Former Boston firefighter Albert Arroyo, called “the poster child for disability pension abuse” by some, was acquitted recently, much to the consternation of many, for the firefighter, while claiming work-related disability, appeared in various bodybuilding competitions. Jurors when interviewed stated that although most of them believed that Mr. Arroyo was guilty of fraud, they did not believe he was guilty of mail fraud, which was the charge put before them. The jurors concluded that since Mr. Arroyo did not mail his disability forms, but handed them in, he had no way of knowing his forms would in turn be mailed out. The jurors believed they thus had no choice, but to acquit him. They weren’t happy about it, but “we had to stick with mail fraud or nothing.”
There is a potent lesson in here for litigators: don’t over-reach! Proving mail fraud may have, if successful, gained more for prosecutors, but proving mail fraud defied common sense. And common sense is what jurors rely on.
You can’t buck common sense. The easiest, quickest way to find out if the charges or representations of negligence and causation you want to put before a jury will hold up, is to conduct a focus group. As long as your focus group is made up of a sufficient number of persons demographically representative of your jury pool, its members will tell you, in no uncertain terms, what they will “buy” and what they won’t. I guarantee, common sense will win out every time. Go look for it among your potential decision-makers. Do not assume that your version of what will fly, is the common one.
Thursday, September 1, 2011
Tuesday, August 2, 2011
The Lingering Impact of Misinformation
In trial, it’s often tempting to dismiss an aspect of opposing counsel’s theory as insignificant, or too “out there” for jurors to adopt, and offer little in the way of an alternative theory. This is not a wise choice.
Results of a recent study published in Scientific American (“Lingering Lies” July 18, 2011) 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 later told that the accident actually involved a college hockey team. The group who was given an alternate version was less susceptible to responding to questions according to the original “misinformed” version, yet even they agreed with certain statements such as “the passengers found it difficult to exit the bus because they were frail.”
Misinformation tends to linger in memory following the rule of precedence: what’s learned first tends to stick with us longer. So in the face of a theory, or expert witness testimony, or other evidence that you consider “misinformation,” counter it 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.
Results of a recent study published in Scientific American (“Lingering Lies” July 18, 2011) 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 later told that the accident actually involved a college hockey team. The group who was given an alternate version was less susceptible to responding to questions according to the original “misinformed” version, yet even they agreed with certain statements such as “the passengers found it difficult to exit the bus because they were frail.”
Misinformation tends to linger in memory following the rule of precedence: what’s learned first tends to stick with us longer. So in the face of a theory, or expert witness testimony, or other evidence that you consider “misinformation,” counter it 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.
Wednesday, June 29, 2011
Visuals – Cut to the Chase
The importance of visuals in presenting your case to the jury is well known, and increasingly trumpeted, as ours becomes a society of glowing screens, large and small. As you decide which visuals, what part of the story they are to tell, and how best to design your visuals accordingly, one aspect is often missed: pace.
It’s easy to forget pace in your ardent desire to communicate as much as you can with the assist of visuals. But here’s the thing: look at any primetime dramatic TV show, and you’ll quickly realize that images succeed each other at lightening speed until a dramatic moment requires everything to slow down, so the audience can absorb this critical sequence. Then the pace picks up again.
So too with your visuals. Cut to the chase. Make your visuals easy to see, uncluttered, highlighting one important fact or bit of testimony, so that the jurors aren’t hunting through your visual for that important fact, having to parse through lots of relatively less important items. The pace of presenting such clear visuals can be quick, because that’s what jurors are used to from the media. Then, when you hit that one piece of evidence critical to your case, you can slow down and take your time with it.
The jurors, having not been bored or confused with your set-up or establishing visuals, will be better able and willing to give their full attention to the crux of your case.
It’s easy to forget pace in your ardent desire to communicate as much as you can with the assist of visuals. But here’s the thing: look at any primetime dramatic TV show, and you’ll quickly realize that images succeed each other at lightening speed until a dramatic moment requires everything to slow down, so the audience can absorb this critical sequence. Then the pace picks up again.
