Use Jurors’ Unrelenting Scrutiny To Your Advantage

The entire time you’re in Court, the jurors are watching you, trying to figure out from your expressions and body language what you think of what’s going on at any given moment, and how you are doing.

Use this unrelenting scrutiny to your advantage.

For example, if you want to let the jurors know you think a witness is being less than candid, raise an eyebrow and look quizzically at the witness, as in “Oh, really?!” Hold that expression for a moment or two while the witness is responding, and then look down briefly, frowning, as in “I don’t believe what I’m hearing.” Which is precisely the conclusion you want the jurors to draw.

To dismiss a witness’s testimony as less than credible, walk a few steps away from the witness during his or her testimony, thereby removing your eye focus from the witness. It’s as if you were saying, “I can’t stand here and listen to this nonsense.”

To put a witness on the spot, stand totally still in front of the witness, resist the urge to make any acknowledging head nods, and maintain steady, almost rigid eye contact, thus effectively pinning the witness down with your look.

To give value to a witness, be that their person and/or their testimony, stand fairly close to the witness in a natural, somewhat relaxed posture, maintain good eye contact, and nod approvingly.

Be conscious of your body language and expressions. They are yet another valuable tool in your litigation tool-kit.

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 he/she says 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 ding any lawyer who fails to respect a Judge’s stated orders. The most common failure is the failure to respect time. 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 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 the prospective jurors’ eyes, and less worthy of their consideration. Much harder to convince.

And 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’ve much better chances of ending on the right foot.

The Enduring, Maddening CSI Effect

In my ongoing research of what jurors think and how they decide cases, I read umpteen blogs, posts and articles authored by those who have served. Recently, yet another article appeared which pointed out to me the enduring “CSI effect,” and how lawyers would do well to pay more attention to it.

Simply put, the “CSI effect” is jurors’ over-riding, 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 at hand is civil or criminal. Contracts are scrutinized, emails pored over and signatures examined with the same zeal as skid marks and bloodstains.

In the article referred to, jurors requested photos of the victim’s wounds and examined them minutely. A mechanic among them categorically pronounced the wounds as from a Torx screwdriver, despite the fact that apparently no such screwdriver had been mentioned during the trial. The rest of the jurors seized on this interpretation and what had been a stalemated jury with 8 finding against defendant, and 4 equally adamantly finding defendant innocent, rapidly became a unanimous “guilty” verdict.

What’s the lesson here? That it’s up to you, the attorney, to look at your evidence every which way and give a forceful, compelling, interpretation to your evidence such that it cannot be re-interpreted in some unfavorable way by a jury that examines the evidence with a keener eye than yours. 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.

Persuasion 101: Seeing is Believing

Recently, 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 by the Salt Lake Tribune, however, said Dr. Mackay’s comments were misguided. One juror summed up the jury’s deliberation process succinctly: “We took every single count one by one and discussed each count in detail. We used the chalkboard, we used chart paper so everything was visual for everyone.”

(The Salt Lake Tribune, Dec 22 2011)

“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, 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.