To Win: Honor Jurors’ Search for Understanding

 

Jurors are told by the Judge not to research anything having to do with the trial, which is fine--except when a juror finds themselves bumped off the panel by a Judge for daring to look up a legal term in the dictionary. Which has happened, probably more than once.

What is wrong with this picture? Why should a 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 laypersons, being negligent has an aspect of deliberateness about it. You know you should put your seat belt on, but if 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 layperson, that often means some kind of memorial was created, like a statue or special day. To opine is frequently confused with “to pine” as in “lament.” I could go on . . .

Bottom line: define your terms in words a fifteen-year-old can easily understand and use in a sentence. Believe me, a fifteen-year-old is plenty smart enough, they just don’t have the world and life experience you do. Just like the jurors. Not only will the jurors thank you for using terms defined according to common parlance, they’re more likely to favor your interpretation of the case. After all, it’s the case they understood.

Be Good to Your Jurors: Connect the Dots

 

A disturbing comment I hear repeatedly in jury debriefings and focus groups is that 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, and worse – fail to tie in those instructions to the attorney’s interpretation of the case.

This leaves jurors in the lurch. They start deliberations with no anchor, nothing to help ground them. They hardly know how to start. 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.

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 the plaintiff, and certainly, that still holds true.

However, studies show 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. 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 depend 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. 

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 “They’re the bad guy, not us. Don’t let them get away with it.” And, certainly, threats to life, limb or pocketbook attract our attention. TV 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 show that “gain-framed” appeals, or appeals that encourage people to positive benefits, have a slight persuasive edge over “loss-framed” appeals. The researchers suggest that it might be because we don’t like being bullied or threatened into behavior.

When it comes to trial practice, use both. Whether you are plaintiff or defense, show jurors the consequences of their verdict, and 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.

The Power Sit

 

Now that we are back in the courtroom as opposed to our above-the-waist-only position on Zoom, our witnesses/experts’ body language is once again relevant.

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 sit this way, demonstrating good posture, are deemed more credible by jurors.

How does this work?

         - 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 in our society, those who maintain good posture are considered worthy of respect.

It then stands to reason, that with just a little attention to your own posture, whether sitting at counsel table, standing at the podium or in the well, you can be an even more powerful and convincing litigator. Every little bit helps when it comes to winning your case.

Post-Pandemic Jurors’ Mixed Feelings About Corporations

 

As we slowly come out of the pandemic, albeit in fits and starts, juror attitudes have understandably shifted in these difficult and trying times. It is inevitable that among your jurors there will be those who are recently unemployed, some for the first time in their work-lives, along with others who have lost savings, homes, opportunities, even careers.

 

This has corporate defendants obviously concerned, for if corporations have often fared poorly in jurors’ eyes, many are doing even worse now. However, this is hardly the time for plaintiff’s counsel to cry “Huzzah,” for along with the public’s disdain for corporate greed and malfeasance, comes jurors’ disapproval of any case that smacks of the frivolous or the not “truly madly deeply” justified. Especially if plaintiff’s win could mean a cut in jobs for employees.

 

At least some of the jurors in any given panel understand the consequence of large awards. Don’t forget that among today’s unemployed are many who were in the white-collar strata of the workforce, and that these unemployed are able to educate their less-informed fellow jurors on the realities of what happens to employees, their jobs, wages and benefits, when corporations are hit with huge verdicts.

 

Whether representing plaintiff or defendant, keep in mind the current composition of your jury pool and current juror attitudes. This will go far in helping you win your case.

The Nuisance of Jurors

 

Now that we’re slowly coming out of the pandemic with its restrictions, trials are resuming. With that, jurors are once again entering your world. Darn.

Trials would be so much easier if you didn’t have to deal with jurors. Jurors wander off mentally during your most critical testimony. They are distracted by the need to scratch an itch, or by a lawyer’s mannerisms. Jurors are irritated by an expert’s vocal tone, they disapprove of a witness’s attitude. Jurors misunderstand the law and all too often make it up as they go along. Jurors impose their own version of what’s right or wrong, ignoring to a distressing degree the jury instructions, regardless of the judge’s admonitions. Jurors deliberate as a group, which introduces the whole notion of group dynamics, complicating the matter further. And that’s but the tip of the juror iceberg . . .

But jurors must be dealt with, and more importantly, you must deal with how they come to the decisions they make. For the better you can determine or discern what impacts those decisions, the more likely you are to succeed at trial.

This is where intense, targeted use of the pre-trial focus group can be especially valuable. Instead of letting focus group “jurors” elect a foreperson and talk over each other to arrive at a consensual decision, have a facilitator ask probing questions of each and every juror, to analyze how each juror arrives at their various conclusions, as well as observe how group dynamics affect those conclusions.

Knowledge is power.

How to Expose Witness Lies Effectively

 

As much as jurors resent a witness who lies, you must have inconvertible evidence that someone is out and out lying in order to even suggest it.

Even then, it’s best to let the jurors come to the conclusion that a witness is lying on their own. People are persuaded by their own reasoning far more than by your proffered statements. Use words such as “incorrect” “inaccurate” “not forthcoming” to describe a witness’s testimony as opposed to “lying” or “untruthful.” Let the jurors attach the word “lie” to the testimony – as they will, if your presentation of the witness’s falsehood is effective.

One of the most effective ways to help the jurors get there, is to use the tried-and-true  “Chart of Inconsistencies.” As defense, for example, you could bullet on a chart what the plaintiff told Dr. A, the different story he told Dr. B, and the yet more different tale he told at deposition. Or as plaintiff, you could bullet on a chart what defendant told the police, what was discovered in emails, what she swore to in interrogatories. Such a chart alone, since it references facts, has more impact on today’s jurors than your forceful “And he lied!!” ever could.

Tell Your Story with Timelines

 

Now that we are coming out of the pandemic and going back into the courtroom, it’s wise to start considering how best to persuade jurors.

An obvious point: the more complex the case, the more important it is that you simplify and clarify events and circumstances for the jurors. A timeline is one of the most effective ways to organize facts in a way that makes them relevant to jurors. We are used to stories being presented chronologically. The chronology alone often will tell the story. Use a timeline, or several, whenever possible. 

Timelines, whether on a board or projected onto a screen, should be presented with time on the horizontal axis whenever possible. It demonstrates the movement of time from left to right, a progression jurors are very familiar with. When presented with a timeline depicting time on a vertical axis, often favored by attorneys, jurors can be too easily confused.

A horizontal timeline also allows you to show events above and below the line representing time, be that in minutes, days or years. This is a very effective way to organize information. You can, for example, show the evidence that directly favors your case in “flags” above the date line, and show the inconsistencies in opposing counsel’s case in the flags below the date line. For example, as defense, you can contrast plaintiff’s stated behavior at points in time on the above the line flags, with the contradictory medical reports on the below the line flags. 

Timelines of any kind should be used creatively, not just as markers in time, but as ways to tell your story more persuasively.

The Lingering Impact of Misinformation

 

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

Results of a study published in Scientific American 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 told that the accident actually involved a college hockey team. 

The group given an alternate version (“hockey team”) was less susceptible to responding with the original “misinformed” version (“elderly individuals”), yet even they agreed with certain statements such as “the passengers found it difficult to exit the bus because they were frail.” How can this be? Shouldn’t logic prevail? 

One wishes. Unfortunately, misinformation tends to linger in memory following the rule of precedence: what’s learned first tends to stick with us longer. So it is critical that you counter any theory, or expert witness testimony, or other evidence that you consider “misinformation,” 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.