Watch Those Jurors: Body Language Outdoes the Spoken Word

 

The courtroom setting is unfamiliar to most prospective jurors as they sit with a group of strangers and are grilled by counsel during voir dire. In addition, potential jurors may respond differently depending on whether they want to be off or on a particular jury. Therefore, their responses may not entirely reflect that person's "truth."

However, an individual's body language will almost always be consistent with the person's "truth," despite what is spoken. To assess the veracity of any given prospective juror’s verbal response, pay close attention to their body language, in particular body language that conflicts with oral responses.

Watch each prospective juror's body language as they respond to questions, whether the

questions come from you, opposing counsel or the judge. For example, if prospective jurors say, “Yes, I can be fair" but their head is going side to side, signaling "No," believe their body language. Similarly, if potential jurors say, "No, I would not be prejudiced against . . . " but their head is bobbing up and down, signaling "Yes," believe their body language which is clearly saying "Yes, I would be prejudiced."

If prospective jurors say they would give damages in a certain type of case, but their arms are crossed in front of their chest, either they won't give damages, or they would award very little.

If prospective jurors say, "Yes, I can keep an open mind," but they squirm in their seats, something about keeping an open mind is making them anxious. Continue to observe

the behavior when asking the next questions. See if the squirming continues. If so, this may indicate a need to visit the restroom or anxiety about being a juror. If, however, the squirming ceases, the person's anxiety is only relevant to that particular question and can be read in that context.

Body language always outdoes the spoken word.

Help Your Witness Deliver Effective Testimony with Full Sentences

 

Rare is the witness who isn’t anxious, worried, scared--even terrified--during deposition or cross-examination. Often this leads to a rapid pace of speech. Not only that, but witnesses tend to believe that if they just blurt out their response, they’ll get this dreadful experience over with sooner.

Now, there’s nothing wrong with speaking quickly, in and of itself, but speaking quickly often means the client fails to think things through. Failing to think through a response can often lead to flawed testimony if not downright disastrous testimony. Unfortunately, simply telling a witness to “slow down, speak more slowly” may work for a response or two, but with the pressure of nerves, the witness’s pace then picks up rapidly.

One technique that works well while preparing the witness for their testimony is to encourage the witness to speak in full sentences and to do so by first repeating part of the question. This has two advantages. First, it forces the witness to listen better to the question asked. You can’t very well repeat part of the question if you haven’t carefully listened to it. Secondly, it slows the response down. The witness is forced to think through their whole response, to concentrate. And that ensures better testimony.

For example, in response to “How soon after this meeting of May 22 did you visit the construction site?” “I visited the construction site next on May 30” slows the response down, as opposed to a simple “May 30.” It also helps the witness stay on track with the subject at hand.

This is even more critical with a compound question. For example, “Do you know whether you saw water in the trench or ever examined that trench before May 30?” The quick response of “No” could be inaccurate as to either seeing the water or examining the trench. A full-sentence response, such as “I did examine the trench before May 30, and I did not see water in the trench before May 30” may be wordy but could be more accurate.

Full sentences work to slow the witness down so that their brain is engaged before the response and to produce a more accurate response.

 

Classic Juror Misunderstandings

 

The brilliant cartoonist, Wiley Miller (“Non Sequitur”), captured the misunderstandings between men and women as few others have. For example, the wife says: “Let's go shopping." The husband hears: "Let's go drain the life force from your body." The husband says: “Honey, are you almost ready yet?" The wife hears: "Life as we know it will cease to exist unless you can alter the space-time continuum."

My experience with jurors has led me to conclude that similar misunderstandings occur regularly in the Courtroom between attorneys and jurors. For example, the lawyer says: “Negligence.” The juror hears: “Forgetfulness.” The lawyer says “Proximate.” The juror hears “Approximate.” The lawyer says: “Standard of care.” The juror hears: “Like OSHA.” The lawyer says: “Preponderance.” The juror hears: “Heavy thinking.”

I could go on and on. Lawyers like to say a graphic will “depict” things. Jurors need to know what the graphic will “show.” The lawyer says this event was “prior” to the current one. Jurors want to know what came “before” what. And “aforementioned” doesn’t even compute.

