The Enduring, Maddening CSI Effect

In my ongoing research of what jurors think and how they decide cases, I read umpteen blogs, posts and articles authored by those who have served. Recently, yet another article appeared which pointed out to me the enduring “CSI effect,” and how lawyers would do well to pay more attention to it.

Simply put, the “CSI effect” is jurors’ over-riding, sometimes obsessive, need to explore for themselves every bit of physical evidence in an attempt to come to a fair and just decision. This is true whether the case at hand is civil or criminal. Contracts are scrutinized, emails pored over and signatures examined with the same zeal as skid marks and bloodstains.

In the article referred to, jurors requested photos of the victim’s wounds and examined them minutely. A mechanic among them categorically pronounced the wounds as from a Torx screwdriver, despite the fact that apparently no such screwdriver had been mentioned during the trial. The rest of the jurors seized on this interpretation and what had been a stalemated jury with 8 finding against defendant, and 4 equally adamantly finding defendant innocent, rapidly became a unanimous “guilty” verdict.

What’s the lesson here? That it’s up to you, the attorney, to look at your evidence every which way and give a forceful, compelling, interpretation to your evidence such that it cannot be re-interpreted in some unfavorable way by a jury that examines the evidence with a keener eye than yours. Even when there is no way for you or your experts to say with conviction “Here’s the smoking gun!” offer the jurors the strongest probable interpretation that can be drawn from the evidence. Leaving the interpretation up to the jurors is taking a chance you can ill afford when you want to win.

Arrogance 101: Dump It!

Recently,  R. Allen Stanford, the onetime Caribbean banking tycoon, was found guilty of investment fraud by a jury on 13 of 14 criminal counts, and required to forfeit $330 million in assets.

What brought him down? Stanford’s fraud and greed, of course, but according to the jurors, more than anything, it was Stanford’s demeanor that convicted him, his arrogant attitude in the courtroom day after day.

Many of you are saddled with arrogant clients or witnesses, and many a time I’ve been called in to help prepare the witness for trial, because this type of witness always rubs jurors the wrong way. Yet the “fix” is remarkably simple.

Arrogance is expressed through body language, vocal tone, and patterns of response. An arrogant person’s body is often canted back, their chin tilted slightly up as if looking down their nose at others. Their tone is condescending, full of dismissive utterances and/or sarcasm. Their responses fail to take into account jurors’ different levels of education or sophistication.

All of these are easily corrected by an appeal to the arrogant individual’s desire to do well, even brilliantly (a consequence of their narcissism), along with a hefty dose of video-taped role play, none of which alter the truth or substance of their testimony one iota. It does, however, alter your witness’s presentation of said truth on the stand, such that jurors can perceive beyond your witness’s arrogance to what’s important: the substance of their testimony. 

Can Visuals Interfere With Your Argument/Testimony?

Our world has become a ‘world-in-pictures’ with virtually everything translated into a visual format, or at the very least, accompanied by an icon or picture of some related sort. Given this reality, litigators have been encouraged to create visuals and graphics to support the presentation of their case, to the maximum allowed by the Court.

All this is well and good, and indeed, has been proven effective in case after case. However, which visuals, and how they are designed to be most persuasive, can be elusive.

Lawyers are often tempted to load up visuals with as much information as possible, understanding that the visual is more compelling than the spoken word. In theory, this is accurate. However, you and your witnesses still need to be heard as well as visually represented. Too much information on any given graphic can lead to “inattentional deafness” (Macdonald and Lavie, UK, 2011). Simply stated, the more complicated and comprehensive the visual material, the less subjects were able to respond to what they heard.

This is true for jurors as well. Over-complicate your visuals, and jurors will not be able to absorb what you’re saying. If your case is such that you must present an information-loaded visual, be that in still or video form, be quiet while that information is imparted visually, at least for a few moments, and then speak, preferably with the information-loaded visual out of view.

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* has recently 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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* Flores, D.M. (2011). Methods of expanded voir dire and written questionnaires: Experimental results on juror self-disclosure and implications for trial practice. Court Call, Summer, 2011, pp. 1-6.

Persuasion 101: Seeing is Believing

Recently, a Brigham City orthopedic surgeon (Dr. Dewey MacKay) claimed that the jury mistakenly convicted him of illegally prescribing medication  because they neither understood the facts of the case, nor how chronic pain is managed.

Jurors interviewed by the Salt Lake Tribune, however, said Dr. Mackay’s comments were misguided. One juror summed up the jury’s deliberation process succinctly: “We took every single count one by one and discussed each count in detail. We used the chalkboard, we used chart paper so everything was visual for everyone.”

(The Salt Lake Tribune, Dec 22 2011)

“So everything was visual for everyone.” That’s the key. That’s how you must be able to present your case if you are to prevail: visually. Regardless of the nature of your case: personal injury, med mal, construction defect, eminent domain, contractual dispute, whatever, you must be able to find ways to translate testimony and facts into visual elements.

That means much more than flashing deposition or other text on the screen. Visual rendition of testimony means coming up with graphics, diagrams, and bottom line charts. It’s answering today’s jurors’ constant need to “see it” before they believe it.

When you, the lawyer, provide the jury with compelling visuals to clarify and emphasize your points, you pave the way for the deliberations to favor your interpretation of the facts. This is far better than relying on the jurors’ ability to render your points visually, for they may or may not do so accurately.

Create a Trustworthy First Impression

Personal experience tells us how powerful first impressions are. However, new research from the University of California, Berkeley (Nov, 2011) reinforces our innate understanding of first impressions. The study suggests it can take just 20 seconds to detect whether a stranger is genetically inclined to being trustworthy, kind or compassionate. That’s 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.

What was it about the strangers that led the study subjects to figure out whether or not the stranger was trustworthy? Very simply, the “trusted” strangers displayed 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.