Do You Like Me?

 

Likeability shouldn’t matter in the courtroom. A lawyer’s personality should be irrelevant. The facts should be paramount; they should be the only thing jurors pay attention to. Would that be nice if it were true? The jurors on any one of your jury panels are persuaded by a combination of factors. Facts are but one of many.

Yes, your likability matters. Fortunately, this isn’t high school, and your likability 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 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 and the strength of evidence are fine. Pointing out opposing counsel or a witness’s weaknesses is fine. Beating up on opposing counsel or 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 easiest-to-understand, succinct examination of witnesses, description of evidence and 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 am once again reminded of the enduring “CSI effect,” and how lawyers 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 is civil or criminal. Contracts are scrutinized, emails pored over and signatures examined with the same zeal as skid marks and bloodstains.

What’s the lesson here? It’s up to you, the attorney, to look at your evidence every which way and give a forceful, compelling, interpretation to your evidence so it cannot be re-interpreted in some unfavorable way by a jury that examines the evidence with a keener eye than yours. Use visuals of all kinds, videos, graphics, charts, and mock-ups where appropriate, to emphasize and bring home your position on the evidence. 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. Too much information on any given graphic can lead to “inattentional deafness.” Simply stated, the more complicated and comprehensive the visual material, the less subjects 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 that their written juror questionnaires will be scrutinized by the lawyers on both sides and by trial consultants and other professionals, would respond to written queries the same as they do to oral voir dire. Not.

Fascinating research (Flores, 2011) revealed something I long suspected from years of trial consulting: 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, 33% of attorney sidebar questions, fully 50% of judge sidebar questions, and even to 20% of questions asked in chambers.

What does this mean to you? Simple. Whenever possible, use a jury questionnaire. 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 in winning your case.

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Flores, D.M. (2011). Methods of expanded voir dire and written questionnaires: Experimental results on juror self-disclosure and implications for trial practice. Court Call, Summer, 2011, pp. 1-6.

Persuasion 101: Seeing is Believing

 

A few years back, a Brigham City orthopedic surgeon (Dr. Dewey MacKay) claimed that the jury mistakenly convicted him of illegally prescribing medication because they neither understood the facts of the case, nor how chronic pain is managed.

Jurors interviewed at the time, however, said Dr. Mackay’s comments were misguided. The jurors were emphatic that they took every single count one by one and discussed each count in detail. Not only that, but the jurors explained that they used both the chalkboard made available to them as well as multiple sheets of paper to draw things so everything was visual for everyone.

This is not a one-time comment. This is something I hear over and over again both in focus groups and from jurors post-trial.

“So everything was visual for everyone.” That’s the key. That’s how you must be able to present your case if you are to prevail: visually. Regardless of the nature of your case: personal injury, med mal, construction defect, eminent domain, contractual dispute, intellectual property dispute, whatever, you must be able to find ways to translate testimony and facts into visual elements.

That means much more than flashing deposition or other text on the screen. Visual rendition of testimony means coming up with graphics, diagrams, and bottom line charts. It’s answering today’s jurors’ constant need to “see it” before they believe it.

When you, the lawyer, provide the jury with compelling visuals to clarify and emphasize your points, you pave the way for the deliberations to favor your interpretation of the facts. This is far better than relying on the jurors’ ability to render your points visually, for they may or may not do so accurately.

For more Winning Tips, go to https://noellenelson.com/newsletters/newsletters-a-winning-tip/.

Create a Trustworthy First Impression

 

Personal experience tells us how powerful first impressions are. Indeed, research reinforces our innate understanding of first impressions. The study suggests it takes just 20 seconds to detect whether a stranger is genetically inclined to being trustworthy, kind or compassionate. That’s 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.

What was it about the strangers that led the study subjects to figure out whether or not the stranger was trustworthy? Very simply, the “trusted” strangers displayed 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 when it is appropriate to smile are limited.

The True Value of Computer/AI Animation In Court

 

Most cases that don’t settle end up in trial because there are grey areas in the case--situations or testimony that can be interpreted in different ways. Computer/AI animation in court 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/AI animation.

Computer/AI animation makes your interpretation of the event or situation more concrete to jurors. There is always flux and 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. Computer/AI 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 out the slightest incongruence between the known facts (skid marks, length of surgical incision) and the animation. If they do, the persuasiveness of your animation will be destroyed.

 

Answer a Primordial Question for the Jurors: Who?

 

The names, acronyms and abbreviations so familiar to you are not to the jurors. You may think that saying, for example, “Acme Building Supply, which we’ll now call ABS for convenience,” is enough to warrant saying “ABS” through the rest of your trial.