You must speak a language the jurors understand if you are to persuade them. For example, explain legal terms such as negligence so there can be no confusion with the more common use of the term, forgetfulness. Use words you used before you became a lawyer: familiar words, easy-to-understand words, words that don’t require more than a high school education.

With that, you are far more likely to have – a winning case!

Be Good to Your Jurors: Connect the Dots!

 

Too often, in jury debriefings and in focus groups, jurors complain that the attorneys do not connect their points or evidence to the specifics of the complaint. Furthermore, attorneys rarely fully explain the jury instructions to the jury, tying in those instructions to the attorney’s interpretation of the case.

In a classic case, namely the Blagojevich trial, the jury foreman brought up this very dilemma, saying of the U.S. attorneys: “They didn’t impress upon the jury the importance of the different counts and how they related to the six schemes that Rod Blagojevich was charged with. And as a consequence when we went into the deliberation room we were very confused. We didn’t know how to start….it was days before we found the indictment. We didn’t even know that the indictment was in the evidence carts.  Once we found that we were elated.” (Chicago Tonight TV show)

This lack of clarity leaves jurors in distress. They are confused, perturbed, and unable to think in a reasonable manner about the case.

Be good to your jurors. Always make the connection for them, in obvious, preferably visual ways, between the evidence and testimony, and the complaint/cross-complaint. Do the same with the jury instructions.

Experience shows time and again, that the attorney who presents their case the most clearly, all else being roughly equal, is the most likely to succeed.

Expert Under the Gun of Cross? Multi-sided Response to the Rescue

For your expert witnesses under the gun of cross-examination, usually the most problematic answer is a flat “yes” or “no.” Science holds few absolutes to be true, thus most scientists (which is the majority of your experts) are uncomfortable with an uncategorical “yes” or “no” in response to many of opposing counsel’s questions.

Yet opposing counsel has one goal in mind: get that expert to say “yes” to certain questions and “no” to certain others.

A useful technique is to suggest to your expert that they respond with a qualifier in front of their “yes” or “no,” such as: “In this situation, yes.” “Under certain conditions, no.” “When X is detected, yes.” “In the presence of Y, no.” And so on.

These responses open the door to asking your witness later, why they qualified their answer in such a manner.

Now, here’s where it gets really interesting: the results of meta-research on 107 different studies conducted over 50 years on persuasion and sidedness show that two-sided arguments are more persuasive than their one-sided equivalents, as long as counter-arguments are raised when presenting the opposing view.

So, in telling the jury the rationale behind the qualifier, the expert can present their thinking. For example: “It could be said, as opposing counsel’s expert stated, that X is a determining factor, however, more recent studies show that Y is the more decisive, thus the basis for my opinion.” This format serves to present the two sides of the argument, even as it raises the counter argument.

According to the meta-research, not only is such an approach more convincing, it also boosts the speaker’s credibility.

You Need a Timeline

 

Timelines are essential to just about any case. I’ve been teased by various attorneys I’ve worked with that I always recommend a timeline, and indeed it’s true.

But there is a method to my repeated,“You need a timeline!” The movement of events across time is how jurors anchor testimony in their minds. It’s how they create a “story” for themselves.

And the story is the single most compelling way to get facts and information across to the jurors in a coherent, persuasive manner.

The reason a timeline works so well, is it answers the fundamental question of storytelling: “And then what happened?” It ties together apparently disparate testimony or pieces of evidence. It grounds any narrative in logic, by assigning order to the events.

Timelines need to be designed around a horizontal axis representing time, with “flags” or “boxes” pegged at the appropriate moments in time. Timelines don’t need to be fancy, but different entities should have different colored “flags,” for example, to differentiate them easily. Beyond that, a graphics designer can help give a timeline more visual impact.

The temptation is often to put too much information on a timeline: it’s a tool meant to emphasize and support, not reiterate all the testimony. Several uncluttered, easy-to-read timelines are better than one crowded with too much for the eye to readily grasp.