So too with your visuals. Cut to the chase. Make your visuals easy to see, uncluttered, highlighting one important fact or bit of testimony, so that the jurors aren’t hunting through your visual for that important fact, having to parse through lots of relatively less important items. The pace of presenting such clear visuals can be quick, because that’s what jurors are used to from the media. Then, when you hit that one piece of evidence critical to your case, you can slow down and take your time with it.
The jurors, having not been bored or confused with your set-up or establishing visuals, will be better able and willing to give their full attention to the crux of your case.
Wednesday, June 1, 2011
Juror’s Search for Understanding Bumps Her Off Panel
Recently, a juror in the Ronald Woodard murder trial was removed from the panel after she brought to court a glossary of legal terms she found online. Throughout the trial Jackson County Circuit Judge John McBain had cautioned jurors not to research or read anything in relation to the case, not even to look up a term in the dictionary.
What is wrong with this picture? Why should the 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 lay persons, being negligent has an aspect of deliberateness about it. You know you should put your seat belt on, but 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 lay person, that often means some kind of memorial was created, like a statue or special edict. To opine is frequently confused with “to pine” as in “lament.” I could go on . . .
Bottom line: define your terms, use words your fifteen year old can easily understand and use in a sentence. The jurors will not only thank you for it, they’re more likely to favor your interpretation of the case. After all, it’s the one they understood.
What is wrong with this picture? Why should the 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 lay persons, being negligent has an aspect of deliberateness about it. You know you should put your seat belt on, but 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 lay person, that often means some kind of memorial was created, like a statue or special edict. To opine is frequently confused with “to pine” as in “lament.” I could go on . . .
Bottom line: define your terms, use words your fifteen year old can easily understand and use in a sentence. The jurors will not only thank you for it, they’re more likely to favor your interpretation of the case. After all, it’s the one they understood.
Monday, May 2, 2011
Be Good to Your Jurors: Connect the Dots!
Recently, the foreman of the Blagojevich trial jury, critiqued the U.S. attorneys in the following manner:
“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)
The foreperson’s assessment reflects a disturbing comment I hear repeatedly in jury debriefings and in focus groups: 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.
This leaves jurors in the distress commented on above. 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 his or her case the most clearly, all else being roughly equal, is the most likely to succeed.
“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)
The foreperson’s assessment reflects a disturbing comment I hear repeatedly in jury debriefings and in focus groups: 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.
This leaves jurors in the distress commented on above. 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 his or her case the most clearly, all else being roughly equal, is the most likely to succeed.
Saturday, April 2, 2011
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 plaintiff, and certainly that still holds true.
However, what researchers at the University of Iowa have found, is 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. A line of research, conducted at York University in Toronto, has shown that 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 depends 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.
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 plaintiff, and certainly that still holds true.
However, what researchers at the University of Iowa have found, is 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. A line of research, conducted at York University in Toronto, has shown that 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 depends 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.
Tuesday, March 1, 2011
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 “Don’t hold us responsible for the other guy’s doing.” And, certainly, threats to life, limb or pocketbook attract our attention.
Television 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 (O'Keefe & Jensen, in press) show that “gain-framed” appeals, or appeals that encourage people to positive benefits, have a slight persuasive edge over “loss-framed” appeals. O’Keefe and Jensen suggest that it might be because we don’t like being bullied or threatened into behavior.
When it comes to trial practice, use both. Show jurors the dire consequences, yes, but also 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.
Television 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 (O'Keefe & Jensen, in press) show that “gain-framed” appeals, or appeals that encourage people to positive benefits, have a slight persuasive edge over “loss-framed” appeals. O’Keefe and Jensen suggest that it might be because we don’t like being bullied or threatened into behavior.
When it comes to trial practice, use both. Show jurors the dire consequences, yes, but also 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.
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