September 9, 2011 · 3:49 pm

Proof of the Power of a Story in Opening

Time and again, you have probably been told to “tell a story” during opening.  People remember things best in story format.  But not just any story – it has to be told right.  There can’t be too many details or the story structure gets lost.  Each sentence has to move the story forward in time; otherwise, you’re telling details, not a story.  It must move chronologically (with very few exceptions).  Sometimes it is nice to hear proof of what happens when one side tells a coherent story and the other side does not.  Below are excerpts from post-verdict juror interviews I have recently done on a case.  The plaintiff’s attorney told a story and the defendant did not (or at least not a coherent one that followed the rules of storytelling).  I will remove any names or case information to preserve confidentiality.

Question:  Tell me about the Plaintiff’s opening

Juror 1: I remember initially it seemed kind of goofy because they had already said these people admitted liability and they painted this dramatic picture, which I’m not saying it wasn’t…I understand now why he did it because he was able to give a picture of all the inter muscular damage that was probably done at that particular moment.

Juror 2: It was long.  He went over the details of the case and I was confused because the defendant admitted he was wrong.  It was a case about a man whose life was drastically altered.

Question: Tell me about the Defendant’s opening

Juror 1:  It kind of felt to me like he just didn’t have a story he wanted to tell.  It was more like choppy statements than a story.

Juror 2: I honestly don’t remember specific details of it.  He just tried to paint the picture that none of this was  connected with [the plaintiff’s] problems now.

Notice how neither juror remembers much about the defendant’s opening.  Without a good story, their minds had nothing to grasp hold of.  When you write your opening, make sure the story comes through.  Follow good rules of storytelling and jurors will remember what you say.  They will view the rest of the case through that story lens and shape evidence in their minds to fit with it.  If you do not give them a good solid story on which to base the rest of their evaluations of the case, you lose a lot of leverage.

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September 1, 2011 · 2:49 am

Why Should Jurors Give Money to Your Client?

Jurors are skeptical of giving money to anyone.  It seems like a handout to a stranger.  And worse, jurors do not get to track where the money goes afterward.  There are a lot of factors that go into making jurors want to give your client money, but I want to focus right now on your client’s mental state and demeanor.  Jurors do not want to give to hopeless causes.

Just last week, I ran a focus group on a case with a woman who had severe neck pain following a car wreck.  Liability was admitted.  The plaintiff is on morphine multiple times per day.  But instead of the morphine showing jurors how much pain she is in, jurors focused on “giving money to someone to be doped up her whole life.”  The problem was that the plaintiff did not appear to be doing anything to make her situation better.  She claimed to continue to seek medical attention but could not explain what kind.  She looked through a list of 200 jobs provided by her SSDI attorney but decided she was not able to do any of them.  And to top it off, she’s a smoker.  Jurors immediately figured if she isn’t going to help herself and try to get off the drugs, stop smoking, and try to find a job to take her mind off the pain, they were not willing to give her any money.

It’s human nature.  We all want to help causes that provide hope.  It makes us seem like our money is doing something good and worthwhile.  Make sure your client presents as hopeful.  If they cannot get a job or get out of the house, try to get them to do online surveys for money or look for bookkeeping jobs they can do from home.  Have them seek therapy for the changes they are dealing with as a way to overcome any depression (jurors often fault plaintiffs for not seeking mental health help to cope with depression even if depression is never mentioned).  Get them to read some self-help books instead of watching TV so they can tell the jury about their attempts to better themselves.  See if they can donate their time to a cause that does not affect their pain.  Jurors love to see others trying to help people and put their own pain aside.  Finally, either get your client to stop smoking (pot or cigarettes!) or at the very least not mention it at trial or smoke at the courthouse or outside their homes during the trial.

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August 25, 2011 · 3:13 am

Group Polarization & How It Impacts Your Verdict

Juror deliberations are complicated dynamic processes.  The whole of the group is greater than the sum of its individual parts.  Often people think that deliberations are a series of compromises – and in some ways, they are.  On some issues and in some groups, jurors compromise on damages figures and charges.  But not all of deliberations are compromises.  Sometimes deliberations result in the exact opposite of compromise – a polarizing of attitudes.

Polarization means that jurors who started out with more middle of the road attitudes (just slightly leaning to one side) when put into a group setting become more extreme in their viewpoints.  This means that you can have a group of jurors who individually are fairly open-minded and undecided but who end up extremely opinionated when they enter a room with other jurors and begin discussing the case.

