Use “Less is More” to Win in Court

 

Some courts are lenient with the amount of time allotted for a trial, some are not. It certainly can seem impossible, sometimes, to jam the amount of evidence and testimony you have in the number of hours permitted.

And yet, as is so often true of many things in life “Less is more.”

On being debriefed, some jurors stated that the matter at hand was treated with less than full consideration as the trial stretched on and on. Jurors began discussing plans for the various events in their lives, sharing thoughts about how to deal with children, difficult bosses, and so on, clearly impatient and bored with what they were experiencing as an unnecessarily long process.

Jurors who may have had the patience to sit through long trials and long deliberations some 10 or so years ago are no longer willing to be held hostage past what they consider a sufficient rendering of the facts and testimony. Our world has sped up tremendously: we abbreviate everything, we rely on bullets and headlines, and we expect everything to happen quickly, as in “now.”

This is one of the great advantages of focus groups: attorneys are forced to reduce their entire case to a mere hour and a half, which puts a glaring spotlight on what is essential and what could be left aside.

Yes, you still must get across your points, you must still develop testimony and present evidence appropriately. However, a great deal can often be trimmed from the presentation of your case without losing impact. If anything, you generally gain impact from being succinct.

Want to Win? Start Off On The Right Foot With Prospective Jurors

 

When prospective jurors walk into the courtroom, they only know one thing for sure: the courtroom is His/Her Honor’s private reserve, and the Judge’s word is law. Everything about the physical layout of the courtroom says “In this room, the Judge is Top Dog, and whatever they say is set in stone.” The Judge sits higher than everyone else. All must rise upon the Judge’s entrance, and may only be seated when told to do so. And whatever the Judge says, however erudite or nonsensical it may seem, becomes “what is” in that Courtroom.

So, imagine my surprise when I observe lawyers go directly against a Judge’s “what I expect in my courtroom.”  I know, from years of experience, that jurors, whether prospective or empaneled, ding any lawyer who fails to respect a Judge’s stated orders. The most common failure is the failure to respect time. For example, the Judge says “Your mini-opening will be two minutes, no longer.” The lawyer launches into their mini-opening, the two-minute mark is hit, the Judge cuts the lawyer off – sometimes, mid-word. The lawyer, hurt and surprised, sits down. The prospective jurors look coldly at the lawyer. They heard the rule, why couldn’t the lawyer obey it?

You see, prospective jurors MUST appear when summoned, MUST be on time, MUST turn off their mobile devices, MUST sit where told to sit, and the list goes on. When the Judge tells you what you MUST do, you’re well advised to do it. Failure to do so makes you disrespectful in prospective jurors’ eyes, and less worthy of their consideration. Much harder to convince.

Since your jurors are within that pool of prospective jurors, abiding by the Judge’s edicts right from the git-go is the easiest, quickest way to get their approval.

Start off on the right foot with your jurors, and you have a much better chance of ending on the right foot.

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.

To Win: Honor Jurors’ Search for Understanding

 

Jurors are told by the Judge not to research anything having to do with the trial, which is fine--except when a juror finds themselves bumped off the panel by a Judge for daring to look up a legal term in the dictionary. Which has happened, probably more than once.

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

Bottom line: define your terms in words a fifteen-year-old can easily understand and use in a sentence. Believe me, a fifteen-year-old is plenty smart enough, they just don’t have the world and life experience you do. Just like the jurors. Not only will the jurors thank you for using terms defined according to common parlance, they’re more likely to favor your interpretation of the case. After all, it’s the case they understood.

Vocal Tone Matters During Voire Dire

Vocal tone matters, not just when you’re delivering your opening/closing or in questioning witnesses, but also in voir dire. Voir dire is when you create your first impression with what will be your jury panel. How you speak to prospective jurors is every bit as important as what you say.

"Well, the lawyer asked OK questions and all, but boy was he/she cold!" "I'm not a kid, you know, I didn't appreciate getting a morality lesson from the lawyer." These are the type of comments heard in jury debriefings when an attorney negated the good questions asked in voir dire by using an authoritarian or parental vocal tone. Jurors like to be guided, not told what to do.

Ask jurors whether they can be, for example, "fair to both sides," don't demand it of them. Think of jurors as fellow-travelers, about to embark on an expedition with you, not as the enemy. As best you can, use a conversational pace as you go through the intricate dance of question-response with prospective jurors. Keep your voice modulated for warmth and directness. Be sincere. Ask questions as if you really want to know the answer, not as if you're dictating to the prospective juror what he or she must think.

How Vocal Pace Can Contribute To Your Trial Success

 With the unrelenting pressure and time constraints of litigation, it’s easy to forget certain basics of persuasive trial communication. One of those is the judicious use of pace.

Pace refers to the speed of your voice. If you speak too quickly, jurors will have trouble following what you are saying, and will eventually stop trying. If you speak too slowly, everyone in the courtroom will fall asleep. Neither is conducive to making a convincing point.

A desirable pace is one that is easy to follow but quick enough to remain interesting.  Good pace reflects good energy, Good pace, reflecting good energy, is the vocal equivalent of walking at a brisk pace. Use this as your basic rate of speech.

Anything done the same way for long periods of time, however, becomes monotonous. Vary your basic pace by:

            1. slowing it down

- when you wish to appear thoughtful

- when you have something particularly important or serious to impart

- when you wish to show great respect.

            2. speeding it up

                        - when you review information you have already covered

                        - when you wish to make something seem unimportant.

Persuasion is grounded in a variety of factors, including good vocal pace.

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” responses.

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.