Wednesday, December 28, 2011

The True Value of Computer Animation

Most cases don’t settle, or are very challenging to settle, and end up in trial because there are grey areas in the case - situations or testimony which can be interpreted in different ways. Computer animation is often thought of as an effective, albeit expensive, way to show events. Research tells us, however, that there is a much more compelling reason to use computer animation.

Computer animation makes your interpretation of the event or situation concrete. There is always flux, indeterminate issues within any accident or event reconstruction, which the opposing experts will argue at length. But once the jurors see and hear for themselves your version of said reconstruction, they are far more inclined to believe it. And computer animation is an easy, immediately understandable, way to present your belief of “what happened” in a way that makes it real.

That being said, the facts must be solidly incorporated into the animation. Jurors will pick at the slightest incongruence between the known facts (skid marks, length of surgical incision) and the animation, and the persuasiveness of your animation will be destroyed.

Thursday, December 1, 2011

Win the Battle of the Experts

Considerable research has been devoted to figuring out how jurors decide among competing experts, which one to believe.
Not surprisingly, jurors are suspicious of expert motives, and assume that each expert will be biased toward the side that hired the expert.
However, setting that aside, jurors then pay close attention to the disagreements between the experts, how much of the evidence each expert actually speaks to, and how what the expert says fits with the overall presentation of testimony and evidence.
All this is well and good, and reminds us of how important it is for experts to consider their opinions within the context of the entire case.
But the true demarcation, that which often makes one expert the “truth-speaker” for the jurors as opposed to another of the experts, is the plain-spokenness of an expert. Jurors appreciate straight-forward opinions and testimony.  Jurors are suspect of an expert who can only render his or her opinions in jargon or otherwise technical language that impedes juror comprehension.
Lawyers, so thoroughly steeped in the case that they hardly recognize obscure language as such (because they’ve been using it in depos, in motions, etc. for the life of the case)  don’t facilitate the process for jurors because the lawyer is just as likely to ask questions using technical terms as the expert is to respond in like manner.
Get the jurors on your side by prepping your expert to speak in juror-friendly terms.
Refresh your awareness of what jurors will and won’t understand by presenting your expert’s opinions to a focus group. Or to your 15 year old nephew. Either will let you know in no uncertain terms whether the language your expert uses is credible and convincing.

Monday, October 31, 2011

Words, words, words!

Did you know that the very words you use in framing your question will encourage witnesses to think and respond differently?

For example, in a study in which a group of people were asked to estimate a basketball player's height, the response varied. When asked "How tall is he?" those in a study answered on the average, “79 inches.” When the question posed was, "How short is he?" of the same player, subjects answered on the average, “69 inches” a difference of almost a foot!

Choose words such as "fast" when you want to suggest speed, "far" for distance, "tall" to emphasize height, and "short" to minimize it. "How fast was the car going?" suggests high speed. "At what speed was the car traveling?" suggests a more moderate speed. "How far was the intersection?" implies that the intersection was far away; "How near was the intersection?" implies the opposite.

Choose the word that presupposes your desired answer. "How long did that go on?"
denotes a situation went on a long time. "How soon was it resolved?" indicates the situation did
not go on a long time. "How many people were involved?" implies many people were involved.
"Who else was involved?" implies just a few people were involved.

It is surprisingly easy to make deliberate word choices that better focus witness responses - and therefore juror perception - to your advantage.

Thursday, September 29, 2011

Don't Let Your Jurors Miss the Gorilla in the Room

People were asked, in a classic experiment, to watch a short video in which six people-three in white shirts and three in black shirts - passed basketballs around, and to count the number of passes made by the people in white shirts. At some point, a gorilla strolled into the middle of the action, faced the camera and thumped its chest, and then left, having spent nine seconds on screen.

Although intuitively, we all think we’d see the gorilla - how could something so obvious go completely unnoticed? But the truth of the matter is that half of the people who watched the video and counted the passes missed the gorilla! It was as though the gorilla was invisible.

This research, conducted by scientists Chabris and Simons (“The Invisible Gorilla”) has led to further studies on what is known as “unintentional blindness and deafness.” They found that when we’re focused on one thing, we easily miss other, potentially very important, things.

This is why, when it comes to winning in front of a jury, I strongly recommend that you present your most important evidence/testimony both visually and auditorily. You never know which member of the jury is focused on something that renders them unintentionally deaf or blind to your critical point.

It’s also why repetition is important in a trial, and why review at time of close, matters. Don’t rely on spoken review of testimony, but include a visual review, using boards or other graphics, such as check charts, to sum up your interpretation of the facts.

