It Takes A Village: Yet Another Focus Group Advantage

 

I consulted on a case where one of the possible witnesses was an individual in a highly respected line of work. This person had been involved in criminal activity some 30 years ago, but in the years since had made a wonderful turn-around, and was a veritable pillar of the community, loved and respected.

The attorneys who interacted with the witness said she was credible, quite charming, and would make an excellent witness.

With such a brilliant present, would the past matter? The attorneys and I weren’t sure and figured the best way to find out would be to present the witness to a focus group.

Imagine our surprise when what struck the focus group members wasn’t the long-ago criminal activity, but the witness’s “smarmy-ness.” They didn’t find the witness charming, they thought she was smirking. The focus group members stated the witness wasn’t taking the present matter seriously, and that her attitude was entirely too cavalier. They did not find her credible at all.

With that, since the witness’s appearance at trial was not obligatory, it was quickly decided not to have the witness take the stand. We would never have realized the impact of this particular individual in front of a jury had it not been for the valuable input of the focus group members.

 Once again, a focus group saved the day.

 

Who Wants A Perceived Liar On The Stand? Not You!

 

People aren’t very good at detecting liars. Studies show that people’s hit rate for detecting lies (54%) is slightly above pure chance (50%), which is good news for liars, but bad news for you in the courtroom.

Why? Because people tend to pay attention to certain cues to determine if someone is lying, but these cues may mean something entirely different.

Take the “vocal immediacy” cue, for example. Vocal immediacy is the directness with which someone responds to a question. The more roundabout or vague the response, the more likely jurors will figure your witness is lying. However, your witness may simply be thinking out loud, which sounds roundabout. Or your witness may not know what to say, and rather than answer “I don’t know,” or “I don’t understand the question” may resort to a vague mulling which again, looks like lying.

Another cue is “uncooperativeness.” Jurors commonly assume that a witness being uncooperative is hiding something, or being dishonest. Yet often an uncooperative witness is one who argues with opposing counsel rather than answer the question asked, or attempts to force their view of the facts into every response, rather than let their attorney do the litigating.

Your best witness—among other things—responds directly to the question asked, and leaves the lawyering to the lawyer.

The best tool to help your witnesses get to jury-worthy credibility is to use videotaped role-play in preparing them to testify. You can’t afford to let your witnesses get away with behaviors that could be mistaken by the jurors as those of a liar.

Post-Pandemic Jurors’ Mixed Feelings About Corporations

 

As we slowly come out of the pandemic, albeit in fits and starts, juror attitudes have understandably shifted in these difficult and trying times. It is inevitable that among your jurors there will be those who are recently unemployed, some for the first time in their work-lives, along with others who have lost savings, homes, opportunities, even careers.

 

This has corporate defendants obviously concerned, for if corporations have often fared poorly in jurors’ eyes, many 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 malfeasance, comes jurors’ disapproval of any case that smacks of the frivolous or the not “truly madly deeply” justified. Especially if plaintiff’s win could 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 today’s unemployed are many who were in the 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.

For Deposition/Negotiation 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 if they were going to trial. Even though, these days, trial is highly unlikely. Why? Because trial or no trial, depositions are critical to 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. 

Here's a tip. Tell your witness that although it may seem like he/she 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/she is speaking to jurors - being informative rather than defensive, polite and even-tempered despite opposing counsel’s ploys - the quality of testimony improves dramatically, and with that, far greater chances of your (and their!) success.

Use Body Language to Mask Panic

Photo: Karen Neoh

Trials are often minefields, with bombs (whether large or small) exploding in your case just when you thought all was going smoothly. Your witnesses blunder, get trapped by opposing counsel, judges make decisions unfavorable to your case, etc.

But here’s the thing: no matter what is going on, you can’t let jurors know that things aren’t still going your way. And the most common way you let on, is by reacting with surprise. Not good! Jurors feel that you should know everything about the case if you are truly well-prepared, and they tend to evaluate your reaction of surprise as unprofessional. You need to find a way to mask your “Yikes!” if you are to continue to appear credible in the jurors’ eyes.

A primary way of covering your reaction to the unexpected is to use the following specific body language: simply drop your head down a little, to one side, as if thinking something over or consulting your notes. Once you’ve recovered and know where you’re going, simply raise your head, re-connect your eye focus, and resume from where you left off. Jurors will be left with the very credible impression of a lawyer who takes the time to think, rather than the unfortunate and not-credible impression of a lawyer panicking.

Counter the Greedy Corporate Client Perception with Stories of Care

Whether your corporate client is the plaintiff or the defendant, you are up against the public perception of corporations as greedy, uncaring entities whose only motive in any and all situations is profit-profit-profit.

Nothing new there. And usually one seeks to “humanize” the corporate client by giving the corporation a “face,” a sympathetic human being who speaks for the corporation. Preferably someone everyone on the jury can relate to and—best case scenario—want to have as a BFF. Too often, a prospect that exists only in your dreams. . .

Which is not to say that the need to put a warm, human “face” in front of the jurors isn’t important, it is, no argument there. But there are other ways to counter the “greedy uncaring” stigma.

I remember waiting for a CEO in the corporate headquarters’ lobby, passing the time by looking at the various photographs, plaques, and other such on the walls. When the legal team assembled with the CEO, the only strategy brought up to humanize the company was the “face” approach. I was confused: on the lobby walls there were plaques honoring the corporation’s sponsorship of a local soccer club, among other awards and the like. The legal team feared that listing the corporation’s community endeavors would seem like pandering. OK, I could see their point, but how did the corporation get involved with the soccer team in the first place? Out of all other possible community options?

Then I got the story. A wonderful, inspiring story that did more than “humanize” the corporation, it showed that humans, with hearts like all the rest of us, invested in more than the almighty dollar—were the engine of the corporation.

Just like WestJet and Canadian North, who in response to the wildfires earlier this year that forced 80,000 people to flee their homes in Fort McMurray, Canada, bent their usual rules to allow pets to travel in the main cabin, even without a carrier or a kennel. Your corporate client may not have as heart-warming or dramatic an example of their humanity, but I guarantee if you but scratch the surface, you will find that the corporation has stories of unselfish compassion.

After all, it’s still just all about people. And people care.