How to Appeal to Silent Generation Jurors

Because we are living longer, and living for the most part healthier as we age, you may find a surprising number of “Silent Generation” jurors on your panel. These are individuals who were born roughly between 1925 and 1945. They are Baby Boomer and Generation X parents, whose grandchildren, typically, are Millenials.

How is this information relevant to your success? Members of the Silent Generation are likely to be relatively silent during voir dire, and you may have little opportunity to find out what matters to them. Yet this is a generation for whom a great deal matters, and you need to know what.

The Silent Generation is a generation of helpers. Their greatest contribution to our society was to humanize their world: this is the generation that produced the great Civil Rights Leaders and almost every leader of the Women’s Movement. What do they want now? To help ensure a safe world for their beloved grandchildren. And they do listen to those grandchildren. After all, Millenials too are community minded and seek to make a difference.

Take into account, as you develop your case themes, what matters to the generations on your panel. You will have far more juror-appeal and persuasiveness.

Stop Whining! Win Juror Votes with Witness “Can Do” Attitude (Part I, Plaintiff)

Your key witness is usually your client, or your client’s representative. If plaintiff, the witness is likely to complain, a litany of “He/she/they done me wrong.” Perfectly understandable, why else would your client be there in the first place! However, to juror ears, an unending stream of complaints sounds like whining, and jurors don’t like whiners.

What they like are people who, despite their misfortunes, are valiant, are giving it the best shot they can. This doesn’t mean your plaintiff client stiff-upper-lips it to where through gritted teeth/wired jaw they maintain “All is well,” but rather that you make sure, during direct, that you expose the ways in which your client is doing the very best that they can to survive/heal/improve things despite horrendous odds.

Now you have a potential winner in juror eyes, not a loser-whiner.

For Deposition Success: Speak to the Jurors!

Your client is a rational, mature businessperson. You expect them to do well at their upcoming deposition, after all, they have plenty of real-world experience, and of course you go over the facts of the case with them as well as some deposition basics. You are subsequently horrified when they waffle, or get angry, or are evasive, or volunteer or do any of the multitude of the other communication sins that constitute poor testimony.

But here’s the thing: whether your witness is a CEO or a homemaker, he or she must be prepared as rigorously for deposition as they are for trial. Why? Because the vast majority of cases don’t go to trial, and depositions are critical in determining your effectiveness in negotiating the best possible settlement for your client. Yet time after time, lawyers fail to prepare witnesses sufficiently for deposition. The reasons are simple: too much to do, too little time.

There are, however, some basic guidelines that can help your witness at their deposition in the absence of your being able to conduct full-fledged video-taped role play with them.

Here's a tip: tell your witness that although it may seem like he is responding to opposing counsel’s questions, in truth, the witness is addressing the jurors. It doesn’t matter whether or not the matter ever gets to trial, when the witness responds as if he speaking to jurors, being informative rather than defensive, polite and even-tempered despite opposing counsel’s ploys, the quality of his testimony improves radically.

Today's Jurors’ Mixed Feelings About Corporations

National research (Harris Interactive, 2009) shows that a majority of Americans place “a lot” of blame on banks (76%), Wall Street (57%) and big business (55%). In these difficult and trying times, juror attitudes are changing. It is inevitable that among your jurors there will be those who are recently un-employed, some for the first time in their work-lives, and those who have lost savings, homes, opportunities, even careers.

This has corporate defendants very concerned, for if corporations have often fared poorly in jurors’ eyes, they are doing even worse now. However, this is hardly the time for plaintiff’s counsel to cry “Huzzah,” for along with the public’s disdain for corporate greed and malfaisance, comes the public’s disapproval of any case that smacks of the frivolous or the not “truly madly deeply” justified, especially if plaintiff’s win would mean a cut in jobs for employees.

At least some of the jurors in any given panel understand the consequence of large awards. Don’t forget that among the currently unemployed are many who were in the upper-middle white collar strata of the workforce, and that these unemployed are able to educate their less-informed fellow jurors on the realities of what happens to employees, their jobs, wages and benefits, when corporations are hit with huge verdicts.

Whether representing plaintiff or defendant, keep in mind the current composition of your jury pool and current juror attitudes. This will go far in helping you win your case.

Wall Street Meltdown Impacting How Jurors View Business Clients

Listen to Dr. Noelle Nelson on The Legal Broadcast Network.

