Harry Plotkin's Jury Tip

February 2011: JURORS CHOOSE THE SIMPLEST, CLEAREST MESSAGE

Tue, 1 Feb 2011 11:07:57 -0800

"I believe in a universe that is too complex for any of us to really understand. Each of us has an organized way of thinking about the world--a paradigm, if you will. But the problem is the real world is vastly more complicated than the image of it we carry around in our heads."

The quote you just read didn’t come from a psychologist or a philosopher or a jury consultant, but it provides an excellent insight into how people--and jurors--struggle with complexity and view the world. Strangely enough, the speaker was Red Sox owner John Henry in Seth Mnookin’s baseball book "Feeding the Monster," an unlikely source for a lesson about jury trials but a brilliant one nonetheless.

Most people are uncomfortable dealing with complexity. We like to believe we understand the world around us. We like to imagine that we can clearly see causes and effects in action, and identify those causes clearly. Ask most people, and they’ll tell you that the Civil War was caused by "slavery," that the recession we’re in was caused by "bad mortgages," or that "defense wins championships" in sports. Each of these situations involved complex combinations of factors, but the natural human tendency is to ascribe simple, elegant explanations that make "common sense" to otherwise complex situations. The complex interaction effects between thousands of unequally-weighted variables can’t possibly be processed by the human brain, and no human being wants to bother trying. Instead, we prefer to imagine that phenomena are shaped by an obvious, straightforward cause or two. And more often than not, our explanations are oversimplified or inaccurate.

So most people don’t like dealing with complexity, and create simplistic, unrealistic explanations to convince ourselves that we understand how the world works. Usually this self-delusion is harmless. But the problem for you (the lawyer) and me (the jury consultant) is that trials are usually complex, and that jurors are guilty of self-delusion in trial. Jurors usually try to over-simplify cases, sometimes to the point of misunderstanding. Presented with two opposing experts--one offering a clear, oversimplified explanation and the other offering a confusing, scientifically-valid explanation--the jurors will usually opt for the clear, wrong one that makes "common sense." Presented with two sides of a case--one presenting an honest, realistic view of a case with complicated explanations and the other presenting an irresponsibly simple, inaccurate view of the case--the jurors will usually believe the simple explanation.

This doesn’t mean that jurors are idiots. They have a good reason for choosing simple, understandable explanations over confusing, complex ones. Most jurors don’t know what Occam’s razor is, but most of us instinctively agree with what it says. It’s human nature to believe that it’s simpler to explain the truth than it is to create a convoluted lie.

The more complex your case is, and the more involved and technical and convoluted the real explanation of liability, causation, and damages are, the more you will need to distill your case into a brief, simple, clear explanation to present in your opening statement that makes instant "common sense" that your jurors can immediately understand. Imagine that you have only 30 seconds to present your entire case and explain yourself to your jurors--what would you say? Your jurors need to be given a simple, compelling paradigm that can fit inside their heads in one piece and that can stand on its own, even if they don’t understand the complexity of your evidence and your experts. The reality is that, by the end of the trial, your jurors might not understand or remember or process all of the complex information that will enable them to realistically understand the case. The reality is that 30 seconds may be all the time and patience your jurors will give you, so you better be prepared to make use of that 30 seconds. Simply put, your entire message needs to fit into your jurors’ heads, no matter how small some jurors’ craniums might be.

Please don’t misunderstand what I’m saying. I’m not suggesting that you mislead your jurors. I’m not instructing you to abandon your job of responsibly presenting the whole truth to the jury and of giving your jurors all the information and evidence. If the prosecution or defense of your case involves a complex, realistic explanation, you need to present the truth to your jury, no matter how complex. But I’m also saying that you need to distill your complex explanation into a message that is not only brief but also clear and convincing on its own.

I wish I could tell you exactly how to distill your complex, confusing case made up of a dozen tangential issues and technical explanations into a perfectly persuasive sound bite, but it would be impossible. Each case is too different and complex to give you a one-size-fits-all solution. But I can give you some guiding principles to help you make your too-complex-to-believe case clear and convincing, even when you’re trying arcane patent or investment or engineering cases with issues that your jurors know nothing about.

Remember what I’ve argued time and time again: your message will only be accepted if it conforms to what your jurors already believe. Make sure that your simple message conforms to your jurors’ points of view and values and matches what your jurors already believe. Messages that follow the formulaic script of "this is yet another example of" something the jurors already believe to be prevalent in the world are often the most persuasive, but are only successful if your jurors already believe that trade secret theft or employment discrimination or insurance bad faith are rampant.

Translating arcane cases that your jurors know nothing about into commonly-experienced analogies that your jurors feel comfortable understanding helps. Few jurors have any frame of reference for the due diligence process involved in venture capital investment decisions or acquiring a business, but most jurors have bought a used car and maybe a house. Jurors have no problem applying the principles they use in inspecting a car to what a litigant should have done when investing in a complex asset, fairly or not. If you need to emphasize that the principles are different, you have to explain why to your jury in terms that they can understand. Even better are analogies that borrow from situations that your jurors have specific understanding of based on their jobs or the experiences they’ve talked about in voir dire. Making your message fit into the paradigm of the world that your jurors carry around in their heads works well.

As important as the facts, evidence, expert opinions and minutiae of your case are, those facts are less important than the oversimplified paradigm of your case that your jurors carry into the deliberation room in their heads. Use your facts, evidence, experts, and witnesses to shore up your jurors’ confidence in that little story you’ve planted in their heads, but recognize that the story has to make sense on its own.

Harry Plotkin is a jury consultant in Los Angeles but practices nationwide. Mr. Plotkin specializes in jury research, assisting trial attorneys in jury selection, and developing persuasive trial themes and opening statements. He can be reached at 626-975-4457 and at harry@yournextjury.com.

January 2011: WHEN JURORS DISCRIMINATE

Sat, 1 Jan 2011 12:01:20 -0800

You know by now that jurors get distracted. They don’t always decide cases based on the evidence alone, if ever. They fixate on details that the law says are irrelevant, and they are persuaded by their interpretations of those ambiguous details. If you’ve ever watched a mock jury deliberate or talked to your jurors after a trial, you know that jurors are just as likely to be persuaded by a witness’ perspiration as by that witness’ testimony. Jurors are just as likely to notice your tie or your earrings as they are to remember what you promised to prove two weeks ago in your opening statement. They often invent scenarios of "what really happened" while forgetting what each side actually presented.

One of the most frustrating and challenging distractions that you’ll deal with is when there is a disconnect between how jurors feel about your case and how they feel about your client. No matter how strong your case may be, your jurors will always be distracted by a plaintiff or defendant they simply don’t like. The jurors’ reasons for disliking your client aren’t usually complicated--racism, prejudice, dislike of corporations, dislike of people who sue--but getting these jurors to admit their prejudices during voir dire is difficult if not impossible.

Discrimination probably happens more often in jury deliberation rooms than in boardrooms these days, and your jurors don’t have to give explanations for their decisions. When your jurors decide that they don’t want your plaintiff to receive damages, or when they decide that they do want your defendant to pay up, they’ll figure out creative pretexts to deny or invent damages. I’ve seen real and mock jurors refuse to find defendants liable in wrongful death cases because "the victims’ family doesn’t deserve to get rich." I’ve seen jurors award huge damages against corporate defendants because "they can afford it, and I’m sure they’ve done worse things before." Any time you represent a bank or insurance company, or a Middle Eastern client, or a seemingly-healthy plaintiff with a permanent disability, you face a real risk of jury discrimination, no matter how objectively compelling your facts are.

In a perfect world, your prejudiced jurors would confess in voir dire, be removed for cause, and your objective jurors would decide your case on the merits alone. Representing a hedge fund in a recession or an African American client in an unfriendly venue or an out-of-state company against a large local employer wouldn’t be a disadvantage, if getting a fair and impartial jury was easy. Unfortunately, getting jurors to admit prejudices they know are politically incorrect is almost impossible. Not only because people are reluctant to admit their prejudices out loud, in public, but because people are usually as unwilling to admit their prejudices to themselves. So even when your jurors believe they can be fair, they cannot always be. Even when jurors don’t knowingly discriminate against a litigant, they still can. When jurors have an abstract, unrecognized distrust of a plaintiff or defendant, they subconsciously let it color how they view everything in a case.

So the next time you find yourself representing a potentially unpopular litigant, you should probably expect some of your jurors to be inclined to overlook your case and discriminate against your client. Recognize potential sources of discrimination, do your best to politely encourage your jurors to admit "concerns" about clients like yours, but don’t expect that you will have identified and removed all of the jurors who feel that way.

Instead, you’ll have to find a way around their prejudices and force your jurors to overlook your client. The best and only way to shift your jurors’ focus away from your client and onto your case is to make your case, from opening statement to closing, about the jurors themselves, not your individual client. Only by persuading your jurors that this could have happened to anyone--even the jurors themselves--will you convince them to ignore how they feel about your client. Your jurors may not want to give your client justice, but no juror wants to deny themselves justice, even by proxy.

As subtly as you can, remove your individual client from your story. De-personalize them by focusing almost exclusively on their thinking, their decisions, and their actions. Don’t try to get your jurors to sympathize with a client they dislike. Instead, get your jurors to agree that what your client thought and did was what the jurors themselves (or any "reasonable" person) would have done. The goal is to get your jurors imagining that "this could have been you!"

The trial themes that you highlight in your opening statement, echo in your witness examinations, and bluntly argue in your closing should overtly have less to do with your individual client and more to do with the principle of what is best and fairest for the rest of us. In auto crash trials, craft your message to focus more about protecting good drivers than about protecting your particular driver. In business trials, shape your message to focus on reinforcing the fair rules of the business world than on being fair to your lovable, billion-dollar client. Subtly send your jurors the message that you’re not representing a particular individual or company--you’re representing "any safe driver" or "any responsible business" or "any hard-working employee" who was "unlucky enough" to have crossed paths with an unreasonable plaintiff or an irresponsible defendant and have been unfairly treated or unfairly accused. Encourage your jurors to feel that this time it was your client, but that it could have been any honest inventor, medical patient, responsible landlord, or conscientious product manufacturer... and next time it just might be.

December 2010: IMPROVISING DURING VOIR DIRE

Sun, 31 Oct 2010 18:08:59 -0700

For those of you who have never hit any speed bumps, encountered any turbulence, or been thrown a curveball (or any other cliché) while you were voir diring a jury panel, consider yourself incredibly lucky. I have no doubt that most of you have found yourself, at least once or twice, in a voir dire that was much more awkward, surprising, or frustrating than you had expected. Even when you carefully script your voir dire, your jurors, judge, and opposing counsel rarely follow your script.

Sometimes you’ll get answers you never would have expected. I’ve heard jurors insist that there’s nothing wrong with breaking contracts, stealing trade secrets, and sabotaging competitors in the business world. Sometimes you’ll find yourself facing a hostile jury panel ready to argue with you. I’ve seen jurors tell plaintiff attorneys that any person who sues for emotional distress is a greedy liar, and I’ve seen jurors tell defense attorneys that any corporation who is being sued in court must have refused to settle and therefore must be unreasonable and guilty.

Sometimes you’ll ask perfectly good questions and get no answers at all because your panel is shy and uncomfortable. I’ve seen good lawyers ask jurors if any of them have any opinions about lawsuits or car crashes or business fraud and seen no hands go up. Sometimes your jurors will raise concerns that you never anticipated and that you’re not sure how to address. A juror once told my client that he didn’t trust doctors at all but doubted that a plaintiff would have enough evidence to prove malpractice because "doctors are too afraid of lawsuits, so they would probably find a way to cover up their mistakes." And because every judge has a different opinion about what is and is not appropriate during voir dire, sometimes you’ll have to improvise when opposing counsel or the judge objects to what you’re trying to ask. Every judge has a firm opinion about what is appropriate and what is inappropriate in voir dire; the problem is that these rules and opinions vary wildly from judge to judge. I’ve seen judges veto questions about hobbies and television as "irrelevant," and I’ve seen other judges veto questions about specific, case-related experiences as being essentially too relevant to the case at hand.

The lesson to be learned is that you’ll have to be ready to improvise and adjust your script during voir dire. If you’re a natural at conversation and improvising, you probably don’t script your voir dire anyway--but you’ll have to be ready to change your style if something isn’t working. If you like to plan out your voir dire and type out your questions beforehand, you’ll have to be ready to adjust to unexpected obstacles by changing your tone, your wording, or how you frame your questions. No matter what obstacles you encounter during voir dire, the last thing you should do is panic and yield your right to talk with your jurors. Remember that there’s almost always a way to ask any question that you planned on asking; the key is to find the ideal way to ask the question to make your jurors, judge, or opposing counsel more comfortable.

Some jury panels are naturally talkative and opinionated, but you’ll no doubt encounter some cases in which breaking the ice is surprisingly challenging. If you’re asking what you believe to be good general questions and getting little to no answers from your jurors, it’s almost always because your jurors are feeling too shy to speak in public. And the main reason that jurors feel reluctant to talk during voir dire is that the jurors are afraid of giving answers they believe are controversial or "wrong" in your eyes or the eyes of the judge. Jurors simply won’t be fully candid and honest, let alone talk much at all, when they think there’s a "wrong" answer to the question. When you’re faced with a wall of silence, try to be more personable and ask your questions in a softer, less formal way. Make sure you’re not using words like "fair" or "impartial." Soften up your questions by adding phrases like "does anyone here have the feeling that..." Even softer would be asking the jurors "does anyone here have any thoughts or feelings about..." your topic, without even suggesting an answer. How much you soften your questions depends entirely on how shy your panel is, and calling on individual jurors only makes the rest of the jurors more reluctant to volunteer answers. Find the bravest juror, and use their answers to encourage comments and debate. Once you get one juror to express an opinion, encourage the other jurors to "tell us how you feel about that. Does anyone here have a similar feeling, or maybe a different approach?" Sometimes it’s necessary to help jurors feel that they aren’t alone in their beliefs. It helps to phrase your questions by saying "many people feel that..." or even personalizing it by including yourself or your own relatives in the question. Use positive peer pressure to help jurors feel comfortable expressing themselves.

On the other hand, some jury panels are anything but shy. There will be times when you’ll encounter hostile jurors who have no problem disparaging your case, telling you how wrong you are, and giving the other side’s opening statement during your voir dire. That’s not necessarily a problem; as I’ve written before, jurors don’t "poison" other jurors, and hostile jurors are doing you the favor of helping you identify your strikes and perhaps even talking their way off the jury for cause. Oftentimes they even help you by making similarly hostile jurors more comfortable speaking up, or at least encouraging the jurors who agree slightly to air their concerns. One or two hostile jurors aren’t too tough to handle. In fact, listening closely to these jurors and showing that you understand their point-of-view is one of the best ways to show the other jurors on the panel that you’re honest, credible, and reasonable. I’ve said it before but will say it again: jurors firmly distrust lawyers who appear to stubbornly advocate one side without showing the ability to reasonably listen to, consider, and at least understand the opposing point of view. How do you feel about political commentators on television who automatically disagree with everything the other party’s commentators argue and begin shouting and debating without first listening and trying to find common ground? So without cutting your hostile jurors off and arguing with them, hear them out and show the rest of the panel that you at least understand why they might feel the way they do. Just be sure to move on to others before they monopolize your time.

Hostile jurors are actually useful, in small numbers of course. It may sound like a dream come true, but a jury panel that seems to unanimously agree with you can be much more dangerous than a hostile panel. If you’re asking questions and too many jurors seem to be agreeing with you, your problem may be worse than struggling to identify which jurors to strike; you may be inadvertently asking questions in a way that encourages jurors to tell you what you want to hear. Treat a "yes man" jury the same way you’d handle a shy jury; make them feel more comfortable expressing honest concerns by changing your tone and your phrasing. Make sure the jurors know that "I’m sure all of you are going to do your best to be fair, and that you’ll all follow the court’s instructions, but what kind of concerns about [your topic] might you have to set aside to do that? I’m sure someone here has something about [insurance companies, or personal injury lawsuits, or emotional distress damages] that makes you a little uncomfortable or rubs you the wrong way..." Make it clear to the jury that you’re not asking them to admit bias, just asking them to voice reasonable "feelings" and "concerns."

I could probably write another 100 pages on the unexpected hiccups and disasters that can and do take place during voir dire. What to do when you run out of time and you haven’t covered enough, or haven’t talked to all your jurors? What do you do when most of the jury panel seems to be disagreeing with you? How do you handle a long-winded juror who tries to answer every question and monopolizes your voir dire time? What do you do if opposing counsel strongly pre-conditions your jurors, creates false impressions about the case, and gets away with it? What if your judge doesn’t like your questions and ends up objecting to and vetoing most of what you’re trying to ask? Should you meekly yield and stop asking questions or do you keep trying to re-phrase your questions at the risk of getting lectured even more in front of the jury?

Rather than write another volume, I’d be curious to hear from you which unexpected roadbumps you encounter and struggle with the most, and which questions you have. One of the reasons that many (if not most) lawyers worry more about jury selection than any other part of the trial is that voir dire is by far the most unpredictable part of trial. There are no depositions and no discovery. Only half of the cast has a script, and you never know what the jury will say, what they’re really thinking, and what they’re not telling you. It’s easier said than done, but you have to approach voir dire ready to improvise, expecting anything to happen, but prepared to handle every scenario appropriately. Trials may not be won and lost in voir dire, but the battle for your credibility might be.

November 2010: CONFESS, AND YOU SHALL BE BELIEVED

Mon, 1 Nov 2010 17:42:33 -0700

This month, I’m going to give away one of my most valuable secrets. The more cases I see, the more I am convinced that the key to winning over jurors lies in finding ways to gain their trust and build credibility. Not in ways to outsmart the other side, change people’s minds, or build the strongest case. Jurors are stubborn, and seem to be getting more stubborn. And no matter how strong your case, you will only win if you can convince your stubborn jurors to listen to you. Don’t take their willingness to listen for granted. In fact, getting your jurors to truly listen to your case might be the most challenging task in trial.

When I say "listen," I’m not talking about paying attention. I’m talking about open-minded listening. Getting your jurors to actually consider whether what you’re saying, and the objective evidence you’re presenting, could possibly be true. Jurors are supposed to give you the courtesy of open-minded listening without question, but they rarely do. If your jurors already distrust you or your case, their skepticism and distrust will completely blind them to even your strongest evidence. There are thousands of ways to encourage your jurors to trust you, to trust your case, and to listen with a truly open mind. This month, I’m going to talk about one of the simplest yet most effective: admitting your weaknesses, and apologizing for your mistakes.

Your stubborn, cynical jurors start trial expecting you to be stubborn and unreasonable. They expect to hear excuses, exaggerations, and self-serving half-truths. Ask anyone (especially if they don’t know you’re a lawyer), and they’ll probably admit it to you. Even jurors who like lawyers are somewhat cynical about how accurate and reasonable they expect you to be in trial. Most jurors believe that being misleading and self-serving is an inevitable part of your job, something every lawyer does for their clients, right or wrong. Some jurors hate lawyers for it, but many don’t hold it against lawyers at all. Either way, no juror expects both sides to be perfectly honest, reasonable, and objective. And so by the time you start your opening statement, most jurors are actively searching for reasons to distrust and dismiss you and your case. It’s tough to persuade jurors when they’re actively skeptical. Even when you’re presenting undisputed evidence in an honest, straightforward way, skeptical jurors won’t necessarily accept it.

You need to find ways to immediately gain the jurors’ trust. The best way to do that is to tell them the one thing they least expect: that your case isn’t perfect, or that your client made some mistakes. Confessing isn’t fatal to your case, unless you’re admitting fault completely. In fact, jurors respond positively when they hear confessions, admissions, acknowledgments, and apologies. I’ll share an example with you that boldly put that theory into action.

For those of you familiar with Domino’s Pizza’s ad campaign in the past year, it’s one of the most instructive, translatable lessons for trial lawyers that I’ve come across in years. For those of you who have no idea what I’m talking about, I’ll summarize it. Domino’s recognized that a large segment of the consumer market hated their pizza. A clueless pizza company might never have noticed. A stubborn pizza company might have tried to change the minds of customers through advertising, by trying to convince people that what they believed about Domino’s Pizza was wrong. For those of you who have tried cases in front of hostile jurors, you know how difficult or next-to-impossible that can be. A concerned pizza company might have changed their recipe and touted the new recipe in advertisements, which might have worked.

What Domino’s did was slightly different, but the slight difference was anything but slight in its effectiveness. Domino’s did change their recipe and tout their new recipe in commercials. But at the beginning of each commercial, before they touted their new recipe, Domino’s confessed. The commercials bluntly admitted that most customers hated Domino’s pizzas. Domino’s bluntly ripped into themselves and their product. One media report called the ad campaign "self-flogging." In the first quarter after the ad campaign, same-store sales increased 14.3%, one of the largest recorded jumps by a fast-food chain, and in the same quarter that competing pizza-delivery companies’ sales dropped 3%.

The confession was completely necessary and hugely persuasive. Without the confession, Domino’s would be giving the message that "our old pizza was good, but our new pizza is even better!" But that’s not what consumers believed; many consumers really did hate Domino’s old pizza. Without the confession, why should customers believe Domino’s any more than they did before?

By confessing, Domino’s regained credibility in the eyes of every consumer who held the belief that Domino’s pizza was terrible. Frankly, it was the only way to make those consumers listen. Jurors choose whether to listen to or dismiss your case for the same reasons. You have the same opportunity that Domino’s had to gain your jurors’ trust, and the same danger of losing your jurors’ trust if you don’t show them that you and your case agrees with what they already believe.

Next time you’re in front of a jury, admit something immediately in your opening statement. Admit to the jury that your client wasn’t perfect. That they made some mistakes. That they were foolish or naïve. That they probably could have handled something better. That they panicked, or that they trusted someone too much, or that they overreacted. In some cases, the best and perhaps only way to win is to admit some comparative fault. I’m not sure that plaintiffs in tobacco trials, for example, can maintain much jury credibility without admitting some fault. Identify whatever it is that concerns you most about your case, or that bothers the lay people most when you explain your case to them, or that upsets the mock jurors when you test your case, and find a way to frankly and immediately acknowledge and admit it to your actual jury. If it’s on your jurors’ minds and bothering them at the start of trial, you need to address it head-on.

Just as powerful as admissions are apologies. Jurors almost always react positively to litigants who say they’re sorry about something, especially in tragic cases. And when I say "positively," I’m not talking about jurors being happy that your defendant confessed and awarding a verdict against them. I mean that jurors are usually more likely to trust litigants who express sadness and regret, without admitting guilt or fault. That increased trust leads these jurors to be more open-minded about hearing your explanations and your side of the case.

In most cases in which an avoidable tragedy has taken place, the jurors are sure that everyone has made mistakes. They’ll be suspicious, and they’ll be fully expecting both parties to unreasonably refuse to admit any responsibility. Expressing sadness or regret is disarming for jurors. It’s a fresh, unexpected dose of honesty for jurors who were probably looking for reasons to distrust you.

Once you’ve made your confession or your apology, you have a window of opportunity in which you have won some measure of trust with the jury but haven’t lost the case, at least not yet. Your jurors will need to hear an explanation, but they’ll at least be receptive to hearing one. And the basic theme that you’ll need to present to your jurors is that there is an important difference between someone who COULD have done something differently and someone who SHOULD have done something differently. There’s an important difference between acting perfectly and acting reasonably. Looking back, your client certainly regrets what they did and wishes they could have done something differently. But why did they? Why did it make sense at the time? Tell your jurors what else your client wishes--that they wish they had been told or given more information, or accurate information. That they had more time or more understanding of how serious a situation would be. If your client had known, they would have done something completely different.

Whatever your explanation happens to be, getting the opportunity to explain is your best and perhaps only chance to win over your jury. Don’t be afraid to make honest but "damaging" admissions to your jury if you have a chance to explain them. Honesty is the only currency for acquiring trust, and trust is your best asset in trial. Trying to hide your bad facts is like throwing a blanket over the elephant in the room--it won’t work, and it will only make you appear more guilty and dishonest. Jurors won’t stop focusing on a bad fact, even if you avoid talking about it, as long as it’s in their minds. The only way to take the focus off of a challenging issue in your case is to address it until your jurors feel satisfied that it’s been addressed. Only then will they ignore it, and focus on what you want them to focus on.

October 2010: UNDERSTANDING THE OTHER SIDE'S APPEAL

Fri, 1 Oct 2010 17:01:07 -0700

I often talk about the most common mistakes I see lawyers make, purely as constructive criticism of course. But what I haven’t yet done is to dig a little deeper and discuss WHY lawyers make those mistakes. So this month, instead of talking about what you might be doing wrong, let’s talk about why you might be making mistakes and what fundamental changes you could make to your approach that will help you better understand your jurors, and better persuade them.

The first fundamental mistake that most lawyers make is the failure to understand their jurors’ points of view. Frustrated lawyers often criticize jurors for making the "wrong" decision, but the reality is that the jury (like the customer) is always right. This is a lesson that has run through every jury tip I’ve written for several years, and understanding and accepting this reality is the main difference between a lawyer and a persuasive lawyer. A lawyer focuses their case on the law, the jury instructions, and the evidence. A lawyer expects that jurors will be persuaded by the evidence, the jury instructions, and the law. But a persuasive lawyer has learned that jurors reinterpret the law, the jury instructions, and the evidence based on their own values, sense of fairness, and common sense. And so a persuasive lawyer tries to understand the jurors’ point of view, presents their case to appeal to the jurors, and reframes the evidence and the law to conform to their jurors’ beliefs.

I understand that understanding your jurors’ points of view and recasting your case to appeal to their beliefs is easier said than done. And in fact, I have worked with plenty of lawyers who make every effort to think about the jurors’ point of view, but who still make fundamental mistakes understanding their jurors. That brings us to the second fundamental mistake that lawyers make in presenting cases to juries. It’s incredibly simple, but incredibly important: the failure to understand what might make the other side’s case compelling to your jurors.

Far too often, I see lawyers who overestimate the appeal of their case because they dismiss, ignore, or underestimate the appeal of the other side’s case. When in the hands of a jury, there is no such thing as a slam-dunk case. There is always something about the other side’s case that will appeal to a jury, no matter how dumb or irrelevant or unsupported it may seem to you. It’s natural to want to believe in your case. And for those trials that you don’t mind taking to a jury, it’s probably inevitable that the deeper you get into discovery and the better you get to know your client, the more you believe in your case. Unfortunately, believing in your case doesn’t help you win your case and can become a handicap, or more accurately, a blind spot.

Your case is NOT perfect, and jurors will have strong concerns. The other side probably believes in their case as much as you believe in yours. That’s why it’s going to trial. Surprisingly, many lawyers don’t spend time considering the other side’s strengths. Even worse, most lawyers seriously underestimate the other side’s case and don’t spend any time UNDERSTANDING why the other side’s case might appeal to jurors. Believe it or not, I’ve seen good lawyers refuse to rebut persuasive arguments from the other side simply because they thought the arguments weren’t worth addressing. But when those arguments are persuasive, and you’ve underestimated their appeal, the jurors react negatively.

Believe me when I say that focusing exclusively on your strong points while ignoring the other side’s points can be incredibly dangerous. Time after time, I’ve seen real and mock jurors believe that you’re conceding any arguments that you don’t rebut or address. And when you address the other sides’ arguments dismissively, the jurors start to believe that you’re out of touch and unreasonable--and they may be right. Failing to show the jurors that you have considered both sides of the argument leaves the impression that you haven’t been as fair and objective as jurors expect, and you’ll lose credibility quickly.

I’ve seen jurors in intellectual property trials lose faith in defense lawyers who spent all their time focusing on the differences between the competing products, but no time on any of the similarities that the plaintiff’s lawyer focused on during opening. I’ve seen jurors in employment trials wonder if the plaintiff’s lawyer was in touch with reality when the lawyer focused exclusively on the evidence supporting retaliation or discrimination but completely ignored the plaintiff’s questionable job performance. I’ve seen criminal jurors refuse to believe defense lawyers who immediately and aggressively criticize the prosecution for charging the defendant, without addressing the reality that the prosecution (and the jurors) believe that the defendant probably deserved to be a suspect, and might have deserved to be investigated and arrested in the first place.

