How to Persuade With Jury Instructions

Jurors polled in focus groups and jury debriefings point out again and again that one of their greatest stumbling blocks at arriving to fair and just decisions is jurors' lack of understanding of the jury instructions and how those instructions should apply to the case. No matter how many times jurists attempt to make jury instructions more accessible to the ordinary person, the language remains obscure and convoluted. Lawyers must help jurors make sense of the language - and most importantly - help the jurors understand how these instructions fit with your case.

For example, take the common instruction regarding "negligence." Jurors often interpret the term as meaning deliberately, intentionally failing to do something one should have done. This is, after all, the most common use of the term in our everyday parlance. Unless clearly instructed that the intent to inflict harm is not a prerequisite of a finding for the plaintiff, the jurors, for example, might absolve a physician's incompetence because "the doctor didn't mean to hurt the patient."

In addition, even when jurors understand the words themselves, they can fail to see how the instruction applies to your case. What is obvious to you is often cryptic to jurors. Throughout the trial, relate testimony and evidence to the key terms of your jury instructions, and remind jurors at closing of how you accomplished this. A "bottom-line"-type chart will easily reinforce the connection.

It is a truism that the lawyer who provides the most clarity and logical explanation of a situation is the lawyer who will prevail. Although this is important throughout the trial, it is critical at during closing arguments. Improper handling of jury instructions can damage an otherwise wonderfully prepared and presented case.

Keep Experts Cool for a Credible Response

Experts can shine or be demolished during cross. An easy way for opposing counsel to destroy otherwise sterling expert testimony is to goad the expert into responding defensively by asking questions in an insulting or outright attacking tone.

Your experts do best if they don't consider the question an attack (regardless of vocal tone), but rather as an opportunity to further clarify and educate. Follow this advice and your expert won't feel tempted to negate or fight everything opposing counsel says. Encourage your expert to simply listen attentively to the content of the question, allowing he or she to answer in ways that may surprise opposing counsel and help your expert maintain a positive footing.

For example, opposing counsel asks, verging on the insulting: "Isn't it true that the validity of the psychological tests you gave is suspect?" Instead of answering defensively: "I personally examined the validity scales of every test," a more constructive answer might be "Certainly, validity is always a primary concern, as are reliability, standardization and other such issues." Using the question to clarify an issue, the expert scores with the jurors and in the process sidetracked opposing counsel (who was undoubtedly expecting the defensive response).

Here is another example of the type of question which tends to put experts on the defensive: "Isn't it true that Drs. X, Y and Z have written that the test you used to come to your conclusions is subjective and unreliable?" Experts who get angry and defensive in response to this line of questioning do not do well with jurors. Suggest that your expert concede what is indefensible, and support that which is: "Indeed, these doctors say that under certain circumstances – unlike the circumstances in this case – this test may be of limited value." Opposing counsel is now obliged to ask your expert about those "certain circumstances," (or if not, you can on re-direct) and your expert can reiterate how this test has value in this particular circumstance.

Keeping expert cool inevitably paves the way to a more credible response.

Keep Clients Happy by Keeping Them In the Loop

Every case has its problems; some can be anticipated, others cannot. In their eagerness to maintain their credibility and be effective problem-solvers for their clients, lawyers frequently make the mistake of failing to inform clients of problems in an appropriate and effective manner, or of failing to inform them in timely fashion. Inevitably, you will find yourself at some point in time with the double headache of trying to appease an unpleasantly surprised and irritated client, and of trying to resolve the original problem.

Most clients need and want to be informed about the troublesome aspects of their case. Client-satisfaction surveys show that clients complain mostly that lawyers do not inform them about problems until the problems are so big they can no longer be ignored and that lawyers are unrealistic, usually minimizing problems and overestimating their ability to deal with them quickly and easily.

Clients dislike surprises, especially unpleasant ones. This holds true for small surprises, such as finding out at the last minute that a meeting was rescheduled, and for large surprises, such as suddenly realizing that the worst possible jury has just been impaneled for their trial.

Diminish the surprise factor by informing your clients of potential problems as soon as you begin working the case. Be upfront with your clients. Do your best to keep them in the loop as much as possible. Hopefully, you’ll avert most of those problems and your clients will be the more satisfied because of it.