Thursday, September 1, 2011

Overreach and Risk Losing the Case

Former Boston firefighter Albert Arroyo, called “the poster child for disability pension abuse” by some, was acquitted recently, much to the consternation of many, for the firefighter, while claiming work-related disability, appeared in various bodybuilding competitions. Jurors when interviewed stated that although most of them believed that Mr. Arroyo was guilty of fraud, they did not believe he was guilty of mail fraud, which was the charge put before them. The jurors concluded that since Mr. Arroyo did not mail his disability forms, but handed them in, he had no way of knowing his forms would in turn be mailed out. The jurors believed they thus had no choice, but to acquit him. They weren’t happy about it, but “we had to stick with mail fraud or nothing.”

There is a potent lesson in here for litigators: don’t over-reach! Proving mail fraud may have, if successful, gained more for prosecutors, but proving mail fraud defied common sense. And common sense is what jurors rely on.

You can’t buck common sense. The easiest, quickest way to find out if the charges or representations of negligence and causation you want to put before a jury will hold up, is to conduct a focus group. As long as your focus group is made up of a sufficient number of persons demographically representative of your jury pool, its members will tell you, in no uncertain terms, what they will “buy” and what they won’t. I guarantee, common sense will win out every time. Go look for it among your potential decision-makers. Do not assume that your version of what will fly, is the common one.

Tuesday, August 2, 2011

The Lingering Impact of Misinformation

In trial, it’s often tempting to dismiss an aspect of opposing counsel’s theory as insignificant, or too “out there” for jurors to adopt, and offer little in the way of an alternative theory. This is not a wise choice.

Results of a recent study published in Scientific American (“Lingering Lies” July 18, 2011) show how despite the correction of misinformation, people tend to retain misinformation. Subjects in the study were told first that an accident involved a busload of elderly individuals. One group of subjects was told that was incorrect, but not given an alternative version of who was on the bus. Another group was later told that the accident actually involved a college hockey team. The group who was given an alternate version was less susceptible to responding to questions according to the original “misinformed” version, yet even they agreed with certain statements such as “the passengers found it difficult to exit the bus because they were frail.”

Misinformation tends to linger in memory following the rule of precedence: what’s learned first tends to stick with us longer. So in the face of a theory, or expert witness testimony, or other evidence that you consider “misinformation,” counter it boldly and with as much visual assistance (graphics, video, PowerPoint slides) as you can. Make sure that what sticks in memory is your interpretation of the case, not opposing counsel’s.

Wednesday, June 29, 2011

Visuals – Cut to the Chase

The importance of visuals in presenting your case to the jury is well known, and increasingly trumpeted, as ours becomes a society of glowing screens, large and small. As you decide which visuals, what part of the story they are to tell, and how best to design your visuals accordingly, one aspect is often missed: pace.
It’s easy to forget pace in your ardent desire to communicate as much as you can with the assist of visuals. But here’s the thing: look at any primetime dramatic TV show, and you’ll quickly realize that images succeed each other at lightening speed until a dramatic moment requires everything to slow down, so the audience can absorb this critical sequence. Then the pace picks up again.

So too with your visuals. Cut to the chase. Make your visuals easy to see, uncluttered, highlighting one important fact or bit of testimony, so that the jurors aren’t hunting through your visual for that important fact, having to parse through lots of relatively less important items. The pace of presenting such clear visuals can be quick, because that’s what jurors are used to from the media. Then, when you hit that one piece of evidence critical to your case, you can slow down and take your time with it.

The jurors, having not been bored or confused with your set-up or establishing visuals, will be better able and willing to give their full attention to the crux of your case.

Wednesday, June 1, 2011

Juror’s Search for Understanding Bumps Her Off Panel

Recently, a juror in the Ronald Woodard murder trial was removed from the panel after she brought to court a glossary of legal terms she found online. Throughout the trial Jackson County Circuit Judge John McBain had cautioned jurors not to research or read anything in relation to the case, not even to look up a term in the dictionary.

What is wrong with this picture? Why should the juror be penalized for something that is essentially the lawyers' failing – for whatever reason – to do their job in regards to the jurors? Perhaps the lawyers indeed defined their terms adequately in this case, and the juror was being compulsive, but in truth, I have found repeatedly that lawyers forget how much of their communication is legalese, and how many words have a different meaning in ordinary conversation.

Take negligence, for example. To many lay persons, being negligent has an aspect of deliberateness about it. You know you should put your seat belt on, but you don’t, you’re negligent. So if the surgeon didn’t mean to leave the sponge in the person, it’s probably not negligence. Another example: Lawyers refer to memorializing things. To a lay person, that often means some kind of memorial was created, like a statue or special edict. To opine is frequently confused with “to pine” as in “lament.” I could go on . . .