I know it sounds simple, but you cannot properly try your case to a jury without stepping into the other side’s shoes, imagining what you would feel confident arguing if you were the other side, and thinking about how those arguments might appeal to your jurors. Get to know what the jurors are inclined to believe, even if it’s not as supported by the evidence and the law as you think.

Whenever I help lawyers prepare for trial by testing our case in front of mock jurors, I stress the importance of losing the mock trial, at least with some jurors. Winning a mock trial is virtually worthless. The only lesson learned is that you don’t need to strike anyone in jury selection and that the case is perfect as-is. It’s more likely that a unanimous verdict in a mock trial is a false positive, created by presenting our case too strongly and the opposing side too weakly. It’s far more helpful to present our case too weakly, the other side too strongly, and to learn from the failures. Losing a mock trial is the only way to see which jurors jump ship the quickest, what they find concerning or hard to believe or even hate about your case, and why they feel that way.

Mock trials may make it easier to understand which of the other side’s arguments will appeal to your jurors, but you don’t have to mock try your case to understand the other side’s strengths. You don’t have to put any mock jurors in a room. Spend a few hours writing an opening statement for the other side. Imagine what you would say to the jury, what you would focus on, and how you would disparage your own client’s case. How would you poke holes in your own side’s arguments? How would you explain to a jury that your own side’s evidence isn’t relevant? What themes and evidence would you hammer on to divert the jury’s attention away from your own side? Now deliver that opening to yourself, and think about it. Only by forcing yourself to step into the other side’s shoes can you write your own opening statement in a way that gives jurors the impression that you understand both sides, understand what they must be thinking, and that your arguments are reasonable.

September 2010: JURORS VOTE FOR THEIR VIEWS, NOT YOUR EVIDENCE

Wed, 1 Sep 2010 16:47:55 -0700

Not too long ago, I read a news article entitled "People choose news that fits their views." The topic was timely--more and more these days, people are tuning in to polarizing television and news sources that fit their views. Gone are the days when everyone would watch the same, mainstream, "objective" news. More and more, viewers with liberal points-of-view will only watch MSNBC or Jon Stewart for their news and political commentary, and those with conservative values will gravitate toward Fox News or listen exclusively to Sean Hannity, Rush Limbaugh, or Glenn Beck.

But while this topic may be timely, the concept is not. What Americans have been noticing with political television and radio is what psychology calls "confirmation bias." What confirmation bias essentially means is that people have a habit of searching for and believing what they already believe. This tendency is not only subconscious, it’s also irrational. Without meaning to, we allow biased information we self-select to reinforce what we already believe. Even though they already believed the information before they tuned in, what they hear then confirms, reinforces, and strengthens their own beliefs, making people increasingly inflexible and less willing to accept a different point of view.

Confirmation bias involves much more than the tendency to accept and believe what we already believe. A process called "selective attention" involves our tendency to focus on things we agree with while tuning out or ignoring things we disagree with. A process called "selective retention" involves our tendency to actually remember messages that fit our interests, values, and beliefs more accurately than we remember dissenting messages. I’m sure everyone has heard of the term "selective memory," and that’s what this is. A process called "selective distortion" involves our tendency to interpret information in a way that supports what we already believe, so that our prior beliefs actually color (or even misrepresent) what we hear.

Here’s another reason why jury selection and the makeup of your jury is so essential--just like in everyday life, people choose to pay attention to information that already fits their views, they interpret information in ways that support what they already believe, and they even remember messages that fit their values much better than information they disagree with. This is what jurors do in every case--they pay much more attention to evidence that fits their predispositions, they focus on and remember evidence that fits their way of thinking, and they distort evidence to fit what they already believe. It’s a scary thought, but any juror on your panel who doesn’t already agree with you is far less likely to pay attention to your case, far less likely to remember your messages, and even likely to reinterpret your best evidence in ways that support the OTHER SIDE.

There are two lessons to be learned from confirmation bias--one simple and obvious, the other complex and challenging. The obvious lesson: be extra careful to select a jury whose values and points-of-view fit your case. Be sure to ask at least one or two voir dire questions to identify any potential jurors who simply cannot conceive of your case as likely or simply cannot tolerate your position in trial. Don’t be afraid to be direct and blunt. As long as you pose the question in a way that doesn’t insult your jurors and doesn’t imply that jurors who speak up are wrong, you’ll often succeed in identifying biased jurors to strike. Ask your jurors if anyone "has the feeling that it seems unfair" to sue a doctor who was trying to save a patient’s life, to ask for monetary damages for emotional distress, for an ex-employee to change jobs and compete against their old company, or about anything crucial to your case that some jurors might simply disagree with on principle. Jurors whose values clash with the values in your case will exhibit extreme confirmation bias and immediately reject your arguments at first glance. Just as importantly, ask your jurors if anyone "has the feeling that it might seem hard or even impossible to believe that" a manufacturer would ever knowingly sell a dangerous product, or that a competing company could come up with the same idea for a product/process on their own without having stolen the idea, or any part of your story that clashes with your jurors’ beliefs and expectations. Friendly jurors who are skeptical about your case will be just as closed-minded as jurors who are hostile toward your case, so identify both.

The more complex, challenging lesson you should learn from confirmation bias is that it’s essential that your case supports what your jurors already believe, so you’ll need to find a way to convince your jurors--even the hostile or skeptical ones--that your case fits their values and beliefs. If you’ve selected a favorable, receptive jury, you’ll have the luxury of preaching to the choir and delivering the same opening statement you wrote days (or hours) before jury selection began. But the other 99% of the time, when your jury isn’t perfect, delivering your ideal opening statement as originally written is a huge mistake. As I discussed in December’s jury tip on using voir dire as a focus group, you need to take your jury’s pulse during voir dire and adjust your trial themes and opening statement to match their unique values and beliefs. You cannot persuade a cynical jury panel with a passionate, idealistic opening statement, and vice versa. If your jury is a mixed bag, like most juries are, if you have a largely unreceptive jury you’re unhappy with, or if you have even one or two opinionated jurors who are unreceptive to your case, you’ll need to adjust your trial themes accordingly.

Confirmation bias means that when a juror begins hearing information in an opening statement that he or she disagrees with, that juror will become less attentive to what you are saying, will remember less of what you are saying, and will pay much more attention to (and remember much more of) opposing counsel’s arguments. In most trials, jurors are presented with a large number of issues and have to choose which issues are relevant. When they deliberate, the jury--not the lawyers--choose which issues matter, which minor issues to magnify, and which major issues get completely ignored. In every mock jury research project I orchestrate, the lawyers are shocked at the issues the mock jurors find to be irrelevant or completely ignore during their deliberations. Can you guess which issues get ignored? Confirmation bias should help. Jurors inevitably focus on the arguments they already agreed with, and they tend to ignore and dismiss the arguments that clash with their values and beliefs. Selective attention and selective retention is why you can decisively win every battle you deem important and still lose the case.

Even more dangerous is selective distortion, because what your jurors already believe going into trial is more important than what the evidence objectively shows. Let me give an example: in a recent mock trial of a product liability case, the mock jurors were told (by the plaintiff’s counsel) that the defendant had no evidence of doing any safety testing on the product in question, and the defense counsel agreed. The mock jurors, however, did not agree; in fact, they interpreted this stipulated piece of evidence three wildly different ways. Most of the mock jurors who were leaning toward the defendant after hearing the opening statements believed that the lack of safety testing was "proof that the company had no idea their product was dangerous," and interpreted the evidence as positive support for the defendant’s liability theory. Most of the mock jurors who were leaning plaintiff but had expressed pro-corporate views in voir dire interpreted the same evidence the opposite way, believing that the lack of safety testing "showed that the company didn’t care enough about safety to even test their products." And most of the third group--the pro-plaintiff, anti-corporate mock jurors--believed that the lack of safety testing was "a lie" and that "the company must have done safety testing, saw terrible results, and destroyed the evidence of the testing." Same evidence, totally different points-of-view, and wildly different interpretations.

Besides trying your best to select a perfect jury, what else can you do? You have to build credibility from the start of your opening statement by incorporating what your jurors already believe into your trial themes and your message. I’ve already written about building credibility by adapting your case to your jurors BELIEFS, but I haven’t yet talked about building credibility by adapting your message to their VALUES. Most great trial lawyers do a wonderful job of making their case about more than just the individual plaintiff and defendant for their jurors. Persuasive cases have a broader message, and a case cannot be truly persuasive unless the underlying values of your case match your jurors’ own values. So getting your jurors to pay attention to your case, to remember your messages, to interpret your evidence in ways that help you, and to make their confirmation bias work for (and not against) you requires you to convince your jurors that the verdict you’re arguing for will help advance their values and their sense of fairness and justice, no matter what side you’re on.

This isn’t easy for the plaintiff lawyer trying a case in front of a jury that distrusts plaintiffs, has a distaste for lawsuits, and thinks jury damages are out of control. Building credibility is just as challenging for the lawyer defending corporations, CEOs, or businesspeople in the wake of Enron, AIG, and Bernie Madoff. But you can and must tailor your message to match the values of your jurors. Use every opportunity--voir dire, opening statement, through witnesses, and during closing--to show jurors how your case fits their values. If you’re suing a corporation and your jurors are generally supportive of corporations, a message about "teaching greedy companies a lesson and punishing wrongdoing" will likely fall on deaf ears. But the same jury may respond much more receptively when they are told that a plaintiff’s verdict is an opportunity to "help companies be more careful and responsible" or perhaps to "reward the honest, responsible companies by punishing the bad ones." Your jurors are aware of the big picture from the very beginning of trial, so convincing them that your verdict will make the world a better place (according to their own values) is essential to keeping their attention during trial.

August 2010: THE DANGER OF IDENTIFYING YOUR BEST JURORS

Sun, 1 Aug 2010 07:23:56 -0700

It’s often said that "jury selection" is a misleading term, since you’re essentially de-selecting a jury. Every lawyer knows that you’re powerless to select the jurors that you keep on the jury panel. But as obvious as this concept is, one of the most elementary mistakes that I see being made time and again in jury selections across the country is that too many attorneys are asking questions in jury selection that identify their best jurors. Said another way, too many lawyers are identifying their most receptive jurors--to their opposing counsel.

Identifying your best, most receptive jurors during your own voir dire time is even more dangerous than you might think. Not only are you helping the other side prioritize their strikes and sweep your best jurors off the panel, you’re also wasting the limited time you should be using to identify your worst jurors, to begin subtly persuading the jury, and to learn your jurors’ values and beliefs so that you can better persuade them during trial. You have a long list of things to accomplish in jury selection, and doing the other sides’ work for them should not be on your list.

For some lawyers, I understand that the idea of asking mostly "negative" questions during jury selection can be frightening. For the record, I don’t advocate asking only negative questions during jury selection, but I’ll explain how to handle the "positive" questions later. Let’s talk about your concerns about focusing on negative questions and your worst jurors.

How do you know that the jurors who don’t express negative opinions are receptive, good jurors? Selecting a jury without hearing "good" answers from the jurors left on the panel might feel a lot like blind faith, but in reality it’s a fairly safe, calculated bet. When you carefully remove the jurors who most strongly disagree with your case from the pool, you’re left with the jurors who disagree the least, and perhaps some jurors who kept quiet. Think of voir dire as touching your case’s most sensitive nerves; the jurors who react negatively to your most sensitive issues will be the least receptive to your case, and the jurors who don’t react at all are either receptive or aren’t particularly bothered by your greatest concerns. More likely than not, any jurors who have concerns that they keep quiet about during voir dire tend to be far less opinionated, outspoken, vocal, and forceful anyway, so they’re far less dangerous than those jurors who spoke up. There’s no guarantee that a hostile, outspoken juror might have declined to talk, but most outspoken jurors will speak up when you hit a nerve that bothers them.

A common concern that I hear from lawyers is the fear that you might alienate the good, receptive jurors if you don’t ask them questions and interact with them. There are other ways to talk and interact with the rest of your jurors without identifying them as receptive, but you should never give them the opportunity to give "good" answers for the sake of letting them talk. If you have lenient voir dire time, talk to your jurors about their jobs or about similar experiences, without probing too far into judgmental opinions. Talk to them about their values and their beliefs without asking them to express sympathy, skepticism, or suspicions about the case or about lawsuits in general. Shining a light on your best jurors will only get them off the panel, while keeping your best jurors in the dark forces your opposing counsel to make uneducated guesses with their strikes.

Perhaps the most common fear among lawyers is that too many negative questions might present your case in a bad light, or that too many negative answers from the bad jurors might taint the rest of the jury panel. I’ve talked about this topic in several jury tips, most recently in February 2008, and you’ve probably heard similar views elsewhere. What one outspoken juror says will never change what another juror believes. Using the wonderfully-polarizing topic of politics to make my point, if you’re a liberal, listening to a conservative radio host won’t transform you into a conservative; in fact, it will probably reinforce your own opposing beliefs. Don’t worry about negative questions or negative answers tainting your jurors, as long as you’re using them to identify your worst jurors.

In reality, you should be more worried about the exact opposite--persuading your jurors too early during jury selection. The goal of any trial is obviously to win over your jurors, and the goal of any jury selection is to leave the remaining jurors receptive to your case, but winning over your jurors TOO early is a recipe for disaster. Too often I’ve seen lawyers present such a persuasive, slam-dunk view of their case early on--especially in courtrooms that allow the lawyers to give brief "mini-opening" statements before voir dire begins. Persuading the jurors too early only encourages them to be outspoken and supportive, to the point of talking their way off the jury. I’ve seen mini-openings done so well that dozens of receptive jurors had to be excused for cause when they expressed views so supportive of one side and criticized the other side so harshly that it was clear they had already begun drawing conclusions about the case and could no longer be impartial. Even without a mini-opening, I’ve seen lawyers focus so heavily on convincing jurors of the strengths of their case during jury selection that the same thing happens; convinced jurors talk their way off for cause, and the least receptive jurors are the only jurors left. Case lost.

So when should you persuade the jurors during voir dire, and how? There is one form of persuasion that you can never start too early or go overboard with--building your own credibility with the jurors by being personable, listening to their questions, showing them that you understand their concerns, and most importantly showing them that you can listen to and understand the viewpoints of jurors who disagree with you. But when it comes to persuading jurors about your case itself, there are a few dangers to avoid. You cannot persuade the jurors too overtly, or you’ll get a tongue-lashing from your judge. You cannot persuade the jurors too early, or you’ll lose your best jurors to cause challenges. And you cannot persuade the jurors with individual questioning, or you’ll identify your most receptive jurors to the other side.

The technique that I advocate is to ask persuasive questions that build group consensus, not individual consensus. Once you get an individual juror to agree strongly with your themes, you might as well put a target on their back and say goodbye. But if you get an entire panel to raise their hands in agreement (without getting into an in-depth discussion with individual jurors), you can build group consensus without letting the other side pick out individuals to strike. Toward the end of your voir dire, once you’ve identified the worst jurors, start asking questions that foreshadow and communicate your themes to your jurors, and make sure you’re certain that most of your panel will agree with these questions.

Convince your jurors that the opposing litigant made inexcusable mistakes that your jurors would never have made by asking them questions about their own approach to similar situations. Help your jurors criticize a careless plaintiff or defendant by asking them what safety precautions they take when driving, handling their finances, or using products. Convince your jurors that they might have made some of the same mistakes they might be tempted to criticize your client for by asking questions that force them to honestly confront some of their own shortcomings. When you ask "how many of you have ever driven faster than the speed limit?" or "how many of you have ever signed a long, complicated contract without reading all the fine print or without understanding all the complex legal wording," jurors are much more likely to forgive your client for similar mistakes. Convince your jurors that they agree with your trial themes by asking group questions about opinions and beliefs that you’re certain most of them share. When you ask your jury "by a show of hands, how many of you believe that companies or business people who sign their name to a contract should follow the contract to the letter, no matter what," and 90% of the jurors raise their hands, leave it at that. You will have communicated a critical trial theme, the other side will realize how much consensus you have, and (perhaps most importantly) the other side won’t be able to strike 90% of the panel or know which jurors agreed most strongly. And that’s what jury selection is all about--giving your client an advantage in trial without helping out the other side.

July 2010: WHAT YOUR WITNESSES SHOULD LEARN FROM PSYCHOLOGY

Thu, 1 Jul 2010 11:52:26 -0700

The most fascinating issues in psychology deal with trying to explain why rational human beings make decisions and reactions that seem at-odds with logical, rational thought. I doubt if most lawyers would disagree if I said that jurors are often guilty of making decisions and reacting to trial situations that, on the surface, don’t seem to make much rational sense. I could discuss 1,001 ways in which jurors’ reactions and decisions diverge from what the law demands or what most lawyers would expect, and tell you WHY the jurors do what they do. This month, I’m going to discuss some of the unusual, unexpected ways jurors react to witnesses and the seemingly illogical ways in which jurors judge the honesty of witnesses.

Logic might tell you that jurors should judge witnesses on the truthfulness of what they say during their testimony, and specifically on the CONTENT of what they say. If a witness contradicts what they’ve said earlier in court or in a prior deposition, the jury should probably trust the witness less. If a witness holds their ground in cross-examination and disagrees vehemently with the opposing counsel’s position, the jury should understand why. If an expert witness presents a much more accurate, scientifically-sound analysis than the other side’s expert, the jurors should be persuaded. If the plaintiff or defendant admits to making a mistake or concedes a point to opposing counsel, the jurors should trust that litigant’s case less. But in reality, that’s not what happens.

Jurors often trust witnesses who contradict themselves, and distrust witnesses who hold their ground. Jurors routinely ignore the content of what witnesses say and focus on seemingly trivial minutiae like the witness’s body language, appearance, personality, communication style, demeanor, and rapport during cross-examination. Jurors regularly ignore and dismiss the testimony of the "smarter" expert witness and listen to the expert with sloppy science and wrong conclusions. Jurors routinely fail to penalize litigants who make startling admissions that should cripple their case while routinely hating litigants who stand their ground during cross. It may surprise the lawyers or even seem irrational, but there is a reason that jurors base their assessment of witnesses more on demeanor than on the content of their testimony, and it has to do with a psychological phenomenon called "fundamental attribution error."

Translating psychology into English, fundamental attribution error is the tendency for people to attribute the behavior of others (specifically strangers) to their perceived personality, rather than on situational explanations. In other words, people judge strangers based on how they’re acting instead of letting the situation explain how they’re acting. On the other hand, people tend to judge themselves (and people they know well) based on the situations we’re in. If your spouse or best friend was in a horrible mood, you’d wonder why--what happened to them? If you met a stranger who was in a horrible mood, you’d probably assume they were an angry, rude person. You probably wouldn’t even consider if they had a bad day or just got out of 90 minutes of gridlock traffic. Unfortunately, your witnesses aren’t familiar to your jurors, and they won’t get any benefit of the doubt.

Jurors are the same way with unfamiliar witnesses--they assume that the witness’s demeanor, behavior, and reactions are indicative of the witness’ personality, honesty, and guilt. This is why jurors decide whether to trust or disbelieve a witness (especially your client) largely on HOW that witness testifies, not on WHAT they say. This is why jurors never trust a witness who seems angry, argumentative, defensive, or nervous, even if they’re telling the truth or if they have a valid reason for being upset. And this is why jurors always trust a witness who seems friendly, confident, honest, who doesn’t seem fazed by tough questions or admitting mistakes, and who seems as polite and comfortable during their cross-examination as they are during direct--even when they make admissions that should be detrimental to their case!

Jurors pay incredible attention to how your witness acts during their testimony, even at the expense of what their message is. On a subconscious level, jurors believe they can figure out if a witness is lying, hiding something, or feels guilty simply by scrutinizing their body language, communication style, and emotional reactions to the questioning. Jurors are very interested in figuring out if your client is honest and knows it, or if they’re dishonest and worried, simply by reading between the lines and scrutinizing their demeanor.

So when a witness seems angry during their testimony, especially during cross-examination, jurors assume that the witness is an angry person. If a witness is an angry person, perhaps their anger clouds their judgment and prevents the witness from being honest and reasonable. Perhaps the witness’s anger explains why they filed a lawsuit or why they won’t admit responsibility when they’ve been sued. Or maybe the witness is angry and upset because they realize opposing counsel is hitting a nerve and successfully poking holes in their case. There might be a more logical explanation for your witness’s anger, but jurors rarely consider situational explanations. The jurors won’t understand that your witness may be angry because a doctor’s negligence caused a family member’s death. The jurors won’t assume that the witness may be angry because opposing counsel is intentionally pushing their buttons, being misleading, or asking inflammatory and unfair questions. You’ll need to explain to your witness that they’ll often have GOOD REASON to be angry during cross, but that showing that anger can be devastating to their case. In a recent case of mine, the jurors described a brilliant expert as "snotty and egotistical" because his communication style--content aside--was condescending and arrogant.

The jurors interpret a witness’s defensiveness and nervousness even worse than they do anger. Your witness might have good reason to be defensive and nervous, but jurors have a hard time understanding what it’s like to be in a litigant’s shoes. When a witness seems bothered by a question, even for good reason, the jurors always assume it’s because the witness knows there’s something to be worried and defensive about. When a witness dodges a question or tries to divert a question and give their own answer, the jurors always assume it’s because the witness wants to hide the truth.

Explain to your witnesses that they have a second choice: being as friendly and helpful to opposing counsel as they were to you during their direct examination. When a witness survives cross-examination without getting angry or defensive, without seeming worried or troubled, and seems unfazed and confident throughout, the jury gets an unmistakable message--the witness knows he or she has a winning case, is perfectly honest, and has nothing to worry about. Time and again, I’ve seen witnesses calmly and happily make admissions that factually may be damaging to their case, but the jurors NEVER interpret the admissions negatively if the witness seems unfazed.

Next time you prepare a witness to testify--and it’s inexcusable not to prepare your client to testify, at the minimum--spend as much time training them HOW to testify as you spend practicing WHAT they’ll say. What they say is important, but it’s far less important than you might think. Explore the issues and the questions they’re worried or sensitive about, and with or without a jury consultant, help them to overcome their worries so that they can go into cross-examination ready to answer any question comfortably, confidently, and credibly.

June 2010: PREACH TO THE CHOIR IN CLOSING

Tue, 1 Jun 2010 12:27:16 -0700

I’ve often preached about the importance of persuading jurors early on in your case--by the middle of your opening statement if not during jury selection. Probably more times than you can count, I’ve told you that research studies (and my own mock jury research data) have found that 85-90% of jurors make up their minds in trial by the end of opening statements. And while it is true that 85-90% of jurors, when asked to guess a likely verdict after hearing only opening statements, give an identical verdict at the end of the case or the mock trial, the phenomenon can be a little misleading.

It is true that jurors made immediate decisions in trial about which side seems credible, which side’s case seems to make sense, and which side’s version of what happened seems more likely, based on what the jurors themselves already believe. It is true that, once the juror has ideas about which side seems more likely to make sense and has framed the case a certain way, the juror will view the evidence subjectively, and unfairly. Every juror--every human--is unwittingly guilty of something psychologists call confirmation bias, which is loosely defined as a tendency to interpret information in a way that confirms their own preconceptions, hypotheses, and what they already believe. It is true that the vast majority of jurors makes their minds up after hearing the opening statements and don’t change their minds during trial. When you ask them to tell you which way they’re leaning after openings, they’ll tell you that they have no idea, haven’t heard evidence, and don’t want to guess. But when they do take a guess, that guess becomes the same verdict they’re certain of at the end of the trial 85-90% of the time, and that’s no coincidence.

But it’s also true, and usually unsaid, that actual and mock jurors ROUTINELY change their minds and their verdict during deliberations. So to turn a complex story into a simple one, nothing the lawyers or witnesses say will change most jurors’ minds, but other jurors seem to have no trouble persuading each other.

Why? Peer pressure is a large part--many jurors lose confidence in their verdicts when they realize that others have a completely different verdict. How would you feel if you solved a math problem but found that 90% of your classmates have a different answer? If you’ve ever seen a jury deliberate, you will have noticed that only two or three of the jurors stand firm, argue their side, dominate the discussion, and influence the others. Now you know why; the other nine or ten jurors lack the confidence and stubbornness necessary to hold their ground when others have differences of opinion and verdicts.

Another key to this puzzle lies in credibility--the other jurors have much more credibility than you do. Even if your jurors trust you, they realize that you and your witnesses are advocates for your client and paid to be subjective. For the same reason that jurors listen much more closely to an objective, by-stander witness (with no stake in the case and no relationships with the parties) than to experts or litigants, jurors trust each other much more than they trust anyone else because the jurors are the only truly objective people in the courtroom. So they’ll take what you and the witnesses say with a grain of salt, but not each other.

By the end of trial, your jurors have long-since decided which side is right and which side is wrong. Don’t fool yourself into thinking that half your jurors are still on the fence. Don’t fool yourself into thinking that a powerful closing might change the minds of jurors who are against you. That ship has sailed, probably even before the trial’s first witness. Don’t waste your breath trying to sell your case or be persuasive during closing arguments. Instead, your focus should be entirely on preaching to the choir. Your only chance to win the case is to prepare the jurors who are already with you to persuade the rest of the jury, because they have a much better chance than you do to change minds.

As I told you last month, your opening statement should be all about building credibility, demonstrating that you’re patient and reasonable, and explaining to every juror why your case makes sense. During your closing, you need to assume that your jurors (or at least some of them) already trust and believe you. It doesn’t hurt to remind your jurors why your case is reasonable, but don’t be afraid to be an unapologetic advocate for your case throughout your closing. The entire point of your closing argument should be to arm your jurors, emotionally and factually, to argue with the jurors who are against you.

Don’t simply recite what’s happened in the case, summarize what the witnesses said, and conclude with a powerful speech about right and wrong. Instead, I would ALWAYS recommend walking your jurors through the verdict form--blown up as a visual that the jury can see. On each liability, causation, or damages question, prepare your jurors for the arguments they’re likely to hear from the other jurors and arm them with the arguments they’ll need to fight back and persuade the other jurors. NEVER assume that your jurors will understand the questions on the verdict form and ALWAYS take the time to carefully explain what each question means and what they’re being asked to decide. Never rely on the baffling jury instructions to guide the jurors--if you’ve ever seen a jury deliberate or talked to jurors about the verdict questions after a real trial, you might be shocked at how confusing they find the jury instructions and how many unwitting mistakes they make.

Don’t forget the emotional part of your closing argument, either. You need to help your advocates on the jury become emotionally invested in your case and emotionally prepared to fight for your client, especially when they’re being asked to fight for you against stubborn, dug-in jurors. Giving a fiery closing argument that inspires your jurors never hurts--I’ve often recommended that trial teams choose the even-keeled lawyer to give the opening and the feisty, passionate lawyer to give the closing. The first lawyer’s job is to come across as reasonable, the second’s is to fire up the jury. Make sure your closing arms your jurors with more than the facts--give them general principles, trial themes, and larger-than-this-case reasons to fight for your client. I’ve often advised plaintiff lawyers to tell the jury that a large verdict "might be the only way to help these defendants and companies like them to be more careful and more responsible."

Nearly every research study in psychology tells us that your job changes throughout trial. Try to persuade all of your jurors early on, tailor and present your case in a way that appeals to the unique values and perspectives of your specific jurors, and preach only to the choir at the end of trial.

Harry Plotkin is a jury consultant in Los Angeles but practices nationwide. Mr. Plotkin specializes in jury research, assisting trial attorneys in jury selection, and developing persuasive trial themes and opening statements.. He can be reached at 626-975-4457 and at harry@yournextjury.com.

May 2010: RECIPE FOR AN IDEAL OPENING STATEMENT

Sat, 1 May 2010 10:55:48 -0700

As important as the make-up of your jury is--and even though voir dire is your first chance to build credibility, to tell your story between the lines, and to begin persuading your jurors--your opening statement is your best (and sometimes last) opportunity to truly persuade your jury. Because every case is so unique, there isn’t any one-size-fits-all solution I could give to help you create the perfect persuasive opening for any given case. What I will do is to give you a broad outline of the essential elements of an ideal, persuasive opening statement; the details I’ll leave to you.

