Men and Women Are Different: Choose Gender-Friendly Words in Formulating Voir Dire

Men and women are different. No big surprise there. They think differently. Still no big surprise. So it should come as no surprise that men and women respond differently when asked a voir dire question in the same way. But this isn’t a thought that occurs to attorneys most of the time; they ask questions of prospective jurors as if gender didn’t matter.

Gender matters!

Ask a male juror how he feels about something, and he’s likely to say “I dunno” or “Not much one way or the other.” Ask a male juror what his opinion is on the same matter, and he’ll usually expound with gusto. He will tell you more about himself by the opinions he stands firm on, and those he’s middling about or indifferent to, than just about any other indicator (except occupation).

Ask a female juror how she feels about an issue, and she’s likely to be verbose. She knows exactly how she feels about everything and is usually willing to share. Ask a female juror her opinion and you might not get much of anything. For the most part, “opinion” is for female jurors what “feelings” are for male jurors.

Word choice matters! Certainly the above is a generalization, and some women hold strong opinions, formulated as such, and some men are frank about their feelings. When it comes to voir dire, however, start by using the word that generally elicits the most informative response from the gender you are addressing. You can always make a different choice as you observe the response you get.

And oh, by the way, “What has your experience been with XYZ?” tends to be gender-neutral, in that both male and female jurors tend to be equally forthcoming when asked about their experience or lack thereof.

The Challenge of Celebrity Clients - New CAALA Article

 

The October issue of CAALA's The Advocate contains an article I authored called "The Challenge of Celebrity Clients." Here's the link: http://bit.ly/1D9ND7c.

The Eyes Have It: Does Your Witness Know How to Look at Jurors?

Telling your witness to look at the jurors during their testimony without teaching them how to do so can be fatal to your case. 

A scared, anxious witness may only dare a quick terrified glance mid-sentence at the jurors, which confirms in the jurors’ minds that yup, this witness is surely hiding something. So much for the witness’s credibility.

Or a witness may attempt to “duke it out” during cross by glaring at the jurors during his or her response, rather than focusing on opposing counsel. This does not benefit your case.

Help your witness look at the jury in a way that enhances their credibility even as it satisfies jurors’ need to see the witness’s eyes to determine veracity.  Which as many of us will remember, is why our mothers would say; “Look me in the eyes when you’re talking to me!”

During direct, suggest that your witness, when they have a response of a couple of sentences or more, to begin their answer by looking at you, to then turn out to the jurors and look at different jurors during the bulk of their response, to conclude their response by turning back to you during the last few words. If the witness can angle their body very slightly towards the jury box, then turning out towards the jurors is smoother. All this sounds easy, and certainly becomes easy, but only with practice.

I have found videorecorded role-play to be the most effective way to help witnesses get comfortable with turning out to the jurors. It’s best to do during direct, because during cross, the witness will rarely be given an opportunity to respond with more than a few words, and focusing on opposing counsel is their primary responsibility at that point.

“Look at the jurors,” yes, is a critical and essential instruction, but how it is done can make all the difference to your case.

"You Need a Timeline!"

Timelines are essential to just about any case. I’ve been teased by various attorneys I’ve worked with that I always recommend a timeline, and indeed it’s true.

But there is method to my repeated "You need a timeline!" Movement of events across time is how jurors anchor testimony in their minds. It’s how they create “story” for themselves.

And story is the single most compelling way to get facts and information across to the jurors in a coherent, persuasive manner.

The reason a timeline works so well, is it answers the fundamental question of story-telling: “And then what happened?” It ties together apparently disparate testimony or pieces of evidence. It grounds any narrative in logic, by assigning order to the events.

Timelines need to be designed around a horizontal axis representing time, with “flags” or “boxes” pegged at the appropriate moments in time. Timelines don’t need to be fancy, but different entities should have different colored “flags,” for example, to differentiate them easily. Beyond that, a graphics designer can help give a timeline more visual impact.

The temptation is often to put too much information on a timeline: it’s a tool meant to emphasize and support, not reiterate all the testimony. Several uncluttered, easy-to-read timelines are better than a single one crowded with too much for the eye to readily grasp.