Part of the reason for polarization is that once a juror expresses his/her viewpoint, they are much more wed to that viewpoint in public because there is a stereotype that weak people change their minds and “give in” or admit they were wrong.  No one wants to be weak.  David Ball and his partners have done numerous years of research on jurors and the primitive brain (Reptilian brain).  Their research tells us that the weak member of a group is in danger for their lives.  It is a strong human drive to avoid being seen as weak.  Therefore, jurors may stick to a viewpoint they espoused early on even if they later feel differently.  The result can be a group of jurors who are so split on values that you end up with a hung jury.

One way to prevent this is to explain to jurors how to deliberate.  Groups that start deliberations by discussing their views on the evidence rather than taking polls on verdict questions tend to be much more collaborative and polarization is much less likely.   Suggest to jurors that when they get into the deliberation room, they first and foremost go around the room and discuss their views on the evidence without taking votes.

Polarization also has implications for how you conduct and read into focus group research.  Realize that if you do a non-deliberation type of focus group (or survey research), the results can be misleading when put into a group setting.  Jurors do not decide cases in isolation and the group dynamics make a difference.  That is not to say that those non-deliberation types of research are useless – they certainly have their separate purposes – but do not assume that you know how your deliberations at trial are likely to turn out if you rely solely on individual responses.

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August 18, 2011 · 7:31 pm

Do Jurors Get “Poisoned” During Voir Dire?

Attorneys are often worried about asking questions in voir dire that elicit responses that are harmful to your side of the case.  For example, I hear plaintiffs attorneys worry about asking questions regarding tort reform because they are afraid that jurors will start talking about costs of insurance rising and how lawsuits are chasing doctors out of town.  The fear is that these comments will taint the neutral or good jurors.

My suggestion is not to worry about poisoning jurors on the panel.  Your role in voir dire is to elicit information and you certainly want to hear the bad comments so you can dismiss bad jurors.  Jurors who are favorable to you will not change their opinions simply because a stranger sitting next to them spouts off opposing viewpoints.  If a person holds a fairly well ingrained opinion, they have formed that opinion based on their life experiences.  That opinion has already been challenged by media, friends, and family.  An hour-long voir dire (if you’re lucky to even get the much time) will not change their opinions.  If a juror is neutral on a matter or has not formed any deeply rooted opinions on the topic, they may be swayed by what other jurors say but not to the point of danger to you.  Their opinions will not have been ingrained and they can be easily swayed back to your side during trial.

The most important things to remember during voir dire are:

1. You should listen much more than you talk.  This is a time for you to gather information, not feed jurors facts about your case or try to start convincing them.

2. You need to appear as non-lawyerly as possible.  Jurors hate attorneys and this is your first impression.  Do not under any circumstances argue with a juror about their opinion or try to change it.  You will alienate yourself from the rest of the panel, including your good jurors.

3. Bring out those bad facts and get jurors to commit to their opinions solidly if they are bases for cause challenges.  That will give you a much better chance at removing more of the bad jurors and ending up with neutral or favorable jurors who will then appreciate your openness to different attitudes and trust you more as you begin to present your case.

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August 14, 2011 · 9:14 pm

The Correct Use of PowerPoint & Graphics

As technology as become increasingly prominent in our lives, it has leaked its way into the courtroom.  Some technological advances are extremely helpful when used properly and can be detrimental when used improperly.  So what is the best way to use technology in the courtroom?

Effective Use of Bullet Points. 

  1. Learning Style: There are some attorneys who like to use bullet points throughout opening.  This is not an effective use of a graphic.  Firstly, technology should offer your listeners something extra that you on your own cannot provide.  Simply putting your opening up on a large screen for jurors to read alongside you does nothing to tap into their other methods of processing.  When people are reading something, they are still utilizing the auditory part of their brain, so simply because you have put it in a readable format does not change the brain’s method of processing.  You will still miss the visual learners.
  2. Frequency: Bullet points should be used sparingly.  For example, to list Rule violations of the defendant (which I suggest you do on physical exhibit board that can stay present in the courtroom the entire time rather than through a computer snapshot that disappears when you finish reading).
  3. Timing: Also keep in mind that any time you put something in front of jurors to read, they will be reading as you are talking.  They will tend to read the bullet point, miss what you are saying, and then stop listening as they assume they have all the information they need in that one bullet point.  If you must use a bullet point, put up only one at a time and only put it up after you have finished talking about that point.

Graphics

There is much research to show that people learn better when you access all parts of their brain at one time.  If you can access someone’s  visual part of the brain at the same time that you access their auditory part of the brain, you have a better chance of them remembering and understanding the point.  A good graphic is a picture that is easy to understand without any type of label within the first 3-5 seconds of looking at it.  The graphic should be able to tell a story without any explanation.  Run your exhibits and graphics by mock jurors ahead of time to find out if the graphic tells the story you intend!  Then add a tag line on the top that asks a question that the picture answers, such as “Why Didn’t the Plaintiff See the Hole in the Ground?” along with a photo of how conspicuous the hole is.