Your opening statement should always include some storytelling, from a carefully chosen point-of-view. Stories are the most interesting ways to introduce your jurors to what happened in your case and to the options, choices, failures, and actions of the parties. Telling a story is the best way to help jurors organize events, remember what they’ve heard, judge decisions made by the parties, and figure out why the parties did what they did. By carefully choosing from whose point-of-view you tell the story, you encourage jurors to step into the parties’ shoes and help them to understand why your client did the right things or what the opposing party did wrong.

Too often I hear opening statements that sound like a table of contents. When you explain what happened without telling a story, you’re essentially reading your jurors a list of causes of action or affirmative defenses, and they’re left disoriented and unable to judge anything. Any opening statement that does nothing more than outline the evidence and force jurors to draw their own conclusions will confuse jurors, not persuade them. Your evidence doesn’t speak for itself, and only you know how your evidence fits what you will ask your jurors to do with it. The extra explanations that explain what your evidence means, how your jurors should judge it, what they should do with the evidence (their verdict), and why they should believe that verdict is fair are trial themes. Trial themes are simply the messages that you want the jurors to get from your presentation of evidence and the values that your case relies on to convince jurors that your verdict is the right thing to do.

An opening statement without trial themes and values is simply not persuasive. Your opening statement should never be a list of your evidence, even with a trial theme at the end to tie everything together. Instead, organize and present your evidence into topics according to your trial themes. The clearest part and central message of your opening statement should be your trial themes--if it’s only a detailed summary of your evidence, the details and minutiae will confuse and bore your jurors. Instead of making your opening about the details, subordinate the details to show the jurors that you have plenty of evidence to support your trial themes, instead of the other way around. For example, you could easily communicate your values and trial themes in a fraud case by saying "it’s wrong to blame someone else for tricking you when it was your job to find out information in the first place. The evidence in this case will show that the plaintiffs were supposed to research everything themselves, but instead they CHOSE to assume that the sellers had told them everything, didn’t do ANY research on their own or even ask a single question, and now they’re blaming us. For example..."

I’ve often heard lawyers recite a long summary of the experts who’ll testify, with out-of-context summaries of what they’ll say or descriptions of their credentials. Talking about the experts in your opening statement does nothing to persuade the jurors; it’s like telling them that smarter people have already made up their minds for them. Just when the jurors are starting to develop their own feelings, suspicions, and skepticisms about the case and begin wanting to judge the case for themselves, you’re talking about experts instead of what happened. Having interviewed thousands of jurors after actual and mock trials, I can tell you that one of the jurors’ most common complaints is that "we didn’t need an expert to tell us that, we could figure it out ourselves." Talking about your experts in opening is worthless, but I’ve found it persuasive to tell jurors things like "you don’t need an expert to know that customers are more willing to buy products with recognizable trademarks like the Nike swoosh or the Coach logo, but we’ll have an expert tell you that the defendant made more money by copying our trademark."

Any persuasive opening statement should explain to the jurors, in clear terms, the difference between a frivolous case and a meritorious one (if you represent the plaintiff) or the difference between an unreasonable defense and a fair one. Hopefully you’ve learned about your jurors concerns about your case and their definitions of right and wrong during voir dire. In your opening, show that you’ve listened and explain to them how your case is completely different from the frivolous cases or irresponsible defenses they’ve complained about in voir dire.

"The evidence in this case will show that our ex-salespeople did more than just take their experience and know-how to a competing company. If that’s all they took, we wouldn’t have been thrilled about it, but it would have been perfectly legal. But instead, the defendants took actual secrets of ours with them..."

Let’s say your jurors complained in voir dire that people who trust verbal business promises without getting anything in writing are foolish, naïve, and should only blame themselves if the promise is broken. How do you think your jurors will react during your opening statement if you insist that oral contracts are just as valid as written ones and that the defendant should be blamed for breaking a verbal promise? If you’ve been able to treat voir dire like a focus group, use what you’ve learned and tailor your opening statement to fit your jurors’ beliefs. In your opening, you’d be better off admitting that your client was foolish and naïve for trusting a promise and getting burned, but that enforcing broken promises is the only way to stop trusting, naïve people from having to get burned and learn the hard way, and to stop irresponsible businesspeople from taking advantage of trusting people.

Because every juror judges the litigants based on what they would have done, every opening statement should discuss not only what your opposing litigant did, but more importantly what they COULD have and SHOULD have done, but didn’t. Even word choice matters--jurors are much more critical when they are told that a plaintiff or defendant "chose" to make the bad decisions that they did.

As the plaintiff or prosecution, you should ALWAYS take the time to address the defenses and "excuses" the other side is likely to present. The major advantage to presenting your case and your opening statement first is NOT the chance to completely win over your jurors before the other side has a chance to speak. Instead, your main advantage to going first is the chance to refute and rebut their case before they’ve even presented it. A huge part of persuading jurors is to get them to think about the case in favorable ways, to focus on your strong issues, and to ignore the other side’s key issues. The plaintiff (or prosecution) has the unique chance to explain to the jurors what the case is REALLY about, and why the defense’s explanations are irrelevant excuses.

When you have the chance to go first, NEVER miss the opportunity to fully address the defense’s case before they do. If the defense has some powerful things to say--perhaps your plaintiff in a wrongful death case already had a terminal illness, your plaintiff in an intellectual property case took some inspiration and copied some ideas from someone ELSE’S idea, or your plaintiff in an employment trial failed a drug test--make sure you mention it first. Not only does it take the sting out of the jury and prevent the defense from dropping a bombshell, your willingness to talk about the weakest parts of your case leaves the impression that you aren’t worried and concerned about it. That makes your jury even more receptive to arguments that defuse the issue and make it less relevant. Some of the most persuasive defense opening statements I’ve seen have taken full advantage of a plaintiff who failed to mention the elephant in the room during their opening. Letting the defense give jurors your bad news first can be disastrous.

As a plaintiff or prosecutor, the most often overlooked but most important part of your opening statement is the fundamental way to build trust and credibility in your case: by finding a way to tell your jurors that you understand the concerns and worries they discussed in voir dire, that you understand their concerns are valid and wouldn’t be suing (or pressing charges) if you couldn’t address those concerns, and that your case is DIFFERENT. Of course, you’re not allowed to communicate the message so bluntly without objection, but every case has a way, and you’ll have to be creative in getting that message across. For example, in a medical malpractice case, you may want to say, "We all know that every surgery is risky and that patients have to accept the EXPECTED risks of surgery, so we aren’t blaming the doctor just because Mr. Johnson’s surgery didn’t go well. But the evidence will show that this is NOT a case about a surgeon trying his best and making an honest mistake; instead..."

For those of you on the defense side, don’t worry that I’m leaving you out. There are also advantages to going second, reacting to what the plaintiff has said, and having the last word. I talked about the importance of plaintiffs addressing your most damaging issues before you have the chance, but often the plaintiffs hope to avoid the issue, which presents you with a valuable opportunity. One of the most effective techniques you can use in your opening is to take some time to highlight "what the plaintiff DIDN’T tell you" for your jurors. Because of the way that jurors scrutinize credibility, the content of what a plaintiff failed to mention is actually less persuasive than the mere fact that the plaintiff "tried to hide it" from them, and you need to seize on every opportunity to convince your jurors that the plaintiff isn’t telling them the whole story, doesn’t want the jurors to know certain things, and is trying to hide the truth. I may be laying it on thick here, but jurors use these phrases in deliberations, and I can’t emphasize enough just how suspicious jurors become when they find that the plaintiff didn’t mention something. It’s no different from spoliated evidence--when someone gets rid of evidence, the jurors will always suspect guilt and assume that the evidence (even if harmless) must be a smoking gun, and will imagine it to be far worse than anything it could have possibly been. To jurors, the inference of guilt is much more persuasive than admissions of guilt.

Equally devastating to jurors is when they notice that the defense didn’t even address an accusation the plaintiff made in their opening--and believe me, the jurors WILL notice. Even if you know the plaintiff has made an insinuation that has no evidence to back it up, is misleading, or isn’t relevant at all, remember that your jurors DON’T know that. They are incredibly observant about noticing when the defense ignores an accusation or seems to be side-stepping an issue. Take the time to address each and every accusation the plaintiff raises in your opening statement.

Admittedly, it may be difficult to fit all of these ingredients into a persuasive yet brief opening statement. I’ve said before that an ideal opening statement is perhaps 20-30 minutes, and no more than 45 minutes long. However, when you’re crafting your next opening statement, keep in mind that a truly persuasive opening doesn’t NEED much detail at all--that’s what trial is for. As long as your jurors trust you and understand your message, you’ve accomplished all you need to, so make sure to include all the ingredients here. Too much detail is wasted and bogs down your efforts to get your message across, so I encourage you to be creative, be brief, and be brave enough to choose simplicity instead of detail-overload.

April 2010: GENERATIONS X, Y, AND THE NEW SPEED OF TRIAL

Thu, 1 Apr 2010 12:01:51 -0700

For some of you, it may be hard to believe that there was a time when lawyers presented their cases entirely by speaking--no PowerPoint, no TrialDirector, no animations or blow-ups or demonstrative exhibits. For those who still try their cases the old-fashioned way, it may be hard to understand why other lawyers feel the need to bombard the jury with fast-moving visuals and multi-media presentations. Are multi-media presentations too distracting, too fast-faced, or too "slick" for jurors? Are plain-spoken, no-frills presentations too boring or dry to keep the attention of modern jurors? There is some good to both methods, and I’m not planning on discussing how much trial technology is too much or too little in this month’s jury tip. A large group of jurors are visual learners, so some visuals are necessary in trial. But I’ve also seen trial technology go too far and distract the jurors from what the lawyer has to say.

What matters most, more than ever these days, is that you keep your jurors engaged in the trial and focused on the things you want them focused on. Jurors try their best, but they won’t pay attention to everything you present to them in a trial, and they’ll remember even less by the end of the trial. So your jurors’ attention spans are limited, their memories are limited, and--perhaps most importantly--their patience is limited, and that’s the main focus of this month’s tip.

You may have noticed, as I have, that your jurors are less patient in recent years than they were 5 or 10 years ago. And with good reason--the world around us is changing, and so is the makeup of our jury pool. Information is available at our fingertips now, and the speed at which we can access news and information is light years ahead of where we were 10, 20, or 30 years ago. 60 years ago, Americans got their news from the radio or had to wait for the once- or twice-daily newspaper. When television channels like CNN Headline News came on the air in 1980, you would have to wait 30 minutes to see the news cycle or check a sports score. When the internet became commonly available 10 to 15 years ago, you could read breaking news or check a score anytime you were in front a computer. Now, you can check the news anywhere and anytime, on your cell phone or a wireless internet connection on your laptop. It’s not surprising that Americans expect to get information immediately and become frustrated when it takes time.

Perhaps more importantly, the makeup of our jury pool is much different than it was just ten years ago. Jurors who come from Generations X and Y, sometimes called "the computer generation" and "the MTV generation," grew up expecting instant access to information. Instead of having to wait for the newspaper to arrive or television updates or to visit the library and open up an encyclopedia to get an answer, Gen X and Gen Y jurors can get the news or answer virtually any question online within seconds. Generation X witnessed the inception of the home computer and the internet. Generation Y, whose oldest members are already 30, were shaped by the inception of instant communication technologies from the internet, email, text messaging, instant messaging, and social networking. It’s not surprising that, as jurors, Generations X and Y expect to get information immediately and become frustrated when you take your time presenting your case.

Ten years ago, Generations X and Y were a growing minority of the jury pool. According to data from the 2007 census, they make up 52% of the jury pool nationwide, and that number is growing every year. Think about their numbers and their expectations. More than 50% of today’s jury pool was 15 or younger when CNN Headline News began presenting the news 24 hours a day, every 30 minutes. 30% of today’s jurors were 15 or younger when CERN released the World Wide Web in 1991. 22% of today’s jurors were 15 or younger when online dial-up to the internet became available and 17 or younger when cell phones became widespread. The younger jurors just entering the jury pool were just ten years old when text messaging became widespread and iTunes allowed users to immediately download music.

The next time you being planning how you’ll present your case, think about the jurors who’ll make up your jury pool, and the expectations they’ll have. Most of your jurors have grown up having information at their fingertips instantly, and even the older jurors have probably adapted to new technology that gets us information and answers immediately, too.

So what should you do differently? First, never present your case in an entirely spoken format--jurors don’t listen to the radio much these days, they expect to see things, and they learn as much visually as they do aurally. Jurors expect to see your case--documents, emails, maps, schematics, photos, or whatever you’re talking about. You don’t have to wow the jury with a high-tech presentation, but jurors want to see, not just hear, your case. If you’re talking about a car accident or an eminent domain dispute or a machine in a product liability or patent case, make sure to SHOW the jurors a traffic map of the lanes and roads, or a property map with boundaries, or a schematic of the machine, immediately. Once you start discussing and describing something that your jurors want to visualize, you’ll frustrate and confuse your jurors if you wait before showing them a picture. Anticipate what the jurors want to see, because once the jurors want or expect to see something and don’t get to, they’ll become very frustrated and lose focus.

Today’s jurors are no longer passive learners. They have either been raised or, if they’re older, re-trained to pro-actively solve problems and seek out information. They aren’t especially comfortable being powerless and relying on the lawyers to spoon-feed them information at any pace you choose. Jurors expect you to get to the point immediately. Unless you’re the second coming of Alfred Hitchcock and a master of suspense, boil down your case to its essence and summarize it at some point in your opening statement. There’s no harm, and plenty of benefit, to introducing your case by telling an engaging story, but make sure the story isn’t overly long and complicated. Before you launch into detailed discussions of each issue within your case, make sure to give your jurors the big picture, literally and figuratively, so that they know why your details are relevant.

Aside from how quickly they demand information, Generation X and Y jurors are generally more cynical than older jurors. They grew up in a world with lawsuits, corporate scandals, and written contracts for every agreement instead of handshakes and trust. They’re not necessarily more prone to favoring plaintiffs or defendants, but they tend to be more critical of plaintiffs, less trusting of defendants, and tend to have higher expectations of what the litigants "should have done" better.

On the one hand, they can be unrealistically critical; in a recent case of mine, a group of younger mock jurors felt that a defrauded investor "should have hired lawyers and accountants to double-check his stockbroker." In a completely different case, a group of younger mock jurors felt that the defrauded real estate buyers "should have hired lawyers or accountants to watch over their real estate broker." But in some situations, their criticisms can be fair; in that same real estate fraud case, the young jurors blamed the plaintiffs for being fooled about their property taxes and argued "I can go online and research parcels and property taxes in 60 seconds." Even their views on due diligence and personal responsibility have been shaped by their exposure to new technologies and their instant access to information, and they impose those expectations and responsibilities on others.

Getting to the point, giving your jurors instant access to the information, and anticipating their questions with immediate answers is becoming more and more mandatory. If you think Generations X and Y are demanding, think about who’s coming next. The oldest members of so-called Generation Z are already 15 years old. They’ve been called "digital natives," and in 3 years, your trials may include jurors who were internet-literate before they could read. The best way to present a case will always be the way your jurors learn best, so keep up-to-date on the makeup of your jury pool and the ways they expect to process information.

March 2010: JUROR PERCEPTIONS OF YOU

Mon, 1 Mar 2010 12:58:11 -0700

I have no doubt that each one of you takes great pains to present your case as perfectly as you can to a jury. You probably even make every effort to present YOURSELF perfectly to the jury. Keep in mind when you’re preparing for trial and thinking about all the strategies that go into presenting yourself, your client, and your case that the most challenging thing about a perfect presentation is that YOU are not the judge that matters. A case presented perfectly to you, a judge, or any lawyer is probably NOT a perfect case to a jury. So if you’re taking a case to a jury trial, remember that only their opinions matter. And while you’re at it, realize that your jurors’ opinions about you and your case aren’t always logical or fair.

This month, I’m going to discuss your jurors’ perceptions of you, the lawyer. Not their perceptions of your client or your case, but of you. Even though you didn’t have anything to do with the events surrounding the facts and parties at trial, you are the most important figure the jurors have to trust in order to trust your client and your case. If the jurors trust you, they’ll trust what you have to say. If the jurors don’t trust the messenger, they won’t trust the message. To make matters worse, jurors seem to distrust lawyers more these days. They each come into the courtroom with an idea of the stereotypical dishonest lawyer seared into their brains, and for many jurors, you are guilty of being that stereotypical lawyer until proven innocent. So this month, let’s discuss how jurors go about figuring out if you’re one of the cliché, dishonest lawyers they distrust.

Let’s start with a simple one. Jurors expect that a stereotypical lawyer will dress to impress, in a suit with a Rolex. Jurors trust you when you dress to look more approachable. "Approachable" means something different depending on your personality and where you practice, but it may mean wearing less expensive, less formal attire. Perhaps a lighter suit, or a blouse or sport coat instead of a two- or three-piece. Dressing to be more approachable is especially important on those days in which you’re making your first impression and interacting with the jury: jury selection, opening statements, and closing arguments.

Jurors expect the stereotypical lawyer to force their own point-of-view down the jurors’ throats in trial, and too often lawyers do just that at the worst possible time--in voir dire, when you should be letting the jurors express themselves. Few things offend the jurors more than a lawyer who asks them questions but then cuts them off, tells them what to think, and doesn’t let them be entitled to their own opinions. Voir dire is NOT the time to tell your jurors how they should think, but many lawyers are unknowingly guilty of doing just that. Anytime you ask the jurors "wouldn’t you agree that..." you are forcing your point-of-view on them. Even when they claim to agree, many really don’t, so it’s a waste of your time. Your jurors have opinions, some very strong ones, and many do NOT agree with you, no matter what you lecture to them in voir dire. So never ask a juror a question like "wouldn’t you agree that..." or "can you all promise me you’ll follow the court’s instruction that..." If a juror doesn’t agree, or doesn’t really think the jury instruction is fair, they won’t be persuaded, no matter what they say, and they’ll resent you for asking.

Jurors trust you when you listen to them. Voir dire is your only opportunity to show them that you want to listen to them. And even though there are ways to subtly persuade jurors in voir dire, a large part of voir dire should involve shutting up and letting the jurors tell you how they feel. You can kill two birds with one stone during jury selection--by asking open-ended questions and asking lots of "how do you feel about that?" questions, you’ll not only identify hostile jurors to de-select and learn how your remaining jurors feel about the issues of your case, but just as importantly you’ll show your jurors that you care enough to listen. Jurors trust lawyers who listen, and voir dire is your best and only chance to show your jurors that you accept and understand every point-of-view. Invite disagreements, listen carefully and understandingly to jurors who are completely hostile to your case issues, and show even the craziest jurors that you understand what they’re saying and how they feel.

During trial, jurors expect the stereotypically dishonest, defensive lawyer to OBJECT a lot. They expect you to object every time the other side says something damaging to your case that worries you. In fact, most jurors believe that every time a lawyer objects, it’s BECAUSE they are nervous, guilty, or worried about what the other side is going to share with the jury. Jurors ALWAYS want to know the whole story, so they don’t like it when they feel that you’re trying to hide interesting information from them. When a lawyer objects early and often in trial, the jurors do NOT get the impression that the other side is crossing a line, even if the judge sustains the objections. Having talked with jurors after trials, with shadow jurors during trials, and having overheard actual jurors during trials, believe me--the jurors usually believe that objections are lawyers’ ways of hiding the whole story and the truth from the jury.

As painful as it may be to hold back an objection when the other side says something inappropriate, weigh the benefits of objecting with the risk of making your jurors’ suspicious. Usually their imaginations conjure up much more damaging assumptions than what the other side would have said. In most situations, it may be better to hold your objection and remain calm. Jurors trust you when you appear calm and unfazed by everything the other side says. And if you have to object, as much as judges hate this, explain your objection out loud in terms the jury can understand. Instead of "objection, calls for speculation!" you might say "objection, the witness is guessing, not giving facts!"

Jurors expect the stereotypical, dishonest lawyer to avoid talking about the most glaring weaknesses in their case. Jurors don’t just expect dishonest lawyers to object when it comes up; they also expect you to actively ignore the topic in hopes that the jurors won’t notice. The jurors may be right. Too many lawyers don’t know what to do with the most worrisome issues in their case and become paralyzed in their ability to talk about it to the jury. But unless the other side does you a favor and doesn’t mention the issue, it’s going to come up, and the jurors WILL notice if you avoid it. Even worse, your jurors will get the impression that you’re HIDING the issue from them, even when you’re only ignoring or avoiding it because you can’t figure out what to say about it.

Believe it or not, jurors trust you when you talk about your worst issues and make honest admissions that seem to be detrimental to your case. Jurors are always surprised when lawyers openly admit concerns in voir dire, and they find it refreshingly honest. You’d be amazed at how much credibility you build simply by asking the question. And as I’ve said in past jury tips, jurors get the impression that if you’re not worried about talking about a challenging issue, then it must not be that damaging an issue for you. Take great pains to identify the elephant in the room and talk about it, especially if the other side is going to bring it up.

Jurors expect the stereotypical lawyer to be biased and subjective toward their side of the case, which brings up a strange phenomenon. You and I know that subjectivity and advocacy is how the system is SUPPOSED to work, but jurors miss this point. Jurors believe that honest lawyers are objective and honest--even to their own client’s detriment, perhaps--and that subjective, biased lawyers are dishonest. In a recent case I was involved in, we asked jurors if they believed a lawyer representing his or her spouse would be more or less objective than any other lawyer. The judge was incredulous--"why are you asking such a ridiculous question? Lawyers aren’t supposed to be objective!" But when the jurors returned their questionnaires, their responses told a different story--some felt that lawyers representing spouses could be "objective," while others believe they couldn’t be trusted if they were "subjective." So your jurors’ trust depends largely on a concept that isn’t part of our system of justice--impressions of your honesty and objectivity.

When you start your opening statement on the attack, aggressively advocating a position before your jurors have had a chance to make their minds up about what happened, your jurors get the impression that you’re the stereotypical, SUBJECTIVE lawyer. Your jurors don’t really think about the fact that you’ve studied the case for months or years and are ready to make critical judgments. To them, taking a position too early in your opening shows that you jump to conclusions too quickly, that you’ll argue for your client no matter what the evidence shows, and that you’re once again going to force your point-of-view on the jurors instead of letting them make up their own minds.

Jurors trust you when you tell them what happened in your opening statement before you start taking a position and pressuring them with arguments. When you tell the story of what happened objectively and stay off your soap box for the first half of your opening statement, the impression the jurors get is that YOU are being careful about making up your mind and that YOU needed to know the whole story before drawing reasonable conclusions.

Not to give you nightmares, but jurors have many more subtle, unfair reasons and cues to distrust you and shoehorn you into their definition of the cliché, dishonest lawyer--more than I could ever list out and many more that even I can’t imagine. The point of telling you this isn’t to scare you into a state of paralysis or make you self-conscious, but rather to make you comfortably aware of the things, big and little, that lawyers sometimes do (inadvertently) to offend and alienate jurors. The irony of course is that none of the offending signals you might be sending the jury are fair or logical; they’re all normal, reasonable parts of representing your clients and dealing with the challenges of litigating a jury trial. But no matter how unfair, your jurors’ perceptions and criticisms of you shape how they trust you, your client, and your case, and once you’ve done something seemingly harmless to turn a juror off, you may have lost them (and your case) in the process. So as foolish as it may sound to worry about how you’re dressed, how you talk to the jurors, and the style with which you try your case, everything that matters to the jury should matter to you.

February 2010: VOIR DIRE WITH LIMITS

Mon, 1 Feb 2010 07:59:46 -0400

Last October’s jury tip, and so many jury tips in months’ past, warned against the dangers of relying on demographics and assumptions in jury selection. For many of you, that may not be fair. There are cases in which relying on stereotypes, shortcuts, assumptions and demographics are necessary. Many of my readers come from venues where the court severely limits voir dire--if attorney-led voir dire is allowed at all. Many federal courts have minimal, if any, voir dire. I’m often asked "how do you pick juries without getting to ask any voir dire questions?" or when voir dire is conducted entirely by the judge? What if all you know about each juror is the city they live in, their marital status, prior jury service, their occupation, and their appearance? Even in venues that allow voir dire, some judges may limit your voir dire to 30 or even 15 minutes for an entire panel, and some will even object to so many of your reasonable voir dire questions that you barely get to ask or learn anything useful about your jurors--even with voir dire.

When you have little to no information to work with during jury selection, develop your own educated assumptions. Think about the voir dire questions you wish you could ask, and make assumptions about which jurors would be most likely to be receptive and share certain views based on the little information you have. In these situations, I rely heavily on making educated inferences about a juror’s personality type through their occupation, attitude, and body language. Re-read my past jury tips on the six personality types--sympathetic, practical, analytical, conventional, persuasive, and creative--and the techniques I use to infer personality and likely juror behavior from the choice of occupation.

Pay close attention to the few visual cues you are given; for example, plaintiffs will want to avoid jurors whose attitude and comments suggest that they don’t want to serve and that their time is being wasted. Self-centered jurors who want off a jury tend to lack the empathy required to identify with a victim and award damages. Notice which jurors seem highly curious and suspicious. The jurors who glance peeks or even stare at and scrutinize the litigants when they hear the judge read the joint statement of the case tend to be the most suspicious and receptive to plaintiff allegations. Notice which jurors seem skeptical and unmoved. The jurors who roll their eyes, shake their heads, or smirk tend to be the most skeptical of lawsuits and plaintiff’s cases.

If your judge grants you the luxury of voir dire but not the luxury of time, you’ll have to prioritize what you want to accomplish. Remember, there are four main objectives you should try to accomplish in a full voir dire: building foundations to excuse jurors for cause, identifying unreceptive jurors to use your peremptories on, convincing your jurors that they share values with your case and your client, and learning about their values so that you can tailor your case to convince them that your case shares their values. In only 15 or 30 minutes, you’ll only have time for one of these tasks. Which one you should choose depends entirely on the nuances of your case.

If you have a polarizing case and you expect some jurors to have trouble being objective--perhaps you represent a wealthy plaintiff, are suing a government agency, are defending an accused murderer, or are defending an unpopular corporation--spend your time encouraging biased jurors to talk themselves off the jury.

If your trial is complex and the case will likely be a close call decided by the jurors’ expectations and values, ask questions that give you clues to your jurors' decision-making. If you're trying a difficult case and expect to meet with a lot of resistance and unwarranted jury criticism--perhaps you’re representing a pedestrian who was struck outside a crosswalk or defending a driver who failed to maintain his brakes--ask persuasive questions that convince your jurors that they might do the same things that you're concerned they will criticize your client for. If you’re not quite sure how best to present your case to the jury--should you focus on defending your client’s passivity or focus on attacking the opposing litigant’s mistakes?--spend your time learning about your jurors and how they feel about the issues and values of your case.

With limited voir dire time, it certainly helps to be the defendant and go second, having heard plaintiff's counsel ask most of the questions. But for every attorney, even those in venues with unlimited voir dire, you’ll also want to weigh the risk of boring and alienating the jury with too many voir dire questions, so there are times when cutting your voir dire and making assumptions might be the smarter choice.

Some venues and judges may not allow you to ask your own voir dire questions but will allow you to submit questions for the judge to ask, which creates another set of problems. Even when they agree to ask your questions, judges don’t tend to ask them in an inviting way that helps jurors feel comfortable answering and admitting biases and concerns. Any time a juror is asked a question that ends in "that would prevent you from being fair and impartial," especially when the question is asked by a figure of authority like a judge, the juror will most likely choose not to answer. Had the question been asked in a subtler way ("does anyone here have any concerns or feel uncomfortable about"), many more jurors would speak up and express biases. But here’s the catch-22; judges tend to be leery of voir dire questions that don’t bluntly and obviously ask jurors to admit bias; they tend to view subtly written questions as crafty, pre-conditioning questions.

So how can you write submitted questions that get jurors talking and identify biases in such a way that the judge agrees to ask your question, as written? Obviously you have to remove any hint of pre-conditioning, but I've found that judges are receptive to questions that ask for specific experiences. Judges will almost never agree to ask questions that deal with hypotheticals, and tend not to accept questions that ask jurors to discuss feelings and opinions. When you do submit questions about your jurors’ feelings on a critical issue of your case, never give in and add the dreaded "that would prevent you from being fair and impartial" phrase. Instead, try to use the "does anyone have any concerns about X that might make it difficult for you to..." phrase. Your best bet, though, is to rely on tangible experiences your jurors have had, especially experiences that clearly relate to the issues involved in the case.

