Don’t Be Blindsided by “the Curse of Knowledge.” Clarify!

Jurors will not find for what they don’t understand. Simple, right? Yet laying your case out in such a way that jurors readily understand can be more challenging than it at first appears, due to what the authors of the book “Made to Stick” call “the Curse of Knowledge.”

Namely, that you are so deeply steeped in your case, the issues of your case, the whys and wherefores of your case, that you can’t imagine what it is like not to know about it.

Oh, sure, you are well aware that the jurors are uninformed as to the legal aspects of the case, but too often, you don’t tune in to how necessary it is to explain everything about your case in a way your jurors can readily and easily understand.

This doesn’t mean to give excessive detail. It doesn’t mean to “talk down” to jurors, either, a phrase I heartily dislike. Jurors are no different than the folks you interact with every day, from the barista to your mechanic to your support staff. They just have different areas of expertise in which they are far better informed than you are.

Build your jurors’ confidence in their ability to make a wise decision in rendering their verdict by streamlining your arguments, and presenting your key evidence with stunning clarity. Wherever you can, use visuals to further clarify and explain.

Whenever possible, run a focus group of individuals similar to your jury pool. They will tell you, with unerring accuracy, exactly what persons not afflicted with the “Curse of Knowledge” will understand and fail to understand.

And yes, that includes how your experts present their testimony as well.

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A WINNING CASE Dr. Noelle Nelson recently consulted on:

*Congratulations to A. Barry Cappello and Leila J. Noël of Cappello & Noël, LLP, and co-counsel, Proskauer Rose, LLP for their Defense Verdict. After an eight-week trial and less than four hours of deliberation, a Santa Barbara Superior Court jury rejected a $27 million lawsuit filed by Johnson & Johnson/Mentor Worldwide LLC against Santa Barbara-based Sientra, Inc. for interference with prospective economic advantage, contract interference, breach of fiduciary duty and misappropriation of trade secrets.

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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!