Don’t Let the Curse of Knowledge Nuke You at Trial!

 

Jurors will not find for what they don’t understand. Simple, right? Yet laying your case out in such a way that jurors readily understand its ins and outs can be more challenging than it at first appears.

You see, you may be so deeply steeped in your case, the issues of your case, the whys and wherefores of your case, that you can’t imagine what it is like not to know about them. You’ve fallen victim to the curse of your own knowledge.

Certainly, you are well aware that the jurors are uninformed as to the legal aspects of the case, but too often, you don’t tune in to how necessary it is to explain everything about your case in a way your jurors can readily and easily understand. Including whatever testimony your experts proffer.

This doesn’t mean giving excessive detail. It doesn’t mean to “talk down” to jurors, either. Jurors are no different from the folks you interact with every day, from the barista to your mechanic to your support staff. They just have different areas of expertise - in which they are far better informed than you, BTW.

Build your jurors’ confidence in their ability to come to a wise and appropriate verdict by streamlining your arguments and presenting your key evidence with stunning clarity. Wherever you can, use visuals to further clarify and explain.

If at all possible, run a focus group pre-trial of individuals similar to your jury pool. They will tell you, with unerring accuracy, exactly what persons not afflicted with the curse of your particular knowledge will understand or fail to understand.

Now you are much better prepared to win at trial!

Who Wants A Perceived Liar On The Stand? Not You!

 

People aren’t very good at detecting liars. Studies show that people’s hit rate for detecting lies (54%) is slightly above pure chance (50%), which is good news for liars, but bad news for you in the courtroom.

Why? Because people tend to pay attention to certain cues to determine if someone is lying, but these cues may mean something entirely different.

Take the “vocal immediacy” cue, for example. Vocal immediacy is the directness with which someone responds to a question. The more roundabout or vague the response, the more likely jurors will figure your witness is lying. However, your witness may simply be thinking out loud, which sounds roundabout. Or your witness may not know what to say, and rather than answer “I don’t know,” or “I don’t understand the question” may resort to a vague mulling which again, looks like lying.

Another cue is “uncooperativeness.” Jurors commonly assume that a witness being uncooperative is hiding something, or being dishonest. Yet often an uncooperative witness is one who argues with opposing counsel rather than answer the question asked, or attempts to force their view of the facts into every response, rather than let their attorney do the litigating.

Your best witness—among other things—responds directly to the question asked, and leaves the lawyering to the lawyer.

The best tool to help your witnesses get to jury-worthy credibility is to use videotaped role-play in preparing them to testify. You can’t afford to let your witnesses get away with behaviors that could be mistaken by the jurors as those of a liar.

Put “Truthiness” To Work For You At Trial

 

The value of visuals in trial work is well established, in that images emphasize and clarify testimony or evidence. However, research shows that visuals have impact in yet another way, which can be put to powerful use in the courtroom. 

Scientists in New Zealand and Canada examined what satirist Stephen Colbert calls “truthiness” – the feeling that something is true. What they discovered is that when a statement, whether true or not, is accompanied by a simply decorative photograph [i.e., one that does not reveal the validity of the claim], it is more likely to be perceived as true. People simply “feel” that the statement is more likely to be true, by virtue of the accompanying visual.

So the statement “The liquid metal inside a thermometer is magnesium” accompanied by a picture of a thermometer (which revealed nothing about the metal inside), was believed to be true far more often than the same statement not accompanied by a decorative photograph.

What does this mean for you? That even when you don’t have a visual or graphic that directly elucidates testimony/evidence you are confident is credible, it’s worth attaching a visual that in some way relates to the testimony/evidence. You thus have greater chances of engaging jurors’ feeling that the testimony is truthful, as you know it to be.

Once again, the mighty power of visuals is revealed!

Do You Like Me?

 

Likeability shouldn’t matter in the courtroom. A lawyer’s personality should be irrelevant. The facts should be paramount, the only thing jurors attend to, but jurors are persuaded by a combination of factors. Facts are but one of many.

Your likeability matters. Fortunately, this isn’t high school, and your likeability isn’t based on an indecipherable “cool factor.” Likeability is based on traits anyone can easily acquire or express. Among those traits are:

1. Politeness and civility

Jurors appreciate attorneys who are polite and civil with everyone in the courtroom, from the clerk to hostile witness to alternate juror.

2. Appropriate passion

Jurors like attorneys who show zeal for their client’s cause, without stooping to unwarranted bashing of the other side. Arguing inconsistencies, strength of evidence and the like are fine. Pointing out opposing counsel or a witness’s weaknesses is fine. Beating up on opposing counsel or a witness is not.

3. Clarity

Strange as it may seem, the attorney who provides the clearest, most to-the-point roadmap through the trial, the clearest, easiest-to-understand, succinct examination of witnesses, the clearest description of evidence, and the clearest explanation of jury instructions—is the attorney who is most liked, and will, in most cases, carry the day.

Master these three traits, and you’ll soon be the “best-liked” and “most-winning” lawyer in the courthouse.

The Enduring, Maddening CSI Effect

In my ongoing research of what jurors think and how they decide cases, I read umpteen blogs, tweets and more authored by those who have served. Even though the original “CSI” television show and its many offshoots are long past (well, mostly), the “CSI effect” is remarkably enduring. One would do well to pay more attention to it.

Simply put, the “CSI effect” is jurors’ overriding, 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 one trial, for example, jurors requested photos of a victim’s wounds and examined them minutely. Nothing novel there. However, a mechanic among the jurors categorically pronounced the wounds as from a Torx screwdriver, despite the fact that apparently no such screwdriver had been mentioned during the trial. In the absence of being given any more compelling evidence from defense, the rest of the jurors seized on the “Torx” interpretation, and what had been a stalemated jury rapidly became a unanimous plaintiff’s 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 (preferably with visuals for support) 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.

