June 7, 2012 · 8:38 pm

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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May 20, 2012 · 6:53 pm

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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May 8, 2012 · 1:55 am

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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May 3, 2012 · 3:35 pm

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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April 15, 2012 · 7:16 pm

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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March 27, 2012 · 6:17 pm

What to Consider in Ordering Your Witnesses

Trial is approaching and you have a long list of witnesses to organize.  How do you know who goes first, second, third, and last?  Ordering witnesses can feel like solving a rubik’s cube – one witness falls into place and it knocks three others out of order.  Not to mention that trial is unpredictable so you need to leave room for some flexibility.  Because there are so many moving parts to a trial and witness schedules, every case is different, but here are some factors to consider in ordering your witnesses:

  1. Primacy and Recency. Primacy states that what is presented first is remembered best.  Recency states that whatever is presented last is remembered best.  The idea is to start and end strong.  These are general psychological principles that interacts with many other principles so it’s not always so simple, but they something to consider.  Start and end your trial with effective, powerful witnesses.  To a smaller extent, try to start each day with a strong witness or slip one in right before a weekend break so it will be the last thing jurors hear before the leave to contemplate the case.
  2. Content.  Your first witness should be able to set the stage for jurors and give them a big picture of what happened.  The trial is a story and you need to start off solid by having someone who can get jurors to understand the overall chronological progression of things.  The first witness should also be virtually infalliable.  You don’t want to start your trial on a weak note.
  3. Personality of Witness.  Jurors get bored.  Try to space out witnesses who will be talking in a similar tone.  If you put one monotone witness back to back with another, your jurors may be asleep.  Try to have witnesses who are more interactive and who will be standing up to demonstrate something break up the monotony.
  4. Time of Day.  Most jurors are more alert in the morning.  After lunch, blood sugar levels peak and then drop and they get mentally tired.  Even in focus groups, I always notice that my afternoon groups are much more dreary and slow moving than my afternoon groups.  Try not to have a strong witness go on right after lunch – in fact, it’s a good time to put on weak witnesses so they can be easily forgotten (or never heard in the first place).

Again, of course all of this can only be followed to a certain extent.  Professional witnesses have time constraints, out of town witnesses can only come on specific days, and the trial may move faster or slower than you anticipated, requiring you to move things around.  That said, keep these guidelines in mind.  The closer you can stick to them, the more effective you will be.

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March 9, 2012 · 6:46 pm

From the Mouths of Babes [Jurors]

This post is a plug for focus groups – not necessarily done by me, although I welcome the opportunity always – but done by anyone who knows how to do them well and get you reliable results.  This post is a collection of quotes from a couple of my past focus group projects.  I have left out all party names to protect confidentiality.  I hope to convey the importance of doing focus groups before you get surprised at trial.  What follows is a brief description of the case and then some juror comments:

Case Background: Medical malpractice case against a hospital.  Plaintiff lost large amounts of blood during a 5-6 hour surgery.  Surgeon and nurses did not find or fix the leak for a while.  Plaintiff died a month later still at the hospital of kidney failure related to the blood loss.  Plaintiff had pre-existing conditions and was overweight.

  • From the Mouths of Jurors: “I think she had a death wish because she was in bad health anyway and she brought in a living will when she entered the hospital.  If you have a living will and you bring it to the hospital, you’re giving up on life.” [Note that this issue showed up in both focus groups with 1 or 2 jurors in each group believing the Plaintiff wanted to die and therefore awarding no damages]

Case Background: Brain injury from car accident case.  Plaintiff still holds a job as a professor at a community college.  All doctors and all neurological testing shows brain injury.  Pre-existing anxiety which was controlled by taking Xanax.

  • From the Mouths of Jurors #1: “I think he had a drug problem.  Taking Xanax that long over time could cause a brain injury or his symptoms.”
  • From the Mouths of Jurors #2: “I think he had a drinking problem.  My father was an alcoholic and he died from the alcohol use.  He often forgot things too so I think the plaintiff’s issues are from drinking.” [No evidence of drinking at all]

Case Background: Car accident case with back and neck injuries.  Plaintiff is on morphine multiple times a day to control the pain.

  • From the Mouths of Jurors: “I think she wants money to be hopped up on morphine her whole life…she’s on morphine for dramatic effect and will probably quit when the lawsuit is over.”

[Remember this case next time you assume that jurors will believe your client is severely injured because of the amounts of pain medication they are on]

Please don’t do disservice to yourself or your clients.  Jurors will often latch onto issues in your case you didn’t even know existed.  By finding out what those issues are ahead of time, you will save yourself a surprise verdict or simply make a more compelling argument.