Just because your voir dire has to be approved by a judge who is undoubtedly scouring your questions for pre-conditioning does NOT mean you can’t get away with being persuasive with written questions. If you want to be persuasive, craft questions that communicate your trial themes through specific experiences the jurors have had. Write questions that use your jurors’ specific experiences and approaches to similar issues in your case that convince them that they would do the same thing your client did, or would have done something completely differently than what the opposing litigant did. For example, you could have the judge ask "has anyone here ever taken extra safety precautions when" engaging in whatever the plaintiff or defendant might have done, if you want to argue that they weren't as safe as they should have been. You can make just as persuasive a point without getting answers by asking a question you doubt ANY juror would agree with; for example, "has anyone here ever signed an important contract worth a lot of money to you without reading it?" or "has anyone here ever merged onto a freeway without looking in your mirrors or over your shoulder to see if any cars were coming?"

Selecting a jury without a fair chance to ask voir dire questions is an unfair challenge, but not an impossible one. For those of you in venues that severely restrict or forbid voir dire, hats off to you, and I hope my advice here helps. For the rest of us, there are always situations in jury selections in which voir dire becomes surprisingly restrictive in one way or another; through opposing counsel’s objections, through the judge’s objections or time restraints, or in some trials simply because the jurors are too shy to talk much.

January 2010: WHY YOUR JURORS' HINDSIGHT IS 20/20

Fri, 1 Jan 2010 10:29:31 -0700

Psychologists have a habit of adding fancy labels to simple concepts. No doubt you already understand the psychological concept of "hindsight bias," the topic of this month’s jury tip, as "Monday morning quarterbacking." We’ve all heard the phrase "hindsight is 20/20," and hindsight bias has a significant influence over jurors and their decision-making in trial.

In psychology terms, hindsight bias is the subconscious tendency for us to look back on an event with a known outcome and to overestimate how predictable or foreseeable that event was before it took place. Because every lawsuit involves a catastrophic event, your jurors spend a lot of their time deciding whether the litigants should have known it would happen and should have done a better job. Plainly said, hindsight bias means that jurors will unreasonably criticize your client for making "mistakes" that either caused the plaintiff harm or failed to protect themselves from it. And because jurors are also influenced by anxiety and the need to insulate themselves from feelings of vulnerability, the more sensitive and unreasonable they may be when the case involves traumatic and scary events. It can be scary for most jurors to admit "that could have been me," so instead the jurors are tempted to convince themselves that "you should have known all along."

If you were to ask residents of New Orleans in 2009 whether the government’s failure to test and reinforce the city’s levees before Hurricane Katrina was negligent, the "yes" votes would probably be unanimous. If you had asked the residents back in 2000 whether they believe the government should spend millions on the levees, I have no doubt the "yes" votes would be significantly lower. Knowing now what we didn’t know then has a powerful, biasing influence on how we judge decisions in the past.

In a 1995 study (by researchers Kamin and Raschlinski, published in 19 Law and Human Behavior 89, "Ex Post is not equal to Ex Ante: Determining Liability in Hindsight"), 57% of mock jurors found a city negligent for not hiring a bridge operator when those jurors were told there was an accident, while only 24% of mock jurors who were given the same fact pattern but were NOT told about the accident found the city negligent.

The most basic and important lesson about jurors and hindsight bias is to recognize that it WILL happen, on your jury, in almost every case. Don’t fool yourself into believing that your jurors won’t fault your client just because you believe the evidence will show your client couldn’t have foreseen or avoided the harm. Hindsight bias is a subconscious process, and not a reasonable one. Any time your plaintiff was unable to prevent being harmed, your jurors will search for reasons to criticize and blame them for their harms being "their own fault," even when the harm was completely unforeseeable or the risks unavoidable. I have seen mock jurors and actual jurors blame plaintiffs for failing to inspect the brakes on their rental car, for assuming that it was safe to walk into a marked crosswalk with a "walk" signal, for relying on fraudulent and forged documents, for not spending millions of dollars to microfiche medical records to back up back-up copies stored in a warehouse (which were destroyed in a fire), and for failing to make their products immune from high-tech piracy and hacking.

The same goes for defendants; don’t fool yourself into believing that your jurors won’t unfairly fault your defendant just because the harm wasn’t foreseeable. Hindsight bias gives jurors an amazing ability to foresee anything, fair or not. Simply because a plaintiff was injured, some jurors will find that a defendant was reckless, even when the defendant took reasonable care. Any time your defendant’s conduct caused a bad result, your jurors will be tempted to believe your defendant should have known better and will search for reasons why the most inadvertent or unforeseeable disasters were caused by negligence. I have seen jurors use backwards logic to blame doctors for surgeries gone wrong; "that surgery was so simple and routine, so the surgeon MUST have made a negligent mistake if the patient ended up in worse health than before." I have seen jurors blame manufacturers for making unsafe products, even when all the safety testing and FDA or EPA approval suggested the product was perfectly safe: "I’m sure the company knew all along that [the product] was unsafe."

So the first lesson is simple: understand hindsight bias, expect that it can and will happen to your jurors, and assess the merits and risks of your case accordingly. Too often I’ve seen lawyers head into trial unaware and underestimating how much the jurors will unfairly criticize their client for making "mistakes."

Once you realize and accept the fact that jurors are going to unfairly search for reasons to blame your client, even when you have good explanations, what can you do about it? The truth is, jury selection may be your only opportunity to protect your client from hindsight bias, because multiple research studies have suggested that it is unavoidable, even when the test subjects are educated about hindsight bias. Some studies suggest that "self-referencing"--actually telling the jurors "what would you do (or how would you feel) if this happened to you?"--may reduce hindsight bias a little, but most courts would probably find obvious self-referencing inappropriate and objectionable. Your best chance to protect against hindsight bias, when your client is more vulnerable to unfair blame than the opposing litigant, is to remove those jurors who are more susceptible to hindsight bias.

The first step is to identify the most damaging criticisms and "mistakes" your jurors will believe your client made, and address them in voir dire. Remove those jurors who immediately criticize your client and find their "mistakes" inexcusable. Believe it or not, I’ve encouraged plenty of jurors to admit "I could never forgive your client for doing that" in voir dire, and removed them for cause or with a peremptory. For the rest of your jurors with concerns about what your client "should have done," use the "elephant in the room" I taught you in last November’s jury tip to flush out and address their criticisms.

In my experience, I have found that pro-active, self-reliant, hands-on jurors (at times I’ve also called them "do-it-yourselfers") are much more likely to be guilty of hindsight bias than passive jurors. Pro-active jurors tend to feel much more in control of their lives and their fate, so they often have unreasonable expectations of how much control others have on their lives and of others’ abilities to avoid getting harmed and avoid harming others. Passive jurors are those who don’t feel the need to be personally involved with all their affairs, who delegate their well-being to others (like trusting a doctor or financial planner with their health and finances completely), and who don’t feel the need to take extra precautions. Passive jurors feel much less control over the lives, and so they are far less likely to unrealistically blame the litigants for failing to prevent harm.

After jury selection, your next best way to protect your client from hindsight bias is to find subtle ways to self-reference; that is, to force your jurors to empathize with your client and put themselves in their shoes.

Plaintiff’s counsel, because they get the first chance to tell the story, have a unique opportunity to take hindsight away from the jurors. If you get the first crack at telling the story, make sure to put the jurors in your client’s shoes by explaining what they knew and what they did BEFORE telling the jurors about the unforeseeable, catastrophic event that caused so much harm. By forcing the jurors to understand your plaintiff’s point of view before they find out what happened, they will have a much less biased view of how foreseeable the harms were and how unreasonable it would have been to expect the plaintiff to have taken seemingly unnecessary precautions or to have done something different.

Defendants don’t have the luxury of taking away hindsight and giving the jurors a clear view of what the defendant knew. You can certainly try explaining why the catastrophic events were so unexpected before they happened, but you can’t avoid the natural tendency toward hindsight bias. Your better chance might be to tell your story in voir dire, before the plaintiff has the chance to give an opening statement. Ask self-referencing questions that force jurors to think about how they might respond to similar situations or what kind of precautions they take (or don’t take) to avoid risks.

The goal of every lawyer’s trial presentation should be to get your jurors to step into your client’s shoes, ask themselves "what would I have done," and agree with their approach and the decisions your client made, regardless of the bad result. Make every effort to help your jurors empathize with your client, but realize that hindsight bias is a powerful, inevitable force that will make it difficult for your jurors to judge your client fairly.

December 2009: TREAT VOIR DIRE LIKE A FOCUS GROUP

Tue, 1 Dec 2009 08:01:11 -0400

As important as the makeup of your jury is, you’ll rarely be lucky enough to select an ideal jury panel. Almost every jury panel will include at least a handful of imperfect jurors with skepticisms and concerns about your case. From time to time, you’ll even encounter a nightmare jury panel. Your judge will refuse to grant cause challenges of obviously biased jurors, you’ll have less peremptory challenges than hostile jurors, and you’ll be forced to try your case in front of unsupportive jurors who have fundamental differences in values with your case. The last thing you should do with an unreceptive audience is to try your case the same way you would with a friendly jury.

No matter how receptive or hostile your jury panel may be, you should always take the time to treat your voir dire like a focus group. Jury selection shouldn’t only be about identifying jurors to strike and jurors to keep, unless you’re absolutely sure you’ll be left with a panel full of jurors who will be receptive to your case and your trial themes. Instead, ask voir dire questions designed to find out how your jurors feel about the issues in your case and to learn about their values. Only by learning about their values, their beliefs, and their approaches to similar situations can you identify the trial themes to which your eventual jurors will be receptive. Just because you can’t ask them direct questions about the specific facts of your case doesn’t mean you can’t talk about the general issues and philosophical values that your case is about. Lead your jurors in a focus group-style discussion about the ethics of business competition, their approach to safe driving, personal responsibility as a consumer, how they expect contracts and agreements to be made and followed, their definitions of good faith and bad faith, or whatever your case involves.

Every jury panel is unique. For those of you who go to trial often, you’ve undoubtedly noticed that the makeup and values of your jury panels can vary widely and wildly from one panel to the next. I see it in courtrooms every week. One jury panel may be filled with jurors complaining about lawsuits and greedy plaintiffs; the next week, most jurors may complain about irresponsible companies and the need to send a message with punitive damages. Thanks to random chance, some employment trials get panels full of jurors with bitter employment experiences while others get panels dominated by happy employees and jurors in management. Never assume that your jury panel will be equally balanced; many panels have skewed points-of-view about your case that aren’t representative of the entire jury pool. As a result, you need to understand and embrace their unique point of view about business competition, the safest way to drive, manufacturing, or whatever issue your case involves.

Matching your trial themes and the values of your case to the values of your jurors is essential because of a phenomenon that psychologists call "confirmation bias." Even if you’ve never heard the phrase itself, you’ve no doubt observed it happening around you all the time, both on juries and in everyday life. Simply speaking, it means that people decide whether to believe or disbelieve new information based on how well the information is supported by their prior beliefs, instead of how credible the new information may be. When Aunt Janet doesn’t invite Uncle Rick to Thanksgiving, the relatives who already dislike and distrust Janet will be convinced she skipped him intentionally and for spite; those who like Janet will be sure that she simply forgot or had a good reason. Few people who know Aunt Janet will be immune from developing suspicions, drawing conclusions, and pre-judging the situation, and virtually no one will remain totally objective until they hear both sides. It’s easy to see why confirmation bias is an overwhelming factor in jury decision-making and the reason that I constantly preach the message that pre-dispositions matter much more than the evidence in trial. Confirmation bias explains why jurors who believe tobacco companies lied to smokers are instantly receptive to plaintiffs’ arguments that manufacturers knowingly sold dangerous products in product liability trials, why insurance claim representatives have a hard time believing even the most genuine examples of disabilities or property damage, and why cynical union employees immediately distrust corporations accused of breaching contracts in business disputes.

Treat part of your voir dire--my apologies if your court severely limits your time--as a focus group on your jurors’ relevant values. Ask them how they approach similar situations, and find out what they consider to be foolish, dangerous, or wrong. Ask questions about their values. Where do they think the lines of right and wrong should be drawn in the competitive business world? How safe should manufacturers make their products--or are warning labels enough? Should employers be expected to PREVENT harassment in the workplace or should they only be required to CORRECT harassment when it’s responsibly reported to them? Are the spirit of a contract, the discussions that preceded it, and the expectations of both parties more important than the written terms? Should we only blame the driver who broke a driving law and caused an accident, or should we also blame the driver who failed to anticipate another driver’s mistake and failed to drive defensively enough to avoid the accident? When you’ve selected your jury, removed the least receptive jurors, and find that you’re left with a handful that have concerns, reservations, or differences in opinion, you’ll be glad that you learned about your skeptical jurors. By using some of your time to get to know their unique values, you can tailor your trial themes and the way you present your case to match the values of your actual jurors.

As I’ve stressed before, a critical ingredient in every opening statement is to assuage your jurors’ concerns that your case might be unreasonable, and the best way to build credibility is to convince your jurors that your case matches their values. Use what you’ve learned from your voir dire "focus group" to tailor your trial themes to what your jurors already believe.

Aligning your trial themes with the values of your jurors is a particularly powerful tool for appealing to otherwise-hostile jurors. For good reason, most plaintiff lawyers are fearful of leaving conservative jurors (executives, accountants, and engineers, oh my!) on their panel. For the same reasons, most defense lawyers panic when they run out of peremptory strikes and still have sympathetic jurors left. How in the world can you convince a jury with a third grade teacher and a Habitat for Humanity volunteer to award nothing to a bereaved family in a wrongful death case? The surest way to overcome concerns and persuade potentially skeptical jurors is to immediately convince them that your case fits their values and to spend your opening statement explaining to them how your case fits with concepts they already agree with.

If your jury panel has a handful of conservative jurors, rip up your opening statement that relies on emotion and sympathetic trial themes and spend your time talking about responsibility, the ways in which your tough plaintiff is trying their damnedest to overcome their harms without complaining, and the irresponsible choices the defendant made that any reasonable company never would have. Conservative jurors tend to believe in personal responsibility, so champion personal responsibility in your case and explain to them how the defendant’s irresponsibility made it impossible for your plaintiff to protect himself/herself.

If your jury panel is full of sympathetic, liberal jurors who are distrustful of corporate defendants, cancel your original plan to attack the plaintiff and blame him/her for their own problems. Without apologizing, acknowledge that too many corporations do the wrong thing; if your jurors believe so but sense that you don’t, they’ll be distrustful of everything you have to say. Make your case and your trial themes about all the responsible efforts your client took that set them apart from your jurors’ stereotypical "bad corporation." It’s nearly impossible to win a case with an unreceptive jury panel, but if you can’t select a receptive panel in jury selection, you might be able to make your case receptive to your jury.

November 2009: TACKLE THE ELEPHANT IN THE ROOM

Sun, 1 Nov 2009 10:06:14 -0700

The more trials and mock jury deliberations I observe and the more actual jurors I interview after trials have ended, the more I’ve come to realize that winning the battle of credibility is the most essential part of winning over your jurors. When your jurors don’t trust you and your case, all the facts and expert witnesses in the world won’t convince them otherwise. As I’ve said time and again, great facts and great witnesses don’t build credibility for you; you have to create that trust early on in trial, or your jurors won’t trust those great facts by the time you finally present them.

Building credibility and trust, and doing it early on, is a mandatory part of winning a trial. I can’t stress enough that you need to get your jurors to trust you, and especially what you’ll be arguing for, by the middle of your opening statement. Building trust in jury selection is even better. There are a number of ways, large and small, to build trust during voir dire. Come across as friendly and personable. Show the jurors that you want to LISTEN to them, not lecture to them. Demonstrate that you understand ALL the points of view your jurors express, not just those who agree with you and your case. When you show patience and understanding with jurors who disagree with you, the rest of the jurors get the impression that you’re reasonable; when you argue with them, ignore them, or struggle to understand them, you’ll lose the rest of the jurors’ trust.

There are a million lessons in building credibility during jury selection or your opening statement that I could discuss, but this month I’m going to focus on my favorite way of building trust and overcoming your jurors’ concerns in voir dire, a technique I sometimes call "tackling the elephant in the room."

To win a trial and win over your jurors, you MUST convince the jurors that your case makes sense and fits their values. Not every case is a natural fit for most jurors’ common sense, and many cases clash with your jurors’ values. Unless you have a slam-dunk case or pick the perfect jury, you’ll have to deal with jurors who have immediate doubts and strong concerns about your case.

When you’re suing an employer for retaliation or discrimination, the "elephant in the room" is often the employer’s valid-sounding reason for firing the plaintiff. How can your jurors blame the employer if it sounds like your employee deserved to be fired?

When you’re defending a company accused of trade secret misappropriation, patent or trademark infringement, or intellectual property theft, the "elephant in the room" is usually the idea of "stealing." Most jurors have been raised to immediately see "stealing," "copying," and "cheating" as wrong, no matter what the law says.

In wrongful death cases, the "elephant in the room" is usually the point of awarding damages; most jurors are wondering "what good would awarding money do if it won’t bring the victim back, and why does the victim’s family deserve to collect?"

As soon as they hear the judge describe the basic outline of the case and listen to your voir dire questions, your jurors start to develop doubts and concerns about your case that will influence their view of your credibility and of your evidence throughout trial. Unless you deal with them directly, these elephants will sit in the courtroom throughout the trial. Few jurors will be brave or self-aware enough to tell you during voir dire that they can’t imagine you proving your case. I say few, because I have encouraged clients to ask jurors that very question and have seen jurors tell us "I can’t imagine a way you can win this case," and have had those jurors excused for cause. Most jurors won’t say what they’re thinking, but trust me--they’re thinking "how in the world is this lawyer going to explain that?"

Ignoring those elephants only makes them worse. If your jurors get the sense that you’re avoiding a weakness of your case or planning on arguing something they don’t believe in, you’ve lost their trust already. Instead of avoiding the topic, use those elephants in the room to overcome your jurors’ concerns and show the jurors that you understand them.

In your next trial, identify the most challenging issue in your case. Think about your case, talk about it to friends and colleagues, do a focus group, or do whatever you do to help you see the forest through the trees. When you do, choose the most glaring weak spot that jurors will likely figure out immediately. And during your voir dire, bring it up. Flush it out, and get your jurors to comfortably talk about their concerns. Trust me, this line of questioning is helpful--your jurors are already thinking about their doubts and concerns. Don’t be afraid to hear it, and make sure to show the jurors that you’re interested in listening, interested in understanding how they feel, and not afraid of their concerns. Just bringing the topic up, by itself, will earn you credit. Most jurors believe that (less-than-honest, stereotypical) lawyers won’t talk about the problems with their case, so not only will you gain some trust, but the jurors will believe that the topic might not be so important and damaging to your case.

Then comes the important part--once you’ve talked about and framed their concerns, show them how your case is DIFFERENT than the cases they’ve been concerned and complaining about. When you show your jurors that you understand their concerns, they begin to trust you. When you tell your jurors that you AGREE with their concerns, that you would be wrong to pursue or defend a case that deserved their worries, they’ll find you refreshingly honest and reasonable. The most important, persuasive point you can make in voir dire is that you AGREE with them that your case (or defense) would have no merit if it couldn’t answer those concerns, but that your case is fundamentally different than the hypothetical flawed case you’ve been describing.

Obviously, you wouldn’t be allowed to TELL your jurors these things, directly. But you can communicate that you agree through your voir dire questions. You should always be allowed to ask questions like:

"Does everyone here agree that surgery is risky, and that it would be unfair to blame the doctor just because the surgery didn’t work and the patient wasn’t saved? I agree."

"Does everyone here agree that it seems unfair to blame a doctor who follows all the standard procedures and makes the most safe, careful decisions they can in an emergency situation, even if their decisions turn out to be the wrong ones and the surgery goes poorly for the patient? I agree."

"But what about this: Does anyone here believe that it is WRONG for a surgeon to be less careful, less cautious, and less safe than they could be, and to refuse to take extra precautions in a risky, challenging surgery?"

So now comes the hardest part--winning your jurors over by distancing your case from their concerns and by framing your argument in a way that makes sense, that fits their values, and that they’ll agree with. Unfortunately, there’s no one-size-fits-all solution to tailoring your case to your jurors’ concerns and values that I can summarize in a paragraph, so the rest is up to you.

One way to re-frame your case for your jurors is to listen to their concerns and then ask about exceptions to their "rules." If your jurors can’t imagine how a careful driver could have struck a pedestrian, ask them if they can think of any exceptions: "you should ALWAYS be able to spot and stop for a pedestrian unless... they dart into the street unexpectedly? They cross in an unexpected spot, like outside of the crosswalk or on a highway? They cross on a dark road in the middle of the night without any reflective clothing?" If you’re suing for fraud but your jurors have issues with plaintiffs who failed to do enough due diligence, ask them "can you think of anything that might make it more difficult or even impossible for a buyer to get information or answers to their questions?" Getting your jurors thinking and talking about exceptions to their concerns can send the message that your case might be different.

No matter what you do, you’ll have to get comfortable with the fact that you cannot win a case without listening to your jurors’ concerns, understanding their (not your) idea of common sense and their values, and convincing them to trust you by completely changing the way you present your case to agree with their values and common sense. You cannot afford to ignore their concerns and point of view and forge ahead with pre-planned trial themes that your jurors don’t agree with. You’ll have to be ready to tailor your trial themes, your opening statement, your case values, and how you present to the case on the fly, based on jury selection. But that’s an entirely new topic--how to use voir dire like a focus group--that I’ll discuss in next month’s jury tip.

October 2009: STOP RELYING ON DEMOGRAPHICS

Thu, 1 Oct 2009 07:56:38 -0400

If you’re still relying on demographics, even a little bit, during jury selection, stop and dig deeper. Unless your voir dire is so limited by the court that you’re forced to rely on shortcuts and assumptions--and I’ll give those of you in the voir dire Bermuda triangles of the world advice in next month’s tip--there are always better criteria to use, and better questions to ask, during jury selection than gender, ethnicity, age, or even income and education.

Even some of the best attorneys I’ve worked with and spoken to rely on demographics. I’m often asked questions like "do we want men or women on our jury?" I can’t blame them for thinking that way--even many jury consultants are guilty of putting demographics in their jury profile reports and believing that demographics can be useful indicators of predispositions and verdicts. But if you have the opportunity to ask your jury even 15 minutes of voir dire questions, or if you have the luxury of a full day of voir dire or even jury questionnaires to analyze, the truth is that demographics are NEVER the best criteria to use.

In all my years of researching juries and analyzing mock trials and focus groups, demographics have NEVER come up as significant factors. That’s not to say that demographics aren’t sometimes predictive. In some cases--although very few, in my experience--there are differences between demographic groups. Perhaps 70% of women and 25% of men are pro-plaintiff in a particular case. But each and every time, there is an underlying REASON why men and women are viewing your case differently, and that reason is totally unrelated to gender itself. If you ever find that demographics are an important variable, it means your jurors weren’t being asked the right questions. If this were a business litigation trial, you’d probably find that 90% of the men--and 90% of the women--with a working knowledge of bookkeeping and auditing might be pro-plaintiff.

In many cases, demographics are often not predictive at all. When they are, it’s because members of a certain demographic group share a common experience, value, or attitude--not because of who they are, but because of their experiences, and to a lesser extent, their culture. A commonly held stereotype about jurors and race--that minorities tend to be much more pro-defense in criminal cases, while Caucasians tend to be much more prosecution-oriented--may be true, but there are underlying reasons. Members of minority groups tend to be much more distrustful of police and law enforcement, and for a specific reason--they are much more likely to have had a negative experience with a police officer, know someone who has had a negative experience, have heard about negative experiences, and have developed negative impressions of law enforcement as a result. If you were to identify jurors who had negative experiences and impressions of police officers and their honesty, you would be doing a much better job of identifying pro-defense jurors than if you simply relied on race. You’d probably find a handful of prosecution-oriented minorities who have positive impressions of the police and a handful of defense-oriented Caucasians with negative experiences.

The only advantage to relying on demographics is that it is very easy--you don’t need to ask a single voir dire question to identify someone’s ethnicity, gender, age, or visual indicators of their social class or sophistication. Keep in mind, though, that when you rely on demographics to pick your jury, you’re also relying on ASSUMPTIONS. Sometimes those assumptions are wrong. Jury research has overturned the conventional wisdom, for example, that female jurors are more sympathetic toward female plaintiffs in sexual harassment cases. But even when your assumptions are right, you can do a much better job of picking your jury than relying on demographics.

The next time you feel tempted to rely on demographics, ask yourself WHY you believe males, or Hispanics, or younger or wealthier jurors might be more receptive to your case. Is it because they are more likely to have experience, familiarity, or an understanding of some of the issues in your case? Is it because they are less likely to trust the opposing litigant because of negative experiences? Is it because they are more likely to believe your story because they’ve probably seen similar things themselves? Instead of blindly assuming, identify what your underlying assumptions are, and ask those questions instead.

In commercial and breach of contract trials, older jurors (but not experienced corporate employees) tend to be more pro-plaintiff than others--not because they’re older, but because many come from a less complicated, less cynical time when a handshake promise was commonplace and written contracts weren’t always necessary. Instead of choosing jurors based on age, ask them how they feel about promises and the necessity of written contracts.

In complex patent trials, males often tend to be more pro-defense than females--not because they have a Y chromosome, but because men are more likely to be trained in engineering, science, and technology and more likely to have mechanical experience fixing cars, fixing plumbing, and understanding the mechanics of how things work. Women are no less CAPABLE of understanding these same issues, and the defense would be much better off with a female engineer--or even a female who does her own auto maintenance or electrical wiring--than a male picked at random from the jury.

Always remember that the less you rely on assumptions, and the deeper your questions delve into your jurors values and beliefs, the better your jury selection will likely be. Demographics are only the first layer, so if you’re given the luxury to ask your jurors about their experiences, their values, and their beliefs, take full advantage and make sure your jury selection is as educated as it should be.

September 2009: DEALING WITH JUROR HYPOCRISY

Tue, 1 Sep 2009 07:52:44 -0400

I’ve often said that the best predictor of a juror’s verdict is whether or not that juror would have made the same decisions (and taken the same actions) as the litigants did. Whichever litigant a juror agrees with will almost always win the case. And although you will rarely be permitted to ask your jurors, directly in voir dire, what they would have done in the same situation, I’ve often stressed the importance of asking voir dire questions about similar situations to get a sense of what your jurors would likely have done.

Unfortunately, jury selection is not always as easy as figuring out what your jurors would have done. In many cases, what your jurors would have done is NOT the same as what your jurors BELIEVE they would have done. And in many cases, what your jurors would have done is NOT the same as what your jurors would expect and demand that OTHERS do in the same situation.

As I’ve discussed in previous jury tips, jurors are not always honest with themselves. I wrote that "you cannot change your jurors’ minds during voir dire, but you can force jurors to re-examine their attitudes and perhaps even convince them to be more realistic and receptive to your case." In many cases, you may need to use voir dire time to remind your jurors that they would have made the same mistakes, or the same decisions, as your client. Unless you force them to think, jurors usually assume that they are more careful and diligent than they really are. Believe it or not, most jurors instinctively believe that they always drive defensively and always read the fine print. Unless you remind them with voir dire questions, jurors will forget that they drive faster than 65 mph, don’t always signal their turns when they believe the street is empty, and don’t read the warnings and side effects in the often-ignored information packet when they take medications.

This month, let’s focus on how jurors judge others differently than they judge themselves. It may be illogical, but jurors rarely judge themselves by the same standards by which they judge others. A florist who prefers to give customers a single price and doesn’t believe she should have to itemize her labor and expenses might expect and demand her mechanic to disclose the costs of each auto part and bill his labor by the minute. The florist, like most jurors, thinks about responsibilities differently depending on her point of view. Most jurors don’t reconcile or even recognize the inconsistent standards by which they judge others.

Unfortunately, this means that even a juror who you’re SURE would have done the exact, same thing your client did won’t necessarily identify with your client and your case. If that juror shares the opposing litigant’s expectations of--and disappointment in--your client, the juror will be more likely hostile than receptive to your case.

