Harness Jurors’ Wandering Minds: New Science

New research from Harvard University psychologists (Matthew A. Killingsworth & Daniel T. Gilbert) shows that people spend 46.9% of their waking hours “wandering”--thinking about what isn’t going on around them, what happened in the past, what might happen in the future or never at all. Which wouldn’t be such a big deal, except that, as the scientists put it: “A wandering mind is an unhappy mind.” People aren’t happy about what they’re thinking about during their “wandering” times.

How is this relevant to your trial practice? Well, if you aren’t keeping your jurors’ minds engaged, those minds are wandering. The likelihood of their attributing the unhappiness their wandering conjures up to your less-than-compelling presentation rather than their own meanderings, is high. Unhappy people don’t tend to favor those who make them unhappy! There goes your successful case...

All the more reason to do your level best to make your courtroom time count. Get to the point, be succinct, develop hard-hitting bullets and emotional catch-phrases. Use visuals of all kinds – models, boards, animations, power-point (the complex type, not just words on a slide) – and anything else your graphics support staff can dream up. Use focus groups to help you nail what matters to jurors and hone in on that.

The more you keep the jurors’ minds on your track, the less they are inclined to wander, the greater your chances of success.

The Great Recession and Your Jury

A recent Pew Center Research Publication (September 24, 2010) brought to light how the Great Recession has had significantly different impact on two roughly equal halves of the American population. 55% experienced considerable hardship, including unemployment, missed mortgages or rent payments, and other such financial downturns. 45% however rode out the recession with much less difficulty, experiencing only minor hardship. This is potentially very useful information for jury selection.

Among the key findings (bearing in mind these are generalities, not absolutes):
- about seven-in-ten retirees and other older adults largely held their own during the recession
- however, seven-in-ten millennials (20-somethings) experienced the reverse, lots of hardship
- suburban and rural dwellers had a less rough go of it than city dwellers
- a college degree matters: about six-in-ten college graduates count themselves among the 45% who experienced fewer difficulties during the recession, compared to only 38% of those whose educational attainment was a high school diploma or less.

Be aware of these findings as you go about selecting your jurors. For example, a 20-something with a college degree who experienced many financial difficulties may be more sour and ungenerous than most of your college-educated individuals who typically have not faced as many hardships. A non-college educated retiree who held his or her own with relative ease may be financially cautious (as is often true for older jurors), but not dour or completely closed off to large awards.

Handling the Angry Witness

You’re gearing up for trial, you hardly have the time or patience to deal with an angry witness. Yet there you are, in the unenviable position of having to prepare a witness who is angry for any number of reasons:

- The witness is a client, angry that this matter couldn’t be settled or that it even is in litigation at all.
- The witness is furious at being “required” to testify.
- The witness has healed or substantially recovered from the incidents at issue and resents having to deal with “it” all over again.

Whatever the witness’s reason, he or she is mad! And only too happy to tell you all about just how aggravated and upset they are. You try to get down to the business of prep with “OK, but we’ve got to focus on preparing you for your testimony,” which is labored, halting and difficult at best.

There is a more effective way. People in highly charged emotional states need FIRST to have their emotions thoroughly acknowledged, in order to clear their minds and hearts sufficiently to think rationally.

Start by reflecting your witness’s emotions: “It is frustrating to have to go through this again.” Let them respond with another emotional salvo, and follow that with something like “This has been really hard on you.” By now, the witness will have calmed down some, because you’re not resisting their emotion, you’re acknowledging it. Notice how the acknowledgement is done in third person, non-inflammatory terms. Once you sense that the witness is less angry, you’re ready to open the prep session with the use of the word “and.” “And that’s why we’re here today—to prepare you so the jurors can understand your perspective.”

More than anything, emotionally wrought people want just one thing – to be genuinely heard.

Not A Passive Jury Anymore

Sitting sedately in the jury box, jurors appear to be a captive, passive audience, receptive to the lawyers’ and witnesses’ every utterance. Would it were so. Jurors are hardly passive these days. They are informed and have opinion on a broad range of matters, even if mostly at a superficial “news caption” level.