Topic: Wall Street Meltdown Impacting How Jurors View Attorneys & Business Clients

To hear the 10-minute interview, go to:

http://thelegalbroadcastnetwork.squarespace.com/the-lbn-blog/2009/6/25/wall-street-meltdown-impacting-how-jurors-view-attorneys-bus.html

Recession Revelations & Your Jurors

The continuing recession and revelations it brings about corporate and other wrong-doing – be it excesses, or cavalier squandering of the ordinary citizen’s financial well-being – have significantly altered juror attitudes. Jurors are no longer taking the position of “What the heck, everybody does it,” rather they are holding lawyers and all parties in the action to a higher standard. For example, taking advantage of others by virtue of contractual technicalities and loopholes is less viewed as a flaky but ordinary way of operating in the world, and more as an unacceptable moral failing. Issues of abandonment and betrayal are rarely excused. Turning one’s back on others and leaving them in a helpless or difficult situation, is virtually always unacceptable.

Jurors are favoring lawyers who express sincerity and genuine belief in their client’s cause, are well prepared, and respectful towards the legal process and all involved. Jurors are less convinced by lawyers who focus on the “letter of the law” and more persuaded by those who incorporate the “spirit of the law” into their arguments. Jurors are more attuned to anything that smacks of a lawyer’s attempt to pull the wool over their eyes, and likely to quickly discredit that lawyer and his or her arguments.

Jurors appear to be more favorable towards the lawyer who admits to problem areas of a case, and then proceeds to give common-sense, believable reasons for those actions. Jurors do not appear to be looking for perfection, or favoring only those “without sin,” but rather for honesty and other “straight-shooter” type qualities, which are quintessential American ideals - sorely lacking these past few years in many a juror’s mind.

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.

Facebook & Your Client: Win, Lose or Draw?

A New York Times article (March 10, 2009) described the recent experience of an NYPD officer who was cross-examined over material on his Facebook page. While the officer's posted comment that the movie "Training Day" was a good lesson in police procedure was a joke, it did not play out that way in front of the jury. The defense attorney successfully used the officer’s public postings to paint a picture of an overly aggressive officer willing to bend the rules.

E-discovery does not end with a perusal of emails! E-discovery can readily extend to any postings on the Internet. Most lawyers will attempt to discover what, if any, Internet presence opponent’s client or key witnesses have. Where they are sometimes remiss, is in discovering their own client’s presence. Whether you represent plaintiff or defendant, it is wise to check with your client whether he or she has a Facebook/Twitter/MySpace/Orkut/Hi5/Friendster/LinkedIn/StumbleUpon/etc. presence, and whether that presence conforms with how your client wishes to be perceived in Court. If not, deleting the page isn’t an answer: some Courts have allowed the retrieval of deleted pages. You need to know how your client is holding him/herself out on the Internet in order to defuse it, ignore it, or applaud it. All three are valid options.

The Lie, Continued...

As much as jurors resent a witness who lies, you must have inconvertible evidence that someone is out and out lying in order to even suggest it.

Even then, it’s best to let the jurors come to the “Lie” conclusion on their own. As Bob Pave, of Pave & Bogaards puts it: “I never say that somebody is lying. I say that it's not exactly "correct," not exactly "truthful," not exactly "forthcoming" and stuff like that. I lead them right up to the edge and let them attach the word "lie" to the plaintiff, all by themselves. [e.g., Hell, it's a downright lie.]”

An effective way to help the jurors get there, is to use a “Chart of Inconsistencies.” As defense, for example, you could bullet on a chart what the plaintiff told Dr. A, the different story he told Dr. B, and the yet more different tale he told at deposition. Or as plaintiff, you could bullet on a chart what defendant told the police, what was discovered in emails, what she swore to in interrogatories. Such a chart alone, since it references facts, has more impact on today’s jurors than your forceful expostulation “And he lied!!” ever could.

Jurors and The Lie

The first mark of a person worthy of juror respect is honesty, someone who doesn’t lie, cheat or steal. Persons – or entities – can be guilty of all manner of wrong-doing, but as long as they don’t lie about it or try to cover it up (cheating & stealing the truth), jurors will be more forgiving.

Why is this important? Because jurors, as impartial and reasoned as we would like them to be – aren’t. Jurors are people first, jurors second, and people all over the world are motivated by their emotions. Emotion literally means “to move.”

So, whether you are defense or plaintiff, if you can show how the other side’s client/witnesses lied, cheated or stole, you are more likely to rouse the jurors to righteous indignation or downright anger.

With that, you can help move the jurors over to your interpretation of the facts. And that’s what winning your case is all about.

Tell Your Story With Timelines

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. You can create these yourself fairly easily with any decent graphics program, and there are also specialized trial software programs available for this purpose.

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, jurors are much more readily confused.

A horizontal timeline allows you to show events above and below the line representating 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 fact “flags” above the date line, and show the inconsistencies in opposing counsel’s case in the fact flags below the date line. Or, for example, you can contrast plaintiff’s stated behavior at points in time on the above line fact flags, with the medical reports on the below the line fact flags. Timelines of any kind should be used creatively, not just as markers in time, but as ways to tell your story even more persuasively.

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.