Don’t Be Blindsided by “the Curse of Knowledge.” Clarify!

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 can be more challenging than it at first appears, due to what the authors of the book “Made to Stick” call “the Curse of Knowledge.”

Namely, that you are 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 it.

Oh, sure, 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.

This doesn’t mean to give excessive detail. It doesn’t mean to “talk down” to jurors, either, a phrase I heartily dislike. Jurors are no different than 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 are.

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

Whenever possible, run a focus group of individuals similar to your jury pool. They will tell you, with unerring accuracy, exactly what persons not afflicted with the “Curse of Knowledge” will understand and fail to understand.

And yes, that includes how your experts present their testimony as well.

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A WINNING CASE Dr. Noelle Nelson recently consulted on:

*Congratulations to A. Barry Cappello and Leila J. Noël of Cappello & Noël, LLP, and co-counsel, Proskauer Rose, LLP for their Defense Verdict. After an eight-week trial and less than four hours of deliberation, a Santa Barbara Superior Court jury rejected a $27 million lawsuit filed by Johnson & Johnson/Mentor Worldwide LLC against Santa Barbara-based Sientra, Inc. for interference with prospective economic advantage, contract interference, breach of fiduciary duty and misappropriation of trade secrets.

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Use Repetition to Drive Juror Acceptance of Your Case

When the jurors troop into the jury room for deliberations, every litigator’s dream is that each of them would, individually, spout your case theme/key points so that group consensus in your favor is inevitable.

But how do you get them to do that? By presenting a targeted, credible and compelling case. That’s a given. In addition, put the power of repetition to work for you.

Research by K. Weaver and colleagues shows that repetition, even by the same person or organization, is highly impactful: “…when an opinion is repeatedly broadcast at us by the same organization--think of a particular media conglomerate or an advertiser--we’re likely to come to believe it represents the general opinion. That’s despite the fact it is analogous to the same person repeating themselves over and over again.”

Not only should you, the trial attorney, repeat your themes and key points throughout your opening, examination of witnesses, and close, but all your witnesses, expert and lay, should be encouraged to include case themes and key points in their testimony.

Repeat, repeat, repeat! When you and your witnesses are consistent in broadcasting the same message over and over again, jurors are far more likely to accept it as the general opinion and adopt it as theirs.

Visuals – Cut to the Chase

The importance of visuals in presenting your case to the jury is well known, and increasingly trumpeted, as ours becomes a society of glowing screens, large and small. As you decide which visuals, what part of the story they are to tell, and how best to design your visuals accordingly, one aspect is often missed: pace.
It’s easy to forget pace in your ardent desire to communicate as much as you can with the assist of visuals. But here’s the thing: look at any primetime dramatic TV show, and you’ll quickly realize that images succeed each other at lightening speed until a dramatic moment requires everything to slow down, so the audience can absorb this critical sequence. Then the pace picks up again.

So too with your visuals. Cut to the chase. Make your visuals easy to see, uncluttered, highlighting one important fact or bit of testimony, so that the jurors aren’t hunting through your visual for that important fact, having to parse through lots of relatively less important items. The pace of presenting such clear visuals can be quick, because that’s what jurors are used to from the media. Then, when you hit that one piece of evidence critical to your case, you can slow down and take your time with it.

The jurors, having not been bored or confused with your set-up or establishing visuals, will be better able and willing to give their full attention to the crux of your case.

Juror’s Search for Understanding Bumps Her Off Panel

Recently, a juror in the Ronald Woodard murder trial was removed from the panel after she brought to court a glossary of legal terms she found online. Throughout the trial Jackson County Circuit Judge John McBain had cautioned jurors not to research or read anything in relation to the case, not even to look up a term in the dictionary.

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

Bottom line: define your terms, use words your fifteen year old can easily understand and use in a sentence. The jurors will not only thank you for it, they’re more likely to favor your interpretation of the case. After all, it’s the one they understood.

Be Good to Your Jurors: Connect the Dots!

Recently, the foreman of the Blagojevich trial jury, critiqued the U.S. attorneys in the following manner:

“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)

The foreperson’s assessment reflects a disturbing comment I hear repeatedly in jury debriefings and in focus groups: 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.

This leaves jurors in the distress commented on above. 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.

Harness Jurors’ Wandering Minds: New Science

New research from Harvard University psychologists (Matthew A. Killingsworth & Daniel T. Gilbert) shows that people spend 46.9% of their waking hours “wandering”--thinking about what isn’t going on around them, what happened in the past, what might happen in the future or never at all. Which wouldn’t be such a big deal, except that, as the scientists put it: “A wandering mind is an unhappy mind.” People aren’t happy about what they’re thinking about during their “wandering” times.

