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.

How Texting and Twitter Impact Your Openings

You may never have tweeted in your life, nor do you ever want to, or you may tweet your every move. You may think texting was invented purely to bless your life with constant communication, or curse it. Either way, love it or hate it, the different ways in which people are communicating impact the effectiveness of your trial work, in particular, how you express yourself in your opening statements.

Opening statements are the roadmap, that which helps the jurors make sense of the evidence as it unfolds, this you know. However, how you create and present that roadmap needs to take into account how today’s jurors communicate, not how those of yesteryear did.

What that means is:
- Use short sentences. Express just one thought per sentence. Texting, twitter, even IMing all rely on short bursts of information. These are easier for jurors to absorb than the long often convoluted sentences typical of lawyer briefs.
- Get to the point. People who text and tweet find ways to say what they have to say in immediate, no frills fashion. Convince jurors of your case by speaking a “language” they understand.
- Title your points. A short burst of information is followed by another, related, short burst, in most texting and Twitter. When you give a title to your point (or make it a bullet-point), you can then go on to elaborate, because you have a title you can refer to repeatedly to help jurors stay on track.

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.