How Knowing Your Jury’s Worldview Gives You Impact

Facts are important. Facts are foundational. Facts are critical to your case. However, even with powerful well-documented facts on your side, if you can’t place those facts in a context, into a story that makes sense to and appeals to your jurors’ worldview – you risk losing your case.

What’s your jurors’ worldview? It’s whatever is primary in your particular jury pool’s day to day life. For example, generally speaking, the recession preoccupies all of us, but specifically, is your jury pool more threatened by layoffs or a lack of buying power? By having to take on second jobs to make ends meet, or not having any jobs to take on?

This is one of the avantages of focus groups. When mock jurors are properly recruited from your particular jury pool, they can tell you a lot about your eventual panel’s worldview. About how your story is or is not supported by that worldview.

Now you have impact in the Courtroom.

For Deposition Success: Speak to the Jurors!

Your client is a rational, mature businessperson. You expect them to do well at their upcoming deposition, after all, they have plenty of real-world experience, and of course you go over the facts of the case with them as well as some deposition basics. You are subsequently horrified when they waffle, or get angry, or are evasive, or volunteer or do any of the multitude of the other communication sins that constitute poor testimony.

But here’s the thing: whether your witness is a CEO or a homemaker, he or she must be prepared as rigorously for deposition as they are for trial. Why? Because the vast majority of cases don’t go to trial, and depositions are critical in determining your effectiveness in negotiating the best possible settlement for your client. Yet time after time, lawyers fail to prepare witnesses sufficiently for deposition. The reasons are simple: too much to do, too little time.

There are, however, some basic guidelines that can help your witness at their deposition in the absence of your being able to conduct full-fledged video-taped role play with them.

Here's a tip: tell your witness that although it may seem like he is responding to opposing counsel’s questions, in truth, the witness is addressing the jurors. It doesn’t matter whether or not the matter ever gets to trial, when the witness responds as if he speaking to jurors, being informative rather than defensive, polite and even-tempered despite opposing counsel’s ploys, the quality of his testimony improves radically.

Today's Jurors’ Mixed Feelings About Corporations

National research (Harris Interactive, 2009) shows that a majority of Americans place “a lot” of blame on banks (76%), Wall Street (57%) and big business (55%). In these difficult and trying times, juror attitudes are changing. It is inevitable that among your jurors there will be those who are recently un-employed, some for the first time in their work-lives, and those who have lost savings, homes, opportunities, even careers.

This has corporate defendants very concerned, for if corporations have often fared poorly in jurors’ eyes, they are doing even worse now. However, this is hardly the time for plaintiff’s counsel to cry “Huzzah,” for along with the public’s disdain for corporate greed and malfaisance, comes the public’s disapproval of any case that smacks of the frivolous or the not “truly madly deeply” justified, especially if plaintiff’s win would mean a cut in jobs for employees.

At least some of the jurors in any given panel understand the consequence of large awards. Don’t forget that among the currently unemployed are many who were in the upper-middle white collar strata of the workforce, and that these unemployed are able to educate their less-informed fellow jurors on the realities of what happens to employees, their jobs, wages and benefits, when corporations are hit with huge verdicts.

Whether representing plaintiff or defendant, keep in mind the current composition of your jury pool and current juror attitudes. This will go far in helping you win your case.

How Texting and Twitter Impact Your Openings

You may never have tweeted in your life, nor do you ever want to, or you may tweet your every move. You may think texting was invented purely to bless your life with constant communication, or curse it. Either way, love it or hate it, the different ways in which people are communicating impact the effectiveness of your trial work, in particular, how you express yourself in your opening statements.

Opening statements are the roadmap, that which helps the jurors make sense of the evidence as it unfolds, this you know. However, how you create and present that roadmap needs to take into account how today’s jurors communicate, not how those of yesteryear did.

What that means is:
- Use short sentences. Express just one thought per sentence. Texting, twitter, even IMing all rely on short bursts of information. These are easier for jurors to absorb than the long often convoluted sentences typical of lawyer briefs.
- Get to the point. People who text and tweet find ways to say what they have to say in immediate, no frills fashion. Convince jurors of your case by speaking a “language” they understand.
- Title your points. A short burst of information is followed by another, related, short burst, in most texting and Twitter. When you give a title to your point (or make it a bullet-point), you can then go on to elaborate, because you have a title you can refer to repeatedly to help jurors stay on track.