Let’s say you’re defending a company accused of fraud, related to an admitted failure to disclose. It may not matter that juror #8 admits that he never discloses potential plumbing problems and other defects and expects the buyer to do their own due diligence whenever he sells a home if that same juror expects and demands that sellers disclose everything to him when he’s looking to buy. This juror will more than likely impose his expectations of sellers onto your client, ignoring his expectations of himself as a seller. If you think this juror seems illogical, you’re right. If you think it’s unrealistic for jurors to think this way, you’re wrong.

This isn’t to say that jurors will always decide cases based on their expectations of others; in many cases, the jurors will give like-minded litigants the benefit of the doubt. But it depends entirely on the jurors’ perspectives--through which side’s eyes will each juror view the case?

Your jurors’ likely perspective matters a great deal. This is why non-management employees often take the side of employee-plaintiffs and business owners, executives, and management tend to take the side of employer-defendants. Employees who have never made managerial decisions will identify with the plaintiff and base their verdicts on how much they agree with what the plaintiff did and how well the defendant conformed to their expectations of what a company SHOULD do. Jurors with management experience, on the other hand, are much more likely to compare their own employment practices to the defendant’s, and to strictly impose their expectations of their own employees onto the plaintiff. In every case, consider whose perspective each juror is more likely to relate to. And you’ll often find jurors who could potentially view the case from either perspective, so consider which side the juror will more LIKELY relate to.

In every trial, most jurors judge others far more critically than they would ever judge themselves. A juror’s own home may be a pig-sty, but the same juror will likely expect a retail store’s aisles and floor to be perfectly clean; too bad if you’re defending a slip-and-fall case. Another juror who regularly drives on icy roads with balding car tires that haven’t been changed in years might blame slip-and-fall plaintiffs for wearing flip-flops and not being careful enough on a slippery supermarket floor. A professional money manager who feels entitled to make unilateral investment decisions without client permission might be outraged by doctors who make surgical decisions on behalf of patients.

During jury selection, make sure to ask your jurors questions designed to give you insights into what they would have done in the same situation, but don’t stop there. Never assume that your jurors will judge your client based on what the jurors themselves would have done, because they’ll often be judging your clients by harsher standards. Make sure to discover the expectations, demands, and feelings your jurors would impose on your client if they were in the shoes of the opposing litigant.

August 2009: DOES A JUROR'S LAWSUIT HISTORY MATTER?

Sat, 1 Aug 2009 10:59:06 -0400

If you’ve ever picked a jury, you’ve probably learned that the hardest part isn’t figuring out interesting voir dire questions to ask your jurors--it’s juggling all the answers you receive and figuring out which to pay attention to and which to ignore. If you’ve ever used a written juror questionnaire or been given extensive time to conduct voir dire during jury selection, you may have had to juggle answers to dozens of questions from each juror, and every answer will seem interesting and useful. Juror 14 was in the navy, had some medical training, and does charity work. Juror 35 is a middle-aged Hispanic female, like the plaintiff, and has been a jury foreperson in a civil trial. Juror 47 has friends and family who are in law enforcement and believes jury damage awards are "too high." Juror 9 is an accountant for an insurance company but once filed a medical malpractice lawsuit on behalf of his mother. Do some of these answers sound familiar? Which should you pay attention to? Unless you practice in a venue with extremely limited (or no attorney-led) voir dire, you are overloaded with information on your jurors. If you’re relying on misleading and trivial information to pick your jury, you may be worse off than the lawyers in Pittsburgh, South Carolina, or elsewhere that don’t get to ask any voir dire questions.

If you’ve ever conducted jury research and profiled your jury pool, you’ve probably realized that 90% of the answers given in voir dire and questionnaires are completely irrelevant in jury selection, even answers that sound important. In every focus group, mock trial, and jury research project that I conduct, I make sure to ask the mock jurors a wide variety of voir dire-style questions beforehand to profile them and to better understand differences in their decision-making. Within these questionnaires, I always include questions that are thought by many to be useful in jury selection, but that I know will be irrelevant--demographics, prior jury service, and a host of others.

If I had the time, I would go through and debunk every jury selection myth out there. This month, I’ll share some of my jury research data with you to help debunk one myth in particular--the misguided idea that a juror’s own history with lawsuits will be relevant to your lawsuit.

For this exercise, I combined data from hundreds of mock trials, focus groups, and jury research projects I’ve conducted in civil cases. My melting pot of data included examples of every type of civil trial--personal injury, employment, commercial, malpractice, construction, land use, intellectual property, you name it. Conveniently, or perhaps tellingly, the armada of mock jurors in this master data set were split evenly on verdict--50% for the plaintiff, and 50% for the defense. But what happens when we categorize the mock jurors based on their personal experiences with lawsuits?

28% of these mock jurors had reason to relate to the plaintiff--they had either filed a lawsuit themselves or had close friends or family members who had been plaintiffs. 10% of the mock jurors had reason to relate to the defendant--either they or a close friend or family member had been sued before. 5% of the mock jurors had been on both sides, and the remaining 57% had never been, or never had a relationship with, a plaintiff or defendant.

Conventional wisdom would suggest that the ‘past defendants’ should be highly unsupportive and skeptical of lawsuits, angry at plaintiffs and frivolous lawsuits, and more likely to give defendants the benefit of the doubt and defense verdicts. But curiously, these ‘past defendants’ only rendered defense verdicts 53% of the time. 47% of the time, they were pro-plaintiff.

The same conventional wisdom would suggest that the ‘past plaintiffs’ should be supportive of the right to sue, should identify and sympathize with current plaintiffs, and should be highly pro-plaintiff, as a group. You might be surprised to hear that ‘past plaintiffs’ rendered defense verdicts 57% of the time. Mock jurors who had filed lawsuits of their own, or who had friends or family who had, were slightly more pro-defense than even the ‘past defendants.’

Other than bursting the bubble of conventional wisdom, the lesson that should be learned from these numbers is that there is NO significant difference in juror decision-making between past plaintiffs and past defendants. Plaintiff attorneys, don’t feel too comfortable with jurors who have filed lawsuits, but don’t necessarily fear jurors who have been sued before. Defense attorneys, don’t assume that a juror who has been unfairly sued will grind his axe for your client, but don’t necessarily worry that a juror who has filed a lawsuit will feel suspicious toward your client simply for being sued.

The interesting lesson from this data is that the roles your jurors have played--plaintiff and defendant--don’t matter, but their time in the courtroom does. Remember those uninitiated jurors who have never been in a lawsuit and don’t have close friends and family who have? They’re not quite as neutral as you might think--58% of them rendered plaintiff verdicts in mock trials. And what about the small group of jurors who have been on both sides of a lawsuit? You might imagine that their balanced perspectives would make them extra impartial and open-minded toward lawsuits, but this isn’t the reality--67% of them rendered defense verdicts in mock trials. Lumping together the past plaintiffs, past defendants, and the ‘both sides’ jurors into one group reveals that ‘lawsuit veterans’ were only 42% pro-plaintiff, compared to 58% of the uninitiated.

I should point out that this exercise is far from a scientific study, but it does bring up fascinating questions about jurors, trust, and self-identification. First, why don’t past plaintiffs and defendants identify with and support other plaintiffs and defendants? I would argue that the only juror attitudes that matter are their feelings about the situation your case involves. Jurors simply don’t have generalized feelings about lawsuits that carry over to all types and cases and override how they feel about a particular situation.

A juror who believes that patients should be entirely responsible for their health and medical care--doing extensive research, asking all the right questions, seeking second opinions, understanding and accepting all the risks--may just as likely believe that consumers should be allowed to trust that the products they buy are safe. The same juror who is predisposed to blame plaintiffs in medical malpractice cases may be predisposed to fault defendants in product liability cases. For the same reason, don’t assume that a juror who has sued an employer for discrimination will be supportive of a plaintiff suing a large corporation for patent infringement.

I’ve heard the argument that past plaintiffs will be hostile to current plaintiffs if their lawsuit didn’t go well; "if I didn’t get what I deserved, they shouldn’t either" is the thinking. I’ve never found this to be true--past plaintiffs who have been satisfied with their lawsuits are no more supportive than anyone else. Jurors don’t identify with litigants because they are demographically similar, and they don’t identify with litigants because they share the experience of suing or being sued. Jurors only relate to those who take the same approach to a specific situation as they do.

Second, what is it about experience with lawsuits--on either side of the courtroom--that makes jurors cynical about lawsuits in general? Why were the ‘uninitiated’ mock jurors slightly pro-plaintiff, the jurors with lawsuit experience slightly pro-defense, and the lawsuit veterans strongly pro-defense? I would certainly argue that the litigation process leaves the participants with cynical feelings by the end, and that’s a big part of the phenomenon we’re discussing. I would also suggest that lawsuit veterans are engaging in the same hyper-critical process of over-scrutinizing plaintiffs that I regularly see handicapped and disabled jurors do to plaintiffs in personal injury cases. Handicapped jurors are less shocked by injuries than the rest of the jury pool, less bothered by disabilities, will hyper-critically compare their condition to the plaintiff’s, and will usually conclude that theirs is more serious and legitimate. In the same way, veterans of lawsuits likely aren’t shocked by allegations of negligence or wrongdoing and, when they scrutinize the plaintiff’s case, are much more likely to believe that plaintiff cases pale in comparison to theirs.

The next time you select a jury, make sure to focus on the few answers to voir dire questions that you believe will matter most in your jurors’ decision-making. Tune everything else out, ignore the answers to the voir dire questions you’ve already decided were unimportant--no matter how interesting those answers might be--and don’t pay attention to which side your jurors were on in their own lawsuits.

July 2009: KEEP YOUR OPENING PERSUASIVE

Wed, 1 Jul 2009 20:21:02 -0700

Talking too much about the details and minutiae of your case in depth is the biggest mistake you can make in an opening statement. Remember, an opening statement is your best and only chance to convince your jurors that what you’re saying is true, is likely, is fair, and makes sense. If you get too detailed and involved, your jurors will be too busy expending their mental energy learning and struggling to understand what you’re saying to focus on building trust in you and your case.

Never turn your opening statement into a table of contents, rattling off evidence without explaining to the jurors what the evidence means. I see this mistake made all too often. This is like emptying the box of a jigsaw puzzle in front of someone and expecting them to see the picture. Your opening should be structured around your trial themes, not around your evidence. Remember, the evidence itself is not a theme. Trial themes are persuasive messages, loaded with unspoken values, that give jurors REASONS to trust in your case. Trial themes are your way of telling jurors the conclusions they should draw from the evidence--that it’s wrong for companies to put profits before safety, that it’s fraud when a seller makes it difficult or impossible for a buyer to discover defects, or that it’s not fraud when a buyer fails to ask questions and do their own investigation.

Never turn your opening statement into a complicated, educational lecture about the complex issue your case involves. I see this mistake made all too often. I understand why it seems important to educate your jurors early on about the subjects they’ll be hearing about throughout trial, but you must understand that there isn’t enough time in a six-week trial to make your jurors capable of making educated, informed decisions about how a physician should treat a myocardial infarction or corporate obligations under Sarbanes-Oxley. Not only will you confuse and bore the jury, you’ll have wasted your only opportunity to persuade them. Instead of educating your jurors, promise to explain the issues to them later and immediately explain what the evidence will mean. "You’ll hear some medical experts explain to you what an arterial infusion is, and the right and wrong times for a doctor to perform one on a patient, but we’ll show you that it was dangerous for Dr. Jones to perform an arterial infusion on Ms. Lee without reading the results of all her medical tests first. Now you don’t have to be an expert to know that it’s foolish to try fixing a problem before you’re sure of what the real problem is, but our experts will tell you that..." And yes, I know there’s no such thing as an arterial infusion.

Remember that cases are won and lost over how well your arguments agree with your jurors’ values. Your jurors don’t truly make decisions based on objective views of the evidence, so you should only use the details of your case as examples to show your jury the sense you’re making or to discredit the opposing side’s case. The details and minutiae of your case--perhaps the workings of a complex machine involved in a patent dispute or product defect allegation or an involved background story of an employee’s work history or the unique workings of a company’s employee evaluation program or progressive discipline procedures--distract jurors from your persuasive trial themes. When you get into lengthy explanations of the details of your case, you are getting stuck in a story within a story. At the end of your opening, your jurors might understand how something works, but they’ll have less understanding of what you’re arguing, what your messages are, and almost no understanding of why they should believe in your case.

It’s often said that the most effective, interesting opening statement is a story, and there’s some truth to that school of thought. If your case lends itself to an interesting narrative, storytelling is the most effective way to make your opening interesting to your jurors. Not every case lends itself to a storytelling narrative, though, and every opening statement should be about more than just a story. If, like many cases, yours involves a series of events rather than a continuous action, choose a central event that illustrates your main message and start your story there so that your jurors focus on it. And always conclude your storytelling with a moral of the story and the messages you need your jurors to focus on.

There is a time and a place for downloading the details to your jurors and focusing on the minutiae. Use your experts and your knowledgeable witnesses to explain complex concepts in a clear way to your jurors. Whether or not the jurors truly understand a trial’s central concepts may not influence their decision-making, but whether or not the jurors BELIEVE they understand the concepts does matter to them. Jurors rarely come out of trials truly understanding the concepts--their deliberations are always marred by misconceptions, even about evidence you presented clearly--but jurors feel paralyzed and unable to reach verdicts when they don’t BELIEVE they understand the concepts, so it’s important to make the effort to educate them.

The next time you prepare an opening statement for a jury, focus on credibility, not on content. Assume that your jurors won’t remember the details and minutiae of your case, because they probably won’t. Make sure you’re not overloading your jurors with facts, details, and explanations. Instead, make sure that you’re distilling the essence of your evidence and the details of your case into clear, simple messages that agree with your jurors’ values and beliefs.

An ideal opening statement should be 20 minutes long, not 3 hours. Jurors start losing their attention around 30 minutes, and by 45 minutes they’ll start tuning you out or forgetting the important messages you discussed in the first half of the opening. I’ve seen my share of two-hour opening statements, talked to mock jurors afterward, and can assure you that they’re not necessary, or even helpful. There’s only so much room in your jurors’ memory banks and only so much they can digest and focus on at once, so make sure your messages aren’t competing with and cannibalizing each other. Just because your case is especially complex doesn’t mean you should give a longer opening statement; in fact, it is even MORE important to keep your opening short, clear, and simple when your case is unusually complex. Jurors are persuaded by clarity and simplicity. They believe that even the most complex questions (and complex trials) have simple, common sense answers. If your opening statement is overly complex and the reasons you give your jurors for believing in your case are convoluted, confusing, and overwrought, your jurors will be far less likely to believe that your case rings true, even if they understand what you’re arguing.

One of my favorite attorneys, Irwin Gilbert of Palm Beach Gardens in Florida, once delivered the clearest and most persuasive opening statements I’ve ever heard on behalf of a plaintiff in a construction defect case. I’ll transcribe it here for your benefit: "The roof leaks." Irwin won the trial. It takes courage to make your opening clear, simple, and concise, but don’t feel the need to tell your jurors everything and anything in opening statement. Restraint and simplicity will do wonders for your case.

Three Jury Blogs

Wed, 3 Jun 2009 12:42:42 -0700

My monthly jury tips are certainly not the only interesting articles on jury topics out there. Here are three in particular that I enjoy reading and wholeheartedly recommend to those with a thirst for jury insight:

Anne Reed's fantastic thoughts are at jurylaw.typepad.com

Robert Kelley posts tons of useful information and interesting thoughts on voir dire at www.juryblog.com

Mark Bennett gives a wonderful criminal lawyering perspective at bennettandbennett.com/blog

June 2009: PERSUASION, NOT MINUTIAE

Mon, 1 Jun 2009 08:18:56 -0700

Jury verdicts should be decided on the evidence, but the evidence is less important to your jurors’ decision-making than their impressions of credibility, their ideas about common sense, their values, their sense of fairness, and the predispositions they bring with them into the courtroom. These are lessons I’ve shared with you before--that trials are about the evidence, but not as much as you might think, and not in the way that you might imagine. As I’ve said before, jurors merely use the evidence to support what they already believe to be true and then use that evidence to convince other jurors in deliberations. You won’t win a jury trial without supporting evidence, but the evidence itself does not persuade your jurors.

In the same way, trials are about the details, but not as much as you might think, and not in the way that you might imagine. You won’t win a jury trial without wading into the details--educating your jurors about medical procedures, business practices, or crime scene forensics, for example--but the details themselves won’t persuade your jurors. Even worse, getting into those complicating details--the minutiae of trial--during your opening statement will derail the persuasive process, and you’ll have wasted your best (and perhaps only) opportunity to win over your jury.

Jurors find trials interesting, even the most dry, technical cases. Yes, even patent and contract cases. You might not think so if you’ve watched a jury watching a trial; you’ve probably seen jurors falling asleep, eyes glazing over, notepads ignored. You might be surprised to hear that the same sleepy jurors sitting through mock trials--even short, one day mock trials--are actually fascinated with the case itself. They perk up and become animated, even personally invested, during mock jury deliberations. The overwhelming majority of the jurors I talk with after actual trials are just as riveted by the trials they sat (or slept) through. So if they’re so interested in these cases, why do they look so bored during most of the trial?

The devil is in the details. Jurors find the minutiae of trial boring, confusing, and hard to connect with the big picture. One way or another, you’ll still need to spoon feed the details and minutiae to your jury. But you should NEVER get into the minutiae during your opening statement. Let’s discuss why.

Think about the timing of your opening statement. You’ll deliver it during the "framing" phase of your jurors’ decision-making, the time in which they are open to persuasion, wondering what the case is about and looking for clues to help them decide which side is telling the truth and which side is being dishonest or unreasonable. In a nutshell, your jurors spend your entire opening statement comparing what you’re saying to what they already believe to be true, what they believe to be likely, what they believe makes sense, and what they believe to be fair. You do NOT have their full attention, and I can’t stress this enough. Opening statement is NOT the time to educate or confuse your jurors. The jurors are too focused on scrutinizing the validity and credibility of what you’re saying to be learning new things. When you distract the jurors with the minutiae of your case, they are forced to stop focusing on credibility and judgment and are no longer being persuaded. The details and minutiae derail the best and only purpose of your opening statement: persuasion.

A successful opening statement cannot and should not leave your jurors with a working knowledge and complex understanding of your evidence. You shouldn’t want, or need, your jurors to take notes during an opening. Lucky for you, most judges don’t allow notes in opening anyway. These judges are doing you a favor.

A successful opening should leave your jurors with an unshakeable impression that your case makes sense and a clear idea of why. Your opening should frame the case on your terms, focusing your jurors on what you want to be important and distracting them from what you don’t want them to focus on. Don’t expect your jurors to remember the details after hearing your opening statement. They won’t. A good opening is like a persuasive political speech--your jurors should remember that they agreed with your values, that you made sense, that you were fair, and that they found you convincing without having to remember why.

Never turn your opening statement into a table of contents, rattling off evidence without explaining to the jurors what the evidence means. This is like emptying the box of a jigsaw puzzle in front of someone and expecting them to see the picture. Never turn your opening statement into a complicated, educational lecture about the complex issue your case involves. I understand why it seems important to educate your jurors early on about the subjects they’ll be hearing about throughout trial, but you must understand that there isn’t enough time in a six-week trial to make your jurors capable of making educated, informed decisions about how a physician should treat a myocardial infarction or corporate obligations under Sarbanes-Oxley. Not only will you confuse and bore the jury, you’ll have wasted your only opportunity to persuade them.

In next month’s tip, I’ll discuss some ways of persuading jurors without getting into the details. For the time being, remember what you should be focusing on in voir dire--keeping your jurors focused on the big picture and the reasons your case makes sense instead of distracting and confusing them with the details and minutiae.

May 2009: WILL YOUR JURORS TRUST YOUR CLIENT OR YOUR CASE?

Fri, 1 May 2009 11:15:48 -0700

All things equal, jurors who identify with a litigant are more likely to trust them, give them the benefit of the doubt, and impose feelings about their own honesty onto the litigant. Doctors do tend to trust other doctors. Executives do tend to trust other corporations.

At the same time, all things equal, jurors who disagree with a litigant’s actions and approach to a given situation are more likely to blame that litigant for the harm done, whether the litigant is a plaintiff or defendant. Jurors who believe in routine preventative medical testing will usually fault doctors who don’t give routine breast exams when their patients’ sue for undiagnosed cancer. Jurors who believe in stringent human resource policies will usually fault companies who fire employees without documentation or written warnings.

So what happens when a juror identifies with a litigant but not with their approach? Will the benefit of the doubt overwhelm scrutiny of the litigant’s actions, or will the litigant’s different approach destroy their credibility in the juror’s eyes?

Will an amateur product inventor who has gone through all the proper steps to seek a formal patent identify with an alleged victim of patent piracy who did little to apply for their patent rights? Will a juror with law enforcement or prosecution experience--or who has close friends who are police officers or district attorneys--be receptive to a criminal prosecution if he/she expects to see direct evidence, and the prosecution has charged the defendant with only circumstantial evidence as support? Will a juror whose life was saved by doctors extend that same trust to a doctor being sued for medical malpractice?

The answer isn’t simple, but my own jury research suggests that the struggle between personal credibility and decisional credibility depends largely on the juror’s own outlook. To understand why some jurors trust the messenger while others trust only the message, we’ll need to revisit my discussion on the difference between ‘naïve jurors’ and ‘cynical jurors.’

Remember that a naïve juror is someone with an optimistic outlook of the world and the situations your case involves, usually because they have never had a negative experience and have trouble imagining the possibility of wrongdoing (hence the label ‘naïve’). Naïve jurors have never had a bad experience with a doctor, a construction contractor, an insurance company, a police officer, or an employer, and so their impressions of the litigants are overwhelmingly positive and trusting. The hallmark of a naïve juror is that all is right with the world, especially in the environment your case involves.

On the other hand, remember that a cynical juror is someone with a pessimistic, resigned outlook of the world and the environment of your case. They view the world as flawed and unfair but are rarely outraged. They don’t trust doctors, contractors, police officers, or employers, but they expect others to be wary and don’t necessarily blame those who they distrust.

Identifying naïve jurors is relatively easy to do; they tend to have overwhelmingly positive experiences and have no complaints to express. The surest way to identify cynical jurors is to notice those jurors who have negative impressions of your central case issues but minimize complaints or offer excuses. The key to distinguishing between naïve jurors and cynical jurors is to ask them general questions about trust, or specific questions about trusting doctors, lawyers, companies, police officers, or whomever your case involves. Naïve jurors will tell you that we should be able to trust others to keep our best interests and well-being in mind; cynical jurors will tell you that trusting someone else with your well-being is foolish and naïve and that a smart person should always look out for themselves.

Naïve, trusting jurors tend to put their trust in PEOPLE. If they identify with doctors, they’ll likely give your doctor the benefit of the doubt. If they identify with employers, they’ll likely distrust your employee in a wrongful termination case, even if they agree with most everything that your client did before and after being fired. On the other hand, cynical jurors lack the instinctive trust necessary to give others the benefit of the doubt and tend to put their trust in ACTIONS. They will agree with the litigant who did what they would have done. If they agree with the steps your corporate plaintiff took to protect themselves from unfair competition, they’ll likely be receptive to your case. If they disagree with the way in which a murder investigation was conducted, they’ll be likelier to distrust your prosecution case, even if they’re a police cadet or are married to a highway patrol officer. Of course, there are many more factors at play in shaping how receptive a juror will be to your case, but knowing the focus of your jurors’ trust is a good start. When a juror may have one reason to trust your client and another to distrust them, understanding the difference between naïve and cynical jurors is often the key to understanding how your jurors will make decisions about credibility.

April 2009: DEALING WITH JUROR ANARCHY

Thu, 12 Mar 2009 15:41:18 -0700

At a recent legal conference at which I was speaking, I was asked a particularly thought-provoking question: "how good (or bad) a job do you think juries do at getting verdicts RIGHT?" The answer is understandably complex, and I invite you to weigh in and share your feelings on the subject, especially if you disagree with me.

At the risk of running too far into left field and turning my jury tip into a philosophical discussion, I will argue that juries do a wonderful job of re-interpreting (and thereby changing) our laws by injecting common sense and evolving societal values into their verdicts. A jury’s verdict can change the law with more expediency and freedom than any judicial or legislative body could. Jurors may at times fail to fully understand the issues presented at trial and will usually judge cases more on credibility and predisposition than on the evidence presented, and these phenomena are admittedly less than ideal. However, I would argue that when jurors ignore or reinterpret the jury instructions and the law, as they often do, their verdicts are the purest expressions of democracy in action.

But no matter whether jurors get it right or wrong, you as the attorney have no choice but to deal with the reality that jurors bring their own set of ‘jury instructions’ into the courtroom that often override the actual instructions.

As a jury consultant, I am an expert in jury misconduct. While the law will tell you what your jurors SHOULD do, only a jury consultant can tell you what your jurors WILL do, because jurors NEVER fully understand or follow the instructions and decide cases on the evidence and the law. Abandon the hope that jurors will follow the jury instructions, enforce a contract, or obey any rule simply because the law demands them to. If a jury instruction, contract, policy, or law seems unfair to a juror, they will have a difficult (if not impossible) time enforcing it during an anonymous deliberation process. Instead, jurors base verdicts on their common sense and their personal values of justice and fairness, no matter what the law demands.

Some jurors believe it’s unfair for a company to fire an employee without giving a compelling reason, no matter what the at-will employment laws say. "If they had a good reason to fire her, they would have told her why," they’ll argue in deliberations. Other jurors believe it’s unfair to prevent companies from firing employees for any reason, even retaliatory or discriminatory ones. "He deserved to be fired, and he would have been fired anyway," they’ll convince themselves. Demanding that your jurors follow the law and jury instructions because they are required to is not persuasive. To be sure of winning over these jurors, you’ll have to convince them that your case is FAIR and not just the law.

Jurors don’t disregard the law and ignore the jury instructions on purpose, at least not most of the time. But when they find contracts, rules, or jury instructions confusing--and they always do--jurors subconsciously re-interpret those rules to match their own sense of justice and fairness. Jurors allow their values to shape the rules, subconsciously. For example, jurors never fully understand the concept of fiduciary duty, so they’ll always re-interpret the definition and disregard obligations that don’t seem fair. In particular, jurors will carve up and re-write the meaning of contracts based on their own common sense and ideas of fairness. I have seen mock jurors re-interpret contracts in mock trial deliberations to suit their own logic--once, a juror said "there’s no way the contract could mean what the defendant says it does, if it did the plaintiff would never have signed it." That type of thinking speaks for itself and is indicative of how most jurors reconcile rules and contracts with their own perceptions.

I realize how scary this sounds. But instead of tearing your hair out and losing faith in contracts, the law, and the jury instructions, understand that there is a better way of persuading your jury than simply forcing the law down their throats. Accept that jurors view trials much differently than judges and lawyers. And instead of stubbornly assuming that your jurors will adhere to the jury instructions simply because they are told to, you must focus on giving your jurors common sense reasons why your case is fair. Supplement the law with practical arguments to help jurors follow those instructions. Every law, jury instruction, policy, and contract stipulation was put there for a reason, so take the time to explain those reasons and why they are fair to your jurors.

There are far too many reasons why a law or contract might appear confusing or unfair to a juror for me to explain how to merge fairness with the rules, but I’ll offer a few examples anyway.

When contracts are too confusing or complex for jurors to understand--almost always the case in commercial, breach of contract trials--make a convincing argument to the jury that your client never would have signed if the contract meant what the opposing counsel now says it means. Jurors aren’t experts at interpreting contracts, and if two expert lawyers can’t agree, the jurors know they won’t be able to figure it out on their own. Show your jurors that your client would have been crazy to agree to the terms your opposing counsel insists are enforceable; if you represent a sophisticated individual or a large-enough company, your jurors will doubt that your client was naïve or foolish enough to sign an unfair contract.

When you’re trying to enforce a contract that jurors may view as unfair, you’ll need to explain to your jurors why it’s unfair for your client to be denied the benefit of the contract. It’s never enough to show the jury the opposing litigant’s signature on a contract.