Use “Less is More” to Win in Court

 

Some courts are lenient with the amount of time allotted for a trial, some are not. It certainly can seem impossible, sometimes, to jam the amount of evidence and testimony you have in the number of hours permitted.

And yet, as is so often true of many things in life “Less is more.”

On being debriefed, some jurors stated that the matter at hand was treated with less than full consideration as the trial stretched on and on. Jurors began discussing plans for the various events in their lives, sharing thoughts about how to deal with children, difficult bosses, and so on, clearly impatient and bored with what they were experiencing as an unnecessarily long process.

Jurors who may have had the patience to sit through long trials and long deliberations some 10 or so years ago are no longer willing to be held hostage past what they consider a sufficient rendering of the facts and testimony. Our world has sped up tremendously: we abbreviate everything, we rely on bullets and headlines, and we expect everything to happen quickly, as in “now.”

This is one of the great advantages of focus groups: attorneys are forced to reduce their entire case to a mere hour and a half, which puts a glaring spotlight on what is essential and what could be left aside.

Yes, you still must get across your points, you must still develop testimony and present evidence appropriately. However, a great deal can often be trimmed from the presentation of your case without losing impact. If anything, you generally gain impact from being succinct.

Pressuring Potential Jurors in Voir Dire Can Backfire at Trial

 

Time after time, what I discover in jury debriefings is that jurors don’t like being “interrogated” during voir dire. They don’t mind being questioned, but they heartily dislike attorney attempts to force answers out of them and especially resent being pressured into a “yes” or “no” response.

Now this wouldn’t be so critical if it weren’t for the fact that people who feel pressured into a position, retaliate by disliking the person who pressured them. Cornered animals bite. So do jurors.

As tempting as it is to finally get that unqualified “yes” or “no” from a juror, be aware of the consequences. A juror who doesn’t like you will be far less susceptible to your arguments, and may very well damn you during deliberations. Not only that but the unqualified “yes” or “no” is often the juror simply trying to wriggle free from your unwanted persistence.

You may receive a sufficiently truthful and more accurate response by framing your question differently such that it doesn’t antagonize your juror unnecessarily: “Is it more likely that you would . . .” People respond well to choice, as well as to the word “would,” which is experienced as non-invasive.

Want to Win? Start Off On The Right Foot With Prospective Jurors

 

When prospective jurors walk into the courtroom, they only know one thing for sure: the courtroom is His/Her Honor’s private reserve, and the Judge’s word is law. Everything about the physical layout of the courtroom says “In this room, the Judge is Top Dog, and whatever they say is set in stone.” The Judge sits higher than everyone else. All must rise upon the Judge’s entrance, and may only be seated when told to do so. And whatever the Judge says, however erudite or nonsensical it may seem, becomes “what is” in that Courtroom.

So, imagine my surprise when I observe lawyers go directly against a Judge’s “what I expect in my courtroom.”  I know, from years of experience, that jurors, whether prospective or empaneled, ding any lawyer who fails to respect a Judge’s stated orders. The most common failure is the failure to respect time. For example, the Judge says “Your mini-opening will be two minutes, no longer.” The lawyer launches into their mini-opening, the two-minute mark is hit, the Judge cuts the lawyer off – sometimes, mid-word. The lawyer, hurt and surprised, sits down. The prospective jurors look coldly at the lawyer. They heard the rule, why couldn’t the lawyer obey it?

You see, prospective jurors MUST appear when summoned, MUST be on time, MUST turn off their mobile devices, MUST sit where told to sit, and the list goes on. When the Judge tells you what you MUST do, you’re well advised to do it. Failure to do so makes you disrespectful in prospective jurors’ eyes, and less worthy of their consideration. Much harder to convince.

Since your jurors are within that pool of prospective jurors, abiding by the Judge’s edicts right from the git-go is the easiest, quickest way to get their approval.

Start off on the right foot with your jurors, and you have a much better chance of ending on the right foot.