After all, most jurors have access to and use--some obsessively--every social networking platform available, to speak to each other. They refer to blogs, media outlets, and other venues to converse, compare and discuss everything from the latest sports-figure scandal to the effectiveness of our overseas troops to the political impact of Ms. Palin’s eye-roll. It is a mistake to believe this is a habit exercised only by the young. Every age group now twitters, facebooks and blogs, with the possible exception of the very elderly. Notice, I say “possible.”

Juror patience with the often excruciating minutiae of evidence is poor. They get their information and communicate in micro-bites. The one complaint I hear over and over in jury debriefings is “Get to the point!” Jurors are willing to pay attention to and attempt to understand the evidence that supports your point – once you get there. Too often, a lawyer will lay out such a meticulous foundation that by the time the lawyer gets to the reason for all that effort, the jurors don’t care. Certainly, foundation must be laid, but whenever possible, start with an “umbrella sentence” that clues the jurors in to your point, so they are oriented, and therefore patient, with what follows.

The Changing Face of Jury Pools

The Superior Courts in Riverside and Murrieta have childcare available for jurors. They accept children three years and older, who are potty trained. A quick internet search of California Superior Courts shows three other locations offering pretty much the same service: Redwood City, Compton & Fresno.

Although there are too few Courts offering childcare for this to impact all jury pools, it is a trend which could very well develop quickly. Courts need more willing jurors, and this is an intelligent approach to the problem. After all, significant segments of the population are regularly excused from trials due to childcare obligations. We’re not just talking about young Moms, but also fathers who are taking over childcare for working Moms, single and/or gay Dads, and the traditional grandmothers and aunts who provide such services for family.

Jurors with young children have a different order of concerns, and often a different lifestyle (sleep deprived, exist in a child-centric universe). Depending on your case, introducing these jurors into the mix means looking at your case also through these jurors’ eyes, something you may not have had to do heretofore.

How to Translate the Expert’s Opinions into Expert Testimony

An expert I recently worked with was brilliant, no doubt. His credentials were superb, his authority on the matter in question, well, unquestioned. But his ability to communicate his expertise in a way any lay person (juror) could understand was awful. His deposition was larded with phrases such as: “The administration let other departments in the facility seize the initiative with a consequent fragmentation of the support for educational technologies offered to staff.”

Now to say to such an expert “speak in plain English” would seem a common sense approach to preparing him for Court testimony. The problem is, the expert thinks he is speaking in plain English, and that any idiot should easily be able to understand him.

Arguing the point with the expert is a waste of time. Instead, help your expert by asking a series of questions derived from his or her statement, such as: “What did the support for educational technologies consist of?” Hopefully, the answer will be something like “Classes or seminars teaching the technologies” and if it hasn’t been explained already, then ask something simple like “What are the educational technologies you refer to?” Disregard the expert’s condescending glare, since his “Orthopedic charting software 101” is information the jurors can relate to far more easily than “educational technologies.” It’s also something you can put up visually on a chart, with icons that personalize and make real “Orthopedic charting software.”

As tedious as it may feel, go through your expert’s key points in this manner as you prepare him or her for testimony. You’ll now have a much more effective direct, and have given your expert tools for being convincing on cross, which the expert otherwise would sorely lack.

How to Appeal to Silent Generation Jurors

Because we are living longer, and living for the most part healthier as we age, you may find a surprising number of “Silent Generation” jurors on your panel. These are individuals who were born roughly between 1925 and 1945. They are Baby Boomer and Generation X parents, whose grandchildren, typically, are Millenials.

How is this information relevant to your success? Members of the Silent Generation are likely to be relatively silent during voir dire, and you may have little opportunity to find out what matters to them. Yet this is a generation for whom a great deal matters, and you need to know what.

The Silent Generation is a generation of helpers. Their greatest contribution to our society was to humanize their world: this is the generation that produced the great Civil Rights Leaders and almost every leader of the Women’s Movement. What do they want now? To help ensure a safe world for their beloved grandchildren. And they do listen to those grandchildren. After all, Millenials too are community minded and seek to make a difference.

Take into account, as you develop your case themes, what matters to the generations on your panel. You will have far more juror-appeal and persuasiveness.