Technology can be very helpful – if used correctly.  Do not use it just for the sake of keeping up with the times.  Make sure you are using it to your advantage.

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July 20, 2011 · 3:51 pm

Protect Your Case from Twitter

There has been much talk about the use of blogs for monitoring public opinion and shaping trial strategy during the Casey Anthony trial.  While that may be a useful strategy for high profile cases, you may wonder what impact the internet will have in your everyday run of the mill case.  It has a very real impact, just in a different way.

The dangers of the internet are becoming so pervasive that it is now imperative that you understand the importance of doing internet research.  Jurors are internet-savvy (even some of the older ones) and you can almost guarantee that at least one of your jurors will be going home researching every aspect of your case online.

If that one juror finds something harmful to your case, they will bring it up in deliberations and impact the rest of the jurors. 

Jurors will research you, your firm, your experts, your client, and even medical terms or other issues related to your case.  They will go on facebook, myspace, google, twitter, etc.  They will research arguments in your case – whether a 5mph collision can cause brain damage.  Whether brain damage can occur  without a concussion.  Whether there really is a policy that doctors have to do a differential diagnosis and rule out the most dangerous possibility first.  Guaranteed, they will find articles and websites that dispute your claims and because the juror found them online, they think the sources are neutral and therefore more trustworthy than your experts.

What they find on their own online will trump your evidence. 

So what do you do about it?  You need to know what is out there.  You cannot undermine what you do not know.   Either hire someone skilled at internet research or find someone in your office who is young and can dig deep on search engines.  That person needs to set aside multiple hours to research every aspect of your case and every person involved.  You need to know what is out there so that you can mention it during trial.  Know what arguments there are against you and have your experts explain the faults in those arguments so that when jurors come across it, they know why not to believe it.  These days, you can lose a case because of jurors doing due diligence to research on their own.  Your loss may have nothing to do with what goes on in the courtroom.  Recognize this danger and devote time and effort to online research – even before accepting a case.  The costs of avoiding it may be high.

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July 14, 2011 · 2:46 am

Should Your Client be in the Courtroom?

There are many cases on which I consult where the question arises, do you bring the client to the courtroom?  This is often an issue in brain injury cases and in cases of severe physical impairment, but it can be an issue in any case, such as soft tissue injuries.

The concern is that jurors will do one of two things:

  1. Either they will devalue the plaintiff’s injuries if the plaintiff looks and acts normal (or doesn’t seem to be in much pain), or
  2. They will see terrible injuries but view the client’s presence as a ploy to invoke sympathy.

Consider in addition to the above issues that if your client has horrendous injuries, the longer the jury looks at them, the more accustomed to them they become and the less disturbed they will be.

The problem with not presenting the plaintiff, however, is that jurors may hold it against you and if the plaintiff does have visible injuries (or severe enough mental injuries), you lose the chance to show jurors the extent of the damage.  The best way to know whether presenting the plaintiff will do more harm than good is to test the plaintiff’s presence in a focus group or mock trial (usually by video so as to preserve confidentiality).

Focus groups aside, however, why not ask your actual jurors during voir dire which they would prefer?  Tell jurors that you need to make a decision and you’re going to look to them for guidance. And then be honest.  Tell them about your client and the extent of
injuries.  Then explain that some jurors would require the plaintiff to be at trial so that you could at least see him/her and so that he/she is part of the process.  Others say that it’s unnecessary for the plaintiff to be here and that if you did bring him/her here, they would get the feeling that you were trying to play on their sympathy (which you tell them earlier on and throughout voir dire that you are not going to do).  Tell them that you are concerned that if you do bring him/her in, some jurors will say that you were trying to invoke sympathy and yet if you don’t bring him/her in, you’re afraid that some jurors will say you should have brought him/her here and will hold it against you and the plaintiff.  Ask them for help on that decision.  This will take the burden off of you and regardless of what you choose (you may have jurors disagreeing), you have put yourself off-code from being a typical lawyer
and they will understand that different jurors told you different answers.

In cases where your client is severely injured, the best solution is often to have the client present for voir dire and to testify, but quickly get them out of the courtroom at all other times.  This way, the jurors get to see and evaluate your client and yet do not have time to get accustomed to the injuries.  In such cases, it is easy to explain to jurors that your client is either in too much pain to stay in court all day and/or that his/her doctors have said that it would be mentally to difficult to hear all the testimony.