How Your Emotions Can Help You Win Your Case

 

The question of whether to trust our logic or trust our emotions is rarely brought up in the context of legal matters, at least not from the lawyer’s point of view. Certainly, we discuss endlessly how this or that prospective juror’s mindset (highly emotional versus highly rational) might impact our case, but not usually how the lawyer’s emotion would.

However, research by M. Pham, L. Lee and A. Stephen provides interesting insights into the positive impact lawyer emotions might have in winning cases.

Their study showed that people who were more likely to trust their feelings were also more likely to accurately predict the outcome of a particular event. The researchers call this phenomenon the “emotional oracle effect.”

How does this apply to winning your case? Tune in to your emotions. If, when preparing a witness, you sense that something is “off,” don’t dismiss that because your logic tells you all is well. Trust your emotions enough to say something like “I notice that . . .” or “I’m wondering if. . .” which is a non-threatening way to probe further and take a look at whether or not what you sense with this witness has some basis in reality.

The more you practice listening to the guidance of your emotions, the more you will be able to discern which to trust.

Similarly, you can review the demographics of your prospective jurors all you want and weed out the obvious “bad apples,” but when it comes down to that moment in voir dire when you’re between “keep Juror A versus Juror B,” tune in to your emotions. Listen inside yourself for that intuitive hit and go with it.

Your mind is bigger than your analytic prowess. Use all of it, rational and emotive, in the service of your success.

Get Those Undecideds On Your Side: With Jury Instructions

Despite the best efforts of all involved, jury instructions remain obscure and confusing to all but the most legalese-savvy jurors. Cases should be won or lost on their merits, but too often, cases are lost (or unsatisfactory verdicts obtained) because the jurors either did not understand the jury instructions, or how those jury instructions should be specifically applied to the verdict form.

Clarifying jury instructions so jurors can make their way through the verdict form fully understanding what their vote means, is important. That’s step one. But then it’s critical to move on to step two: letting the jurors know during closing argument not only how they should vote (according to you), but why.

It’s the “why” that is often left out. You need to arm the jurors already decided by your arguments with sufficient ammunition to convince the undecideds – reiterating the evidence/testimony simply isn’t enough.

“Why” consists of firmly tying specific evidence supporting your case to specific verdict questions, preferably in bullet form, which is easier for your decided-jurors to remember and use in their “Here’s why” during deliberations.

Undecided jurors are your “make it or break it” jurors, and they only make up their minds during deliberations. If you don’t give those jurors already on your side the information they need to swing the undecideds over, you leave the verdict up to chance. Or worse, up to ill-formed, confused, half-hearted attempts, for in the absence of solid rationale, what else can your decided-jurors argue?

Want Powerful Testimony? Adopt the Power-Sit

 

Witnesses are nervous enough already at the thought of testifying. Being loaded down with 10 body-language directives from well-meaning attorneys doesn’t necessarily enhance their testimony.

I have found that one simple directive ‘fixes’ a whole host of body-language problems. That is the “Power-Sit.”

Simply put, the witness sits with their rear planted firmly in the “L” of the chair, which assures good posture without having to think about it. They then are asked to avoid leaning to the left or right and to keep their back in contact with the back of the chair at all times. That the more nervous they get, the more the witness can press their back into the back of the chair. It becomes their ‘secure’ or ‘safe’ place.

The impression jurors receive from the “Power-Sit” is that of a confident, straightforward, credible witness – one whose testimony is far more likely to be believed than the testimony from a witness who slumps, or leans to the left or right, or aggressively forward, to give but a few examples.

What a platform for effective testimony! Without your witness having to remember 10 different directives, they only have to focus on one. Now you are free to focus on the substantive issues in your witness’ testimony, knowing their body language won’t be contradicting the testimony.

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.

The Power of Privacy: Juror Questionnaires

 

You would think that potential jurors, knowing full well that their written juror questionnaires will be scrutinized by the lawyers on both sides, if not also by trial consultants and other professionals, would respond to written queries the same as they do to oral voir dire. Certainly the same as jurors would respond to Your Honor at sidebar or in chambers.

Not.

Fascinating research revealed something I long suspected (and relied on) from years of jury selection experience: people feel that what is between themselves and a sheet of paper is private. Potential jurors are most honest with their true thoughts and feelings in response to jury questionnaires, to a surprising degree.

