The Nuisance of Jurors

Trials would be so much easier if you didn’t have to deal with jurors. Jurors wander off mentally during your most critical testimony, they’re distracted by an itch or a lawyer’s mannerisms, they’re irritated by an expert’s vocal tone, they disapprove of a witness’s attitude. Jurors misunderstand the law, making it up as they go along. Jurors impose their own version of what’s right or wrong, what’s negligence, what should be the standard - be it of care, warning, safety or other. Jurors deliberate as a group, which introduces the whole notion of group dynamics, complicating the matter further. Need I go on?

But jurors must be dealt with, and more importantly, we must deal with how they come to the decisions they make. For the better you can determine or discern what impacts those decisions, the more likely you are to succeed at trial.

This is where intense, targeted use of the pre-trial focus group can be especially valuable. Instead of letting focus group “jurors” elect a foreperson and talk over each other to arrive at a consensual decision, have a facilitator ask probing questions of each and every juror, to analyze how each juror arrives at their various conclusions, as well as observe how group dynamics are affecting those conclusions.

Knowledge is power.

Jurors’ Desire to Improve Things

One of the ways people make decisions when faced with a number of options is to translate each option into how they will feel emotionally about whatever the anticipated result is. The option that yields the best anticipated emotional outcome is more likely to be chosen.

For example, improving safety is a moral action. Attempting to get companies to improve safety with big verdicts 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 attends to safety.

There are two sides to every coin . . .

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Noelle C. Nelson, Ph.D., is a trial consultant who provides trial/jury strategy, witness preparation and focus groups for attorneys. She is the author of the booklet, "101 Winning Tips: How to Give a Good Deposition and Testify Well in Court." E-mail: nnelson@dr.noellenelson.com, www.dr.noellenelson.com.

Need to Prepare a Wittness for Depo or Trial? Here are 7 Rules to Tell Your Client

As important as the evidence and facts are to a case, so is credible witness testimony. Without clear and confident witnesses, a trial's outcome may be less than what you have worked so hard to achieve.

Unfortunately, lawyers often only have time to concentrate on substantive issues when preparing a client for testimony. There is usually little time to focus on how clients can communicate credibly and present themselves appropriately at depo or in court. This leaves witnesses to their own devices, which could spell disaster in the witness chair.

Here are seven rules to tell your witness before depo or trial. If they follow these rules, they'll go a long way toward providing credible and persuasive testimony--but remember--they are only a supplement to sound legal counsel.

Keep your body language open and undefended. Don’t cross one or both of your arms over your chest, it’s read as defensiveness. Avoid slumping, slouching, twisting your body to one side, leaning to either side, or supporting your chin with your hand, elbow on the table.

Be consistent. If you’re asked the same question in slightly different ways, stick with your original answer. Only change it if it’s inaccurate, not just because opposing counsel repeats the question.

Give the information requested, not more. Don’t volunteer. If you’re asked for one example, give one, not two. If you’re asked for your date of birth, don’t volunteer where you were born and how happy your Mom was.

Answering the document question: “Isn’t it true that you signed the May 3rd agreement?” “May I see the document please?” Always review whatever document is being referred to before answering, even if you think you know what it is.

Withstand personality influence. Opposing counsel may act like your best buddy - casual, easy-going, warm-hearted, friendly and nice. Don’t be swayed. It’s the “honey attracts better than vinegar” approach, and you’re still the fly.

Be wary of the “yes” set. Opposing counsel wants to get you to agree to their version of the facts. When you find yourself agreeing with opposing counsel – as sometimes you must (“The earth is round, isn’t it?”), listen extra carefully to the next questions. The more times you say “yes” the more likely it is you’ll say “yes” when you shouldn’t.

Deal with inconsistencies appropriately. You will inevitably say something on the stand that is different from what you stated at deposition. Opposing counsel will pounce on it. “At your deposition, you said you didn’t see the specs, but now you tell us you did. Were you lying then or now?” Stay calm. “I’ve had more time to think about it, and I realized I did see the specs.” Your unruffled response will tell the jurors it’s no big deal.

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Noelle C. Nelson, Ph.D., is a trial consultant who provides trial/jury strategy, witness preparation and focus groups for attorneys. She is the author of the booklet, "101 Winning Tips: How to Give a Good Deposition and Testify Well in Court." E-mail: nnelson@dr.noellenelson.com, www.dr.noellenelson.com.