January 12, 2012 · 3:22 pm

What Do Jurors Care About?

Do you ever feel like jurors decided your case randomly or based on something other than the evidence you presented?  It’s highly probable.  It happens often and you need to understand not only how to minimize that risk, but how to control for it and use it to your advantage.

This blog is named “jurorproof” for a reason.  Most everything I post about has to do with proving your case to jurors.  That may sound obvious, but please make sure you understand the significance.  There is a huge difference between “legal proof” and “juror proof.”  Legal proof is what you have to prove to meet the elements of the claim.  The judge requires it and the jurors to some degree care about it when the go to fit the evidence into the verdict form.  But to really win over a jury, you need to appeal to juror proof – the things jurors want and need to hear that may be completely unrelated to proving your claim in a legal manner. 

For example, in a medical malpractice claim, you not only have to show duty, breach, causation, and injury.  Jurors may care about your client’s hopes for the future.  They care that your client drafted a living will before going into surgery because it means (to them) that your client had a death wish (yes, this has come up in a couple of my focus groups).  They care that there was no secondary backup system for files even if not required.  These are things that they need to fill gaps in the stories they create based on their own experiences and backgrounds.

In 1986, Pennington and Hastie did research on mock jurors and found out that only 55% of story references made by mock jurors are made to events/evidence directly testified to whereas 45% were made from inferred actions, mental states, and goals that jurors drew from their own backgrounds to fill in gaps in the story.  Is this just in mock trials?

Well, in 1996, the Arizona Project kicked off where judges in Arizona allowed video cameras into the deliberation rooms of real juries.  The numerous tapes and transcripts (I’ve seen them myself) back up the reasearch from Pennington and Hastie.  Sometimes you want to scream at the jurors to get back on track – you want them back on legal proof grounds.  But that’s not what matters to them.

So what does all of this mean for you?  For one, it means that you need to fill in gaps in your story before the jurors do it for themselves.  One thing that makes for a believable story is that it is comprehensive.  The less gaps the better.  I understand that if you have an illegal alien for a client, you may not want to bring up that piece of information to the jurors if you have an order from the judge excluding it from trial.  But if jurors see your Spanish-speaking Hispanic client, they will wonder it themselves.  This is something they will care about.  Whether your client is illegal or not has nothing to do with legal proof but you better believe it’s a big part of juror proof.  Deal with it in voir dire.

Secondly, do some research.  Find out ahead of time what juror proof for your case is.  The only way to do this is to talk to real people – people who match the demographics of your trial venue.  If you can’t afford to hire someone to do a focus group in a reliable manner, at least talk to some neighbors.  Go to a mall and talk to strangers about your case.  Buy them a coffee or ice cream in exchange for their time.  Without that feedback, you would never know that having a living will means having a death wish to jurors, for example. 

Don’t go into trial blind to the juror proof.  You would never go into trial without knowing the legal proof you need to fulfill.  This is no different and equally important.

3 Comments

Filed under Burden of Proof, Focus Groups, Jury Research, Voir Dire

Tagged as , , , , , ,

January 2, 2012 · 3:57 pm

Are Your Jurors Using a Deliberation Process that Hurts You?

Deliberations are a scary thing for attorneys.  It’s the time when you have to completely let go of your case and your jurors and hope that they do the “right” thing behind closed doors.  You have no idea what they are saying, who is saying it, and whether your arguments are being understood and used to sway the jury toward the verdict you want.  Just because jurors walk out of your sight, however, does not mean that you have no influence.  There are ways to influence the content of deliberations themselves, but right now I want to talk about influencing the process of deliberations.

Group deliberations usually take one of two forms – either the group is process-driven or they are verdict-driven. (See many works by Pennington & Hastie)  In a process-driven group, the members remain open to new ideas.  The spend time thinking things through and looking at evidence before taking votes or trying to fit the evidence into a verdict choice.  In a verdict-driven group, the members take votes early and often.  Members feel closed off to new ideas and a verdict is often driven more by emotion than logic.  If you are a plaintiff’s attorney (or criminal defense), you usually prefer a process-driven group.  But how do you get one?

