The Nuisance of Jurors

 

Now that we’re slowly coming out of the pandemic with its restrictions, trials are resuming. With that, jurors are once again entering your world. Darn.

Trials would be so much easier if you didn’t have to deal with jurors. Jurors wander off mentally during your most critical testimony. They are distracted by the need to scratch an itch, or by a lawyer’s mannerisms. Jurors are irritated by an expert’s vocal tone, they disapprove of a witness’s attitude. Jurors misunderstand the law and all too often make it up as they go along. Jurors impose their own version of what’s right or wrong, ignoring to a distressing degree the jury instructions, regardless of the judge’s admonitions. Jurors deliberate as a group, which introduces the whole notion of group dynamics, complicating the matter further. And that’s but the tip of the juror iceberg . . .

But jurors must be dealt with, and more importantly, you must deal with how they come to the decisions they make. For the better you can determine or discern what impacts those decisions, the more likely you are to succeed at trial.

This is where intense, targeted use of the pre-trial focus group can be especially valuable. Instead of letting focus group “jurors” elect a foreperson and talk over each other to arrive at a consensual decision, have a facilitator ask probing questions of each and every juror, to analyze how each juror arrives at their various conclusions, as well as observe how group dynamics affect those conclusions.

Knowledge is power.

How to Expose Witness Lies Effectively

 

As much as jurors resent a witness who lies, you must have inconvertible evidence that someone is out and out lying in order to even suggest it.

Even then, it’s best to let the jurors come to the conclusion that a witness is lying on their own. People are persuaded by their own reasoning far more than by your proffered statements. Use words such as “incorrect” “inaccurate” “not forthcoming” to describe a witness’s testimony as opposed to “lying” or “untruthful.” Let the jurors attach the word “lie” to the testimony – as they will, if your presentation of the witness’s falsehood is effective.

One of the most effective ways to help the jurors get there, is to use the tried-and-true  “Chart of Inconsistencies.” As defense, for example, you could bullet on a chart what the plaintiff told Dr. A, the different story he told Dr. B, and the yet more different tale he told at deposition. Or as plaintiff, you could bullet on a chart what defendant told the police, what was discovered in emails, what she swore to in interrogatories. Such a chart alone, since it references facts, has more impact on today’s jurors than your forceful “And he lied!!” ever could.

Tell Your Story with Timelines

 

Now that we are coming out of the pandemic and going back into the courtroom, it’s wise to start considering how best to persuade jurors.

An obvious point: the more complex the case, the more important it is that you simplify and clarify events and circumstances for the jurors. A timeline is one of the most effective ways to organize facts in a way that makes them relevant to jurors. We are used to stories being presented chronologically. The chronology alone often will tell the story. Use a timeline, or several, whenever possible. 

Timelines, whether on a board or projected onto a screen, should be presented with time on the horizontal axis whenever possible. It demonstrates the movement of time from left to right, a progression jurors are very familiar with. When presented with a timeline depicting time on a vertical axis, often favored by attorneys, jurors can be too easily confused.

A horizontal timeline also allows you to show events above and below the line representing time, be that in minutes, days or years. This is a very effective way to organize information. You can, for example, show the evidence that directly favors your case in “flags” above the date line, and show the inconsistencies in opposing counsel’s case in the flags below the date line. For example, as defense, you can contrast plaintiff’s stated behavior at points in time on the above the line flags, with the contradictory medical reports on the below the line flags. 

Timelines of any kind should be used creatively, not just as markers in time, but as ways to tell your story more persuasively.

The Lingering Impact of Misinformation

 

In trial – or even at deposition – it’s often tempting to dismiss an aspect of opposing counsel’s theory as insignificant, or too “out there” for jurors to adopt, and therefore offer little in the way of an alternative theory. This is not a wise choice.

Results of a study published in Scientific American show how despite the correction of misinformation, people tend to retain misinformation. Subjects in the study were told first that an accident involved a busload of elderly individuals. One group of subjects was told that was incorrect, but not given an alternative version of who was on the bus. Another group was told that the accident actually involved a college hockey team. 

The group given an alternate version (“hockey team”) was less susceptible to responding with the original “misinformed” version (“elderly individuals”), yet even they agreed with certain statements such as “the passengers found it difficult to exit the bus because they were frail.” How can this be? Shouldn’t logic prevail? 

One wishes. Unfortunately, misinformation tends to linger in memory following the rule of precedence: what’s learned first tends to stick with us longer. So it is critical that you counter any theory, or expert witness testimony, or other evidence that you consider “misinformation,” boldly and with as much visual assistance (graphics, video, PowerPoint slides) as you can. Make sure that what sticks in memory is your interpretation of the case, not opposing counsel’s.