Saturday, June 29, 2019

Understand Jurors’ Desire to Improve Things

Faced with a number of options as jurors are when deliberating a verdict, people will often make decisions by translating each option into how they would feel emotionally about the anticipated outcome. The option that yields the most preferred emotional outcome is more likely to be chosen.

For example, improving safety is both a practical and moral action. Any verdict that encourages companies to improve safety feels good. The thinking goes roughly like this: “If we can’t make them care about safety because it’s the right thing to do, maybe we can make them care about safety because it’s the more profitable thing to do.” Being virtuous, on the side of what is right for the common or greater good, makes it easier for jurors to justify huge verdicts. People can feel good about themselves making such a decision.

Plaintiff’s counsel can use the above to help get the desired outcome. Defense counsel can use an understanding of the above to considerably weaken such an argument by pointing out all through the case the many ways in which the company already attends to safety.

There are, after all, two sides to every coin.

I recently had the pleasure of being interviewed on "Legal Talk Network," produced by the State Bar of Michigan. The subject was connecting with your clients. Here's the interview link:

Friday, May 31, 2019

The Advantage You Need to Win Your Case

Most lawyers, when they prepare witnesses to testify, are understandably focused on the key substantive issues. They want to make sure the witness remembers important points. Great! But in so doing, lawyers often rely on their prepared questions, leaving little or no room for information not elicited by the lawyer’s direct questions.

As I prepare witnesses to testify, they disclose unexpected information that I then present to the lawyer--often to his/her surprise. Frequently this information has significant impact, either because it is helpful to a winning argument or it permits the lawyer to defuse potentially damaging issues. My ability to get such information is not because of any great magic done by trial consultants, it’s simply the result of a client-centered witness prep approach. Such critical information is just as available to the lawyer and readily obtainable by asking client-centered open-ended questions.

You see, a witness is highly unlikely to come up spontaneously and voluntarily with all you need to know, unless prompted with an open-ended question. Why?
            1) The client may feel obligated to answer your direct question directly
            2) Your direct question may only elicit an incomplete description of the situation

Facilitate your client's giving you all the information you need by asking client-centered open-ended questions. These encourage the client to tell a story, or describe an event, feeling or situation however the client wishes. Such questions generally start with the words “what” or “how” as in; “What about X concerned you?” “How did you come to Y?” A good follow up is – always –  “Tell me more.”

Ask such questions and your client may very well give you the advantage you need to win your case.