1. Influence the Choice of Foreperson.  The foreperson is often very influential in determining the deliberation process as they control the discussions and call for votes.  Often the foreperson is the one sitting at the head of a table or the most vocal or someone who simply volunteers.  Tell jurors that the selection of a foreperson is an important part of deliberations.  Ask that they take a few minutes to think about it and discuss it before deciding who to make foreperson and not to automatically select the first person to volunteer for the job.  Ask jurors to think about the type of foreperson they want – do they want someone who will make sure everyone has an opportunity to speak and who will respect various opinions?  Do they want someone who will dominate the discussion with their own views?  The foreperson’s job is not to rule the discussions, but simply to facilitate them. 

2. Give Jurors A Copy of Instructions.  If it’s not standard in your jurisdiction, try to convince the judge to give enough copies of the instructions for each juror to have one.  Sometimes the foreperson ends up running discussions simply because they are the only ones to have the law in front of them.  If the foreperson is against you, this can be detrimental.  They may even read the law incorrectly and the rest of the group would never know.  If each juror has a copy of the instructions, they can better argue their points.  Further, it pushes for a more process-driven group by allowing each juror to see and refer to instructions themselves.

3. Influence the Deliberation Process.  In every mock trial or focus group that I run, I tell jurors that before they begin taking votes or deliberating, they should go around the room and allow each juror a few minutes to discuss their views of the case.  This allows all viewpoints to be heard. If jurors start taking votes early, arguments that go against the group majority may never be heard due to groupthink and the oppressive power of a majority view.  By pushing jurors to discuss issues in the case before committing to a verdict or voting, you will guide them to a process-driven deliberation process.

4. Control the Voting. Finally, suggest to jurors that after they have spent time considering issues in the case, they may all decide to take a vote.  Suggest that they not vote unless every single juror feels they are ready to vote and remind them that it is perfectly normal and acceptable to change their minds throughout the deliberation process and between voting periods.  Further, suggest to them that when they vote, they do so by secret ballot.  This takes away any social pressures to conform to the group norm. Most juries vote by hand raise or by going around the table.  These methods tend to pressure jurors in the minority to change their votes. 

Although you cannot be in the deliberation room with your jurors, if you prepare them properly, you can still influence the process.

Leave a comment

Filed under Closing Argument, Focus Groups, Misc

Tagged as , , , , , , , ,

December 19, 2011 · 11:00 pm

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.

2 Comments

Filed under Misc, Trial preparation, Uncategorized

Tagged as , , , , ,

December 7, 2011 · 4:33 pm

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.

 

Leave a comment

Filed under Jury Research, Opening Statement, Trial preparation

Tagged as , ,

November 28, 2011 · 5:06 pm

A Twist On Damages

Your case: A 69 year old woman is hit from behind in a car crash.  Liability is admitted.  Damages are that the woman can no longer sit longer stand more than 30 minutes at a time without pain so she can no longer attend her weekly morning hikes with a church group.  She is widowed and has no children.  Whole person impairment rating is 10%.  Defense is arguing that damages aren’t that bad. 

Your (likely) damages argument: Walking is important to her.  Talk about how much they impaired her (using a whole person impairment rating).  Make some argument about how much that 10% impairment is worth.

Not a bad argument.  But sometimes it is stronger to argue not about how much the defendant took away from the plaintiff, but how much is left.  This is an old Moe Levine trick and although I’m not sure I would use it in 100% of the cases, it can be very strong.  For example, in the above case:

Your new damages argument: Talk about how a person is not what is taken away but what is left.  Defense can argue that what is left is 90% of her but you need to flip that around.  The important part is not the percentages.  If all this woman had to look forward to was that walk – her one chance to socialize, to be a part of something – and the defendant took that away, she is left with nothing.  She did not go from 100% to 90% – she went to 0%.  She is left with being cooped up in the house all day with no one around. 

Impairment ratings can actually harm your case.  If you have a normal person and you take away 10% of their ability to walk, they are still able to do most things.  Maybe they can’t run on a soccer team, but they can function in most areas of life.  If, however, you have a plaintiff who is already impaired to the degree that all they can do is walk with a cane and you impair them another 10%, they can no longer walk at all.  The fact that both people are impaired by 10% is irrelevant – you need to look at what is left, not what was taken away.  In a case where the plaintiff is already impaired,  most defendants then push the pre-existing condition issue and argue that they didn’t lose much more.  What is another 10% on top of an already existing 80%?  You need to argue that it’s not the extra 10% that matters – that 10% was allowing the person to function in life.  Now what is left is someone who is wheelchair-bound and can never take another step – can’t walk his daughter down the aisle, can’t feel the sensation of walking, can’t just walk into the bathroom and sit down…you get the idea.