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February 21, 2012 · 3:53 pm

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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February 6, 2012 · 4:26 pm

How to Use “Herd Mentality” to Your Advantage

As advanced as humans are, we are still primitively just mammals belonging to a herd.  Animals and people stay in herds because it provides safety.  If one member finds danger, the rest of the herd is alerted.  Think about being out in the African desert completely alone.  Now picture having a group of people there with you.  I would suspect your stomach felt very different imaging the two scenarios. 

Jurors are no different.  In mock trials and focus groups, I ask jurors what other information they think would be helpful.  There is often one juror who wants to know what other jurors in similar cases decided – how much money did they give?  The want to know the precedent.  Why?  Because they want to follow the herd. 

You can use this mentality to your advantage in several ways.  Some of those methods are taught in “Reptile” seminars with David Ball and Don Keenan and I would suggest attending to get more plaintiff-specific methods.  Here, I want to mention some basics. 

1. When talking to experts or witnesses, use the word “us” instead of “the jury.”  For example, “Dr. X, can you explain to US how the blood vessels became clotted?”  This puts you in the same boat as the jury and unifies the jury as one group.

2. Get jurors to see their own commonalities.  You can start to unify jurors as a group early on in voir dire.  Explain how most people who get jury summons don’t want to come but they all have something in common – they all showed up.

3.  Frame questions for your experts in a manner that hints at what others may think.  For example, ask experts, “so, most agree…?”  This hints to jurors that others think one way and to be part of the herd, they better follow.

4. In closing, tell jurors “I wish I could tell you what other jurors in cases like this do, but I’m not allowed to.”  This insinuates that what you say is in line with what other juries say or do.  Greg Cusimano is very good at this method so I suggest reading up on his works as well.

To finish it off, I’m posting  a video purely for entertainment purposes but it certainly demonstrates herd mentality:

http://www.youtube.com/watch?v=lYTBOhicf4g&feature=player_embedded

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January 26, 2012 · 3:19 pm

Scoring Jurors: The Do’s and Don’t’s

In light of Ken Broda-Bahm’s newest blog post regarding the proper use of statistics in mock trials (http://www.persuasivelitigator.com/2012/01/dont-be-entranced-by-statistical-claims-from-mock-trial-research.html) as well as a rising need for faster jury selection, I thought I would touch briefly on a related topic of whether to score jurors during voir dire and how that scoring can either hurt or help you.

There are a few models of scoring methods being passed around the community and I often get the question, are they effective?  The answer is yes and no.  Firstly, let’s talk about what these methods entail.  If you are able to get a jury questionnaire, you can score the answers on a scale of, say, 1-5 regarding how positive or negative the statement is for your side.  Then add up all the scores and you have an overall score for that juror.  This score can be altered if you have enough time to ask the juror additional questions during voir dire.  If you are unable to get a jury questionnaire, then you can simply score the juror’s answers on the spot as they speak.

There are many positives to this approach.  With such limited voir dire time, it’s almost impossible to do a great job at jury selection.  There simply is not enough time to talk to everyone.  Scoring gives you a quick overall idea of where the jurors stand and may give you an idea of which jurors are the most likely to be harmful to your case so that you can focus your time in questioning them.  Secondly, presenting this method to a judge may, ironically, end up giving you an argument for more voir dire time as well as allowing a jury questionnaire!  Stress to the judge that if you are able to get out a jury questionnaire, you can score the answers ahead of time which will allow you to conduct a much more streamlined voir dire process as you can bypass many repetitive questions and get to the jurors you really need to talk to.  Once you get to trial and the judge is asking how much time you need for voir dire, ask that he/she allow you to continue as long as you are asking useful questions and not promoting your case but that the moment you slip into advocacy, he/she can cut you off.  Only suggest this if you are skilled enough to conduct voir dire solely for the purpose of gathering information.  This will allow you to have a jury questionnaire as well as time with the jurors.

My caution with using scoring techniques is that scores do not tell the whole story.  A stealth juror may say one thing on paper and be thinking something completely different.  You may think you don’t need to question that juror and use your time on other jurors with red flags whereas if you were to take some time to talk to the stealth juror, you may notice differences in his/her body language when asking different questions which would indicate untruthfulness.  Further, anything on paper can be taken differently than if you hear a juror’s tone of voice and observe their body language as they say the same statement.  So, my overall suggestion is to take everything in stride.  Do not use scoring as your main voir dire method.  Use it to argue for the use of jury questionnaires and take the scores as one piece of information amongst many which will guide you in the jury selection process. 

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