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 question, 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 their role, their experience, their situation. An attitude of imparting information, of sharing an experience, will gain far more sympathy with jurors than witness belligerence.

Stop Whining! Win Juror Votes with Witness “Can Do” Attitude (Part I, Plaintiff)

Your key witness is usually your client, or your client’s representative. If plaintiff, the witness is likely to complain, a litany of “He/she/they done me wrong.” Perfectly understandable, why else would your client be there in the first place! However, to juror ears, an unending stream of complaints sounds like whining, and jurors don’t like whiners.

What they like are people who, despite their misfortunes, are valiant, are giving it the best shot they can. This doesn’t mean your plaintiff client stiff-upper-lips it to where through gritted teeth/wired jaw they maintain “All is well,” but rather that you make sure, during direct, that you expose the ways in which your client is doing the very best that they can to survive/heal/improve things despite horrendous odds.

Now you have a potential winner in juror eyes, not a loser-whiner.

Not “The Other Side Of The Story,” The Other Story

It doesn’t matter which side you represent, you must tell a story. For the plaintiff side, this is obvious: there’s a wrong to be righted, and it always has a story. For the defense side, this is equally true, though not always acknowledged.

You see, it’s not about “the other side of the story,” for that places the control back in the plaintiff’s hands. The plaintiff still defines the terms of the game, the boundaries of play. It’s about “the other story” where the defense presents an entirely different scenario for jurors to experience. Now the playing field is level. Jurors can choose to be convinced by one story or the other.

The truism “the best defense is a good offense” holds. Instead of defending, defense now speaks to the plaintiff’s claims by showing how they fit as legitimate, “good” pieces within the defense’s “story.” For example, with a med mal case, the defense could include as part of its story how the doctor's procedure/process is highly regarded - the best possible and safest course given the patient’s condition. Or how that doctor trusts, relies on, and has seen excellent results from the procedure/process, what diagnostics were used to validate the doctor's choice, the doctor's well-thought out decision-making process (“decision tree”), as well as how the plaintiff neglected the doctor's instructions. And of course, the alternate causes for the plaintiff’s current condition.

As laborious as the above may seem, giving the jurors a rich and many-pronged defense story, as opposed to simply defending against specific claims, will greatly increase your chances of a winning case.

How to Help Jurors Discredit the Lay Witness in Cross

We all cooperate more willingly with decisions we’ve had a hand in making. Jurors in trial are no different. Ask your questions in cross-examination in a way that allows the jurors to arrive at the unmistakable, inescapable, conclusion you want them to, rather than force the conclusion down their throats or risking a sympathetic answer from defense’s witness.

For example: The lawyer is cross-examining a lay witness at the scene of a bus-pedestrian accident. The lawyer represents the pedestrian.

Question: Ms. Smith, did you see the bus as it came towards the intersection of First and Main shortly before the accident?
Answer: Yes, I did.
Question: Could you tell us what the color of the light was for the bus as it came down First?
Answer: It was green, a green light.
Question: Really? Isn’t it true that when you spoke to the police officer shortly after the accident you said the light was red?
Answer: Oh, well, I’m sorry, I’m a little nervous. I’m sure the police officer report is right.

Well, at this point, the jurors may very well believe the witness, since she’s being humble and apologetic and who isn’t nervous in court? The lawyer meanwhile has lost the opportunity to show the jurors that the case isn’t as cut and dried as defense would have them believe.

A more effective way to approach this might be:
Question: Could you tell us what the color the light was for the bus as it came down First?
Answer: It was green, a green light.
Question: Ms. Smith, did you talk with a police officer right there at the scene, just after the accident?
Answer: Yes, I did.
Question: And did that police officer ask you what color the light was for the bus as it came down First?
Answer: Yes, I think he did.

Rather than pounce on the witness at this point and give her the opportunity to sympathetically correct herself, the lawyer could produce the police report and show (visuals work!) the portion where Ms. Smith unequivocally said “The light was red,” and simply end his cross on that note.

The jurors can now come to their own conclusion that Ms. Smith is, for whatever reason, being less than truthful, and are now much more likely to accept the police report as stated, which was exactly what the lawyer wanted them to do.