Jurors in the study failed to answer truthfully to 67% of voir dire questions, to 33% of attorney sidebar questions, to fully 50% of judge sidebar questions, and even to 20% of questions asked in chambers.

What does this mean to you? Simple. Any time it is possible to use a jury questionnaire, use it! Jury questionnaires do not need to be arduous, overwrought documents. Streamlined and written for maximum effectiveness, juror questionnaires will give you the most truthful look at how your potential jurors think and feel.

Jury questionnaires can make all the difference to winning your case.

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A Winning Case Dr. Noelle Nelson recently consulted on:

Congratulations to A. Barry Cappello, Leila Noël, Larry Conlan and David Cousineau of Cappello & Noël LLP; Lieff Cabraser LLP; Keller Rohrback LLP and Audet & Partners, for their $230,000,000 successful settlement, reached after seven years of litigation in the class action lawsuit filed by fishers, fish processors and shoreline property residents (members of two classes) against Plains All American Pipeline, after a corroded pipeline spilled an estimated 15,000 barrels of crude oil into the Pacific Ocean in 2015. The spill devastated the fishing industry and polluted coastal properties from Santa Barbara County to Los Angeles County. 

Create a Trustworthy First Impression

 

First impressions are tremendously powerful. It takes less than a minute for you or your witnesses, to establish a credible first impression with the jurors, one which, once established, will be very difficult to change or alter in any way.

Credibility is founded on trustworthiness. And those we trust display more trustworthy behaviors: more head nods, more eye contact, more smiling, more open body posture. All of these behaviors are easily accessible to any of us. For that matter, when you’re in a relaxed, comfortable situation with friends or family, you’re likely to display these very behaviors without thinking about it.

Allow yourself to present yourself to the jurors more as who you are with friends – trusting and therefore trustworthy, and encourage your witnesses to do the same. The only caveat is that smiles must be appropriate to the situation, and when in trial, the moments where it is appropriate to smile are limited.

Dr. Noelle Nelson recently consulted on:

Congratulations to Gerard T. Carmody and Lindsay Combs of Carmody MacDonald P.C. (St. Louis) for their $2,300,000 unanimous Jury Verdict in City of Brentwood, Missouri v. TMD Property I, LLC, an eminent domain case involving the taking of 6+ acres of vacant undeveloped property in highly sought-after Brentwood, Missouri.  The City’s original offer was $170,000 which increased at trial to approximately $280,000.  The property owner, represented by Carmody MacDonald, testified to a range of value between $2,150,000 and $2,300,000.  The jury unanimously awarded $2,300,000.  Several jurors were moved to tears during the reading of the verdict.  In addition to the $2.3 million verdict, TMD Property I, LLC is also due over $230,000 in interest.

 

The True Value of Computer Animation

Most cases don’t settle, or are very challenging to settle, and end up in trial because there are grey areas in the case - situations or testimony which can be interpreted in different ways. Computer animation is often thought of as an effective, albeit expensive, way to show events. Research tells us, however, that there is a much more compelling reason to use computer animation.

Computer animation makes your interpretation of the event or situation concrete. There is always flux, indeterminate issues within any accident or event reconstruction, which the opposing experts will argue at length. But once the jurors see and hear for themselves your version of said reconstruction, they are far more inclined to believe it. And computer animation is an easy, immediately understandable, way to present your belief of “what happened” in a way that makes it real.

That being said, the facts must be solidly incorporated into the animation. Jurors will pick at the slightest incongruence between the known facts (skid marks, length of surgical incision) and the animation, and the persuasiveness of your animation will be destroyed. 

Don't Let Your Jurors Miss the Gorilla in the Room

 

People were asked, in a classic experiment, to watch a short video in which six individuals, of which three wore white shirts and three wore black shirts, passed basketballs around. The people were asked to count the number of passes made by the individuals in white shirts. At some point, a gorilla strolled into the middle of the action, faced the camera and thumped its chest, and then left, having spent nine seconds on screen.

