Win the Battle of the Experts

Considerable research has been devoted to figuring out how jurors decide among competing experts, which one to believe.

Not surprisingly, jurors are suspicious of expert motives, and assume that each expert will be biased toward the side that hired the expert.

However, setting that aside, jurors then pay close attention to the disagreements between the experts, how much of the evidence each expert actually speaks to, and how what the expert says fits with the overall presentation of testimony and evidence.

All this is well and good, and reminds us of how important it is for experts to consider their opinions within the context of the entire case.

But the true demarcation, that which often makes one expert the “truth-speaker” for the jurors as opposed to another of the experts, is the plain-spokenness of an expert. Jurors appreciate straight-forward opinions and testimony.  Jurors are suspect of an expert who can only render his or her opinions in jargon or otherwise technical language that impedes juror comprehension.

Lawyers, so thoroughly steeped in the case that they hardly recognize obscure language as such (because they’ve been using it in depos, in motions, etc. for the life of the case)  don’t facilitate the process for jurors because the lawyer is just as likely to ask questions using technical terms as the expert is to respond in like manner.

Get the jurors on your side by prepping your expert to speak in juror-friendly terms.

Refresh your awareness of what jurors will and won’t understand by presenting your expert’s opinions to a focus group. Or to your 15 year old nephew. Either will let you know in no uncertain terms whether the language your expert uses is credible and convincing.

Words, words, words!

Did you know that the very words you use in framing your question will encourage witnesses to think and respond differently?

For example, in a study in which a group of people were asked to estimate a basketball player's height, the response varied. When asked "How tall is he?" those in a study answered on the average, “79 inches.” When the question posed was, "How short is he?" of the same player, subjects answered on the average, “69 inches” a difference of almost a foot!

Choose words such as "fast" when you want to suggest speed, "far" for distance, "tall" to emphasize height, and "short" to minimize it. "How fast was the car going?" suggests high speed. "At what speed was the car traveling?" suggests a more moderate speed. "How far was the intersection?" implies that the intersection was far away; "How near was the intersection?" implies the opposite.

Choose the word that presupposes your desired answer. "How long did that go on?"
denotes a situation went on a long time. "How soon was it resolved?" indicates the situation did
not go on a long time. "How many people were involved?" implies many people were involved.
"Who else was involved?" implies just a few people were involved.

It is surprisingly easy to make deliberate word choices that better focus witness responses - and therefore juror perception - to your advantage.

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 people-three in white shirts and three in black shirts - passed basketballs around, and to count the number of passes made by the people 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.

Although 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, conducted by scientists Chabris and Simons (“The Invisible Gorilla”) has led to further studies on what is known as “unintentional blindness and deafness.” They found that 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, I strongly recommend that you 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, but include a visual review, using boards or other graphics, such as check charts, to sum up your interpretation of the facts.

Overreach and Risk Losing the Case

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.

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.

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.

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.