Friday, June 29, 2012

The Enduring, Maddening CSI Effect

In my ongoing research of what jurors think and how they decide cases, I read umpteen blogs, posts and articles authored by those who have served. Recently, yet another article appeared which pointed out to me the enduring “CSI effect,” and how lawyers would do well to pay more attention to it.

Simply put, the “CSI effect” is jurors’ over-riding, sometimes obsessive, need to explore for themselves every bit of physical evidence in an attempt to come to a fair and just decision. This is true whether the case at hand is civil or criminal. Contracts are scrutinized, emails pored over and signatures examined with the same zeal as skid marks and bloodstains.

In the article referred to, jurors requested photos of the victim’s wounds and examined them minutely. A mechanic among them categorically pronounced the wounds as from a Torx screwdriver, despite the fact that apparently no such screwdriver had been mentioned during the trial. The rest of the jurors seized on this interpretation and what had been a stalemated jury with 8 finding against defendant, and 4 equally adamantly finding defendant innocent, rapidly became a unanimous “guilty” verdict.

What’s the lesson here? That it’s up to you, the attorney, to look at your evidence every which way and give a forceful, compelling, interpretation to your evidence such that it cannot be re-interpreted in some unfavorable way by a jury that examines the evidence with a keener eye than yours. Even when there is no way for you or your experts to say with conviction “Here’s the smoking gun!” offer the jurors the strongest probable interpretation that can be drawn from the evidence. Leaving the interpretation up to the jurors is taking a chance you can ill afford when you want to win.

Friday, June 1, 2012

Arrogance 101: Dump It!

Recently,  R. Allen Stanford, the onetime Caribbean banking tycoon, was found guilty of investment fraud by a jury on 13 of 14 criminal counts, and required to forfeit $330 million in assets.

What brought him down? Stanford’s fraud and greed, of course, but according to the jurors, more than anything, it was Stanford’s demeanor that convicted him, his arrogant attitude in the courtroom day after day.

Many of you are saddled with arrogant clients or witnesses, and many a time I’ve been called in to help prepare the witness for trial, because this type of witness always rubs jurors the wrong way. Yet the “fix” is remarkably simple.

Arrogance is expressed through body language, vocal tone, and patterns of response. An arrogant person’s body is often canted back, their chin tilted slightly up as if looking down their nose at others. Their tone is condescending, full of dismissive utterances and/or sarcasm. Their responses fail to take into account jurors’ different levels of education or sophistication.

All of these are easily corrected by an appeal to the arrogant individual’s desire to do well, even brilliantly (a consequence of their narcissism), along with a hefty dose of video-taped role play, none of which alter the truth or substance of their testimony one iota. It does, however, alter your witness’s presentation of said truth on the stand, such that jurors can perceive beyond your witness’s arrogance to what’s important: the substance of their testimony.