Treat potentially "unfair" jury instructions the same way; if your jurors don’t believe the law is fair, they’ll find a way to divert the instructions. One jury instruction that jurors often struggle with involves the vicarious liability of employers; most jurors have a difficult time blaming a company for the actions of a single employee. Even when the law defines an employee’s negligence as "foreseeable"--perhaps a truck driver causing a collision--the jurors struggle to see how a company could have "foreseen" such an unpredictable accident. Rather than assuming the jury will follow the instruction, a savvy plaintiff’s attorney should focus on demonstrating how the employer could have done a better job of minimizing risks and ensuring that their employees were safer and more careful. Explain how unfair it would be to the injured plaintiff for the company to avoid blame when the injury would have been far less severe if the truck driver were driving his Honda Civic off duty instead of the defendant’s slow-braking truck, heavily loaded with freight.

Before your next trial, take a closer look at the rules you’ll be asking your jurors to follow, and think about how confusing or unfair they may appear to your jury. Make sure never to take your jury’s obedience for granted or assume that they’ll "have to" follow the rules. Just to be safe, give your jurors reasons to follow the law, the jury instructions, or the terms of a contract based on common sense and fairness. Your jurors don’t mean to be anarchists, but they’ll inadvertently choose justice over the law when given the choice, and they’ll rely on their own sense of justice and fairness, not necessarily yours.

March 2009: RULE-FOLLOWERS AND FAIRNESS-FOCUSED JURORS

Sun, 8 Feb 2009 22:56:45 -0800

January’s jury tip dealt with how jurors feel about self-interest and how trials are won and lost based on your jurors’ values, and not necessarily the evidence. This month, let’s discuss another spectrum of juror values that shapes juror decision-making in nearly every case: the difference between rule-focused and fairness-focused jurors.

As I mentioned, when you peel back the evidence and go beneath the surface of juror decision-making, trials are battles between competing systems of values. Jurors don’t care what the evidence shows, because they will dismiss that evidence if it doesn’t fit into what they already believe and what they value. Your success at trial usually hinges on how well you understand your jurors’ values and how well you present your evidence to match those values.

Almost every trial boils down to how jurors feel about obligations and responsibility; should people and companies be bound by contracts and promises or should they be bound by the rules of fairness?

Time and again, I’ve seen mock jurors in deliberations argue over a verdict even when they AGREE on what the defendant or plaintiff actually did. These fights are never truly about the facts and the evidence, but rather disagreements over the definition of ‘the right thing to do.’ Just like plaintiffs and defendants, jurors argue over obligations. Listen closely and you’ll find that arguments over ‘the right thing to do’ in any given situation have everything to do with your juror’s values and nothing to do with the evidence presented in trial.

I can’t count the number of times I’ve seen mock jurors argue over the meaning of a contract when they’re really arguing about fairness and responsibility. Without exaggeration, some jurors might demand that a defendant hand over their first-born to a plaintiff if a signed contract said so in writing. "When you sign your name, you have to live up to your promise, no matter what," they argue. Other jurors have no qualms demanding that a plaintiff deserves the rights to a patent he or she developed on behalf of an employer, even if a signed employment contract clearly bestows all intellectual property developed by that employee to the employer. "He came up with the idea, he did all the work, so he DESERVES all the credit and the profits," they insist.

In my experience, how rules-oriented or fairness-oriented a juror is will usually be the most telling sign of how a juror will make value judgments when evaluating what the litigants were OBLIGATED to do in any given situation.

Rule-following jurors see the world in black and white terms and are uncomfortable dealing with judgment and discretion. In any ambiguous situation, their overriding instinct is to frantically search for a set of rules, policies, or procedures with which to judge the litigants’ actions. In dozens of mock trials, I have seen hyper-rule-following jurors put so much faith in rules that they will knowingly side with a defendant who has followed procedure EVEN when the jurors admit that the procedures are dangerous and/or wrong and even when the jurors admit that the corporate defendant created their own policies. Rule-followers will refuse to decide right and wrong using their own judgment or concepts of fairness and practicality.

On the other hand, fairness-focused jurors have a practical outlook toward the world and prefer to evaluate situations with discretion. They don’t look to rules or authority figures to tell them the difference between right and wrong; instead, they rely on their own judgment to determine what seems right.

A rule-following juror will usually hold a person or company accountable to the minimum required rules, while a fairness-focused juror will demand that a litigant go above and beyond the minimum requirements if the ethics and morality of the situation demand more. Rule-followers tend to hold litigants to the written terms of a contract and nothing more, while fairness-focused jurors will likely reinterpret the contract to conform to their version of fairness. In car crashes, rule-followers tend to blame the driver who violated a rule of the road, but fairness-focused jurors often assign blame to any driver who had an opportunity to avoid the accident, even if that driver didn’t violate any specific rules of the road. In product liability trials, rule-followers tend to hold manufacturers to no more than their own policies and the minimum government safety standards, while fairness-focused jurors often demand that manufacturers be held to higher standards defined by their own definition of safety and care.

During voir dire, distinguish between rule-following and fairness-focused jurors by asking your jurors about their approach to similar situations, what they believe their obligations to be, and how they assign blame. Because not every case involves situations in which most jurors have experience, you may have to be creative in thinking of parallel situations to discuss in voir dire that give the same insight into your jurors’ likely approach to your case. In any situation, do your jurors look to specific rules for guidance, or do they use their own discretion to make decisions and judge right from wrong? Can your jurors fault someone who has followed all of the rules, or would they expect someone to go out of their way to be helpful?

Before your next trial, take an honest look at more than just your evidence. Think about the values beneath the surface of your case. Are you minimizing your client’s obligation or demanding extra consideration from the opposing party? Are the obligations you want the jury to impose on the litigants clear and in writing, or are the obligations implied rules of fairness, decency, and common sense? Decide for yourself if you’d be better off with jurors who focus on just the minimum requirements or on idealistic notions of justice and fairness, and understand the values of every juror on your panel so that you can tailor your arguments to match what they already believe--and avoid making arguments that your jurors will never agree with.

February 2009: JURORS WHO CHARM BOTH SIDES

Wed, 28 Jan 2009 10:49:34 -0800

A few months ago, I received a call from a Wall Street Journal writer doing a story on jury service. She wanted to know whether or not the jury system would be better off with professional volunteer jurors, instead of forcing every American from every walk of life to serve. In particular, she wondered whether or not losing the most professional, educated, and intelligent jurors would have an impact on verdicts. I answered her questions, but this month I’ll give you a better answer to an important question: does a juror’s education, intelligence, and understanding matter?

The answer, for better or worse, is no. I have never seen a juror’s education, measured intelligence, or even income surface as a significant factor in a jury profile, as long as questions about the jurors’ values, experiences, and opinions are considered. Highly educated and intelligent jurors are just as likely to make ‘mistakes’ and be blinded by pre-judgments and predispositions as any other juror. Whether this reality destroys or restores your faith in the jury system is up to you.

Before you argue with me and cite an example, keep in mind that education and understanding are sometimes correlated with the traits that actually do determine predispositions. Don’t confuse the two. A group of highly-educated engineers who understand the issues in a product liability case may be highly pro-defense, but it’s probably not their education and understanding that distinguishes them from the pro-plaintiff group of construction workers and administrative assistants. More likely, their engineering backgrounds, analytical way of looking at the world, and trust toward corporate manufacturers explains why they see the case differently from other jurors.

The majority of cases are not so cut and dry. In most cases, a well-educated juror is no more likely to agree with another well-educated juror in deliberations than with an unsophisticated juror. Biases rarely fall among demographic lines. So unless you know that education is correlated with some other value or belief that will make a juror more receptive to your case, don’t pay much attention to how smart your jurors seem or the degrees they hold.

A few months ago, I argued that every attorney should go into jury selection with an understanding of juror profiles that will be receptive to your case and to not necessarily be scared off by loud, opinionated jurors. This month, let’s discuss another common mistake I see made in jury selection--the mistake of automatically trusting the smiling, friendly jurors and the smart, reasonable-sounding jurors on the panel.

No matter what these jurors say, attorneys have a tendency to fall in love with their demeanor. Too often, I see attorneys convincing themselves that the friendly or thoughtful jurors will see the light and be receptive to their case. Not true. Give your friendly, reasonable-sounding jurors just as much scrutiny as your outspoken or disagreeable jurors. A juror’s demeanor and the volume of their voice tell you far less about predispositions than the profiles you developed before you met your jurors, so stick to your profiles and stick to your guns in jury selection.

Don’t fall into the trap that smiling, friendly, courteous jurors will be receptive to you and your case. Yes, you seem to have rapport with them. Yes, they seem to be open-minded and willing to listen. But are they equally friendly during opposing counsel’s voir dire? Are they equally willing to listen to the other side of the case? The truth is, friendly jurors have biases too, and a friendly demeanor doesn’t tell you much about what a juror may be receptive to during trial.

Likewise, don’t fall into the trap that intelligent, perceptive, reasonable jurors will be receptive to you and your case. Yes, they seem to understand you. Yes, they seem to grasp the issues in the case, and you get the feeling during voir dire that they’ll "get-it" and be smart enough to see right through the opposing case. But here’s a fact that you may not have considered--both sides are usually convinced that their case is stronger, that the opposing case is full of holes and deceptions, and that any smart, ‘gets-it’ juror will be on their side without having the wool pulled over their eyes. Convincing yourself that ‘gets-it’ jurors will see things your way is one of the most common examples of attorney bias.

Finally, don’t fall into the trap that jurors who should relate to your client will relate. Just because a juror is a middle-aged construction worker like your plaintiff doesn’t mean that juror will identify with and relate to your client’s case and decision to file a lawsuit. When the plaintiff is a hard-working, blue-collar, never-complains employee, his or her peers are often unreceptive to the plaintiff’s case. Too often I see attorneys rely on their client’s input in jury selection when the client is merely looking for those jurors that he/she identifies with and fearing those jurors who seem different. Identifying with the case and with the litigant are often very different processes.

Remember, you are looking for jurors whose values align with the values of your liability and damage arguments. Values are segregated across demographic lines much more rarely than you might believe, so make sure to stay focused on your jurors’ values, expectations, and understanding of how the world works. The next time you select a jury, don’t be afraid to ignore their education and personality quirks.

January 2009: COMPETITIVE AND COOPERATIVE JURORS

Wed, 28 Jan 2009 10:52:20 -0800

On the surface, trials are supposed to be decided based on the evidence, and nothing more. Lucky for you that your suit, blouse, or tie doesn’t matter, let alone your credibility, how sympathetic your client is, and the makeup of your jury. If you believed any of this, I doubt you would still be reading my jury tips after all these years.

We all know that credibility matters most to jurors, and that every juror’s predispositions shape what and who they find credible. Jurors don’t like complex explanations that sound unreasonable to them--even complex explanations that in reality may be the right ones. Common sense matters most to jurors, but every juror has their own definition of what makes sense. Evidence does matter, quite a lot, but your evidence has to be explained in a way that makes sense and has to be carefully presented to match your jurors’ beliefs and values.

When you peel back the evidence and go beneath the surface of juror decision-making, trials are battles between competing systems of values. Jurors don’t care what the evidence shows, because they will dismiss that evidence if it doesn’t fit into what they already believe and what they value. Your success at trial usually boils down to how well you understand your jurors’ values and how well you present your evidence to match those values.

Most employment trials boil down to how jurors feel about the fairness of at-will employment; is it unfair to prevent employers from having complete control of their business, or should employees have the right to job security as long as they fulfill their job requirements? Most personal injury trials boil down to how jurors feel about safety and responsibility; should people be cautious and wary on the roads, in the workplace, and when using seemingly safe products, or should we be allowed to trust that other drivers, product manufacturers, and others will do their part and keep our environment safe?

This month, let’s discuss just one spectrum of juror values that shapes juror decision-making in nearly every case: the difference between competitive and cooperative jurors.

Almost every trial boils down to how jurors feel about self-interest; is it acceptable for everyone to look out only for ourselves, or should our conduct be bound by unspoken (or contractual) obligations of loyalty and fairness to others? The reality that jury verdicts vary widely in even the most similar trials is a testament to the fact that jurors have wildly varying values relating to self-interest.

Time and again, I’ve seen mock jurors in deliberations argue over a verdict even when they AGREE that the defendant (or plaintiff) did the very self-serving or unfair thing that they’re being accused of. These jurors are not fighting over facts and evidence; they’re fighting over values. I can’t count the number of times I’ve seen mock jurors insist that a defendant had a right to do the very thing they’re being sued for, or insist that the plaintiff should be blamed for being foolish or naïve enough to trust the defendant, for not exercising enough caution or self-preservation, or for "playing dumb" and pretending to be surprised when a defendant chose its own self-interest at the expense of the plaintiff’s.

Think about two jurors on opposite sides of the self-interest spectrum. On one side, imagine a highly competitive champion of self-reliance who believes wholeheartedly in personal responsibility and cutthroat competition, like a dynamic salesperson or a self-employed business owner in a highly-competitive, win-at-all-costs industry. On the other side, imagine an empathetic, nurturing schoolteacher or social worker who believes in treating others with fairness and compassion. Imagine how differently the two jurors would view an unfair competition trial, or an intellectual property trial.

In my experience, how competitive a juror is will usually be the most telling sign of how a juror will make value judgments when evaluating what the litigants SHOULD have done.

Competitive jurors are perfectly comfortable with the reality that people, businesses, and all entities are focused first and foremost on their own self-interest. More importantly, most competitive jurors believe that anyone who doesn’t recognize that everyone is looking out for themselves, especially those who blindly trust others, is foolish and naïve. As a result, competitive jurors defend aggressive conduct that may push the envelope of fair dealing and are much more willing to excuse competitive ‘wrongdoing.’

On the other hand, cooperative jurors have a strict definition of wrongdoing. Cooperative jurors demand that people and entities have priorities beyond self-serving ones. They don’t mind when corporations try to make money, but they are angered when corporations consciously choose profit over loyalty to employees, customer safety, the environment, and considerations that impact the rest of society beyond the stockholders. Unlike competitive jurors, cooperative jurors don’t blame people and companies when they are victimized, even when they turn a blind eye to wrongdoing and don’t take steps to protect themselves. Even more interesting, cooperative jurors don’t just get angry when a defendant breaks a promise; they often believe in unspoken duties of fairness and cooperation that don’t have to be written into a contract, a promise, or a law or guideline. In fact, cooperative jurors will insist that there are unspoken rules of fairness and cooperation even when there is NO contract, promise, rules, or fiduciary duty between parties, and they are equally outraged when a defendant who has never promised anything to a plaintiff makes a self-centered decision and causes harm.

During voir dire, distinguish between competitive and cooperative jurors by asking your jurors questions about their values, and the values they would hope to instill in their children. Should we be able to trust others to take care of our interests, or is trusting others foolish and naïve? Do you prefer to rely on others and work with teammates or partners, or do you prefer to rely on yourself? Would you prefer your children to be smart and successful or fair and honest? If your jurors coach youth sports, do they focus more on winning and developing skills or on teaching sportsmanship and making sure the kids have fun? Ask your jurors if they prefer competitive or cooperative work environments; would they prefer to be evaluated and paid independently--getting 100% of the credit and blame for their successes and failures--or would they prefer to be part of a team? Do they prefer being responsible only for themselves, or do they like to help co-workers or train, coach, or manage employees?

Before your next trial, take an honest look at more than just your evidence. Think about the values beneath the surface of your case. Are you defending ambitious (or downright selfish) conduct, or are you demanding fairness and loyalty? Decide for yourself if you’d be better off with competitive or cooperative jurors, and understand the values of every juror on your panel so that you can tailor your arguments to match what they already believe—and avoid making arguments that your jurors will never agree with.

December 2008: INTERPRETING BODY LANGUAGE, YOURS AND YOUR JURORS'

Wed, 28 Jan 2009 11:02:50 -0800

You may have heard the theory that what you say isn’t as persuasive as how you say it. In trial, this concept is absolutely true. The content of what an attorney says--and even more so, what a witness says under cross-examination--is far less important and influential than the tone and demeanor with which it’s said.

By the same token, voir dire is an exhibition of juror demeanor and body language. Should you take your juror’s personalities, tone, and body language as seriously as they take yours?

In my experience, reading and interpreting juror body language is an exercise in restraint. If you insist on trying, make sure to separate the informative from the misinformative, because most of what you see will tell you little about a juror’s predispositions. When a juror looks bored or nods off during the third hour of voir dire, he’s more likely bored or exhausted than disinterested in the case or unable to focus on the evidence. When a juror seems a little angry or hostile during questioning, she is more likely annoyed at missing work or upset at being asked probing questions than hostile to your case and unreceptive to you as an attorney.

Should you pay attention to how your jurors are dressed? More times than I can count, I’ve seen sophisticated, professional jurors show up to jury duty in ripped jeans and t-shirts. Are your jurors’ clothing insightful clues to their verdicts, or are they just trying to be comfortable? I remember chuckling when a liberal-minded client’s enthusiasm for a potential juror (both the lawyer and the juror were males with ponytails) turned into shock when the first words out of the juror’s mouth were complaints about plaintiffs and a diatribe about the importance of personal responsibility. Don’t go overboard judging your jurors by their covers.

The most commonly misinformative body language exhibited by jurors is annoyance and disinterest. Let’s face it--even as an attorney, you are likely bored and annoyed when you are called to jury duty, so imagine how the average juror must feel. Most jurors are annoyed to be missing work, family time, or whatever they’re doing, and most don’t feel the need to be particularly polite about it. This doesn’t mean that they hate lawsuits, plaintiffs, or defendants, and most are happy to focus on the case once they are empaneled. Most jurors are also bored by the jury selection process. Listening to confusing questions and a room of strangers tell stories isn’t the most exciting exercise unless you’re emotionally and financially invested in the case, and most jurors have no idea how long the questions will last or what is happening. Forgive them for acting disinterested. Once they are empaneled, most jurors find trials fascinating. Most of the trial, at least.

Instead of over-analyzing, interpret your jurors’ body language, tone, and appearance carefully and conservatively. Annoyance, boredom, and sarcasm during voir dire aren’t usually informative clues into a juror’s mind, but they do mean something if a juror’s attitude is markedly different during your voir dire and your opposing counsel’s. The most informative, meaningful clue during voir dire is hesitation and signs of an internal struggle during an answer. Take note when a juror pauses or struggles to answer a relatively simple question--or more notably, a controversial question. Learn to tell the difference between what a juror looks like when thinking about the right answer (thoughtful face, furrowed brow, eyes pointed up or down) and when thinking about how to answer, or whether or not to be truthful (slight smile, eye contact with you, biting the lip, verbal stammering or hesitation). When you ask the toughest questions--like asking jurors to be honest about a potential bias or to express negative concerns about your case--be especially attuned to signs of hesitation and conflicted responses.

Now let’s re-examine the other side of the coin: how do jurors interpret your body language and demeanor, and the tone of your witnesses? Last October’s series of presidential debates--no matter what you thought of each candidate--provided us the best example in years of how overwhelming critical tone and demeanor are to a judgmental audience.

During the three debates, John McCain was often aggressive and accusatory and showed flashes of anger, annoyance, and sarcasm on camera while his opponent was speaking. In sharp contrast, Barack Obama appeared comfortable and optimistic throughout, often smiling during McCain’s sharpest criticism. In a few key moments, McCain visually took offense to Obama’s accusations by grimacing, shaking his head, tensing angrily, and even interjecting verbally at times. In contrast, Obama weathered McCain’s sharpest accusations without reacting angrily or negatively.

No matter whether they agreed or disagreed with the content of the candidates’ arguments, the typical viewer was left with the indelible impression that McCain was angry and defensive, Obama optimistic and confident. Based on the post-debate polling, undecided voters--like unsure jurors--didn’t respond well to the anger and combativeness. Even if McCain had perfectly good reasons to be upset with Obama, the audience got the impression that he was worried and defensive.

The same principles hold true when jurors watch you and your witnesses during trial. Anger is interpreted as volatility and emotional recklessness; few situations actually warrant anger and outrage for jurors, probably less than you might think. Combativeness is interpreted by jurors as an inability to think objectively; jurors get the impression that attorneys and witnesses who refuse to agree with the other side are automatically rejecting their points without thought, which will shred your credibility. The most damaging characteristic is defensiveness, and unfortunately it is probably the most common trait that most witnesses exhibit. When a witness refuses to answer cross-examination directly, dodges questions, gives self-serving answers that don’t answer the questions, or chafes at a question, the jury is left with the impression that the witness is worried about the answer and has something to hide. Do yourself a favor, and teach your witnesses, too. NEVER react to a question or an argument by opposing counsel with visual anger or a negative tone. When an attorney or a witness doesn’t seem fazed or worried by a question, piece of evidence, or opposing counsel’s tactic, the jury gets the impression that whatever it is must not be damaging at all. When a witness conducts herself as graciously, politely, and helpfully during cross-examination as she does during direct exam, the jury gets the impression that the witness has nothing to hide and is incredibly honest and confident. You may know that the content and the evidence presented at trial matter the most, but your jurors don’t. And because they’re the final judges of your trial, they can afford to make the mistake of reading too much into body language. You can’t, so pay more attention to your body language than to theirs.

November 2008: WHY ANXIETY CAN OVERWHELM YOUR JURORS

Wed, 28 Jan 2009 11:05:50 -0800

Last month I discussed the technique of normalization during voir dire. Convincing your jurors that they make the same mistakes they are tempted to criticize your client for is often the only way to prevent your jurors from unreasonably blaming your litigant. Unfortunately, not every juror is ready and willing to admit to making dangerous mistakes. In certain types of troubling cases, attempts to normalize jurors will often meet with resistance from jurors who may not want to admit that they make mistakes, can be careless, put themselves in vulnerable positions, and might have been an injured plaintiff or a guilty defendant but for the grace of good luck.

This month, let’s discuss the psychological forces that pressure jurors into convincing themselves that they would never have made the same decisions your client did.

Most of us have little problem imagining ourselves in relatively harmless situations, even situations that bring some people to court. Imagining the possibility of getting into a minor car accident, suffering property damage, having a contract broken (perhaps by a construction contractor or a business partner), or having to battle with an insurance company over a claim or a medical bill is aggravating, but not emotionally traumatic to most of us. Yet when we hear about especially dangerous situations in the news--a natural disaster that takes lives and destroys homes, a botched and fatal mistake in surgery, a financial scam that leaves its victims bankrupt and without recourse, or a violent crime--many of us distance ourselves from imagining that the same could happen to us. It’s difficult to imagine personal tragedy, so many of us think of reasons why the same could NEVER happen to us. Realistic or not, it helps us sleep at night.

As jurors, we are no different. When jurors hear about litigants in troubling situations--a catastrophically-injured car crash victim, a bankrupt victim of financial fraud, a victim of a violent crime, or even an unfairly-persecuted company who fired a litigious employee--many of the jurors don’t want to internalize that trauma. Some jurors may be brave enough to empathize by imagining themselves in a similar situation, but many jurors struggle with the feelings of fear and discomfort.

For the most sensitive jurors on your panel, their natural reaction is to insulate themselves against fear that the same could happen to them. Searching for reasons (or nit-picking for excuses) why the same tragedies could never happen to them is the safest way to deal with anxiety. Never assume that your jurors will feel for a plaintiff simply because he or she has been a victim. Some jurors are so sensitive that they may be unable to empathize and will instead resort to alienating themselves from your client and your case to feel safe and secure. Jurors who fool themselves are insulators--not empathizers--who insulate themselves from anxiety by unreasonably denying their own vulnerability and finding ways to distance themselves from tragic plaintiffs, or even victimized defendants.

An example that’s often used to describe juror insulation is the myth that all (or even most) female jurors are supportive of female plaintiffs in sexual harassment trials. In reality, many jurors are so troubled by sexual harassment that they convince themselves that they would have been able to prevent or deter the harassment that a plaintiff faced. A large share of mock jurors--and actual jurors--I have spoken with after deliberations have told me that plaintiffs/victims of harassment should themselves be blamed because of their dress or workplace demeanor, because they failed to immediately stand up for themselves, because they stood up for themselves too aggressively, because they didn’t go to human resources or a supervisor, or because they ‘tattled’ to HR or a supervisor too quickly instead of dealing with it face-to-face. For troubled jurors seeking to insulate themselves from anxiety, all roads lead to criticism. The jurors aren’t necessarily dealing with the issues and the evidence because they aren’t necessarily being honest with themselves, but it’s important to recognize that empathy isn’t always the response that wins out.

The next time your jury trial involves issues that jurors might find troubling, traumatic, or downright frightening, convince yourself that your jurors may NOT automatically empathize with the victim of harm. No matter what the evidence suggests, don’t underestimate the psychological power of fear and the insulation instinct. Just because the evidence shows that your client was reasonable and shouldn’t be blamed (or assessed comparative negligence) for their own harms doesn’t mean your jurors won’t feel compelled to search for (and manufacture) their own reasons. Even in the absence of defense evidence, I have seen jurors convince themselves that the plaintiff must have done SOMETHING wrong to have been involved in catastrophic auto accidents, even if the plaintiff has presented persuasive evidence of dangerous road conditions, the fault of other drivers, or otherwise.

Many jurors can’t face the possibility that, even if one is careful and makes all the right decisions, no one is perfectly safe from injury, death, or catastrophe. If you aren’t convinced, ask your jurors in your next voir dire whether anyone believes that being careful and defensive can guarantee that any driver avoid and prevent ANY car accident, no matter how dangerous another driver may be or what the road conditions are. A handful of jurors will agree. They will insist, if you are careful enough, you can maneuver around any driver. They will argue that, even if there’s a sheet of slippery ice on the road, you should be able to select a speed slow enough to maintain traction; if you slip at any speed, you were going too fast and were driving recklessly.

If this is what you hear in voir dire--and I do on a weekly basis--your best method of dealing with insulators is to identify the worst of the bunch in jury selection. Ask your jurors questions about the issues at stake--whether it’s driving, navigating the employment world, handling finances, avoiding crime, etc.--and ask them what precautions they take. Ask them if they feel able to avoid harm, and how secure they feel. Ask them if they believe that victims are careless, and ask them questions designed to elicit criticism about how some people may handle the situation the wrong way. You’ll obviously hear some fair criticism from reasonable jurors, but try searching for unfair, unwarranted, unreasonable criticism that belies too much anxiety from that juror. Insulators are those jurors who tell you that they have read the instruction manual of every product they’ve ever used, that they give their brakes and engine a thorough inspection every time they drive (even rental cars), and that won’t hire a doctor/painter/plumber/lawyer/babysitter without taking great pains to ensure their integrity.

Unfortunately, the worst way to identify insulators in voir dire is to ask jurors if they might be troubled or emotionally upset by a case and would have difficulty hearing troubling evidence as a juror. If a juror is willing to admit being troubled, they are more likely in fact to be honest with themselves about their fears and an empathetic juror.

Once your jury has been selected, you should assume that even your most receptive jurors may struggle with the instinct to insulate themselves. Your best way of easing juror anxiety and making your jurors comfortable facing troubling issues is to convince them that they have a powerful opportunity to make their own environment (and by extension, themselves) safer with the verdict you are requesting.

Make sure that your theme of making the world a safer place doesn’t fall on deaf ears, though. During voir dire, make sure to ask your jurors if they believe that verdicts make a difference, because cynical jurors won’t be receptive to this theme. Jurors who believe that plaintiff verdicts force corporations to treat employees more fairly or make products safer for consumers are much more likely to set aside their fears when they feel empowered to make the world a safer, fairer place. Cynical jurors who tell you that corporations respond to lawsuits and damages by raising prices or slashing employee wages and benefits are much more likely to insulate themselves during trial.

Rehabilitating insulators is nearly impossible; believe me, I’ve seen the best attorneys in the country try with the best evidence, and I’ve tried myself in post-deliberation discussions. No matter what evidence you use to refute their manufactured criticisms, they will replace them with an endless supply of reasons why the victim was at fault. Rather than waging an unwinnable war, remove the worst insulators on your panel, and focus on winning over the empathetic jurors. Although they may be fearful and have an urge to insulate themselves, be upfront and address the blame-game issues early in your opening statement. Showing your jurors that you too first considered whether your client was at fault, demonstrate why their actions were reasonable, and make it clear that your client only pointed the finger when it became clear that NOTHING could have prevented the defendant from harming your plaintiff--or that nothing your defendant did could have stopped your plaintiff from filing a lawsuit.

