Monday, December 1, 2014

The Juror-Engaging Power of Story: Beyond the Individual

Research has demonstrated repeatedly the power of story-telling. Indeed, it's easy for most attorneys to tell the story of their injured client or the malfunction of a product. Stories of individuals, plaintiff or defense, are also fairly easy to summon. But when it comes to businesses, companies or corporations, lawyers too often forget the power of story, and give but the driest of facts.

Yet it is story that will engage the jurors, story that will enable them to relate to your corporate/business client, story that will give them points of identification to their own lives, to their experience.

I remember waiting in a corporate reception area for the attorney and client I was to work with that day. All around the walls were photographs, plaques, and other corporate memorabilia. When I asked the attorney and client for the story of the corporation, as opposed to the facts of its incorporation, they were at a loss. So I told them the story, as I had gleaned it from all that was portrayed in the reception area. Both were amazed that I could weave a story from so little. But it wasn't so little! Those photographs and plaques gave the heart of the corporation, its community involvement, the background on why it was founded in the first place.

There was more, of course, but my telling primed the pump.

Don't let your business or corporate clients be story-less entities. There is a story behind every venture, and that's how you engage juror sympathy. Look for the story, mine for it, it is well worth the effort.

Friday, October 31, 2014

Men and Women Are Different: Choose Gender-Friendly Words in Formulating Voir Dire

Men and women are different. No big surprise there. They think differently. Still no big surprise. So it should come as no surprise that men and women respond differently when asked a voir dire question in the same way. But this isn’t a thought that occurs to attorneys most of the time; they ask questions of prospective jurors as if gender didn’t matter.

Gender matters!

Ask a male juror how he feels about something, and he’s likely to say “I dunno” or “Not much one way or the other.” Ask a male juror what his opinion is on the same matter, and he’ll usually expound with gusto. He will tell you more about himself by the opinions he stands firm on, and those he’s middling about or indifferent to, than just about any other indicator (except occupation).

Ask a female juror how she feels about an issue, and she’s likely to be verbose. She knows exactly how she feels about everything and is usually willing to share. Ask a female juror her opinion and you might not get much of anything. For the most part, “opinion” is for female jurors what “feelings” are for male jurors.

Word choice matters! Certainly the above is a generalization, and some women hold strong opinions, formulated as such, and some men are frank about their feelings. When it comes to voir dire, however, start by using the word that generally elicits the most informative response from the gender you are addressing. You can always make a different choice as you observe the response you get.

And oh, by the way, “What has your experience been with XYZ?” tends to be gender-neutral, in that both male and female jurors tend to be equally forthcoming when asked about their experience or lack thereof.

Tuesday, October 14, 2014

Tuesday, September 30, 2014

The Eyes Have It: Does Your Witness Know How to Look at Jurors?

Telling your witness to look at the jurors during their testimony without teaching them how to do so can be fatal to your case. 

A scared, anxious witness may only dare a quick terrified glance mid-sentence at the jurors, which confirms in the jurors’ minds that yup, this witness is surely hiding something. So much for the witness’s credibility.

Or a witness may attempt to “duke it out” during cross by glaring at the jurors during his or her response, rather than focusing on opposing counsel. This does not benefit your case.

Help your witness look at the jury in a way that enhances their credibility even as it satisfies jurors’ need to see the witness’s eyes to determine veracity.  Which as many of us will remember, is why our mothers would say; “Look me in the eyes when you’re talking to me!”

During direct, suggest that your witness, when they have a response of a couple of sentences or more, to begin their answer by looking at you, to then turn out to the jurors and look at different jurors during the bulk of their response, to conclude their response by turning back to you during the last few words. If the witness can angle their body very slightly towards the jury box, then turning out towards the jurors is smoother. All this sounds easy, and certainly becomes easy, but only with practice.

I have found videorecorded role-play to be the most effective way to help witnesses get comfortable with turning out to the jurors. It’s best to do during direct, because during cross, the witness will rarely be given an opportunity to respond with more than a few words, and focusing on opposing counsel is their primary responsibility at that point.

“Look at the jurors,” yes, is a critical and essential instruction, but how it is done can make all the difference to your case.