Intuitively, we all think we’d see the gorilla. How could something so obvious go completely unnoticed? But the truth of the matter is that half of the people who watched the video and counted the passes missed the gorilla! It was as though the gorilla was invisible.

This research led to further studies on what is known as “unintentional blindness and deafness.” When we’re focused on one thing, we easily miss other, potentially very important, things.

This is why, when it comes to winning in front of a jury, it is best to present your most important evidence/testimony both visually and auditorily. You never know which member of the jury is focused on something that renders them unintentionally deaf or blind to your critical point.

It’s also why repetition is important in a trial, and why review at time of close, matters. Don’t rely on spoken review of testimony alone. Be sure to include a visual review, using boards or other graphics, such as check charts, to sum up your interpretation of the facts. 

To Win: Honor Jurors’ Search for Understanding

 

Jurors are told by the Judge not to research anything having to do with the trial, which is fine--except when a juror finds themselves bumped off the panel by a Judge for daring to look up a legal term in the dictionary. Which has happened, probably more than once.

What is wrong with this picture? Why should a juror be penalized for something that is essentially the lawyers' failing – for whatever reason – to do their job in regards to the jurors? Perhaps the lawyers indeed defined their terms adequately in this case, and the juror was being compulsive, but in truth, I have found repeatedly that lawyers forget how much of their communication is legalese, and how many words have a different meaning in ordinary conversation.

Take negligence, for example. To many laypersons, being negligent has an aspect of deliberateness about it. You know you should put your seat belt on, but if you don’t, you’re negligent. So if the surgeon didn’t mean to leave the sponge in the person, it’s probably not negligence. Another example: Lawyers refer to memorializing things. To a layperson, that often means some kind of memorial was created, like a statue or special day. To opine is frequently confused with “to pine” as in “lament.” I could go on . . .

Bottom line: define your terms in words a fifteen-year-old can easily understand and use in a sentence. Believe me, a fifteen-year-old is plenty smart enough, they just don’t have the world and life experience you do. Just like the jurors. Not only will the jurors thank you for using terms defined according to common parlance, they’re more likely to favor your interpretation of the case. After all, it’s the case they understood.

Will Juror Empathy Help or Hurt Your Case?

 

Delving into the group affiliation tendencies and reading habits of your jurors can give you valuable clues to whether or not a juror will be empathic, meaning able or willing to help others in need.

We’ve usually taken this to mean that the nature of the groups people join, and the material they read, are good indicators of how jurors will assess facts. Persons joining a law-and-order type group are more likely to be defense-oriented, persons volunteering at a handicapped facility more likely to be swayed by the plaintiff, and certainly, that still holds true.

However, studies show that the mere fact of belonging to groups of whatever ilk is more likely to be connected to concern for others. Persons who are socially isolated tend to be less generous towards others.

The same appears to be true of reading. Just the fact of reading seems to be connected to one’s empathy. Persons who read little may be less empathic, and, more specifically, that persons who read less fiction report themselves to be less empathic.

As always, the types of jurors you want to include/exclude depend on your case. The more you know about what goes into decision-making, for example, empathy or the lack thereof, the more likely you are to choose appropriate jurors. 

The Power Sit

 

Now that we are back in the courtroom as opposed to our above-the-waist-only position on Zoom, our witnesses/experts’ body language is once again relevant.

In working with witnesses, I developed the “Power Sit” – my shorthand for “Please sit up straight, your back against the back of the chair, with your head level, arms on the arms of the chair,” because experience showed me that witnesses who sit this way, demonstrating good posture, are deemed more credible by jurors.

How does this work?

         - The “Power Sit” bolsters your witnesses’ self-confidence and self-esteem, a consequence of self-respect. Your witnesses are more likely to give credible testimony because they feel better about themselves.

         - Your witnesses are more likely to be perceived by jurors as credible and persuasive, because in our society, those who maintain good posture are considered worthy of respect.

It then stands to reason, that with just a little attention to your own posture, whether sitting at counsel table, standing at the podium or in the well, you can be an even more powerful and convincing litigator. Every little bit helps when it comes to winning your case.