Again, I’m not sure I would use this in every case, but examine your damages and what the person started with compared to what is left and you make the call.  It can be extremely powerful.

4 Comments

Filed under Closing Argument, Misc, Opening Statement

Tagged as , ,

November 20, 2011 · 8:50 pm

Unreliability of Eyewitness Memory & How to Counteract It

If you’ve spent any time interviewing jurors, you know that eyewitness testimony holds great weight.  And if you’ve spent any time researching cognitive psychology, you know that eyewitness testimony can be very unreliable.  I want to briefly discuss the research and then will talk about implications for your case.

Elizabeth Loftus is one of the leading minds in the field, along with Garry Wells and a few others.  She ran an experiment in 1989 where she showed subjects a video of a car accident at an intersection where there was a stop sign.  Half of the participants later received a suggestion that the traffic sign was a yield sign.  When questioned about what traffic signal they remember seeing in the video, participants to whom the yield sign was suggested reported remembering the yield sign instead of the stop sign, suggesting that the suggestion of the yield sign altered their memory of the original event.  I am certainly not suggesting that this happens every time –  there are many factors that increase or decrease the chance that a memory gets altered, such as how focused the participant was on that particular item (if the subject found the stop sign to be particularly important, they are more likely to focus on it and be less vulnerable to the yield sign suggestion). 

Perhaps the scariest part, however, is not that the memory was altered, but that a person’s confidence level in their memory is not correlated with accuracy.  This means that you can get an extremely confident witness on the stand who will win over jurors but is inaccurate in their recollections.

Much of the studies on memory and testimony relate mostly to criminal cases where there can be police suggestions in lineups or interviews that alter the memory.  But the problems can also appear in civil cases where people are questioned by police, attorneys, and put through numerous depositions.

So what can you do about it?  You certainly cannot prevent the altered memory and you may not even have the ability to know when or how it happened (unless you have a criminal case where there are more clear factors such as suggestions that are implanted at the lineup).  But consider informing your jurors of these psychological phenomenon.  Experts like Elizabeth Loftus testify in cases and can point out to jurors the factors that make memory more or less accurate, giving them things to look at other than the confidence of the witness.

Leave a comment

Filed under Jury Research, Misc, Uncategorized

Tagged as , , , ,

November 9, 2011 · 9:33 pm

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.

 

 

 

2 Comments

Filed under Focus Groups, Jury Research, Misc, Trial preparation, Uncategorized

Tagged as , ,

November 2, 2011 · 12:59 am

Have a Little Faith…In Jurors

I often come across attorneys who have trouble trusting jurors.  I can’t blame them – it’s hard to give up control over your case to the minds of 12 strangers who may have no previous knowledge of the law.  But you will get further by putting faith in your jurors than distrusting them. 

For example, if you don’t trust your jurors, you may be more inclined to exaggerate your damages in anticipation of jurors cutting them down.  While jurors do use damage arguments from attorneys as anchors, they will be less inclined to cut your damages if they feel you are being genuine and that the amount you are asking for is fair.   Do not under any circumstance include items in your damages that can seem overreaching.

In jury selection, be open and honest about the problems with your case.  When you then ask jurors to be honest with you, they will be much more inclined to be open.  In addition, you will have disclosed the worst up front so there will be no surprises later and jurors will begin to trust you based on your openness.  During opening and again in closing, tell jurors that you trust their decision.  Guide them toward the verdict you want and certainly explain the law and how your case fits into it, but ultimately trust them to decide the right verdict and amount. 