 

Can Visuals Interfere With Your Argument/Testimony?

 

Our world has become a ‘world-in-pictures’ with virtually everything translated into a visual format, or at the very least, accompanied by an icon or picture of some related sort. Given this reality, litigators have been encouraged to create visuals and graphics to support the presentation of their case, to the maximum allowed by the Court.

All this is well and good, and indeed, has been proven effective in case after case. However, which visuals, and how they are designed to be most persuasive, can be elusive.

Lawyers are often tempted to load up visuals with as much information as possible, understanding that the visual is more compelling than the spoken word. In theory, this is accurate. However, you and your witnesses still need to be heard as well as visually represented. Research shows that too much information on any given graphic can lead to “inattentional deafness.” Simply stated, the more complicated and comprehensive the visual material, the less people were able to respond to what they heard.

This is true for jurors as well. Over-complicate your visuals, and jurors will not be able to absorb what you’re saying. If your case is such that you must present an information-loaded visual, be that in still or video form, be quiet while that information is imparted visually, at least for a few moments, and then speak, preferably with the information-loaded visual out of view. 

The Power of Privacy: Juror Questionnaires

 

You would think that potential jurors, knowing full well that their written juror questionnaires will be scrutinized by the lawyers on both sides, if not also by trial consultants and other professionals, would respond to written queries the same as they do to oral voir dire. Certainly the same as jurors would respond to Your Honor at sidebar or in chambers.

Not.

Fascinating research revealed something I long suspected (and relied on) from years of jury selection experience: people feel that what is between themselves and a sheet of paper is private. Potential jurors are most honest with their true thoughts and feelings in response to jury questionnaires, to a surprising degree.

Jurors in the study failed to answer truthfully to 67% of voir dire questions, to 33% of attorney sidebar questions, to fully 50% of judge sidebar questions, and even to 20% of questions asked in chambers.

What does this mean to you? Simple. Any time it is possible to use a jury questionnaire, use it! Jury questionnaires do not need to be arduous, overwrought documents. Streamlined and written for maximum effectiveness, juror questionnaires will give you the most truthful look at how your potential jurors think and feel.

Jury questionnaires can make all the difference to winning your case.

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A Winning Case Dr. Noelle Nelson recently consulted on:

Congratulations to A. Barry Cappello, Leila Noël, Larry Conlan and David Cousineau of Cappello & Noël LLP; Lieff Cabraser LLP; Keller Rohrback LLP and Audet & Partners, for their $230,000,000 successful settlement, reached after seven years of litigation in the class action lawsuit filed by fishers, fish processors and shoreline property residents (members of two classes) against Plains All American Pipeline, after a corroded pipeline spilled an estimated 15,000 barrels of crude oil into the Pacific Ocean in 2015. The spill devastated the fishing industry and polluted coastal properties from Santa Barbara County to Los Angeles County. 

Create a Trustworthy First Impression

 

First impressions are tremendously powerful. It takes less than a minute for you or your witnesses, to establish a credible first impression with the jurors, one which, once established, will be very difficult to change or alter in any way.

Credibility is founded on trustworthiness. And those we trust display more trustworthy behaviors: more head nods, more eye contact, more smiling, more open body posture. All of these behaviors are easily accessible to any of us. For that matter, when you’re in a relaxed, comfortable situation with friends or family, you’re likely to display these very behaviors without thinking about it.

Allow yourself to present yourself to the jurors more as who you are with friends – trusting and therefore trustworthy, and encourage your witnesses to do the same. The only caveat is that smiles must be appropriate to the situation, and when in trial, the moments where it is appropriate to smile are limited.

Dr. Noelle Nelson recently consulted on:

Congratulations to Gerard T. Carmody and Lindsay Combs of Carmody MacDonald P.C. (St. Louis) for their $2,300,000 unanimous Jury Verdict in City of Brentwood, Missouri v. TMD Property I, LLC, an eminent domain case involving the taking of 6+ acres of vacant undeveloped property in highly sought-after Brentwood, Missouri.  The City’s original offer was $170,000 which increased at trial to approximately $280,000.  The property owner, represented by Carmody MacDonald, testified to a range of value between $2,150,000 and $2,300,000.  The jury unanimously awarded $2,300,000.  Several jurors were moved to tears during the reading of the verdict.  In addition to the $2.3 million verdict, TMD Property I, LLC is also due over $230,000 in interest.

 

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. 

Be Judicious With Your Words

The words you use in framing your question will encourage witnesses to think and respond differently. This can be critical to how your case unfolds. 

For example, in a study in which a group of people were asked to estimate a basketball player's height, when asked "How tall is he?" subjects answered on average, “79 inches.” When asked, "How short is he?" of the same player, subjects answered on average, “69 inches.” That’s a difference of a full ten inches - 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.

With just a bit of thought, it is surprisingly easy to make deliberate word choices that better focus witness responses -  and therefore juror perception -  to your advantage.

Making Your Employees Happy with Dr. Noelle Nelson - Transform Your Workplace Podcast

 

Companies that thrive no matter what are companies who truly appreciate their employees Successful companies create a culture where employee feedback is encouraged, rewarded, implemented, and acknowledged. In today’s business world, individual preference matters, so leaders should pay more attention to what their employees want.

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 individuals, of which three wore white shirts and three wore black shirts, passed basketballs around. The people were asked to count the number of passes made by the individuals 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.

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 led to further studies on what is known as “unintentional blindness and deafness.” 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, it is best to 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 alone. Be sure to include a visual review, using boards or other graphics, such as check charts, to sum up your interpretation of the facts.