Absolutely not. But unless you are skilled enough at conducting voir dire, you may not be able to elicit the attitudes from jurors that your consultant needs in order to guide you as to which jurors are good or bad for your case. I have attended one too many voir dires where the attorney was confusing, wasting much of their limited voir dire time trying to re-explain themselves to the jurors who sat with furrowed brows or failed to nail down cause challenges thereby losing multiple opportunities to make their peremptories go further or asking questions in a format that elicits only the politically correct answers.

Here is my suggestion. Gather 12 people and bring them into your office. They don’t need to match your venue’s demographics because you don’t care what they say, you only care that you have bodies to practice on. Pay them in pizza. Have another attorney play judge and try to rehabilitate your jurors after you set the grounds for cause challenges. And finally, have your consultant there to critique you during the process. Practice staying on schedule, getting jurors to talk to one another, getting jurors to give you “bad” answers, and getting jurors to strongly commit to cause-challenge answers. Don Keenan and others have been suggesting this, but I know not nearly enough attorneys are doing it because I am at all of your voir dires!

I would much rather send an attorney into voir dire prepared and without me than to be unprepared and have me there but not elicit information I need to be helpful. If you have the budget to do a voir dire focus group and have a consultant at voir dire, by all means, do both. After all, the focus group should only take a few hours. But if it’s one or the other, I would STRONGLY suggest using your consulting budget on voir dire practice. Besides, it will pay off not only for that case, but for any future case. That is money well spent!

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My Experience as a Juror

A few weeks ago, I received a summons for jury duty. Unlike most potential jurors, I was very excited (for obvious reasons). I knew my chances of being picked were slim to none but depending on the case and how many more risky jurors the attorneys had to eliminate, I thought I had something to hope for.

Tuesday night, I called in praying the automated recording wouldn’t immediately dismiss me. I was told to call back the next day after 10:30am to see if they were going to need my round of jurors to show up at 1:00pm. I felt on edge all night. I was glad to not have been dismissed but left anxious they would dismiss me by phone the next morning. I’m pretty sure at this point, my jury experience was the exact opposite of 98% of jurors. At 11:00am, I learned they were calling us all in. At this point, I began to wonder if this was some high-profile case since it was a Wednesday instead of Monday and they were seeming to need tons of jurors. I figured I would be willing to sit for a 2 week trial but beyond that it would affect my business too much. (This all assuming they would take me, of course!).

The moment I arrived at the courthouse I tried to observe my feelings and surroundings so I would have a better understanding of what jurors feel. These observations are helpful in guiding attorneys on what to say during the introductory phase of jury selection in acknowledging what jurors are dealing with and empathizing with them.

My first thought upon arriving in the parking lot was “my God these spaces are small. If my car gets dinged while doing jury service, I will be one unhappy camper…or juror.”  I walked through security and into the jury room where there were hundreds of hard seats with jurors sitting and reading or watching television. I was slightly heartened by them providing television to entertain and not just re-running the jury service video.

By 1:15, a judge entered and spoke to us about the importance of jury service. I thought she did a very nice job in explaining how no one wants to be here but thanking everyone for showing up and explaining how jurors have more power than anyone in the country when they sit on a trial. This fits nicely with Carl Bettinger’s Hero-Centric story structure. I hoped jurors believed it when she said it but figure many probably thought “yeah yeah, when can I go home?” After the judge spoke, they played the jury service video. Most of it was boring and I had a hard time concentrating as they explained basics such as who each party is in the courtroom. They also had past jurors talking about their experiences, which I thought was a nice touch as they all acknowledged not wanting to serve but finding the process intriguing and worthwhile.

We were told there were two criminal trials going today, each only two days in length. I assume many jurors had a sigh of relief at this news. Personally, I was let down since I would love to sit on a bit longer trial to get the real effect – 4 days or a week, maybe.

Ten minutes later, we were split in two and my group was led to the courtroom. I was impressed at the speed of the process. I anticipated I would be sitting for hours in the main jury room before being assigned to a case and was pleased it went so fast. Granted, I wasn’t called in until 1:00, so maybe my experience is skewed. As we walked in and sat in the pews, I looked around to see if I recognized any of the attorneys or the judge. Thankfully, no recognition.