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July 6, 2011 · 3:59 am

Defending the Jury System from Casey Anthony Uproar

What did we learn from the Casey Anthony trial?  Lots – and likely lots more once the jurors give their interviews, but for now, here are a few things to consider:

1. Justice does not always have a “TV ending” in that you walk away having the answers you sought and feel a sense of relief.

2. The jurors on this case, whatever they say in their interviews, must have all had strong personalities.  To render a verdict that they know the public and media will persecute them for takes conviction and strength.

3. Do NOT over-promise in your opening.  The one alternate juror who has spoken so far has already mentioned the promise of the prosecution to prove beyond all reasonable doubt how Caylee died.

4. Jury selection is greatly important – as are focus groups.  You may not realize that a fine group of my colleagues were involved in this case starting 2.5 years ago, often doing work pro bono, running focus groups every day and shadow juries.  I believe the defense verdict speaks to their tireless work.

Learning aside, even if you are surprised, angry, or skeptical of the verdict, it is important not to blame the jurors.  What we all saw on television is not what the jurors saw and vice-versa.  While we were watching interposed images of Caylee’s smiling face with her rotting skull, jurors were sitting in uncomfortable chairs looking at blank documents or simply listening to testimony.  Do not underestimate the unconscious power of the media to sway the public.  The jurors were removed from all of that.  Further, the jurors did not say that Casey was innocent – only that there was not enough evidence to convict her.  We can disagree with the verdict, but please respect the jurors.  They gave up a lot and it is very rare to find jurors who simply do not care about doing a good job.  Remember that the media trial we watched is not the same trial the jurors participated in.

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June 26, 2011 · 11:18 pm

All Eyes on You & Your Client

I’ve been following the Casey Anthony trial daily for a few reasons.  For one, I know the consultants working on the case so I’m always watching for any tv interviews they decide to do.  Second, I’m intrigued by the case just like the rest of the nation.  Third, it’s always interesting to me to see how the media portrays trials.

While listening, I have heard news commentators talk often about seeing Casey’s parents and brother in the elevator.  The commentators discuss their demeanor and speculate as to what that means – do they really think their daughter is guilty?  Are they all uniting to save her from the death penalty?  Is Casey’s mom journaling during trial or taking notes to rehearse her testimony?  Just now, I heard a commentator talk about how Casey’s brother, Lee, was seen eating by himself at a sandwich shop during a lunch break.  Discussion followed regarding whether that meant that he was distancing himself from his parents, are they now not as united?  The speculation is unreal – and this is all regarding family members, not the defendant herself (who definitely does not evade scrutiny as every eyebrow raise and tear is analyzed).

There is an important message in this.  Although this is a major publicized trial, do not for one second think that jurors in your case think any differently.  To them, the case they sit on is a major trial.  They will analyze every movement from you, your client, and your client’s friends or family.  If jurors see you or your client outside the courtroom, they will be watching, taking it all in, and speculating.  It all feeds into their stories.  So…be very careful of what you say and do.  Make sure your client and his/her family knows how to act in and out of the courtroom.  Nothing goes unnoticed.

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June 20, 2011 · 12:05 am

Group Dynamics & Jury Selection

When you are selection (or de-selecting) jurors, it is easy to focus on individual jurors to the point that you forget about how jurors are going to interact with one another.  Individual characteristics are extremely important, but so are group dynamics.  Consider, for example, the two following scenarios:

  1. You pick a jury of 12 and during deliberations, 11 are in your favor.  Through some discussion and persuasion, that one bad juror finally either gives up and gives in or is persuaded.  You win the case.
  2. You pick a jury of 12 and again, 11 are in your favor.  This time, however, the one holdout juror refuses to engage in discussions with the other 11 jurors.  She refuses to listen, to participate, or to be open-minded.  You just won yourself a hung jury.

Jury group dynamics do matter and there are some things you should watch for.  Observe which jurors are talkative and which ones keep to themselves.  If there is one juror who seems to sit by him/herself and not engage as much as other jurors, that could be your holdout.

There is also some reason to try to get a couple of jurors of the same ethnic or racial background on the jury together.  Research has shown that one person with certain views left to themselves in a group is much less likely to speak their mind than if they have just one other person on their side.  If the case has any racial implications and you want a certain voice to be heard, give them a backup voice.

If you have two strong leaders, consider whether they will be opposing or cohesive.  If you leave any leader on the jury, be sure they are on your side.  It is one thing to risk leaving a follower on the jury who may be against you, but a strong leader can be deadly.

As you question jurors, watch others for head nods and body language that speaks to their own individual agreement or disagreement with that statement, but also for indications of whether that juror is interacting non-verbally with the juror being questioned.  At all times, be aware of the dynamics.  Obviously, you cannot pick your ideal jury so you cannot control all dynamics, but make sure it is on your radar.

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