The wonderful Moe Levine is a perfect example.  This short youtube video will probably educate you more than I could ever type:  http://www.youtube.com/watch?v=b0P7EoKrW1o&feature=mfu_in_order&list=UL

 

Leave a comment

Filed under Misc, Opening Statement, Voir Dire

Tagged as , ,

October 22, 2011 · 4:13 pm

Detecting Lies During Voir Dire

There have been many studies done on lie detection and the results are often disheartening.  Most of us, including police officers, fare no better than chance at detecting a liar.  When it comes to your voir dire, this can be troublesome.  While much of lie detection is a gut reaction (if you haven’t read the book “Blink” yet, I highly suggest it), there are some things that you can look for and some myths you should be educated about. 

Myths:

  1. Liars Fidget.  Yes, maybe…but so do people who are telling the truth.  Often, good liars have learned to keep their bodies very still.  You could have a truthful juror who is simply nervous and fidgety.  Don’t assume a nervous behavior means they are lying.
  2. Liars Look Away.  Again, not necessarily.  Some liars will look you straight in the eye.  They may even have more direct eye contact than normal.
  3. Liars Won’t Have Detailed Stories.  Not true.  The stories are more likely to be overly detailed.

The most important things to look for in detecting lies are inconsistencies.  As humans, our bodies betray us – there are little tells that come out even if you don’t mean for them to.  Slight smiles when talking about something gruesome and horrifying or nods of the head when talking about something in the negative.  Look for these subtle body language cues. 

If you ask basic questions first, you can get a baseline reading off the person (such as asking about their family and work life).  When you ask more controversial case-specific questions and they react differently, that may be a sign they are lying.   If a juror is fidgety when talking about basic questions but then stiffens up when answering more case-specific questions, you need to consider that they are lying on the case-specific questions.  Watch for changes in tone of voice, body gestures, crossed arms, whether they look straight at you or not.  It is not the gesture in itself that matters – it is the difference from their baseline.  Watch for inconsistencies and you will fare much better than sticking to stereotypes of liars.

If you want to know more, look up some work by lie detector Pamela Meyer and I’m sure there are many others.

 

 

Leave a comment

Filed under Jury Research, Misc, Voir Dire

Tagged as , , , ,

October 10, 2011 · 4:23 pm

A Look At the New Argumentative Theory of Reasoning

In one of my previous posts, a reader asked about a new theory called Argumentative Theory or Argumentative Reasoning.  I thought it would be helpful and enlightening for some if I posted the basics of this theory.  Although this theory meshes well with older concepts such as confirmation bias, the theory in itself was just recently published in Behavioral and Brain Sciences in an article written by Hugo Mercier and Dan Sperber titled “Why Do Humans Reason?  Arguments for an Argumentative Theory.”  I do not necessarily endorse this theory.  I merely provide information as food for thought.

The theory states that humans reason not to discover truth or work toward that end goal, but rather to win arguments.  Reasoning therefore may not seem “reasonable” at all – it can be very irrational and actually lead people further away from what we normally would consider rational.  This is where the theory meshes nicely with confirmation bias.  Confirmation bias states that people will alter information to fit their prior beliefs, sometimes forgetting information that is inconsistent with their beliefs or exaggerating information that is consistent with their beliefs.  With Argumentative Theory, people may be doing the same thing for the same purpose – to hold fast to their beliefs and make the world around them conform to those beliefs.  This theory challenges the idea that reasoning should lead to better decisions.

The theory also meshes well with other evolutionary theories such as those espoused by David Ball in his book, Reptile or Rapaille’s Culture Code.  Under Argumentative Theory, the evolutionary reason for reasoning is to help us convince others of our arguments and to be on guard when others try to convince us of theirs.  This is a self-preservation mechanism.  If your view of the world is wrong and you are making decisions based on that view, then you are in danger.  If you can convince others that your view is correct, however, you are safe. 

Putting the theory into practice for trail strategy purposes, you need to be aware of the pre-existing beliefs of your jurors.  Try to make the case fit within those beliefs.  Read Rapaille’s book and understand what codes are associated with various people or things within our society.  Run focus groups and find out what jurors think about topics associated with your case.  If jurors believe that doctors are caring, competent people, then show that you agree with those views and then show how the defendant doctor did not conform to those ideals.  Contrast what the defendant doctor did with how other doctors acted. 

Realize that jurors are going to argue to keep their world consistent.  Work within that consistency and you will do a much better job at “arguing.”

Leave a comment

Filed under Focus Groups, Jury Research, Misc

Tagged as , , ,