October 2008: NORMALIZING YOUR JURY

Wed, 28 Jan 2009 11:09:04 -0800

I am often asked to discuss the impression that voir dire questions create among jurors on the panel. Does the practice of searching for unreceptive jurors and asking the toughest questions highlight only the negative aspects of a case? If an employment defense attorney asks only voir dire questions about discrimination, bitter employment experiences, and unfair employment practices, will the jurors become convinced that the defendant in the case is guilty of wrongdoing?

If you read last February’s jury tip (on "the impressions voir dire create"), you’ll remember that my answer was mixed. While voir dire discussions can remind jurors of experiences and attitudes they may have otherwise forgotten, jurors don’t learn new things or change their minds during voir dire. Your questions, and the comments of other jurors, cannot ‘poison’ the jury pool, but you can bring latent juror attitudes to the surface. If you aren’t careful, you might even give the wrong impression of what the case is about when jurors start reading into your questions.

Let’s spend some time talking about the flip side of ‘poisoning’ the jury pool--is it possible to persuade jurors during the voir dire process? Can voir dire questions convince otherwise hostile jurors to believe in your case, almost like a mini-opening statement? The answer here is the same as the first. You cannot change your jurors’ minds during voir dire, but you can force jurors to re-examine their attitudes and perhaps even convince them to be more realistic and receptive to your case.

Let me give an example. In auto accident or product liability trials, you will usually have a large handful of jurors on your panel who are convinced that they never make mistakes when driving or when using products. Ask these jurors, and they will tell you that they ALWAYS inspect their cars and their power tools before using them, that they ALWAYS follow safety instructions to the letter, and that they NEVER take safety shortcuts and drive carelessly. When committed to these often-unrealistic positions, these jurors are incredibly critical of injured plaintiffs or accidental defendants and often blame their passivity or less-than-perfect safety precautions for failing to prevent their accidents. Ultra-diligent jurors seize on even the most minor missteps and blame the litigants-regardless of the opposing litigant’s negligence--because the juror has convinced himself/herself that "I never would have" made the same mistake.

Although some of these ultra-diligent jurors will insist that they are always cautious and never careless, you will be able to win back a large chunk of them by asking voir dire questions that convince them that they are not as perfectly careful as they believe at first. Ask your jurors if they’ve ever forgotten to signal before turning or changing lanes, if they’ve ever rolled through a stop sign on an empty street, of if they’ve ever started making a turn and then realized that there was a pedestrian in the crosswalk or a car in their blind spot that they hadn’t noticed at first. In a commercial trial, ask your jurors if they’ve ever signed a long, complex contract that they didn’t completely read--or didn’t completely understand. In an employment trial, ask your jurors if they’ve ever lectured or disciplined an employee without formalizing the conversation in a letter or an email. If you have concerns that your jurors may be too critical of your client, ask questions that convince your jurors that they may make similar mistakes from time to time.

The process that I’ve just described is called ‘normalization’ in psychology. In part, it involves convincing others to change their views of the environment to conform to an accepted reality. If a juror has a certain view of the world, ask questions that incorporate their own experiences or outside examples to convince that juror that reality might be different from what they initially believe. In product liability cases, there are a number of jurors who find it hard to believe that manufacturers produce defective products. After these jurors have been asked if they have any knowledge of asbestos recalls, tobacco lawsuits, or pharmaceutical health risks, they become far more receptive to the possibility that a manufacturer might produce a dangerous product, knowingly or not. They simply needed a reminder to bring latent attitudes to the surface that might otherwise have been ignored.

The next time you go to trial, think about the unfair criticisms that jurors may have for your client, and deal with them directly in voir dire. Putting your case in its best light is also a part of this process, and there is nothing wrong with asking questions that force your jurors to internalize your client’s decisions--and may convince your jurors that they may have made the same mistakes that the juror otherwise might criticize.

Harry Plotkin is a jury consultant in Los Angeles. Mr. Plotkin specializes in jury research, assisting trial attorneys in jury selection, and developing persuasive trial themes and opening statements. He can be reached at 626-975-4457 and at harry@yournextjury.com.

September 2008: JURORS WHO SCARE BOTH SIDES

Wed, 28 Jan 2009 11:09:33 -0800

Whether or not you’re relying on a jury consultant, every attorney should go into jury selection with an understanding of juror profiles that will be receptive to your case.

Your first order of business in voir dire should be to weed out obvious bias by encouraging jurors to voice their immediate suspicions and concerns about your case. Next, highlight facts about your case that some jurors might find troubling, and encourage these jurors to admit difficulty staying fair and following the jury instructions. Spend some time rehabilitating those jurors who will likely be receptive to your case, encouraging them to be fair so that opposing counsel won’t be able to successfully challenge them for cause. If you have some issues that may be particularly troubling, ask some voir dire questions designed to convince jurors that they would have handled a similar situation closer to your client than they might otherwise admit (a psychological process called "normalization" that will be the topic of next month’s jury tip).

At this point, jury selection would be relatively simple--you’ve uncovered your worst nightmares, identified your most obviously receptive jurors, and hopefully made your panel more receptive to your case. But you shouldn’t be done yet, not until you’ve asked some voir dire questions designed to clue you into your jurors’ subtler predispositions. This is where jury selection becomes much more challenging.

Past jury tips have covered a wide range of fertile voir dire ground designed to help you make educated peremptory challenges in jury selection. During this time, you should be uncovering those experiences, attitudes, and values that the jurors themselves are cognitively unaware will ultimately shape how receptive they will be to your case.

Because the jurors don’t yet know the facts, the strengths, and the weaknesses of your case, most are completely unaware of which side their values make them more likely to favor. For example, an incredibly diligent, pro-active juror who goes to the doctor for health checkups every three months, reviews her financial investments daily, and does a ten-point safety inspection on her car every morning before she drives to work doesn’t know how likely she is to dismiss a plaintiff who failed to do any due diligence. It should be your practice to know how each juror’s unique makeup may influence their ultimate verdict, based on your case’s comparative strengths and weaknesses.

My message this month, though, is not to give more advice on ways to judge your jurors. Instead, my message is to encourage you to develop sound profiles and stick to your guns during jury selection. Too often, I see attorneys scared off by the outspoken jurors on the panel, even when those loud jurors express values that make them receptive to one’s case. Loud, opinionated potential jurors scare the daylights out of attorneys--usually both sides--and intimidate lawyers into wasting peremptory strikes that might be better used on the silent killers on the panel. Potential jurors who claim to be biased are no more biased than the other jurors on the panel, and peremptory strikes are routinely wasted on these jurors when the judge or opposing counsel rehabilitates them into promising to be fair. In reality, all jurors are biased in some way, whether they knowingly admit it or are blissfully unaware. The jurors who claim to be biased in voir dire are either trying to get off the jury or (here’s the irony) are the most honest and self-aware jurors on your panel, and probably more likely to be objective than the rest.

Don’t jump to conclusions; jurors aren’t jury consultants, nor are they reliable when it comes to predicting their own biases or verdicts. In fact, most jurors are completely unaware of why they make decisions in trial, although they usually think they know. To rewrite a famous phrase, talking about juror bias is like dancing about architecture, which is to say that most jurors have no idea what may bias them or where their biases will lead them in a trial that they have not yet seen.

Instead of taking the bait and wasting peremptory challenges on the loud and the allegedly-biased, focus on the underlying values and attitudes that will make each juror receptive or hostile to your case, and never lose sight of the fact that, in voir dire, jurors don’t know what your case is all about. Just because a juror complains loudly about the workers compensation system and lazy employees doesn’t mean that juror will be unreceptive to a plaintiff’s case, especially if the plaintiff comes across as honest, hard-working, and genuinely interested in trying to work through a disabling injury.

Instead of automatically striking your loudest jurors, spend more time on them in voir dire. An outspoken juror will undoubtedly be more influential to other jurors, so take the time to figure out if the juror will be your worst nightmare or your strongest advocate. If you determine that the outspoken juror may be hostile to your case after all, don’t stop asking him/her questions. The more an outspoken juror says, the more likely your opposing counsel is sweating bullets and worrying about what that juror may do. More likely than not, opposing counsel will probably use a peremptory on that juror anyway.

Just the opposite are the smiling, friendly jurors and the smart, reasonable-sounding jurors on the panel. No matter what these jurors say, attorneys have a tendency to fall in love with their demeanor. Too often, I see attorneys convincing themselves that the friendly or thoughtful jurors will see the light and be receptive to their case. Not true. Give your friendly, reasonable-sounding jurors just as much scrutiny as your outspoken or disagreeable jurors. A juror’s demeanor and the volume of their voice tell you far less about predispositions than the profiles you developed before you met your jurors, so stick to your profiles and stick to your guns in jury selection.

August 2008: LEVERAGING YOUR JURORS' SELF-INTEREST

Wed, 28 Jan 2009 11:10:17 -0800

Jurors are not selfless. Even when they try their best and promise to be impartial, jurors cannot divorce their values and interests from the outcome of your case. Sometimes subconsciously (but sometimes knowingly), jurors bend, misinterpret, and ignore the jury instructions to fit the verdict decision they would LIKE to render. More often than not, jury verdicts are expressions of the jury’s own sense of common sense and personal justice.

As I’ve written time and again, jurors are far less likely to let the evidence speak for itself than to judge the credibility of the evidence based on the predispositions they bring into the courtroom. A juror who comes into trial believing that corporate HR departments are risk-averse and fully knowledgeable about employment laws will rarely accept even the most obvious evidence of employment discrimination or retaliation, believing it to be impossible that a company’s human resource manager would ever make a careless mistake and fail to protect a company from liability. In just the same way, jurors are virtually paralyzed from making decisions based upon the evidence, the jury instructions, and the law. Instead, they rely largely on their own ideas of how they would LIKE the world to work.

When the law conflicts with how a juror would like the world to work, their personal values, and their idea of fairness, jurors use subconscious, cognitive processes to align the law with their values. Even when they try to be fair and insist they are following the court’s instructions, jurors have psychological incentives to make the evidence fit their view of the world, rather than tailor their view of the world to fit the evidence.

For example, safety-conscious jurors who hope that manufacturers are careful and that products are safe have psychological incentives to overlook evidence that a product may be unsafe. More often than not, anxious jurors convince themselves that products are safe and search for reasons why injured plaintiffs must have made a careless mistake. Believing that the plaintiff and not the product was at fault insulates anxious jurors from feelings of vulnerability, so it’s easy to understand why jurors search for verdicts that make them feel the world works the way they’d prefer it to.

Every juror tries to reconcile the evidence with their view of how they believe the world works and shapes their verdicts to fit their view of how they want the world to be. Jurors who want businesses to succeed and maximize profits--whether they are active stockholders, business executives, or believers in unfettered business competition--often have a difficult time finding against corporate defendants. Jurors who wish that society would take care of the sick and disabled--perhaps because the juror is a "sympathetic" personality, has a close friend or relative who is disabled, or is a physical therapist who relies on the workers compensation system for their income--often have a difficult time turning an injured plaintiff away empty-handed, even in cases where plaintiff’s liability case is weak. Jurors who are nervous and fearful about crime, are prior victims of crime, and are risk-averse, law-and-order types feel safer and more secure when they choose to convict and feel incredibly nervous when they grudgingly acquit accused criminals.

In prior tips, I have stressed how important it is to ask your jurors questions that help you understand how they believe the world works, and thus what they are likely and unlikely to believe. This month, I must stress how important it is to ask your jurors questions that reveal how your jurors believe the world SHOULD work.

In employment cases, ask your jurors if jobs should be stable and if employers should show some loyalty to productive employees, even at-will ones, or if employers should be allowed to make business decisions that make profits (and not fairness) the top priority. In business cases, ask your jurors if they believe corporations should be single-mindedly devoted to profits and stockholders or should have competing priorities like fairness, cooperation, safety, customer service, etc. In criminal cases, ask your jurors which they value more: individual freedoms or community safety?

Once you have identified--and hopefully de-selected--those jurors whose values clash with the verdict you’re requesting, take an honest look at your jury and tailor your case to their values. If your jurors respect and revere doctors, a plaintiff’s lawyer in a medical malpractice case must convince the jury that a plaintiff’s verdict is a good thing for careful doctors and the medical community; perhaps it will weed out careless doctors, or be a visible lesson that educates other doctors on proper treatment options. If your jurors worry about the financial impact of a damage award, convince the jury that an award will actually help corporations, government agencies, or similar entities to become more careful and responsible. Unless you align your trial themes with your jurors’ values and give them reasons why your verdict will make the world a better place (in their minds), jurors will seek reasons to disagree with you.

At the risk of raining on your parade, it is nearly impossible to seat a perfectly receptive jury. Accept it, take a deep breath, and realize how incredibly important it is to align your trial themes and your requested verdict and damages with your jurors’ self-interest, especially those jurors whose views might clash with your case at first glance. Spend time thinking about potential concerns jurors might have about your case--not concerns about how strong your evidence and case is, but concerns about the impact of awarding you a verdict. When you ask the jury to make the world a fairer and better place in your opening statement and closing argument, make sure you know what your jurors’ ideas are about what that fairer, better world looks like.

July 2008: UNCOVERING PRE-TRIAL SUSPICIONS AND UNOFFICIAL EVIDENCE

Wed, 28 Jan 2009 11:11:06 -0800

Having been called into jury duty myself this past month--and able to watch the jury selection process both in the courtroom and backstage (where the jurors talked with one another about the case, the lawyers, and the questioning)--I was once again reminded of how wildly variable juror predispositions are, and how persuasive these pre-trial predispositions are in each juror’s decision-making. Anyone who has had an opportunity to listen to jurors discuss a case before voir dire has even begun probably knows that, in some jurors’ minds, the case may be over before jury selection.

The comments I heard from my fellow jurors--after the judge had read the neutral description of the case but before attorney-led voir dire--were loaded with pre-judgments and suspicions based entirely on subjective interpretations of ambiguous evidence. This was a criminal trial, and several jurors insisted that the defendant MUST be guilty simply because the judge had mentioned that there was a witness at the scene of the crime. At the same time, another of the jurors confided in me that this witness was proof that the defendant was being framed by the victim of the crime (a home invasion and burglary/robbery). His thinking was that, if the witness was actually credible, the defendant would surely have pled guilty or taken a plea bargain. Each of these jurors were fairly certain of the guilt or innocence of the defendant before hearing a shred of evidence, but only one discussed their suspicions aloud in voir dire, and this one juror reluctantly agreed to be fair after a long lecture from the judge.

The jurors’ suspicions--and the wildly different ways each juror used them to support wildly different conclusions about the guilt or innocence of the defendant--are the same type of comments I regularly hear from mock jurors during focus groups and from actual jurors when I encourage attorneys to probe concerns and suspicions during voir dire. If a plaintiff is suing a doctor instead of a hospital or the HR director instead of the employer, jurors will often complain that it is unfair for a plaintiff to target the little guy. If a plaintiff is suing the hospital or the company instead of the driver of the company van that was involved in the car accident, jurors will often complain that the plaintiff must be greedy and is suing the entity with the ‘deep pockets.’ Before every trial begins, your jury panel will undoubtedly be filled with suspicions about why the plaintiff ‘really’ filed the lawsuit, why the defendant hasn’t settled the case, why the judge allowed the case to proceed to a jury, and suspicions about insurance, motives, guilt and innocence--all based on the barest of information.

The lesson to be learned here is that jurors jump to strong, sometimes unshakeable conclusions after the first minute of trial. Let’s call these suspicions-turned-conclusions "unofficial evidence," because to your jurors, their assumptions become just as compelling as any evidence you can produce. In every trial, a handful of jurors will create ‘unofficial evidence’ in their minds that will overwhelm their decision-making before trial begins, and the best method of dealing with the concerns and suspicions that your jurors develop is to discuss these suspicions openly in voir dire. Invite your jurors to tell you what concerns them about your case and what questions are already in their minds that may make them skeptical or suspicious of one side or the other. Never discourage your jurors from expressing themselves openly and honestly by telling them that these views may prevent them from being "fair" or by letting jurors know that these pre-judgments are improper. Save the jury instructions for the end of voir dire.

In a criminal trial, a defense attorney should ask jurors if anyone has the feeling that a defendant MUST have done something wrong--or probably did, at least--if they have been investigated, questioned, and arrested by the police department and charged with a crime by the district attorney. In an employment trial, a plaintiff attorney should ask jurors if anyone has the feeling that an employer would probably only fire an employee if it had a good reason, or that an employer would have no reason to fire a truly productive employee. In a patent infringement trial, the attorney representing the lesser-known litigant should ask jurors if they have the feeling that the larger, more well-known company is more likely to have developed a product first, especially if the better-known company has a good reputation or has developed other well-known products. In patent cases, jurors often have an underlying feeling that a large, wealthy corporation would never infringe on a patent idea if they have the resources to acquire or purchase the idea from the inventor. No matter what the evidence suggests, this feeling may often overwhelm your jurors before the trial begins.

Once you’ve had an open discussion with your jurors about their concerns, their suspicions, and how their beliefs and values may clash with your case (and, without telling them yet, the jury instructions), the next step is to commit your jurors to their statements. Convince your jurors--and the court--that they can’t help but be skeptical of a supposedly injured and disabled plaintiff because they appear to be in good health in the courtroom, no matter what a medical expert might tell them. If you make them feel comfortable enough, many jurors will admit that they believe a plaintiff who can walk into a courtroom on their own power can surely find a job that they can physically do full-time, no matter what the evidence says. Convince them that there is NOTHING wrong with having beliefs and opinions, but once they commit, demonstrate how their beliefs may make it difficult for them to follow the jury instructions.

When a juror expresses a doubt or a suspicion about your case--for example, a juror who tells you they find it hard to believe that a manufacturer wouldn’t know that a product was unsafe long before the FDA or CPSC did--encourage them to admit that they will keep that suspicion in mind throughout trial. Encourage them to admit that it is hard for them to imagine your case being believable now, and that even if you produced evidence--for example, witnesses who testified that the product passed safety testing--they would STILL have that suspicion in the back of their mind and might still have a hard time believing your defenses.

Getting jurors to admit to unshakable bias is not as difficult as it sounds. In nearly every medical malpractice jury I’ve selected, I have been able to get a handful of jurors to admit that they believe that doctors are so well-trained and so careful that they would find it highly unlikely, if not impossible, to imagine a doctor making a serious mistake, no matter what the plaintiff’s evidence says. I’ve given you just a couple of example of common juror suspicions here; for a full list, contact your local jury consultant or put together a focus group if your case is large and challenging enough to warrant it.

Because most judges--or opposing counsel, if they have voir dire time remaining after yours--will usually try to rehabilitate jurors who admit that their biases may impair their ability to follow jury instructions, be sure to rehab-proof these jurors. Tell them that both sides know that they can TRY to set beliefs aside and TRY to be fair and impartial, but ask them if they can be SURE that they can abandon their beliefs or ignore their concerns throughout trial. You may even ask jurors "even if the judge requires you to follow the jury instructions, and you promise the judge or [opposing counsel] to follow them and try your best, will you still be SURE that you can ignore the beliefs you shared with us today?"

Unless your judge is dead-set against granting challenges for cause and believes in rehabilitating even the most biased juror--and in many judges courtrooms, uncovering bias and pursuing cause challenges are a waste of breath--your chances for success at trial have a lot to do with how well you pursue uncovering juror bias and removing jurors for cause. And even if you aren’t successful in persuading the court to grant challenges for cause, you will have uncovered some of the most unshakeable biases against your case and the jurors who need to be removed with peremptory strikes. Never assume that you can overcome your jurors’ suspicions and the ‘unofficial evidence’ they create, even with the strongest evidence. Jurors who make up their minds early don’t rethink their positions; instead, jurors who are skeptical of your case become so entrenched that they will search for any reason to dismiss your evidence and, even worse, will interpret your best evidence to support the conclusions they have already drawn. The message, as always, is that it is much easier to select a receptive audience than to win over a skeptical jury, so don’t be afraid to spend voir dire time asking your jurors what they already find troubling or wrong with your case from the get-go.

June 2008: DISCREDIT THE MESSENGER, DISCREDIT THE MESSAGE

Wed, 28 Jan 2009 11:11:57 -0800

Last month’s jury tip explained why jurors routinely dismiss the opinions of even the most unassailable expert witnesses. To make a long story short, it’s because jurors often don’t trust experts--and more frequently don’t understand them. This may be a frightening reality for most attorneys, who often rely on the content of expert witnesses to convince their jury. But this month, it gets worse. Just because your experts can’t win trials for you doesn’t mean that they can’t LOSE trials for you; they can, and often do, destroy the credibility of your case.

Abandon any hopes that your jurors will decide trials based on the evidence alone, especially the evidence that both sides know to be the most relevant. Jurors largely decide trials by judging the perceived honesty and motivations of the litigants and witnesses and by favoring the side whose case aligns with their prior beliefs and personal values. Oftentimes, the issues they choose to focus on are less relevant to liability and more about assessing credibility. But for all the imperfections inherent in jury decision-making, I find that jurors are often the best BS detectors in the courtroom. Most jurors have a well-developed sense of when a witness is nervous, defensive, dodging questions, and making excuses. Oftentimes a witness may lose credibility with the jury even though the content of their testimony has done nothing to damage their case, which is why attorneys are often baffled by jury verdicts. An expert witness who fails to understand that jurors are the best experts at knowing when a witness is uncomfortable, evasive, defensive, or too stubborn to make concessions can destroy their own credibility, not to mention the credibility of their (and your) case.

As brilliant as they are, too many expert witnesses have flaws that leave them vulnerable to crafty cross-examinations. First, experts are taught to believe that they must defend their expert opinions and conclusions under any circumstance. Second, experts are usually too confident and stubborn to admit when they’re wrong and change their position during cross. In front of a jury, this can be a toxic combination. Jurors may not understand the complexities of engineering, surgery, or corporate finance, so they rely heavily on their own common sense in evaluating how believable and credible experts are. When an expert stubbornly clings to his/her published opinion in contrast to what appears to be obvious common sense, the effect on the jury is often devastating.

I have seen witnesses say some remarkably foolish things in depositions and trial that completely lost the jury. An executive in a plaintiff’s company suing for stolen trade secrets insisted that even business cards acquired during the course of employment were the employer’s property and trade secrets; when the defense attorney handed the witness the business cards of two individual defendants in the case and asked if those were now plaintiff’s property and protected trade secrets, he insisted they were. Defense medical experts will often insist that an injury had nothing to do with a serious accident the day before, while plaintiff’s medical experts will try to convince the jury that a pre-existing condition had nothing to do with a nearly-identical condition a few years later. I’ve seen real estate appraisers in commercial and eminent domain trials insist that properties were worth far more than prices that didn’t produce buyers, and in other cases worth far less than what a buyer actually paid. No matter how well reasoned and grounded in evidence, many expert witnesses take positions at odds with common sense, and common sense is usually the only tool available to jurors.

Because you understand the case, you may not see an expert appearing foolish as fatal, especially if the subject matter has little to do with the relevant issues in the case. But to a juror, how can they trust and believe someone whose agenda is so biased that they refuse to think or answer rationally? Jurors have no choice but to brand that witness as ignorant, foolish, or dishonest, and if the witness can be so obviously wrong on one issue, how can he/she be trusted on any other material issue?

Before every trial, spend some time un-training your expert witnesses. Many are wonderful with juries and can think on their feet, but many others need to be trained that jurors put more stock in their confidence, willingness to answer, ability to make sense, and credibility than the content of their opinion and testimony. Convince them that they NEED to come across as open, comfortable, and helpful during cross examination. Convince them to concede points to opposing counsel at times if asked to choose between an opinion and common sense, but to politely point out that counsel has misunderstood the expert’s message and to clarify it for them in a way that makes common sense. In a patent case, for example, let your experts know it is better to concede that two competing products are identical in many ways, but that the ways they were developed and the ways they work are very different, than to stubbornly insist that the products are totally different when the jurors see little but similarities. Remind your experts that each of them has a simple, valuable message that, for better or worse, the jurors can’t distinguish from the messenger. Convince your experts that their easiest job is to deliver their message and that their most important job is to maintain their credibility.

The silver lining, of course, is that you have the opportunity to destroy your opposing counsel’s case by discrediting your opposing experts. Regardless of an expert’s message, jurors will discredit the expert and discard the message if you can get the expert to sweat. Asking challenging, unexpected questions that make an opposing expert hesitate or appear flustered is incredibly effective--jurors don’t like it when experts lose confidence or take too much time to answer.

Many experts believe that the antidote to drowning in flop sweat is to calmly divert questions and look for reasons to avoid answering them. Many are expert at effortlessly dodging questions, insisting that "I wasn’t asked to look into that" or simply repeating their conclusions. Make sure that your jurors notice when an expert is skillfully dodging questions--most jurors don’t notice at first, but they react negatively when they realize that an expert won’t answer a simple question, so make your question simple enough that your jurors believe even THEY could answer it. When a highly-credentialed expert claims he/she can’t, the jurors take notice.

Asking questions in such a way that force the expert to choose between a logical consequence of their opinion and perceptions of common sense is often deadly for experts. If the expert stubbornly clings to a ridiculous position, they lose credibility. If the expert concedes he/she is wrong and flips their position, the jurors will pay extra attention--jurors put great stock in moments where a defense witness makes a strong point for the plaintiff, or vice versa. Choose your questions carefully, of course; if an expert can find a flaw in your argument or convince the jury that you lack common sense, they’ll save themselves. Fortunately for the attorneys, many experts are too stubborn to equivocate; test the expert in depositions, and if you get the sense they have a stubborn streak, use these techniques at trial accordingly.

May 2008: WHY JURORS ROUTINELY IGNORE EXPERT WITNESSES

Wed, 28 Jan 2009 11:12:38 -0800

The most amusing part of watching mock jurors deliberate or discuss a case is the disconnect between jury decision-making and what the attorneys expect jurors to focus on. Jurors approach cases in ways that truly surprise--and, in some cases, frustrate--attorneys. In my experience, the jury phenomenon that most surprises attorneys is a juror’s tendency to misunderstand and circumvent the jury instructions. Attorneys who expect jurors to conform their feelings to the jury instructions are often stunned when jurors deliver a surprising verdict. The reality is that jurors rarely conform to the jury instructions and usually twist the jury instructions (usually without meaning to) to match their feelings about justice and fairness.

But I digress. In my experience, a close second jury phenomenon that would surprise most attorneys is the jurors’ distaste for, and dismissal, of expert witnesses. Too often, I see attorneys relying on experts to establish their arguments and persuade jurors. But in reality, jurors rarely view the opinions of expert witnesses as credible facts.

This is not to say that experts are useless. Far from it, experts are necessary to meet your legal, evidentiary burdens in the eyes of the court. Omitting an expert’s opinion, while not necessarily fatal to the jury’s verdict, may destroy your case on a directed verdict. But keep in mind that jurors don’t view experts the same way that the court does. For many jurors, expert opinions are unnecessary and often not persuasive.

Once a juror has framed a case in their terms and decided which side’s story seems more likely, revelations from an expert witness aren’t going to change a juror’s mind, even if that expert convincingly refutes what that juror believes to be true. When an expert’s opinion is in conflict with a juror’s beliefs--no matter how uninformed or without basis--a juror will likely reject that expert’s opinion and find a way to justify dismissing the expert. When an expert’s opinion matches what a juror already believed, the juror will use that expert to reinforce their beliefs and bolster their arguments in deliberation. Because this decision-making process is in direct violation of the way jurors are required to view evidence, attorneys are understandably shocked when jurors seem to disregard brilliant experts. Oftentimes, jurors don’t need opposing experts to dismiss an expert’s opinion; in case after case, I have seen jurors manufacture "evidence" that neither side presented, based entirely on assumptions that the jurors believe to be likely.

You and I know that experts are bright and highly-trained, often professional and honest, and have spent vast amounts of time and detail studying the subject matter of a case. And yet jurors, who are far less knowledgeable than experts and spend only a few hours studying the subject matter, have two valid reasons for dismissing the opinions of experts: experts often don’t seem credible, and experts aren’t often understandable. No matter how brilliant or thorough, an expert is only as valuable as he/she is believable, and jurors don’t believe experts who rub them the wrong way. Attitude and demeanor are just as important as an expert’s methods and opinion. Experts are often condescending or arrogant, defensive, evasive, or hostile during cross-examination, and often refuse to answer questions or seem to have an agenda during cross; jurors interpret these demeanors as evidence that the expert is being dishonest. Make sure that your experts’ attitudes are just as unimpeachable as their testimony, and spend time working with them to ensure that they come across as friendly and cooperative during cross-examination. Jurors like transparency and want questions answered, not evaded. Tell your experts that their job is not to frustrate opposing counsel by curtly, smugly giving non-answers like "I couldn’t answer that question," but rather to convince the jury that they are trying their best to seek the truth.