But “ABS” has no guts to it, has no uniqueness, no personality. As laborious as it may be for you to repeat the full name, “Acme Building Supply” has a history. It’s associated with events and people--it has a life. “ABS” is just another bit of alphabet soup.

Be sure to use the full names of people, entities or objects throughout your trial. Avoid the use of pronouns or abbreviated references. Jurors often have trouble keeping track of who did what to whom. They will be totally lost if they must also concentrate on which "he," "she," or "it" you are now referring to.

Certainly, well-known abbreviations are acceptable, but generally speaking, abbreviations used too often only serve to confuse jurors. A confused juror is an unsympathetic juror. An unsympathetic juror is the one who could cause you to lose your case.

Explain “Why” to Make Your Case Matter to the Jurors

 

In a courtroom, it isn’t necessarily the attorney with the best facts who wins, but the attorney who best explains the relevance of those facts both to the case and to the jurors.

Certainly, you need solid evidence, but here we’re talking about what you need to do to get the edge. What, given the usual state of affairs by the time a case gets to court where both sides believe their evidence is strong enough to prevail, can you do to give you the advantage over your opponent?

Explain why. Why does your interpretation of the facts make sense? Why should the jurors care that their verdict favors your client? Why should this matter to the jurors? How does it impact their lives (work, family, children, safety, etc.), preferably in an immediate and direct way?

Explain through your experts, your lay witnesses, and most importantly, your closing argument, and of course your opening to the degree allowed.

We invest in the personal, in that which strikes home. That’s why stories have such an impact. They touch the personal. So too with explanations. Make your case matter, not just to your client, but to the jurors. 

A Mind-Boggling Social Experiment Proves the Importance of First Impressions

 

If you ever wondered just how important the jurors’ first impressions of your client and witnesses are, here’s a mind-boggling social experiment, posted on Facebook.

It shows people walking right past well-known and loved family members, not recognizing a single one of them, when the family members were dressed as homeless individuals, sitting as the homeless often do, on the sidewalk by a building.

Now, if dress and body posture can fool a daughter into not recognizing her mother, or parents into not recognizing their own children, imagine how critical the attire and body language of your client and witnesses are. The jurors can easily be misled as to the credibility and sincerity of your witnesses, strangers as they all are, at the beginning of trial.

In jury debriefings, it was found, for example, that a neurosurgeon who wore a black shirt under his expensive dark suit, was labeled “Mafia Doc” by the jurors when nothing could have been farther from the truth. A handsome thirty-year-old CPA, who persisted in running his hand through his stylish somewhat long locks, was dubbed “Player” by the jurors, and his testimony deemed suspect: “Nobody who looks like that could ever be serious.”

First impressions matter. From the moment your client/witness steps into the courtroom, all juror eyes are upon them. And jurors judge everything they see according to stereotyped definitions which unfortunately hold great power. Even as the trial unfolds, failure to attend to your witnesses’ self-presentation can mar otherwise competent testimony.

Don’t Undermine The Value of Your Focus Group

 

A focus group has many benefits, among the primary being the opinions the mock jurors offer on the case—the strengths, weaknesses, validity of themes, etc.  However, focus group jurors can only provide opinions when asked the right questions. Too often, lawyers ask focus group jurors to deliberate and discuss only the verdict questions. This is a woefully inadequate use of the focus group.

Don’t rely solely on verdict questions to elicit opinions. Develop a list of questions that target your areas of concern. Every single one. It is far better to develop too many targeted questions and have whoever is facilitating the juror discussion eliminate them as necessary than to develop too few questions and miss hearing valuable juror opinions.

If the target questions are well designed, the juror discussion will reveal the weaknesses in the lawyer's presentation of the case. Too often, lawyers will interrupt juror deliberation to respond to juror criticisms with a vigorous “Yeah, but..." defense of their position. This response entirely undermines the value of the focus group. Why should an attorney ask for mock juror opinions if the result is to tell focus group members that the lawyer is right and they are wrong?

You will gain the most by embracing criticism, looking for its benefit, and not trying to defend against it. Lawyers who dismiss the focus group's criticisms and opinions and fail to incorporate them in their trial strategy might as well not conduct a focus group at all. Lawyers who do not mind losing the focus group to win the trial are the lawyers who will profit most from the process.

Your Client, Expert and Witness E-Impressions Matter! Manage Them Well

 

What is written has more weight than what is said. Always. That is why, when something is important, we write it down. That is why, in any courtroom, jurors will believe documents over witness testimony.

