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.

The Question’s Not the Problem: The Answer May Be

 

How many times in your youth, were you told by a benevolent, or at the very least, good-hearted, coach or teacher, “There’s no such thing as a stupid question.” You’ve probably said that very phrase to your children as well. 

And yet, when jurors ask during deliberations to have something explained to them or ask a question that clearly reveals their lack of understanding, lawyers will frequently roll their eyes and mutter about “the decline in average intelligence” or mumble about the impossibility of getting “bright jurors” on the panel.

Similarly, in focus groups, when it’s obvious the mock jurors have completely missed a lawyer’s point, the lawyer will often blame the jurors for their stupidity . . . which drives me absolutely berserk.

Jurors are people who are good at what they do! Whether that’s repairing cars, or managing a convenience store, or cleaning houses. And just like the internationally acclaimed show “Undercover Boss” revealed the inability of most bosses to accomplish the mundane tasks of their employees, I defy any attorney to walk in the shoes of any juror and accomplish their tasks in life, from bus driver to pediatric nurse, with the same level of expertise as said juror.

There are no stupid questions. There are simply different arenas and levels of experience in the world. Run your cases by focus groups whenever you can to ferret out what are the issues critical to your case that jurors are likely to misunderstand or fail to comprehend. 

Then do all that you can, with the aid of visuals whenever possible, to clarify matters for those who will be your “real” jurors. 

There are no stupid questions. But there are some mightily confusing, obfuscating answers.

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.

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.

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.

Motivate Jurors Positively, Not Just Negatively

 

It used to be thought that by activating dire consequences in jurors’ minds, jurors would rush to fix or avoid consequences. This has held true whether one is plaintiff justifying huge damages, or defense arguing “They’re the bad guy, not us. Don’t let them get away with it.” And, certainly, threats to life, limb or pocketbook attract our attention. TV ads and commercials point constantly to just how prevalent such thinking is, and marketing research has conducted study after study that justifies the “Get ‘em scared and they’ll come running” position.

However, more recent studies show that “gain-framed” appeals, or appeals that encourage people to positive benefits, have a slight persuasive edge over “loss-framed” appeals. The researchers suggest that it might be because we don’t like being bullied or threatened into behavior.

When it comes to trial practice, use both. Whether you are plaintiff or defense, show jurors the consequences of their verdict, and give them a positive theme with which to uplift. Help jurors see how their decision will accomplish a higher good, something that benefits the larger population, or their community, or improve a system. Something that motivates jurors to feel good about their decision, not just terrified into it.

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.

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.

How to Expose Witness Lies Effectively

 

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 conclusion that a witness is lying on their own. People are persuaded by their own reasoning far more than by your proffered statements. Use words such as “incorrect” “inaccurate” “not forthcoming” to describe a witness’s testimony as opposed to “lying” or “untruthful.” Let the jurors attach the word “lie” to the testimony – as they will, if your presentation of the witness’s falsehood is effective.

One of the most effective ways to help the jurors get there, is to use the tried-and-true  “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 “And he lied!!” ever could.

The Lingering Impact of Misinformation

 

In trial – or even at deposition – it’s often tempting to dismiss an aspect of opposing counsel’s theory as insignificant, or too “out there” for jurors to adopt, and therefore offer little in the way of an alternative theory. This is not a wise choice.

Results of a study published in Scientific American show how despite the correction of misinformation, people tend to retain misinformation. Subjects in the study were told first that an accident involved a busload of elderly individuals. One group of subjects was told that was incorrect, but not given an alternative version of who was on the bus. Another group was told that the accident actually involved a college hockey team. 

The group given an alternate version (“hockey team”) was less susceptible to responding with the original “misinformed” version (“elderly individuals”), yet even they agreed with certain statements such as “the passengers found it difficult to exit the bus because they were frail.” How can this be? Shouldn’t logic prevail? 

One wishes. Unfortunately, misinformation tends to linger in memory following the rule of precedence: what’s learned first tends to stick with us longer. So it is critical that you counter any theory, or expert witness testimony, or other evidence that you consider “misinformation,” boldly and with as much visual assistance (graphics, video, PowerPoint slides) as you can. Make sure that what sticks in memory is your interpretation of the case, not opposing counsel’s.