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.

 

Do You Like Me?

 

Likeability shouldn’t matter in the courtroom. A lawyer’s personality should be irrelevant. The facts should be paramount, the only thing jurors attend to, but jurors are persuaded by a combination of factors. Facts are but one of many.

Your likeability matters. Fortunately, this isn’t high school, and your likeability isn’t based on an indecipherable “cool factor.” Likeability is based on traits anyone can easily acquire or express. Among those traits are:

1. Politeness and civility

Jurors appreciate attorneys who are polite and civil with everyone in the courtroom, from the clerk to hostile witness to alternate juror.

2. Appropriate passion

Jurors like attorneys who show zeal for their client’s cause, without stooping to unwarranted bashing of the other side. Arguing inconsistencies, strength of evidence and the like are fine. Pointing out opposing counsel or a witness’s weaknesses is fine. Beating up on opposing counsel or a witness is not.

3. Clarity

Strange as it may seem, the attorney who provides the clearest, most to-the-point roadmap through the trial, the clearest, easiest-to-understand, succinct examination of witnesses, the clearest description of evidence, and the clearest explanation of jury instructions—is the attorney who is most liked, and will, in most cases, carry the day.

Master these three traits, and you’ll soon be the “best-liked” and “most-winning” lawyer in the courthouse.

Tell Your Story with Timelines

 

Now that we are coming out of the pandemic and going back into the courtroom, it’s wise to start considering how best to persuade jurors.

An obvious point: the more complex the case, the more important it is that you simplify and clarify events and circumstances for the jurors. A timeline is one of the most effective ways to organize facts in a way that makes them relevant to jurors. We are used to stories being presented chronologically. The chronology alone often will tell the story. Use a timeline, or several, whenever possible. 

Timelines, whether on a board or projected onto a screen, should be presented with time on the horizontal axis whenever possible. It demonstrates the movement of time from left to right, a progression jurors are very familiar with. When presented with a timeline depicting time on a vertical axis, often favored by attorneys, jurors can be too easily confused.

A horizontal timeline also allows you to show events above and below the line representing time, be that in minutes, days or years. This is a very effective way to organize information. You can, for example, show the evidence that directly favors your case in “flags” above the date line, and show the inconsistencies in opposing counsel’s case in the flags below the date line. For example, as defense, you can contrast plaintiff’s stated behavior at points in time on the above the line flags, with the contradictory medical reports on the below the line flags. 

Timelines of any kind should be used creatively, not just as markers in time, but as ways to tell your story more persuasively.

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.

Understand Jurors’ Desire to Improve Things

Faced with a number of options as jurors are when deliberating a verdict, people will often make decisions by translating each option into how they would feel emotionally about the anticipated outcome. The option that yields the most preferred emotional outcome is more likely to be chosen.

For example, improving safety is both a practical and moral action. Any verdict that encourages companies to improve safety feels good. The thinking goes roughly like this: “If we can’t make them care about safety because it’s the right thing to do, maybe we can make them care about safety because it’s the more profitable thing to do.” Being virtuous, on the side of what is right for the common or greater good, makes it easier for jurors to justify huge verdicts. People can feel good about themselves making such a decision.

Plaintiff’s counsel can use the above to help get the desired outcome. Defense counsel can use an understanding of the above to considerably weaken such an argument by pointing out all through the case the many ways in which the company already attends to safety.

There are, after all, two sides to every coin.
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I recently had the pleasure of being interviewed on "Legal Talk Network," produced by the State Bar of Michigan. The subject was connecting with your clients. Here's the interview link:

https://legaltalknetwork.com/podcasts/state-bar-michigan-on-balance/2019/06/connecting-with-your-clients/