Get Those Undecideds On Your Side: With Jury Instructions

Despite the best efforts of all involved, jury instructions remain obscure and confusing to all but the most legalese-savvy jurors. Cases should be won or lost on their merits, but too often, cases are lost (or unsatisfactory verdicts obtained) because the jurors either did not understand the jury instructions, or how those jury instructions should be specifically applied to the verdict form.

Clarifying jury instructions so jurors can make their way through the verdict form fully understanding what their vote means, is important. That’s step one. But then it’s critical to move on to step two: letting the jurors know during closing argument not only how they should vote (according to you), but why.

It’s the “why” that is often left out. You need to arm the jurors already decided by your arguments with sufficient ammunition to convince the undecideds – reiterating the evidence/testimony simply isn’t enough.

“Why” consists of firmly tying specific evidence supporting your case to specific verdict questions, preferably in bullet form, which is easier for your decided-jurors to remember and use in their “Here’s why” during deliberations.

Undecided jurors are your “make it or break it” jurors, and they only make up their minds during deliberations. If you don’t give those jurors already on your side the information they need to swing the undecideds over, you leave the verdict up to chance. Or worse, up to ill-formed, confused, half-hearted attempts, for in the absence of solid rationale, what else can your decided-jurors argue?

How Touchy-Feely Can Help Win Your Case!

The question of whether to trust our logic or trust our emotions is rarely brought up in the context of legal matters, at least not from the lawyer point of view. Certainly, we discuss endlessly how this or that prospective juror’s mind-set (highly emotional versus highly rational) might impact our case, but not usually how the lawyer’s emotion would.

However, recent research by M. Pham, L. Lee and A. Stephen provides interesting insights into the positive impact lawyer emotions might have in winning cases.

In brief, their study showed that people who were more likely to trust their feelings were also more likely to accurately predict the outcome of a particular event. The researchers call this phenomenon the “emotional oracle effect.”

How does this apply to winning your case? Tune in to your emotions. If, when preparing a witness, you sense that something is “off,” don’t dismiss that because your logic tells you all is well. Trust your emotions enough to say something like “I notice that . . .” or “I’m wondering if. . .” which is a non-threatening way to probe further and take a look at whether or not what you sense with this witness has some basis in reality.

Similarly, you can review the demographics of your prospective jurors all you want and weed out the obvious “bad apples,” but when it comes down to “keep Juror A versus Juror B” – tune in to your emotions. Listen inside yourself for that intuitive  hit and go with it.

Your mind is bigger than your analytic prowess. Use all of it, rational and emotive, in the service of your success.

Want Powerful Testimony? Science Proves the Power-Sit’s Impact!

I have long encouraged witnesses to adopt the “Power-Sit” position I developed after observing juror responses to witness body language.

Simply put, the witness sits with their rear planted firmly in the “L” of the chair, which assures good posture without having to think about it. They then are asked to avoid leaning to the left or right, and to keep their back in contact with the back of the chair at all times. The impression jurors receive from the “Power-Sit” is that of a confident, straightforward, credible witness – one whose testimony is far more likely to be believed than the testimony which issues from a witness who slumps, or leans to the left or right, or aggressively forward, to give but a few examples.

Now I’ve always known the impact of the “Power-Sit” on juries, but what I didn’t know, and science has recently discovered, is the impact of the “Power-Sit” on the witnesses themselves. According to Harvard Social psychologist Amy Cuddy’s recent research, “assuming a high power pose for just two minutes before the job interview, the body would generate hormonal changes that corresponded with feeling empowered, comfortable, and less reactive to stress.” In lay-person’s language, the person him/herself experienced greater confidence, ability, and comfort.

What a platform for effective testimony! The stronger your witness feels, the more likely they are to testify well, and the better their testimony will be received.

And all it takes is a little attention to your witness’s body language.

Don’t Treat Your Firm’s Millennial Lawyers Like Wanna-Be Boomers!

As your Boomer partners, lawyers and staff retire, you are dealing increasingly with the Millennial generation, no longer the “babies” of the group, since they are now hitting 30.

You are no doubt discovering that these young lawyers, soon to be partners, aren’t going to become Boomers. Their interests, work ethics and personal values are very different.

Don’t treat your Millennials like wanna-be Boomers! Respect what engages their hearts and talents.

Millennials are driven by meaning, by the ability to make a difference in the world, and although they certainly appreciate decent compensation, it’s not what gets them to be productive or to excel.

For example, when you assign work, make sure to point out the meaning, the value of this work, be it to the client or to the community. Especially to the community, for societal issues are pertinent to this generation, and they will gear up on its behalf.

Provide lots of ongoing positive feedback, along with whatever suggestions for improvement are required. Make sure you offer opportunities for growth and learning. Millennials are generally very accepting of a Boomer’s experience and knowledge, and can benefit greatly from a mentoring relationship.

Don’t begrudge Millennials their tenacious enthusiasm. It is what fuels their willingness to put in the hours and the brain-power you need.

The Millennials are an exciting, powerful generation. Respect them as such, and they will soar – and your firm along with them.

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A Winning Case Dr. Noelle Nelson recently consulted on:

Congratulations to Leila J. Noël and A. Barry Cappello of Cappello & Noël (Santa Barbara) for their successful $4,800,000  Settlement which the Santa Barbara County and Santa Barbara County Sherriff's Department agreed to pay to the survivors (and their parents) of a wrong way driver accident, involving a Sheriff's Deputy, that took two lives and seriously injured two others.

Focus Groups Save the Day–on Broadway!

In the spring of 2012,  Spider-Man: Turn Off the Dark, was widely believed to be headed for total flopdom: media were comparing it to the Titanic. Yet, this fall, the show has already grossed more than $160 million, a Broadway blockbuster, largely due to co-lead producers Jere Harris and Michael Cohl’s willingness to take drastic measures to turn their incipient flop into a fabulous success.

Among those measures were—you guessed it—focus groups. The producers realized that audience members were leaving the preview performances confused, so they conducted focus groups investigating specific aspects of the show. Production was stopped—a radical move--in order to make changes based on the focus group feedback.

It worked.

Your cases deserve no less. A focus group is a relatively low-cost pre-trial strategy to give you the winning edge. There is nothing that can replace vigorous discussion of your case’s strengths and weaknesses among a group of people rigorously selected to match your jury pool.

Unlike Broadway, you can also receive (if the focus group is conducted with this purpose in mind) juror profiles as to “best” and “worst” likely jurors, assessed from the responses of the focus group members.

Yes, it takes effort and the courage to withstand open criticism from a group of strangers, yet given that these strangers are willing to give you the feedback that can put your case in an advantageous posture, it’s well worth it, even when you don’t think your case resembles the Titanic. 

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A WINNING CASE Dr. Noelle Nelson recently consulted on:

*Congratulations to Dave Luce and Meghan Lamping of Carmody MacDonald P.C. (St. Louis), and Spencer M. Taylor and M. Todd Lowther of Balch & Bingham L.L.P. (Birmingham) for their $11,106,420 Jury Verdict in TAMKO v. Factory Mutual (FM), a hotly contested business interruption insurance case. FM claimed that TAMKO's damages, which TAMKO sought in the amount of $12.2 million, were less than $2.5 million. FM argued that TAMKO did not suffer a loss of production due to an absence of raw material but instead was impacted by the late 2008 economic downturn, and that TAMKO could not demonstrate that it had actually lost any sales. Clearly, the jury did not agree with FM.