How is this relevant to your trial practice? Well, if you aren’t keeping your jurors’ minds engaged, those minds are wandering. The likelihood of their attributing the unhappiness their wandering conjures up to your less-than-compelling presentation rather than their own meanderings, is high. Unhappy people don’t tend to favor those who make them unhappy! There goes your successful case...

All the more reason to do your level best to make your courtroom time count. Get to the point, be succinct, develop hard-hitting bullets and emotional catch-phrases. Use visuals of all kinds – models, boards, animations, power-point (the complex type, not just words on a slide) – and anything else your graphics support staff can dream up. Use focus groups to help you nail what matters to jurors and hone in on that.

The more you keep the jurors’ minds on your track, the less they are inclined to wander, the greater your chances of success.

Not A Passive Jury Anymore

Sitting sedately in the jury box, jurors appear to be a captive, passive audience, receptive to the lawyers’ and witnesses’ every utterance. Would it were so. Jurors are hardly passive these days. They are informed and have opinion on a broad range of matters, even if mostly at a superficial “news caption” level.

After all, most jurors have access to and use--some obsessively--every social networking platform available, to speak to each other. They refer to blogs, media outlets, and other venues to converse, compare and discuss everything from the latest sports-figure scandal to the effectiveness of our overseas troops to the political impact of Ms. Palin’s eye-roll. It is a mistake to believe this is a habit exercised only by the young. Every age group now twitters, facebooks and blogs, with the possible exception of the very elderly. Notice, I say “possible.”

Juror patience with the often excruciating minutiae of evidence is poor. They get their information and communicate in micro-bites. The one complaint I hear over and over in jury debriefings is “Get to the point!” Jurors are willing to pay attention to and attempt to understand the evidence that supports your point – once you get there. Too often, a lawyer will lay out such a meticulous foundation that by the time the lawyer gets to the reason for all that effort, the jurors don’t care. Certainly, foundation must be laid, but whenever possible, start with an “umbrella sentence” that clues the jurors in to your point, so they are oriented, and therefore patient, with what follows.

The Changing Face of Jury Pools

The Superior Courts in Riverside and Murrieta have childcare available for jurors. They accept children three years and older, who are potty trained. A quick internet search of California Superior Courts shows three other locations offering pretty much the same service: Redwood City, Compton & Fresno.

Although there are too few Courts offering childcare for this to impact all jury pools, it is a trend which could very well develop quickly. Courts need more willing jurors, and this is an intelligent approach to the problem. After all, significant segments of the population are regularly excused from trials due to childcare obligations. We’re not just talking about young Moms, but also fathers who are taking over childcare for working Moms, single and/or gay Dads, and the traditional grandmothers and aunts who provide such services for family.

Jurors with young children have a different order of concerns, and often a different lifestyle (sleep deprived, exist in a child-centric universe). Depending on your case, introducing these jurors into the mix means looking at your case also through these jurors’ eyes, something you may not have had to do heretofore.

How to Translate the Expert’s Opinions into Expert Testimony

An expert I recently worked with was brilliant, no doubt. His credentials were superb, his authority on the matter in question, well, unquestioned. But his ability to communicate his expertise in a way any lay person (juror) could understand was awful. His deposition was larded with phrases such as: “The administration let other departments in the facility seize the initiative with a consequent fragmentation of the support for educational technologies offered to staff.”

Now to say to such an expert “speak in plain English” would seem a common sense approach to preparing him for Court testimony. The problem is, the expert thinks he is speaking in plain English, and that any idiot should easily be able to understand him.

Arguing the point with the expert is a waste of time. Instead, help your expert by asking a series of questions derived from his or her statement, such as: “What did the support for educational technologies consist of?” Hopefully, the answer will be something like “Classes or seminars teaching the technologies” and if it hasn’t been explained already, then ask something simple like “What are the educational technologies you refer to?” Disregard the expert’s condescending glare, since his “Orthopedic charting software 101” is information the jurors can relate to far more easily than “educational technologies.” It’s also something you can put up visually on a chart, with icons that personalize and make real “Orthopedic charting software.”

As tedious as it may feel, go through your expert’s key points in this manner as you prepare him or her for testimony. You’ll now have a much more effective direct, and have given your expert tools for being convincing on cross, which the expert otherwise would sorely lack.