Use Repetition to Drive Juror Acceptance of Your Case

When the jurors troop into the jury room for deliberations, every litigator’s dream is that each of them would, individually, spout your case theme/key points so that group consensus in your favor is inevitable.

But how do you get them to do that? By presenting a targeted, credible and compelling case. That’s a given. In addition, put the power of repetition to work for you.

Research by K. Weaver and colleagues shows that repetition, even by the same person or organization, is highly impactful: “…when an opinion is repeatedly broadcast at us by the same organization--think of a particular media conglomerate or an advertiser--we’re likely to come to believe it represents the general opinion. That’s despite the fact it is analogous to the same person repeating themselves over and over again.”

Not only should you, the trial attorney, repeat your themes and key points throughout your opening, examination of witnesses, and close, but all your witnesses, expert and lay, should be encouraged to include case themes and key points in their testimony.

Repeat, repeat, repeat! When you and your witnesses are consistent in broadcasting the same message over and over again, jurors are far more likely to accept it as the general opinion and adopt it as theirs.

Pressuring Potential Jurors in Voir Dire Can Backfire at Trial

Time after time, what I discover in jury debriefings is that jurors don’t like being “interrogated” during voir dire. They don’t mind being questioned, but they heartily dislike attorney attempts to force answers out of them, and especially resent being pressured into a “yes” or “no” responses.

Now this wouldn’t be so critical, if it weren’t for the fact that people who feel pressured into a position, retaliate by disliking the person who pressured them. Cornered animals bite. So do jurors.

As tempting as it is to finally get that unqualified “yes” or “no” from a juror, be aware of the consequences. A juror who doesn’t like you will be far less susceptible to your arguments, and may very well damn you during deliberations. Not only that, but the unqualified “yes” or “no” is often the juror simply trying to wriggle free from your unwanted persistence.

You may receive a sufficiently truthful and more accurate response by framing your question differently such that it doesn’t antagonize your juror unnecessarily: “Is it more likely that you would . . .” People respond well to choice, as well as to the word “would” which is experienced as non-invasive.

Don’t Discount the Power of Body Language!

The jurors who convicted Philadelphia abortion doctor Kermit Gosnell of first-degree murder in May of this year commented not only on the gruesome photographs they were required to view, but also on the demeanor of the defendant. As one juror put it, it was difficult to look at Dr. Gosnell in the courtroom: “He just sat there for the past eight weeks, smirking.”

Body language and facial expressions are powerful. Jurors stare at your client/s for hours on end, and quite naturally form impressions based on what they see. In the above referenced case, Dr. Gosnell may not have thought he was smirking. He may have no awareness of how his facial expressions come across.

Recently I worked with a witness who has a decided “chin drift,” that is to say he holds his chin up, such that it looks like he’s peering down his nose at the world, an arrogant posture. This is not an arrogant individual, he just has poor posture, which in his case leads to his chin drifting skyward. But I had to help him correct his body language so that the jurors, who believe what they see, would not automatically categorize the witness as arrogant, and therefore perceive him to be unsympathetic.

The best way I know to address body language and facial expression issues with a witness, is through the medium of video-taped role play. When a witness sees his/her body language, and is informed as to what it conveys, it’s much easier for the witness to make the necessary adjustments. Often, these are small adjustments, yet they are crucial.

You need every card you can think of stacked your way to win your case!

 

Win Your Case by Winning Client Cooperation!

It’s often said that the practice of law would be great if it weren’t for clients . . . Clients, of course, are what drive your business, so like it or not, part of a successful practice is learning how to deal with difficult clients.

Most clients don’t set out to be difficult, but in their frustration, anxiety or fear, they are difficult. Given that understanding, one way to assure easier interactions with your clients, is to tell them up front what to expect. This will allay their fears to some extent, which in turn will usually make them less difficult to deal with.

Let your client know, at the beginning of the relationship, that the unexpected will crop up as you handle their case. This isn’t a maybe, it’s a guarantee. Every case has its unanticipated events. Sometimes that unexpected situation will be to your client’s advantage, sometimes not. Let your client know that you will promptly inform him or her of the bumps and hurdles as they come along, as well as inform them of how you expect to deal with said bumps and hurdles.

Ask your client how they prefer to be informed: by email, phone, never on a Friday, only in the afternoon, whatever. Your client may not like whatever you need to inform them of, but they will feel kept in the loop, and in the manner they have said they prefer. This, in and of itself, will often soothe your fitful client, for you have acknowledged and respected their preference, which in turn is likely to make things a little easier for you through the life of the case.

Valuable Lessons From the Vicky Pryce Trial

The Vicky Pryce and Chris Huhne trials, featuring, per the New York Times “a leading politician, his extramarital affair, a speeding ticket, his now-divorced wife and her decision to wreak her revenge” finally ended mid-March with both Pryce and Huhne being sentenced to prison.

What’s relevant to lawyers on this side of the pond, are the types of questions asked by the jurors of the Judge in the first Pryce trial. They were so basic as to astound His Honor, questions such as: “Can you define what is reasonable doubt?” and “Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it either from the prosecution or defense?”

To assume that the jurors are stupid or incompetent is to miss the lesson inherent in this trial: for whatever reason, the lawyers did not present the case in such a way that the jurors had answers to these basic questions.

You’d think that “reasonable doubt” was pretty easy to understand. I suspect that what the jurors failed to grasp was what were the “reasonable doubt” elements in the case. In other words, when you don’t, in closing, tie your jury instructions to the facts as you’ve presented them, you’re likely to have jurors who miss the connection. It’s up to you to connect the dots for the jurors, not assume that they will automatically do so, just because “reasonable doubt” isn’t exactly a rocket-science phrase.

As to the “Can a juror come to a verdict based on a reason that was not presented in court…” question, this is where focus groups come in very handy. Focus groups, when properly recruited and conducted as opinion gathering sessions, will tell you what are the reasons most likely to convince jurors of your case, which many times lawyers, caught up as you are in the legal aspects and minutiae of the testimony, may not be aware of.