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 the 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.” People often assume that a person being uncooperative is hiding something, being dishonest. Yet often an uncooperative witness is one who argues with opposing counsel rather than answer the question asked, or attempts to force his or her views of the facts into every response, rather than let their own attorney do the litigating.

Your best witness—among other things—responds directly to the question asked, and leaves the lawyering up to the lawyer.

The best tool I know to help your witnesses get up to jury-worthy credibility is to use video-taped 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.

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A WINNING CASE Dr. Noelle Nelson recently consulted on:

*Congratulations to A. Barry Cappello and Lawrence J. Conlan (co-counsel) of  Cappello & Noël (Santa Barbara) for their successful $7.7 million jury verdict in United Studios of Self Defense (USSD) v. Z-Ultimate Self Defense Studios, et al. The jury decided unanimously in favor of USSD on almost every cause of action against Z-Ultimate companies and its owners (former USSD executives). The charges included breach of fiduciary duty, constructive fraud, misappropriation of trade secrets and confidential information, Penal Code 502 (destroying computer records), trademark infringement and civil conspiracy. In addition, the jury found against the owners of Z-Ultimate companies for malice and fraud.

Put “Truthiness” To Work For You—At Trial!

The value of visuals in trial work is well established, in that images emphasize and clarify testimony or evidence.

However, new research shows that visuals have impact in yet another way, which can be put to powerful use in the courtroom.

Scientists in New Zealand and Canada examined what Comedy Central satirist Stephen Colbert calls “truthiness” –the feeling that something is true. What they discovered is that when a statement, whether true or not, is accompanied by a simply decorative photograph [i.e., one that does not reveal the validity of the claim], it is more likely to be perceived as true. People simply “feel” that the statement is more likely to be true, by virtue of the accompanying visual.

So the statement “The liquid metal inside a thermometer is magnesium” accompanied by a picture of a thermometer (which revealed nothing about the metal inside), was believed to be true far more often than the same statement not accompanied by a decorative photograph.

What does this mean for you? That even when you don’t have a visual or graphic that directly elucidates testimony/evidence you are confident is credible, it’s worth attaching a visual that in some way relates to the testimony/evidence. You thus have greater chances of engaging jurors’ feeling that the testimony is truthful, as you know it to be.

Do You Like Me?

Likeability shouldn’t matter in the courtroom. A lawyer’s personality should be irrelevant. The facts should be paramount, should be the only thing jurors attend to, but  jurors are persuaded by a combination of factors: facts are but one of many.

Yes, your likeability matters. Fortunately, this isn’t high school, and your likeability isn’t based on an indecipherable “cool factor.” Likeability is based on traits anyone can easily acquire or express. Among those traits are:

1. Politeness and civility

Jurors appreciate attorneys who are polite and civil with everyone in the courtroom, from clerk to hostile witness to alternate juror.

2. Appropriate passion

Jurors like attorneys who show zeal for their client’s cause, without stooping to unwarranted bashing of the other side. Arguing inconsistencies, strength of evidence and the like are fine. Pointing out opposing counsel or a witness’s weaknesses is fine. Beating up on opposing counsel/a witness is not.

3. Clarity

Strange as it may seem, the attorney who provides the clearest, most to-the-point roadmap through the trial, the clearest, easiest-to-understand, succinct examination of witnesses, the clearest description of evidence, and the clearest explanation of jury instructions—is the attorney who is most liked, and will, in most cases, carry the day.

Master these three traits, and you’ll soon be the “best-liked” and “most-winning” lawyer in the courthouse!

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.