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?

Want Powerful Testimony? Adopt the Power-Sit

 

Witnesses are nervous enough already at the thought of testifying. Being loaded down with 10 body-language directives from well-meaning attorneys doesn’t necessarily enhance their testimony.

I have found that one simple directive ‘fixes’ a whole host of body-language problems. That is the “Power-Sit.”

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. That the more nervous they get, the more the witness can press their back into the back of the chair. It becomes their ‘secure’ or ‘safe’ place.

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 from a witness who slumps, or leans to the left or right, or aggressively forward, to give but a few examples.

What a platform for effective testimony! Without your witness having to remember 10 different directives, they only have to focus on one. Now you are free to focus on the substantive issues in your witness’ testimony, knowing their body language won’t be contradicting the testimony.

Don’t Let the Curse of Knowledge Nuke You at Trial!

 

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 its ins and outs can be more challenging than it at first appears.

You see, you may be 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 them. You’ve fallen victim to the curse of your own knowledge.

Certainly, 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. Including whatever testimony your experts proffer.

This doesn’t mean giving excessive detail. It doesn’t mean to “talk down” to jurors, either. Jurors are no different from 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, BTW.

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

If at all possible, run a focus group pre-trial of individuals similar to your jury pool. They will tell you, with unerring accuracy, exactly what persons not afflicted with the curse of your particular knowledge will understand or fail to understand.

Now you are much better prepared to win at trial!

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

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

The best tool to help your witnesses get to jury-worthy credibility is to use videotaped 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.

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, 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 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.

Once again, the mighty power of visuals is revealed!

Do You Like Me?

 

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

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 the 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 or 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, tweets and more authored by those who have served. Even though the original “CSI” television show and its many offshoots are long past (well, mostly), the “CSI effect” is remarkably enduring. One would do well to pay more attention to it.

Simply put, the “CSI effect” is jurors’ overriding, 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 one trial, for example, jurors requested photos of a victim’s wounds and examined them minutely. Nothing novel there. However, a mechanic among the jurors categorically pronounced the wounds as from a Torx screwdriver, despite the fact that apparently no such screwdriver had been mentioned during the trial. In the absence of being given any more compelling evidence from defense, the rest of the jurors seized on the “Torx” interpretation, and what had been a stalemated jury rapidly became a unanimous plaintiff’s 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 (preferably with visuals for support) 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.