Unfortunately, clients often forget this, if they even ever stopped to think about it in the first place. And the handy “delete” button on our various devices leads one to believe that whatever is written in emails or texts, or posted on social media doesn’t really exist in the same way a written document does. We now know all too well the inaccuracy of that belief.

Educate your clients, experts and lay witnesses. E-impressions are just as important as the impression your client, witness or expert makes on entering the courtroom. You need to know what e-impressions already exist, should damage control be required, and emphasize to your clients, experts and witnesses the absolute necessity of being vigilant about how they are perceived online.

The same goes for your team. They must manage their online presence with the same care they manage all other aspects of their practice.

There is nothing evanescent about virtual reality; in a certain sense, it is, or certainly can be, in perpetuity. Poster beware!

Watch Those Jurors: Body Language Outdoes the Spoken Word

 

The courtroom setting is unfamiliar to most prospective jurors as they sit with a group of strangers and are grilled by counsel during voir dire. In addition, potential jurors may respond differently depending on whether they want to be off or on a particular jury. Therefore, their responses may not entirely reflect that person's "truth."

However, an individual's body language will almost always be consistent with the person's "truth," despite what is spoken. To assess the veracity of any given prospective juror’s verbal response, pay close attention to their body language, in particular body language that conflicts with oral responses.

Watch each prospective juror's body language as they respond to questions, whether the

questions come from you, opposing counsel or the judge. For example, if prospective jurors say, “Yes, I can be fair" but their head is going side to side, signaling "No," believe their body language. Similarly, if potential jurors say, "No, I would not be prejudiced against . . . " but their head is bobbing up and down, signaling "Yes," believe their body language which is clearly saying "Yes, I would be prejudiced."

If prospective jurors say they would give damages in a certain type of case, but their arms are crossed in front of their chest, either they won't give damages, or they would award very little.

If prospective jurors say, "Yes, I can keep an open mind," but they squirm in their seats, something about keeping an open mind is making them anxious. Continue to observe

the behavior when asking the next questions. See if the squirming continues. If so, this may indicate a need to visit the restroom or anxiety about being a juror. If, however, the squirming ceases, the person's anxiety is only relevant to that particular question and can be read in that context.

Body language always outdoes the spoken word.

Help Your Witness Deliver Effective Testimony with Full Sentences

 

Rare is the witness who isn’t anxious, worried, scared--even terrified--during deposition or cross-examination. Often this leads to a rapid pace of speech. Not only that, but witnesses tend to believe that if they just blurt out their response, they’ll get this dreadful experience over with sooner.

Now, there’s nothing wrong with speaking quickly, in and of itself, but speaking quickly often means the client fails to think things through. Failing to think through a response can often lead to flawed testimony if not downright disastrous testimony. Unfortunately, simply telling a witness to “slow down, speak more slowly” may work for a response or two, but with the pressure of nerves, the witness’s pace then picks up rapidly.

One technique that works well while preparing the witness for their testimony is to encourage the witness to speak in full sentences and to do so by first repeating part of the question. This has two advantages. First, it forces the witness to listen better to the question asked. You can’t very well repeat part of the question if you haven’t carefully listened to it. Secondly, it slows the response down. The witness is forced to think through their whole response, to concentrate. And that ensures better testimony.

For example, in response to “How soon after this meeting of May 22 did you visit the construction site?” “I visited the construction site next on May 30” slows the response down, as opposed to a simple “May 30.” It also helps the witness stay on track with the subject at hand.

This is even more critical with a compound question. For example, “Do you know whether you saw water in the trench or ever examined that trench before May 30?” The quick response of “No” could be inaccurate as to either seeing the water or examining the trench. A full-sentence response, such as “I did examine the trench before May 30, and I did not see water in the trench before May 30” may be wordy but could be more accurate.

Full sentences work to slow the witness down so that their brain is engaged before the response and to produce a more accurate response.

 

Classic Juror Misunderstandings

 

The brilliant cartoonist, Wiley Miller (“Non Sequitur”), captured the misunderstandings between men and women as few others have. For example, the wife says: “Let's go shopping." The husband hears: "Let's go drain the life force from your body." The husband says: “Honey, are you almost ready yet?" The wife hears: "Life as we know it will cease to exist unless you can alter the space-time continuum."

