Tuesday, October 29, 2019

Can’t Live With Them, Can’t Live Without Them: Jurors

Trials would be so much easier if you didn’t have to deal with jurors. Jurors wander off mentally during your most crucial testimony, they’re distracted by a lawyer’s mannerisms, they’re irritated by an expert’s vocal tone, they disapprove of a witness’ attitude. Jurors misunderstand the law, making it up as they go along.  Jurors impose their own version of what’s right or wrong, what’s negligence, what should be the standard - be it of care, warning, safety or other. Jurors deliberate as a group, which introduces the whole notion of group dynamics, complicating the matter further. Need I go on?

But jurors must be dealt with, and more importantly, with how they come to the decisions they make. For the better you can determine or discern what impacts those decisions, the more likely you are to succeed at trial.

This is where intense, targeted use of the pre-trial focus group can be especially valuable. Instead of letting focus group “jurors” elect a foreperson and talk over each other to arrive at a consensual decision, use a facilitator to ask probing questions of each and every juror, to analyze how each juror arrives at their various conclusions, and to observe how group dynamics affect those conclusions. In addition, a facilitator can keep track of each juror’s opinion, which in turn is highly useful for jury selection.

Truly, in this as in many aspects of litigation, knowledge is power.

Tuesday, October 1, 2019

Help Witnesses Deal With The Lie

 What frequently occurs as you prepare your witness (usually the client) for deposition or trial, is a resounding “That’s a lie!” to your best attempt to replicate what will be opposing counsel’s “Isn’t it true…” questions.

For all that it may be highly satisfying for said witness to roar “Lie!” it is not good juror strategy. Jurors are best persuaded when they come to the “Lie” conclusion on their own. Encourage your witness to respond to what they consider a “lie” with phrases such as “That is incorrect,” or “That’s not correct,” or “That’s not how I experienced it,” or some such.

Reassure your witness that at trial, the “lies” will be revealed for the jurors, for example through a “Chart of Inconsistencies.” As defense, for instance, you could bullet on a chart what the plaintiff told Dr. A, the different story he told Dr. B, and the yet more different tale he told at deposition. Or as plaintiff, you could bullet on a chart what defendant told the police, what was discovered in emails, what she swore to in interrogatories. Such a chart alone, since it references facts, has more impact on today’s jurors than your witness’s forceful expostulation “And he lied!!” ever could.

Once your witness understands that you will not let the “lies” go undiscovered, he or she will more readily accept your recommendation of “incorrect” as a valid alternative.

Saturday, August 31, 2019

Don’t Whine! Win Juror Votes with Witness “Can Do” Attitude (Part II, Defense)

 If plaintiff’s counsel’s task is to make sure the client/witness doesn’t alienate jurors with a purely “they done me wrong” victim mentality, defense’s is different.

“Don’t whine” might be better stated “Don’t defend,” which is mightily challenging for defendants on the stand, who generally believe they are unjustly accused. Yet the defendant who argues with opposing counsel, whose testimony is a litany of “Yes, buts” and who attempts to evade plaintiff’s counsel’s most basic questions, will not find favor with jurors.

Instead, explain to your defense witnesses that during cross, at best, they will only be able to give a qualified “yes” or “no” (as in “At that time, yes” or “In that situation, no”), and at all costs must not argue with opposing counsel (“That’s not how it was, I/they. . .”).

Reassure your witness by role-playing with them how direct will go, not just by telling them “Don’t worry, I’ll unscramble all that in direct.”

The “can do” attitude for defense witnesses comes through on direct, when the witness, if and as is appropriate, educates jurors to the witness’ role, their experience, their situation. An attitude of imparting information, of sharing an experience, will gain far more sympathy with jurors than witness belligerence.