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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Don’t Discount the Power of Body Language!

The jurors who convicted Philadelphia abortion doctor Kermit Gosnell of first-degree murder in May of this year commented not only on the gruesome photographs they were required to view, but also on the demeanor of the defendant. As one juror put it, it was difficult to look at Dr. Gosnell in the courtroom: “He just sat there for the past eight weeks, smirking.”

Body language and facial expressions are powerful. Jurors stare at your client/s for hours on end, and quite naturally form impressions based on what they see. In the above referenced case, Dr. Gosnell may not have thought he was smirking. He may have no awareness of how his facial expressions come across.

Recently I worked with a witness who has a decided “chin drift,” that is to say he holds his chin up, such that it looks like he’s peering down his nose at the world, an arrogant posture. This is not an arrogant individual, he just has poor posture, which in his case leads to his chin drifting skyward. But I had to help him correct his body language so that the jurors, who believe what they see, would not automatically categorize the witness as arrogant, and therefore perceive him to be unsympathetic.

The best way I know to address body language and facial expression issues with a witness, is through the medium of video-taped role play. When a witness sees his/her body language, and is informed as to what it conveys, it’s much easier for the witness to make the necessary adjustments. Often, these are small adjustments, yet they are crucial.

You need every card you can think of stacked your way to win your case!

 

Focus Groups Save the Day–on Broadway!

In the spring of 2012,  Spider-Man: Turn Off the Dark, was widely believed to be headed for total flopdom: media were comparing it to the Titanic. Yet, this fall, the show has already grossed more than $160 million, a Broadway blockbuster, largely due to co-lead producers Jere Harris and Michael Cohl’s willingness to take drastic measures to turn their incipient flop into a fabulous success.

Among those measures were—you guessed it—focus groups. The producers realized that audience members were leaving the preview performances confused, so they conducted focus groups investigating specific aspects of the show. Production was stopped—a radical move--in order to make changes based on the focus group feedback.

It worked.

Your cases deserve no less. A focus group is a relatively low-cost pre-trial strategy to give you the winning edge. There is nothing that can replace vigorous discussion of your case’s strengths and weaknesses among a group of people rigorously selected to match your jury pool.

Unlike Broadway, you can also receive (if the focus group is conducted with this purpose in mind) juror profiles as to “best” and “worst” likely jurors, assessed from the responses of the focus group members.

Yes, it takes effort and the courage to withstand open criticism from a group of strangers, yet given that these strangers are willing to give you the feedback that can put your case in an advantageous posture, it’s well worth it, even when you don’t think your case resembles the Titanic. 

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A WINNING CASE Dr. Noelle Nelson recently consulted on:

*Congratulations to Dave Luce and Meghan Lamping of Carmody MacDonald P.C. (St. Louis), and Spencer M. Taylor and M. Todd Lowther of Balch & Bingham L.L.P. (Birmingham) for their $11,106,420 Jury Verdict in TAMKO v. Factory Mutual (FM), a hotly contested business interruption insurance case. FM claimed that TAMKO's damages, which TAMKO sought in the amount of $12.2 million, were less than $2.5 million. FM argued that TAMKO did not suffer a loss of production due to an absence of raw material but instead was impacted by the late 2008 economic downturn, and that TAMKO could not demonstrate that it had actually lost any sales. Clearly, the jury did not agree with FM.