My experience with jurors has led me to conclude that similar misunderstandings occur regularly in the Courtroom between attorneys and jurors. For example, the lawyer says: “Negligence.” The juror hears: “Forgetfulness.” The lawyer says “Proximate.” The juror hears “Approximate.” The lawyer says: “Standard of care.” The juror hears: “Like OSHA.” The lawyer says: “Preponderance.” The juror hears: “Heavy thinking.”

I could go on and on. Lawyers like to say a graphic will “depict” things. Jurors need to know what the graphic will “show.” The lawyer says this event was “prior” to the current one. Jurors want to know what came “before” what. And “aforementioned” doesn’t even compute.

You must speak a language the jurors understand if you are to persuade them. For example, explain legal terms such as negligence so there can be no confusion with the more common use of the term, forgetfulness. Use words you used before you became a lawyer: familiar words, easy-to-understand words, words that don’t require more than a high school education.

With that, you are far more likely to have – a winning case!

Be Good to Your Jurors: Connect the Dots!

 

Too often, in jury debriefings and in focus groups, jurors complain 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, tying in those instructions to the attorney’s interpretation of the case.

In a classic case, namely the Blagojevich trial, the jury foreman brought up this very dilemma, saying of the U.S. attorneys: “They didn’t impress upon the jury the importance of the different counts and how they related to the six schemes that Rod Blagojevich was charged with. And as a consequence when we went into the deliberation room we were very confused. We didn’t know how to start….it was days before we found the indictment. We didn’t even know that the indictment was in the evidence carts.  Once we found that we were elated.” (Chicago Tonight TV show)

This lack of clarity leaves jurors in distress. 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 their case the most clearly, all else being roughly equal, is the most likely to succeed.

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 yes, 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 their 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, begin their answer by looking at you, 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 video-recorded role-play to be the most effective way to help witnesses get comfortable with turning to the jurors. It’s best to do this 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.

 

Expert Under the Gun of Cross? Multi-sided Response to the Rescue

For your expert witnesses under the gun of cross-examination, usually the most problematic answer is a flat “yes” or “no.” Science holds few absolutes to be true, thus most scientists (which is the majority of your experts) are uncomfortable with an uncategorical “yes” or “no” in response to many of opposing counsel’s questions.

Yet opposing counsel has one goal in mind: get that expert to say “yes” to certain questions and “no” to certain others.

A useful technique is to suggest to your expert that they respond with a qualifier in front of their “yes” or “no,” such as: “In this situation, yes.” “Under certain conditions, no.” “When X is detected, yes.” “In the presence of Y, no.” And so on.

These responses open the door to asking your witness later, why they qualified their answer in such a manner.

Now, here’s where it gets really interesting: the results of meta-research on 107 different studies conducted over 50 years on persuasion and sidedness show that two-sided arguments are more persuasive than their one-sided equivalents, as long as counter-arguments are raised when presenting the opposing view.

So, in telling the jury the rationale behind the qualifier, the expert can present their thinking. For example: “It could be said, as opposing counsel’s expert stated, that X is a determining factor, however, more recent studies show that Y is the more decisive, thus the basis for my opinion.” This format serves to present the two sides of the argument, even as it raises the counter argument.

According to the meta-research, not only is such an approach more convincing, it also boosts the speaker’s credibility.

The Juror-Engaging Power of Story: Beyond the Individual

 

Research has demonstrated repeatedly the power of storytelling. 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 an attorney and client I was to work with that day. On the walls were photographs, plaques and other corporate memorabilia. When I asked the attorney and client for the story of the corporation, not just corporation facts, 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 told about the heart of the corporation, its community involvement and 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.

 

You Need a Timeline

 

Timelines are essential to just about any case. I’ve been teased by various attorneys I’ve worked with that I always recommend a timeline, and indeed it’s true.

But there is a method to my repeated,“You need a timeline!” The movement of events across time is how jurors anchor testimony in their minds. It’s how they create a “story” for themselves.

And the story is the single most compelling way to get facts and information across to the jurors in a coherent, persuasive manner.

The reason a timeline works so well, is it answers the fundamental question of storytelling: “And then what happened?” It ties together apparently disparate testimony or pieces of evidence. It grounds any narrative in logic, by assigning order to the events.

Timelines need to be designed around a horizontal axis representing time, with “flags” or “boxes” pegged at the appropriate moments in time. Timelines don’t need to be fancy, but different entities should have different colored “flags,” for example, to differentiate them easily. Beyond that, a graphics designer can help give a timeline more visual impact.

The temptation is often to put too much information on a timeline: it’s a tool meant to emphasize and support, not reiterate all the testimony. Several uncluttered, easy-to-read timelines are better than one crowded with too much for the eye to readily grasp.