Be Judicious With Your Words

The words you use in framing your question will encourage witnesses to think and respond differently. This can be critical to how your case unfolds. 

For example, in a study in which a group of people were asked to estimate a basketball player's height, when asked "How tall is he?" subjects answered on average, “79 inches.” When asked, "How short is he?" of the same player, subjects answered on average, “69 inches.” That’s a difference of a full ten inches - almost a foot.

Choose words such as "fast" when you want to suggest speed, "far" for distance, "tall" to emphasize height, and "short" to minimize it. "How fast was the car going?" suggests high speed. "At what speed was the car traveling?" suggests a more moderate speed. "How far was the intersection?" implies that the intersection was far away. "How near was the intersection?" implies the opposite.

Choose the word that presupposes your desired answer. "How long did that go on?" denotes a situation went on a long time. "How soon was it resolved?" indicates the situation did not go on a long time. "How many people were involved?" implies many people were involved. "Who else was involved?" implies just a few people were involved.

With just a bit of thought, it is surprisingly easy to make deliberate word choices that better focus witness responses -  and therefore juror perception -  to your advantage.

Making Your Employees Happy with Dr. Noelle Nelson - Transform Your Workplace Podcast

 

Companies that thrive no matter what are companies who truly appreciate their employees Successful companies create a culture where employee feedback is encouraged, rewarded, implemented, and acknowledged. In today’s business world, individual preference matters, so leaders should pay more attention to what their employees want.

Don't Let Your Jurors Miss the Gorilla in the Room

 

People were asked, in a classic experiment, to watch a short video in which six individuals, of which three wore white shirts and three wore black shirts, passed basketballs around. The people were asked to count the number of passes made by the individuals in white shirts. At some point, a gorilla strolled into the middle of the action, faced the camera and thumped its chest, and then left, having spent nine seconds on screen.

Intuitively, we all think we’d see the gorilla. How could something so obvious go completely unnoticed? But the truth of the matter is that half of the people who watched the video and counted the passes missed the gorilla! It was as though the gorilla was invisible.

This research led to further studies on what is known as “unintentional blindness and deafness.” When we’re focused on one thing, we easily miss other, potentially very important, things.

This is why, when it comes to winning in front of a jury, it is best to present your most important evidence/testimony both visually and auditorily. You never know which member of the jury is focused on something that renders them unintentionally deaf or blind to your critical point.

It’s also why repetition is important in a trial, and why review at time of close, matters. Don’t rely on spoken review of testimony alone. Be sure to include a visual review, using boards or other graphics, such as check charts, to sum up your interpretation of the facts. 

To Win: Honor Jurors’ Search for Understanding

 

Jurors are told by the Judge not to research anything having to do with the trial, which is fine--except when a juror finds themselves bumped off the panel by a Judge for daring to look up a legal term in the dictionary. Which has happened, probably more than once.

What is wrong with this picture? Why should a juror be penalized for something that is essentially the lawyers' failing – for whatever reason – to do their job in regards to the jurors? Perhaps the lawyers indeed defined their terms adequately in this case, and the juror was being compulsive, but in truth, I have found repeatedly that lawyers forget how much of their communication is legalese, and how many words have a different meaning in ordinary conversation.

Take negligence, for example. To many laypersons, being negligent has an aspect of deliberateness about it. You know you should put your seat belt on, but if you don’t, you’re negligent. So if the surgeon didn’t mean to leave the sponge in the person, it’s probably not negligence. Another example: Lawyers refer to memorializing things. To a layperson, that often means some kind of memorial was created, like a statue or special day. To opine is frequently confused with “to pine” as in “lament.” I could go on . . .

Bottom line: define your terms in words a fifteen-year-old can easily understand and use in a sentence. Believe me, a fifteen-year-old is plenty smart enough, they just don’t have the world and life experience you do. Just like the jurors. Not only will the jurors thank you for using terms defined according to common parlance, they’re more likely to favor your interpretation of the case. After all, it’s the case they understood.

Be Good to Your Jurors: Connect the Dots

 

A disturbing comment I hear repeatedly in jury debriefings and focus groups is that the attorneys do not connect their points or evidence to the specifics of the complaint.

Furthermore, attorneys rarely fully explain the jury instructions to the jury, and worse – fail to tie in those instructions to the attorney’s interpretation of the case.

This leaves jurors in the lurch. They start deliberations with no anchor, nothing to help ground them. They hardly know how to start. They are confused, perturbed, and unable to think in a reasonable manner about the case.

Be good to your jurors. Always make the connection for them, in obvious, preferably visual ways, between the evidence and testimony, and the complaint/cross-complaint. Do the same with the jury instructions.

Experience shows time and again, that the attorney who presents his or her case the most clearly, all else being roughly equal, is the most likely to succeed.

Will Juror Empathy Help or Hurt Your Case?

 

Delving into the group affiliation tendencies and reading habits of your jurors can give you valuable clues to whether or not a juror will be empathic, meaning able or willing to help others in need.

We’ve usually taken this to mean that the nature of the groups people join, and the material they read, are good indicators of how jurors will assess facts. Persons joining a law-and-order type group are more likely to be defense-oriented, persons volunteering at a handicapped facility more likely to be swayed by the plaintiff, and certainly, that still holds true.

However, studies show that the mere fact of belonging to groups of whatever ilk is more likely to be connected to concern for others. Persons who are socially isolated tend to be less generous towards others.

The same appears to be true of reading. Just the fact of reading seems to be connected to one’s empathy. Persons who read little may be less empathic, and, more specifically, that persons who read less fiction report themselves to be less empathic.

As always, the types of jurors you want to include/exclude depend on your case. The more you know about what goes into decision-making, for example, empathy or the lack thereof, the more likely you are to choose appropriate jurors. 

Motivate Jurors Positively, Not Just Negatively

 

It used to be thought that by activating dire consequences in jurors’ minds, jurors would rush to fix or avoid consequences. This has held true whether one is plaintiff justifying huge damages, or defense arguing “They’re the bad guy, not us. Don’t let them get away with it.” And, certainly, threats to life, limb or pocketbook attract our attention. TV ads and commercials point constantly to just how prevalent such thinking is, and marketing research has conducted study after study that justifies the “Get ‘em scared and they’ll come running” position.

However, more recent studies show that “gain-framed” appeals, or appeals that encourage people to positive benefits, have a slight persuasive edge over “loss-framed” appeals. The researchers suggest that it might be because we don’t like being bullied or threatened into behavior.

When it comes to trial practice, use both. Whether you are plaintiff or defense, show jurors the consequences of their verdict, and give them a positive theme with which to uplift. Help jurors see how their decision will accomplish a higher good, something that benefits the larger population, or their community, or improve a system. Something that motivates jurors to feel good about their decision, not just terrified into it.