The judge talked for what seemed quite a long time about the jury process. Some of what he said was great, such as harping again on the importance of jurors, explaining why the parties all stand when we enter and leave the courtroom, and telling us we were more powerful than even him, the judge. In my mind, I was seeing a setup for Bettinger’s hero story developing – assuming the attorneys would run with it – and for Ball and Keenan’s Reptile if the attorneys could explain how that power allows jurors to keep the community safe. Some of what he said was drawn out – explaining the order of the trial, some basic laws, etc. If I was losing interest, I can only imagine what other jurors were feeling.

Finally, they began calling names. My fingers were crossed, and as each name was read, I could feel the relief of the jurors surrounding me that they weren’t called at the same time as I hid my disappointment. The attorneys were given 15 minutes for voir dire, which I think is terrible but unfortunately not uncommon. The attorneys did a great job in being like-able although I was highly confused by the DA’s questioning which seemed to single out cause strikes for the defense. He was young, so maybe he wasn’t exactly sure of what he was doing. They both focused mostly on burden of proof and the main issue in the case (that the defendant ran from the cop and whether his running made him guilty regardless of any other information). There were a few cause challenges and each time I hoped my number would get called while everyone around me hoped theirs wouldn’t. In the end, no such luck. On the way out, there were comments like “I’d like to know what happens to that guy…but I’d rather read about it.” I was disappointed, but glad that I at least got to experiences some part of the jury system. Any hands-on experience is helpful in relating to jurors. Fingers crossed for next year!

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Lessons from a Defense Verdict

A few weeks ago, I watched some very seasoned attorneys try a negligence case.  I was only able to watch one day of testimony but spoke with many other attorneys and lay people who were able to catch the opening and other witnesses that I missed.  I wanted to track this trial simply because the attorneys are known to be phenomenal.  The jury returned a defense verdict.  Although there are many factors that contributed to that verdict, including a tough fact pattern, I want to dissect the few issues that I noticed which I believe contributed in some fashion to the loss.  I do not want to mention any attorney names or case facts as I don’t want to embarrass anyone (these really are wonderful attorneys).  I hope this post will focus you on a few basics so that you don’t make the same mistakes in your next trial.

1. Speak in layperson’s language.  Although this is basic for many trial attorneys, it bears mentioning as even the most seasoned attorneys seemed to have forgotten this rule.  The attorneys in this particular case spoke about the incident and the equipment involved in technical terms.  All through opening and the first few witnesses, equipment was referred to by technical names and every person in the audience that I spoke with was as confused as I was.  The terms were only defined when the defense attorney cross-examined the second witness and asked the witness to define what the term means.  By that point, the jurors were likely confused all through opening and the first two witnesses.  This poses two problems: (1) opening is critical in your ability to convey a clear, concise story as jurors will view the rest of trial through the lens you provide them and if that lens is foggy, you lose a lot of ground, and (2) as written and spoken about by David Ball and Don Keenan through their work on the Reptile, jurors see anything confusing as being dangerous and untrustworthy.  That is certainly not how you want to be viewed at the start of trial.

2. Order of Witnesses.  I just wrote about the ordering of witnesses in my last post, but will mention again the importance of knowing what your witness will say and how they come across on the stand.  The first witness should be infallible.  In this trial, the first witness almost caused a mistrial by mentioning previous accidents.  He was uncontrollable and even the attorney mentioned that he and the witness had not spoken other than on the phone.  Do not chance your first witness on someone you’ve never met or prepped.  Make sure they are strong and that cross will not harm you.

3. Be Polite.  This one I have to praise these attorneys for.  When the judge admonished them to do something or to stop asking the witness the same question, they said “Thank you, Your Honor, you’re absolutely right” and then they moved on.  Staying so calm does two things: (1) It draws less attention to the objection than if you make a big deal of it, and (2) It portrays you as a like-able person.

Again, I’m sure there were many other factors that contributed to the defense verdict, but the above issues most likely had some part in it.  Make sure you don’t fall into these same traps.

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Filed under Jury Research, Misc, Trial preparation