How to Persuade With Jury Instructions

Jurors polled in focus groups and jury debriefings point out again and again that one of their greatest stumbling blocks at arriving to fair and just decisions is jurors' lack of understanding of the jury instructions and how those instructions should apply to the case. No matter how many times jurists attempt to make jury instructions more accessible to the ordinary person, the language remains obscure and convoluted. Lawyers must help jurors make sense of the language - and most importantly - help the jurors understand how these instructions fit with your case.

For example, take the common instruction regarding "negligence." Jurors often interpret the term as meaning deliberately, intentionally failing to do something one should have done. This is, after all, the most common use of the term in our everyday parlance. Unless clearly instructed that the intent to inflict harm is not a prerequisite of a finding for the plaintiff, the jurors, for example, might absolve a physician's incompetence because "the doctor didn't mean to hurt the patient."

In addition, even when jurors understand the words themselves, they can fail to see how the instruction applies to your case. What is obvious to you is often cryptic to jurors. Throughout the trial, relate testimony and evidence to the key terms of your jury instructions, and remind jurors at closing of how you accomplished this. A "bottom-line"-type chart will easily reinforce the connection.

It is a truism that the lawyer who provides the most clarity and logical explanation of a situation is the lawyer who will prevail. Although this is important throughout the trial, it is critical at during closing arguments. Improper handling of jury instructions can damage an otherwise wonderfully prepared and presented case.

Keep Experts Cool for a Credible Response

Experts can shine or be demolished during cross. An easy way for opposing counsel to destroy otherwise sterling expert testimony is to goad the expert into responding defensively by asking questions in an insulting or outright attacking tone.

Your experts do best if they don't consider the question an attack (regardless of vocal tone), but rather as an opportunity to further clarify and educate. Follow this advice and your expert won't feel tempted to negate or fight everything opposing counsel says. Encourage your expert to simply listen attentively to the content of the question, allowing he or she to answer in ways that may surprise opposing counsel and help your expert maintain a positive footing.

For example, opposing counsel asks, verging on the insulting: "Isn't it true that the validity of the psychological tests you gave is suspect?" Instead of answering defensively: "I personally examined the validity scales of every test," a more constructive answer might be "Certainly, validity is always a primary concern, as are reliability, standardization and other such issues." Using the question to clarify an issue, the expert scores with the jurors and in the process sidetracked opposing counsel (who was undoubtedly expecting the defensive response).

Here is another example of the type of question which tends to put experts on the defensive: "Isn't it true that Drs. X, Y and Z have written that the test you used to come to your conclusions is subjective and unreliable?" Experts who get angry and defensive in response to this line of questioning do not do well with jurors. Suggest that your expert concede what is indefensible, and support that which is: "Indeed, these doctors say that under certain circumstances – unlike the circumstances in this case – this test may be of limited value." Opposing counsel is now obliged to ask your expert about those "certain circumstances," (or if not, you can on re-direct) and your expert can reiterate how this test has value in this particular circumstance.

Keeping expert cool inevitably paves the way to a more credible response.

How Knowing Your Jury’s Worldview Gives You Impact

Facts are important. Facts are foundational. Facts are critical to your case. However, even with powerful well-documented facts on your side, if you can’t place those facts in a context, into a story that makes sense to and appeals to your jurors’ worldview – you risk losing your case.

What’s your jurors’ worldview? It’s whatever is primary in your particular jury pool’s day to day life. For example, generally speaking, the recession preoccupies all of us, but specifically, is your jury pool more threatened by layoffs or a lack of buying power? By having to take on second jobs to make ends meet, or not having any jobs to take on?

This is one of the avantages of focus groups. When mock jurors are properly recruited from your particular jury pool, they can tell you a lot about your eventual panel’s worldview. About how your story is or is not supported by that worldview.

Now you have impact in the Courtroom.

Facebook & Your Client: Win, Lose or Draw?

A New York Times article (March 10, 2009) described the recent experience of an NYPD officer who was cross-examined over material on his Facebook page. While the officer's posted comment that the movie "Training Day" was a good lesson in police procedure was a joke, it did not play out that way in front of the jury. The defense attorney successfully used the officer’s public postings to paint a picture of an overly aggressive officer willing to bend the rules.

E-discovery does not end with a perusal of emails! E-discovery can readily extend to any postings on the Internet. Most lawyers will attempt to discover what, if any, Internet presence opponent’s client or key witnesses have. Where they are sometimes remiss, is in discovering their own client’s presence. Whether you represent plaintiff or defendant, it is wise to check with your client whether he or she has a Facebook/Twitter/MySpace/Orkut/Hi5/Friendster/LinkedIn/StumbleUpon/etc. presence, and whether that presence conforms with how your client wishes to be perceived in Court. If not, deleting the page isn’t an answer: some Courts have allowed the retrieval of deleted pages. You need to know how your client is holding him/herself out on the Internet in order to defuse it, ignore it, or applaud it. All three are valid options.

Need to Prepare a Wittness for Depo or Trial? Here are 7 Rules to Tell Your Client

As important as the evidence and facts are to a case, so is credible witness testimony. Without clear and confident witnesses, a trial's outcome may be less than what you have worked so hard to achieve.

Unfortunately, lawyers often only have time to concentrate on substantive issues when preparing a client for testimony. There is usually little time to focus on how clients can communicate credibly and present themselves appropriately at depo or in court. This leaves witnesses to their own devices, which could spell disaster in the witness chair.

Here are seven rules to tell your witness before depo or trial. If they follow these rules, they'll go a long way toward providing credible and persuasive testimony--but remember--they are only a supplement to sound legal counsel.

Keep your body language open and undefended. Don’t cross one or both of your arms over your chest, it’s read as defensiveness. Avoid slumping, slouching, twisting your body to one side, leaning to either side, or supporting your chin with your hand, elbow on the table.

Be consistent. If you’re asked the same question in slightly different ways, stick with your original answer. Only change it if it’s inaccurate, not just because opposing counsel repeats the question.

Give the information requested, not more. Don’t volunteer. If you’re asked for one example, give one, not two. If you’re asked for your date of birth, don’t volunteer where you were born and how happy your Mom was.

Answering the document question: “Isn’t it true that you signed the May 3rd agreement?” “May I see the document please?” Always review whatever document is being referred to before answering, even if you think you know what it is.

Withstand personality influence. Opposing counsel may act like your best buddy - casual, easy-going, warm-hearted, friendly and nice. Don’t be swayed. It’s the “honey attracts better than vinegar” approach, and you’re still the fly.

Be wary of the “yes” set. Opposing counsel wants to get you to agree to their version of the facts. When you find yourself agreeing with opposing counsel – as sometimes you must (“The earth is round, isn’t it?”), listen extra carefully to the next questions. The more times you say “yes” the more likely it is you’ll say “yes” when you shouldn’t.

Deal with inconsistencies appropriately. You will inevitably say something on the stand that is different from what you stated at deposition. Opposing counsel will pounce on it. “At your deposition, you said you didn’t see the specs, but now you tell us you did. Were you lying then or now?” Stay calm. “I’ve had more time to think about it, and I realized I did see the specs.” Your unruffled response will tell the jurors it’s no big deal.

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Noelle C. Nelson, Ph.D., is a trial consultant who provides trial/jury strategy, witness preparation and focus groups for attorneys. She is the author of the booklet, "101 Winning Tips: How to Give a Good Deposition and Testify Well in Court." E-mail: nnelson@dr.noellenelson.com, www.dr.noellenelson.com.