Bottom line: define your terms, use words your fifteen year old can easily understand and use in a sentence. The jurors will not only thank you for it, they’re more likely to favor your interpretation of the case. After all, it’s the one they understood.

Monday, May 2, 2011

Be Good to Your Jurors: Connect the Dots!

Recently, the foreman of the Blagojevich trial jury, critiqued the U.S. attorneys in the following manner:

“They didn’t impress upon the jury the importance of the different counts and how they related to the six schemes that Rod Blagojevich was charged with. And as a consequence when we went into the deliberation room we were very confused. We didn’t know how to start…it was days before we found the indictment. We didn’t even know that the indictment was in the evidence carts. Once we found that we were elated.” (Chicago Tonight TV show)

The foreperson’s assessment reflects a disturbing comment I hear repeatedly in jury debriefings and in focus groups: the attorneys do not connect their points or evidence to the specifics of the complaint. Furthermore, attorneys rarely fully explain the jury instructions to the jury, tying in those instructions to the attorney’s interpretation of the case.

This leaves jurors in the distress commented on above. They are confused, perturbed, and unable to think in a reasonable manner about the case.

Be good to your jurors. Always make the connection for them, in obvious, preferably visual ways, between the evidence and testimony, and the complaint/cross-complaint. Do the same with the jury instructions.

Experience shows time and again, that the attorney who presents his or her case the most clearly, all else being roughly equal, is the most likely to succeed.

Saturday, April 2, 2011

Will Juror Empathy Help or Hurt Your Case?

Delving into the group affiliation tendencies and reading habits of your jurors can give you valuable clues to whether or not a juror will be empathic, meaning able or willing to help others in need.

We’ve usually taken this to mean that the nature of the groups people join, and the material they read, are good indicators of how jurors will assess facts. Persons joining a law-and-order type group are more likely to be defense oriented, persons volunteering at a handicapped facility more likely to be swayed by plaintiff, and certainly that still holds true.

However, what researchers at the University of Iowa have found, is that the mere fact of belonging to groups of whatever ilk, is more likely to be connected to concern for others. Persons who are socially isolated tend to be less generous towards others.

The same appears to be true of reading. Just the fact of reading seems to be connected to one’s empathy. A line of research, conducted at York University in Toronto, has shown that persons who read little may be less empathic, and, more specifically, that persons who read less fiction report themselves to be less empathic.

As always, the types of jurors you want to include/exclude depends on your case. The more you know about what goes into decision-making, for example, empathy or the lack thereof, the more likely you are to choose appropriate jurors.

Tuesday, March 1, 2011

Motivate Jurors Positively, Not Just Negatively

It used to be thought that by activating dire consequences in jurors’ minds, jurors would rush to fix or avoid consequences. This has held true whether one is plaintiff justifying huge damages, or defense arguing “Don’t hold us responsible for the other guy’s doing.” And, certainly, threats to life, limb or pocketbook attract our attention.

Television ads and commercials point constantly to just how prevalent such thinking is, and marketing research has conducted study after study that justifies the “Get ‘em scared and they’ll come running” position.

However, more recent studies (O'Keefe & Jensen, in press) show that “gain-framed” appeals, or appeals that encourage people to positive benefits, have a slight persuasive edge over “loss-framed” appeals. O’Keefe and Jensen suggest that it might be because we don’t like being bullied or threatened into behavior.

When it comes to trial practice, use both. Show jurors the dire consequences, yes, but also give them a positive theme with which to uplift. Help jurors see how their decision will accomplish a higher good, something that benefits the larger population, or their community, or improve a system. Something that motivates jurors to feel good about their decision, not just terrified into it.

Monday, January 31, 2011

The Power Sit – Science Matches Experience

In working with witnesses, I developed the “Power Sit” – my shorthand for “Please sit up straight, your back against the back of the chair, with your head level, arms on the arms of the chair,” because experience showed me that witnesses who sat this way, demonstrating good posture, were deemed more credible by jurors.

Now, a study reported recently by The Economist (Jan 13, 2011) reveals that good posture has even greater impact. The psychologists who conducted the study concluded that “Those who walk around with their heads held high not only get the respect of others, they seem also to respect themselves.”

The significance of this for trial work is two-fold:
- The “Power Sit” bolsters your witnesses’ self-confidence and self-esteem, a consequence of self-respect. Your witnesses are more likely to give credible testimony because they feel better about themselves.
- Your witnesses are more likely to be perceived by jurors as credible and persuasive, because those who maintain good posture are considered worthy of respect.

When you apply the same information to your own behavior, with just a little attention to your posture, both when sitting at counsel table and when standing at the podium or in the well, you can be a more powerful and convincing litigator.

And you’ll feel that much better about yourself, to boot.