It Takes A Village: Yet Another Focus Group Advantage

 

I consulted on a case where one of the possible witnesses was an individual in a highly respected line of work. This person had been involved in criminal activity some 30 years ago, but in the years since had made a wonderful turn-around, and was a veritable pillar of the community, loved and respected.

The attorneys who interacted with the witness said she was credible, quite charming, and would make an excellent witness.

With such a brilliant present, would the past matter? The attorneys and I weren’t sure and figured the best way to find out would be to present the witness to a focus group.

Imagine our surprise when what struck the focus group members wasn’t the long-ago criminal activity, but the witness’s “smarmy-ness.” They didn’t find the witness charming, they thought she was smirking. The focus group members stated the witness wasn’t taking the present matter seriously, and that her attitude was entirely too cavalier. They did not find her credible at all.

With that, since the witness’s appearance at trial was not obligatory, it was quickly decided not to have the witness take the stand. We would never have realized the impact of this particular individual in front of a jury had it not been for the valuable input of the focus group members.

 Once again, a focus group saved the day.

 

Pressuring Potential Jurors in Voir Dire Can Backfire at Trial

 

Time after time, what I discover in jury debriefings is that jurors don’t like being “interrogated” during voir dire. They don’t mind being questioned, but they heartily dislike attorney attempts to force answers out of them and especially resent being pressured into a “yes” or “no” response.

Now this wouldn’t be so critical if it weren’t for the fact that people who feel pressured into a position, retaliate by disliking the person who pressured them. Cornered animals bite. So do jurors.

As tempting as it is to finally get that unqualified “yes” or “no” from a juror, be aware of the consequences. A juror who doesn’t like you will be far less susceptible to your arguments, and may very well damn you during deliberations. Not only that but the unqualified “yes” or “no” is often the juror simply trying to wriggle free from your unwanted persistence.

You may receive a sufficiently truthful and more accurate response by framing your question differently such that it doesn’t antagonize your juror unnecessarily: “Is it more likely that you would . . .” People respond well to choice, as well as to the word “would,” which is experienced as non-invasive.

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

It doesn’t matter which side you represent, you must tell a story. For plaintiff, this is obvious: there’s a wrong to be righted, and it always has a story. For defense, 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 plaintiff’s hands. Plaintiff still defines the terms of the game, the boundaries of play. It’s about “the other story” where 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 plaintiff’s claims by showing how they fit as legitimate, “good” pieces within defense’s story.  So, for example, with a med mal case, defense could include as part of its story, how Doctor’s procedure/process is highly regarded - the best possible and safest course given the patient’s condition. That Doctor trusts, relies on, and has seen excellent results from the procedure/process. That Doctor used various diagnostics to validate Doctor’s choice. That Doctor’s was employed a well-thought out decision-making process (“decision tree”).  And of course, to include in the story as well, how plaintiff neglected Doctor’s instructions, and the alternate causes for 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.

Can’t Live With Them, Can’t Live Without Them: Jurors

Trials would be so much easier if you didn’t have to deal with jurors. Jurors wander off mentally during your most crucial testimony, they’re distracted by a lawyer’s mannerisms, they’re irritated by an expert’s vocal tone, they disapprove of a witness’ attitude. Jurors misunderstand the law, making it up as they go along.  Jurors impose their own version of what’s right or wrong, what’s negligence, what should be the standard - be it of care, warning, safety or other. Jurors deliberate as a group, which introduces the whole notion of group dynamics, complicating the matter further. Need I go on?

But jurors must be dealt with, and more importantly, 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, use a facilitator to ask probing questions of each and every juror, to analyze how each juror arrives at their various conclusions, and to observe how group dynamics affect those conclusions. In addition, a facilitator can keep track of each juror’s opinion, which in turn is highly useful for jury selection.

Truly, in this as in many aspects of litigation, knowledge is power.

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