Just as destructive are experts who confuse or bore the jury. Never expect that jurors will accept an expert’s opinion if they don’t understand (and listen attentively to) his/her reasoning. If a juror doesn’t understand what an expert is saying, the juror will tune the expert out and base his/her verdict on the evidence that he/she understood. Jurors don’t have to disagree with an expert’s opinion to render a verdict that directly contradicts it; jurors merely dismiss or ignore confusing experts they don’t understand. OJ Simpson’s criminal trial was the perfect illustration. The jurors were utterly confused (and skeptical of) the prosecution’s DNA evidence, so rather than disagree with it, the jurors merely ignored it.

No matter how much time, effort, and money you have already spent on an expert, don’t be reluctant to keep an expert on the sidelines in trial if the jurors are sick with boredom and seem to be fed up with day after day of expert testimony and techno-babble. Once your jurors become confused, they will probably lose focus and begin tuning out your experts, and you need to tune them back into your case or risk losing their attention and support.

Jurors respond well to common sense and principles they can understand and relate to, so make sure to put everything your experts say in the context of common sense. Force your experts to step down from the pedestal and use simple terms, analogies, and explanations your jurors can relate to. Jurors chafe when attorneys expect jurors to side with their case just because the experts say so; I find it helpful to put your experts in context in opening statements by telling your jurors "you don’t have to be an expert to know that..." Present your experts as authorities who you’ve brought in to reinforce the obvious, not to spoon feed the jury.

Never make your arguments depend on what your experts have to say, because jurors can disregard and disagree with experts for reasons that you will never understand. Your experts will only persuade the jury if their opinions appeal to your jurors’ common sense and what your jurors already believe to be likely and true.

With all that said, experts are persuasive to jurors in other, indirect ways. Although an expert will rarely change a juror’s mind, they are often in the best position to arm jurors with useful information that can be used to persuade other jurors in deliberations. While a hostile juror will likely dismiss an opposing expert, that same juror can be persuaded by another juror who uses that expert’s arguments. The group decision-making that goes on in jury deliberations is wildly different from the individual decision-making processes that go on in the minds of each juror. As I’ve mentioned in past jury tips, jury research seems to suggest that 85-90% of jurors will not change their minds between the end of opening statements--before the introduction of evidence--and the end of closing statements. Yet these same jurors can and do change their minds during deliberations, so be sure that your experts arm your receptive jurors with clear, persuasive arguments to use in deliberations.

April 2008: EDUCATING YOUR JURORS DURING TRIAL

Wed, 28 Jan 2009 11:13:15 -0800

When your trial involves complex, technical issues--and most do--one of the great challenges involves educating your jury while, at the same time, persuading them about the merits of your case. Educating a jury is incredibly difficult for a number of reasons. Not only is your average juror a lay-person with less than a college education, but any juror who has formal training, education, or specialized knowledge in the subject matter will probably be removed in jury selection. The complex subjects you are asking the jurors to learn about--perhaps an incredibly complicated cancer surgery or how a jet airplane’s engine works--take years for experts to understand, and yet you are asking jurors to absorb and understand this information in a single lesson lasting a few hours, at most. And to make matters worse, even the experts who have spent years studying these subjects disagree with one another and give the jurors conflicting insights. It has often been said that an ideal opening statement should be clear and simple enough to be understood by an average seventh grader, yet most subjects in trial are far too advanced for middle school.

Despite these challenges, educating your jurors is critically important--at least for one side in every trial. If you need your jurors to criticize something (or someone), your jurors have to be able to understand it. Jurors rarely rely on experts when judging the actions of litigants and assigning fault.

Instead, jurors can only second-guess and blame a litigant if they fully understand what that litigant did and if that juror can form a strong opinion as to what he/she would have done differently in that same situation. This is precisely why jurors struggle to criticize doctors in medical malpractice cases but have far less difficulty awarding plaintiff’s verdicts in car crash cases. Unless they are properly educated, few jurors have a frame of reference for understanding the decisions and actions that doctors make, but almost every juror drives a car.

When the experts in a medical malpractice trial squabble about a surgeon’s negligence, most jurors have no way of judging the actions of surgeons. Most jurors have no way of knowing whether a particular surgical procedure chosen by a defendant physician was reckless or prudent, so it is far easier to jurors to give surgeons--who tend to have excellent reputations--the benefit of the doubt. Yet when jurors do understand the subject matter, they have no difficulty criticizing and second-guessing the actions of the litigants, sometimes mercilessly. In an auto accident case, almost every juror will have his or her own strong opinions about what each driver should have done in the situations involved.

Some jurors can be unreasonable, criticizing litigants for failing to take actions that the jurors themselves would NEVER have done. In mock trial deliberations, I have often seen jurors criticize injured plaintiffs for failing to inspect the brakes and engine of a defective rental car. What matters is not whether or not these jurors would have actually taken these steps, but whether or not they think they would have. Voir dire is your only chance to learn how your jurors believe they would have approached a similar situation, so make sure to question your jurors about how they have approached similar or parallel situations.

Educating your jurors may be harmful to your case when you are in a defensive position. If your client, plaintiff or defendant, is under attack and you need your jurors to give your client the benefit of the doubt instead of second-guessing, don’t be afraid to keep the subject matter complicated, technical, and mysterious. Remember that only one side will benefit from giving the jurors a clear understanding of complex subject matter, so it may not be your job--or in your best interest--to spend your valuable court time educating your jury.

On the other hand, if you are on the offensive and need your jurors to second-guess a negligent defendant’s actions--or the actions of a plaintiff responsible for his/her own harms, in full or comparatively—you need to make the subject matter clear and understandable to your jurors. This is never an easy task when your case involves complicated issues, and I cannot offer a one-size fits-all answer for how to teach rocket science or brain surgery to a jury in a four-week trial. I will, though, leave you with some general tips.

First, accept that you will probably never succeed in fully educating your jury. Remember that it took you months of study and close interaction with your experts to educate yourself on these topics; your jurors don’t have that luxury, so never assume that they will understand the concepts and technical terms that you are now familiar with. Knowing this, limit your focus to the relevant parts of the subject matter. In a product liability case, your jurors don’t need to know how the entire product works, just the part that failed (or the part that plaintiff may have misused).

Second, don’t be shy about using every-day analogies to simplify concepts and, even more importantly, to help jurors relate complex concepts to familiar concepts they understand and deal with regularly. Few jurors, for example, understand what is involved in a complex due diligence process, but most can grasp the idea and responsibilities involved when it is compared to inspecting and test-driving a used car.

Third, if you find that the subject matter is too complicated to explain to a jury, consider focusing your criticisms away from the technical issues and onto simple issues that jurors can easily relate to and understand. In a medical malpractice case, you may find it is next-to-impossible to get your jurors to understand a complex disease and why a particular treatment may be inappropriate. Rather than second-guessing a doctor on the medical issues, you may want to criticize the doctor on common sense. Did the doctor ignore obvious symptoms? Did the doctor move too slowly, treating an obvious emergency like a non-emergency situation? Did the doctor take too many risks when the situation wasn’t an emergency? Jurors may not understand complex medicine, but they are very comfortable at understanding how to react to a crisis or solving a problem.

Fourth, never rely on the opinions of experts to educate and persuade a jury on complex issues. I am by no means suggesting that experts are useless. If an expert is capable of making complex subject matter simple and understandable to a jury, this is your most valuable expert. What I am advising against is relying on a brilliant expert’s opinion to change the minds of your jurors. Speaking from experience, it simply doesn’t happen often. When the subject matter is complex, jurors lack the tools and understanding necessary to judge the expert’s accuracy. You may know that your expert is far more intelligent and has the sounder opinions than the opposing expert, but your jurors’ won’t be able to tell the difference. Next month’s tip will focus on experts and how jurors react to them, but for the time being, realize that jurors can only criticize a litigant if they fully understand what he/she did wrong; spoon-feeding jurors expert opinions doesn’t work.

March 2008: THE TWO WAYS JURORS DECIDE TRIALS

Wed, 28 Jan 2009 11:14:03 -0800

Without realizing it, any experienced litigator has engaged their jury in both normative and informational processing and at some point asked jurors to make intellective and judgmental decisions. Have you ever tried a criminal case, argued for economic damages, or argued against causation of damages in a civil suit? If so, you've asked your jurors to make intellective decisions: fact-driven conclusions that have right and wrong answers, and depend mostly on what your jurors believe happened. Have you ever asked a jury to apply standards of care or good faith, to judge the intent of a litigant, or argued for or against punitive or non-economic damages? If so, you've also asked your jurors to make judgmental decisions: value-driven conclusions that depend entirely on what jurors believe SHOULD happen.

When humans are asked to solve intellective (solvable) problems that have right and wrong answers, especially in groups, they utilize informational processing--sharing facts and information with one another in an effort to find a solution. The facts themselves are much more persuasive than the opinions or persuasive efforts of group members in shaping decision-making. On the other hand, when humans are asked to solve judgmental (subjective) problems that involve ethical or value-laden judgments about what should be done, they use normative processing--the influence of social pressure, public opinion, and conformity to shape decisions. In normative processing, logic and analysis takes a backseat to personal values and, in groups, peer pressure.

The same decision-making principles apply to individual and group decision-making processes involving jurors. Some trials involve primarily intellective issues--whether a criminal defendant actually committed a crime, or whether a building has construction-related defects, for example. Some trials involve primarily judgmental issues--whether admitted conduct by a defendant in a business case should be interpreted as fraud, negligence, or the breach of a contract, for example. Many trials involve both types of issues--for example, jurors in a personal injury case may be asked to render both intellective (economic) damages and judgmental (non-economic and perhaps punitive) damages.

Admittedly, none of this is particularly groundbreaking or complicated. And yet, being aware of what you will be asking your jurors to do at the end of trial is critically important to guiding you through jury selection and your opening and closing statement.

Undoubtedly, most attorneys focus primarily on intellective arguments. After all, the law and the jury instructions are very clear that trials should be judged on evidence and facts alone. In trials that involve intellective issues, the jurors do focus on the facts, or at least try to. If the key controversies in your trial involve questions of what happened--who did what, who caused the harm, what was damaged and to what extent--your jurors will focus on the facts, and you need to focus on how receptive your jurors will be to YOUR facts during jury selection. As I've stressed so many times before, not all jurors are equally receptive to the same set of facts; based on their own experiences and view of the world, some jurors will be predisposed to be skeptical or even doubtful of your version of the facts. As I said in a jury tip long ago, jurors determine what happened on the basis of what they believe is more likely to have happened in a given situation rather than waiting for the evidence to speak for itself. In an intellective-driven case, search for jurors whose experiences and whose beliefs about how the world usually works match your version of the case. More importantly, identify and strike any jurors whose experiences and worldview tell them otherwise. Jurors who have battled with contractors in home remodels are much more likely to believe the facts a plaintiff presents in a construction defect trial. Jurors who have seen co-workers exaggerate injuries to get paid medical leave, disability, or worker's compensation are much more likely to be skeptical of a plaintiff's facts in a personal injury or employment trial.

On the other hand, trials that involve judgmental issues are decided far less on the facts than you may think. In a study at Northern Illinois University, researchers found that mock jurors spent well over 60% of their deliberation time discussing values instead of facts or evidence when they were asked to determine punitive damages in a civil case. In the second half of these deliberations--once the jurors began to realize that consensus would require some persuasion--the percentage of value-based arguments soared well beyond 60%. Not all trials involve judgmental issues, but those that do are usually decided by your jurors' values rather than their receptiveness to the facts.

Punitive and non-economic damages are highly judgmental issues; there are no right and wrong answers in determining how much damages are appropriate to punish wrongdoing, address physical pain, or measure the value of injured feelings. Trials that require jurors to interpret intent (was the defendant's negligence accidental or malicious?), pass judgment (was the medical treatment below the standard of care?), or assign responsibility (was a failure to disclose information in a sale of property fraud by the seller or lack of due diligence by the buyer?) are decided more by values than facts and information.

When selecting a jury in a judgmental-focused trial, search for jurors whose values and beliefs about how the world SHOULD work match the values that your case is based upon. More importantly, identify and strike jurors whose values are in conflict with yours, especially those whose values might get in the way of being able to support every verdict option. Jurors who have concerns about awarding damages to plaintiffs that have no practical purpose or specific use are far less likely to award punitive or non-economic damages. Jurors who value personal responsibility and self-reliance tend to shift far more responsibility and blame onto plaintiffs who fail to take pro-active action in any type of case.

Before your next trial, prepare for jury selection by thinking about more than just how your jurors will view your case at the beginning. Think about the questions you will be asking your jurors to answer at the end of trial, long after they've made their minds up about who and what they believe. I suspect that most of you haven't given much thought, if any, to the psychological methods your jurors rely upon to process information and make decisions, but the type of judgments you ask your jurors to make play a large role in determining the pool of biases they will draw from when making those judgments.

February 2008: WHAT IMPRESSIONS DO YOU CREATE IN VOIR DIRE?

Wed, 28 Jan 2009 11:14:48 -0800

If you’re a regular reader of my jury tips, you may have guessed that my primary focus during the voir dire process is to gather useful information about the jurors and uncover the subtle (and not so subtle) predispositions that shape juror decision-making. If only it were that easy. At the same time that you are trying your best to learn about your jurors, voir dire gives you your most important opportunity to build trust and rapport with your jurors and to begin persuading them by foreshadowing your themes and creating positive impressions of your case. So you need to be able to come across as personable and genuine, even while you’re furiously taking notes, and you need to convince your jurors that you have a great case while asking them tough, personal questions. Voir dire doesn’t have a reputation as the easiest phase of trial, for good reason.

For a month, let’s take a break from discussing ways to learn about your jurors and instead focus on the topic of what your jurors learn about you and your case from your voir dire questions.

Let’s start with a question I get asked quite often: should I spend most of my voir dire looking for my most receptive jurors or should I focus on finding the worst jurors so that I can strike them? It’s not a question I plan on answering in this month’s tip (perhaps in the future), but it brings up a number of concerns. For example, don’t questions designed to identify receptive jurors simply signal your best jurors to your opposing counsel, causing you to lose them? But on the other hand, don’t questions designed to flush out hostile jurors poison the jury pool when those jurors tell their horror stories and voice dissenting opinions? More importantly, can your voir dire questions really give jurors positive or negative impressions of your case?

Let’s address each of these concerns. Do questions designed to identify your receptive jurors reveal them to your opposing counsel? They can, but it depends on how obvious or how subtle your juror profiles are, and of course how sharp (or oblivious) your opposing counsel is. While it’s usually better to ask a subtle voir dire question over a transparent one, keep a few things in mind. First, it’s impossible to know who your receptive jurors may be without trying to identify them; if you don’t ask questions that could reveal sympathy, you may end up striking your best jurors. Second, remember that if you ask enough questions and elicit enough opinions, you will undoubtedly hear good and bad feedback from almost every juror. If you have well-defined juror profiles and a good sense of which opinions are important, you should be better able to recognize your best jurors, while opposing counsel may have too much information to make sense of. Realize that most attorneys are just as nervous about strongly opinionated jurors as they are about biased jurors. One of my favorite tactics in jury selection is to guess which jurors opposing counsel is nervous about. When I also wish to strike one of these jurors, I will save that juror for my last strike; in more cases than not, opposing counsel will strike that juror for me.

Can you really poison your jury pool by asking questions designed to flush out hostile jurors? For many attorneys, this is a huge concern, and the answer is complex. In truth, a juror with a horror story or strongly expressed bias to share cannot change the minds of otherwise unbiased jurors. Every juror comes into court having developed their own set of strongly-held beliefs over a lifetime of experiences that are much more persuasive than any fellow juror could be. Refusing to ask questions that flush out negative viewpoints not only risks leaving hostile jurors on your panel, it also allows these jurors to share that horror story during deliberations, when that juror can put their story in context and use it much more persuasively.

But there is one danger to asking questions designed to flush out bad jurors. If you read my jury tip from September of 2006, you’ll remember that your jurors are reading between the lines and learning about your case through your voir dire questions. When listening to your questions, jurors will assume that the situations your questions present are identical to those involved in the case, so make sure that you don’t create the impression that your case is weaker than it is in your quest to flush out juror bias. If, for example, you try to uncover pro-plaintiff jurors in a commercial fraud trial by asking your jurors, "Is anyone here bothered or upset by dishonest or anti-competitive business behavior like stealing trade secrets or slandering the competition," your jurors may eventually get the impression that your trial will actually involve undisputed bad conduct and that your defendant may be guilty of it. Jurors won’t necessarily understand that you are planning on disputing these types of claims, rather than justifying them. Don’t go too far overboard in flushing out bias, and give careful thought to the messages your voir dire questions may be sending so that you don’t create suspicious jurors.

An even more subtle phenomenon that takes place during voir dire is that, believe it or not, jurors can usually tell when there is a subject that you are concerned or even nervous about. They can tell when you broach a subject with kid gloves and when you spend far too much time on a troublesome issue. Plaintiff attorneys tend to spend far too much time on the topic of frivolous lawsuits, but their biggest mistake is the uneasy, apologetic way many handle the issue. Don’t be afraid to tackle difficult subjects and challenging jurors with confidence and understanding. Even more, don’t be afraid to admit the types of beliefs and attitudes that concern you; jurors appreciate straightforwardness for the same reason they distrust attorneys who come across as ingratiating and who try to hide their concerns. The tactic of telling your jurors the subjects that concern you the most--one of Gerry Spence’s hallmarks, as I understand--reveals a refreshing dose of honesty and confidence to your jurors that helps convince jurors that you are credible, reasonable, and that you have enough confidence in your case that you can share its weakest points. If used properly admitting weakness is a persuasive tactic. Even if you don’t tell your jurors what worries you, they’ll figure it out anyway.

Practically speaking, there are few risks that outweigh the value of flushing out bias and removing unreceptive jurors from your panel. There’s no need to be subtle. Remember that you have an unlimited number of cause challenges (or none, depending on how reasonable your judge is) and only a small handful of peremptory strikes. It is smart to think about the impressions you are creating with your voir dire questions among your jurors; voir dire questions can certainly remind jurors of forgotten experiences and beliefs they already held, and in this way can persuade them for or against you. Make sure to help your jurors remember principles they agree with, and be aware that you can stir up experiences and beliefs that work against you. But your voir dire questions--and the responses of other jurors--can never change a juror’s mind and ‘poison’ anyone, so don’t be afraid to flush out bias on your panel.

Harry Plotkin is a jury consultant in Los Angeles. Mr. Plotkin specializes in assisting trial attorneys in jury selection and crafting persuasive opening statements and trial strategies. He can be reached at 626-975-4457 and at harry@yournextjury.com.

January 2008: UNDERSTANDING CYNICAL JURORS

Wed, 28 Jan 2009 11:15:35 -0800

When tackling a central case issue in voir dire, one of the greatest challenges is distinguishing between the opinions that shape verdict and those that do not. Whether you are trying a personal injury case, a commercial or employment lawsuit, or a serious criminal matter, choosing the topic is the easy part; narrowing your focus and knowing which questions are truly insightful is challenging. In any case, there are an infinite number of on-point, case-specific questions you could ask your jurors, but most are useless (even if interesting) in understanding your jurors’ predispositions toward verdict.

In an auto accident case, should you ask your jurors about every fender-bender, or only the serious collisions? Is it more important to understand how carefully your jurors themselves drive, how safely they believe that others drive, or how they believe that others SHOULD drive? Does it matter if they’ve been in a collision or not, and does it matter what their definitions of safe and dangerous driving are? What if they’ve been in an accident that was far worse than the collision involved in trial, and what if they’ve been both a plaintiff AND a defendant in an auto claim before? The truth of the matter is your jurors’ experiences are less important than you might think; what matters most are the attitudes left behind by these experiences. If you remember my jury tip from this past April, you’ll know jurors can interpret their experiences in wildly divergent ways, and that it is more important to understand your jurors’ attitudes and ways of viewing the world than to learn what they’ve experienced.

There are thousands of lessons I could apply this critical principle to, but for the next few months I am going to focus on a different way of categorizing jurors according to how they view the world and, in particular, the specific environment that your case involves. Over the next few months, I am going to be discussing three distinct juror types: naïve, idealistic, and cynical jurors. I’ll discuss how to identify each, how each views the world, how their biases may predispose them to favor (or disfavor) your case, and how best to persuade each.

Last month we discussed idealistic jurors, those who are dissatisfied and outraged about the particular environment your case involves and who feel strongly about punishing wrongdoing and restoring the world to what it SHOULD be. But I also warned you last month about lumping all jurors who have negative impressions of your central case environment together, because not all are idealistic jurors; some, in fact, are perfectly happy living in an imperfect world. This month, let’s discuss cynical jurors.

Although cynical jurors view the world as flawed and unfair, they are rarely outraged. Unlike idealistic jurors, cynical jurors don’t necessarily care about what SHOULD be. Perhaps they’ve given up hope that the world can be changed for the better, but in any case, cynical jurors assume that everyone is perfectly aware and accepting of the flaws in society. Even more importantly, cynical jurors expect others--plaintiffs and defendants included--to approach situations with their eyes wide open, and are terribly critical of naivety. The surest way to identify cynical jurors is to notice those jurors who have negative impressions of your central case issues but minimize complaints or offer excuses. For example, cynical jurors in eminent domain cases might believe that governmental agencies take private land for inappropriate reasons, but aren’t outraged by it, accept it as a reality, or offer some excuse like "land owners know that their parcels might be taken when they buy the land, so they have no right to complain." One of the big excuses that cynical jurors rely on is the always-popular ‘personal responsibility’ refrain that most trial attorneys have undoubtedly heard.

In personal injury cases, cynical jurors are those who expect other drivers, construction sites, and products to be less than perfectly safe and who take steps to drive defensively and protect themselves. In commercial cases, cynical jurors assume that corporations and businesspeople are dishonest, greedy, and selfish to the point of being cutthroat, yet they feel no sympathy for victims of dishonest conduct because they firmly believe that both sides know and accept the me-first, trust-no-one rules of business. In employment cases, cynical jurors are those who expect employers to mistreat employees and follow the bottom-line, while expecting employees to understand these rules and treat their employers with just as little loyalty.

The fend-for-yourself philosophy that cynical jurors abide by tends to make them pro-defense, but not always. In most cases, the plaintiff is the party making the most excuses and leaving himself/herself open to scrutiny of ‘playing dumb,’ but in cases in which the defendant claims ignorance or naivety, cynical jurors can be adamantly pro-plaintiff. Give your case some long, honest scrutiny and decide whether your clients could be accused of making ignorant or naïve decisions, no matter how genuine their ignorance or defensible those decisions might be. Cynical jurors have a difficult time believing that litigants, especially well-educated, experienced, or sophisticated people or big companies, could be ignorant or naïve in any situation, and they won’t believe you if you use ignorance as an excuse.

The worst way to persuade a cynical juror is to try appealing to a sense of outrage; cynical jurors are far too jaded and resigned to living in an unfair world to get worked up over issues of honesty and principle. Instead, cynical jurors are only likely to become upset at bad excuses. Highlight the supposed ignorance or naivety claimed by the opposing litigant and emphasize how experienced and sophisticated the opposing litigant actually is. The plaintiff wasn’t born yesterday, the cynical juror often says. He’s just playing dumb, the cynical juror thinks when a highly-educated plaintiff claims ignorance of a clause in a contract. With all those executives, someone had to know it was wrong, says the cynical juror when a big corporation is sued for supposedly unknowingly violating a law or a policy. Cynical jurors scoff when a litigant (in their eyes) feigns shock and outrage at wrongdoing; in their view of the world, wrongdoing and self-centered behavior is an acknowledged part of any relationship.

Keep in mind that few jurors are cynical in every situation; a juror who may be cynical in a product liability lawsuit may be idealistic or even naive in other types of cases. What matters is each juror’s attitude and approach to the specific environment that your case involves. The comparison between these juror types is separate from categorizing jurors according to personality type and some of the other scales I’ve discussed in the past; each can be used as tools to give insight into how a juror may view your case.

December 2007: UNDERSTANDING IDEALISTIC JURORS

Wed, 28 Jan 2009 13:55:57 -0800

There are thousands of lessons I could apply this critical principle to, but for the next couple of months I am going to focus on a different way of categorizing jurors according to how they view the world and, in particular, the specific environment that your case involves. Over the next few months, I am going to be discussing three distinct juror types: naïve, idealistic, and cynical jurors. I’ll discuss how to identify each, how each views the world, how their biases may predispose them to favor (or disfavor) your case, and how best to persuade each.

Last month we discussed naïve jurors, the carefree optimists who believe all is right with the world and are skeptical of claims of dishonesty, wrongdoing, and negligence. Yet if you do a careful job in voir dire, you will undoubtedly uncover a large group of jurors who see the world, and your central case issues, in a less-than-positive light. But don’t stop asking questions at the first sign of pessimism; there are two distinctly different categories of jurors who share the view that the world is flawed but little else, and mistaking these two types--idealistic and cynical jurors--can be a huge mistake.

This month, let’s discuss idealistic jurors. When you ask voir dire questions about your central case issues, idealistic jurors are those who are upset at perceived problems in the world and complain loudly about them. For example, idealistic jurors in construction defect cases not only admit that home builders may do shoddy work, they also become angry when mistakes are made. The hallmark of an idealistic juror is becoming upset when they perceive something being wrong in the central environment of your case. Identifying idealistic jurors is best done by probing for potentially negative experiences or for approaches to situations that reveal distrust or second-guessing. When a juror admits to seeking a second medical opinion or disagreeing with a doctor’s treatment plan, you should realize that this juror will be receptive to the idea that doctors may make mistakes. Although an angry juror with bitter feelings from a negative experience is obviously often pro-plaintiff, idealistic jurors who take precautionary measures and who acknowledge the possibility of negligence tend to appeal to both sides because they seem intelligent and reasonable and often admit to judging negligence on a case-by-case basis. As with any type of juror, however, idealistic jurors can only be predisposed to favor one side, so beware of being seduced by their ability to see both sides of a case.

Idealistic jurors view the world as flawed and unfair and are unhappy about it. Their views may be shaped by negative personal experiences, but they may also have developed negative impressions of the world without any personal experience. Take, for example, angry "tort reform" jurors; most have never seen a frivolous lawsuit firsthand, but all are outraged by media coverage of lawsuits and the McDonalds coffee burn case in particular. With or without personal experiences involving your central case issue, idealistic jurors are those who complain about the world, wish it were different, and are prone to bitterness and outrage. In auto accident cases, idealistic jurors firmly believe that they always drive safely and carefully, but that others don’t. In business cases, idealistic jurors view the business world as cutthroat, dishonest, and greedy and are upset by any and every breach of business ethics.

In employment cases, idealistic jurors are those who have bitter feelings and distrust of employers, and are acutely sensitive to discrimination, employee rights, and fairness in the workplace. Defense attorneys may appreciate it when idealistic jurors promise to be fair, but in reality, the natural distrust that idealistic jurors cannot shake opens the door for these jurors to scrutinize and second-guess the defendant in any case. In every case, idealistic jurors have a chip on their shoulder that tends to bode well for plaintiffs in most cases. From the first moment these jurors hear plaintiff counsel describe outrageous conduct by a defendant, this version of reality matches what idealistic jurors already suspect--that the world is filled with wrongdoing--and makes these jurors outraged.

The worst way to persuade an idealistic juror is to defend wrongdoing or to provide excuses. If these jurors could accept wrongdoing, they would be cynical jurors instead of idealistic--the type of juror I will discuss next month. Instead, the best way to persuade idealistic jurors is to play to their natural sense of dissatisfaction and distrust. For plaintiff’s counsel, this means not only highlighting the defendant’s actions that caused your client injury but also any other breaches of honesty, trust, fairness and decency that may incite jurors predisposed to outrage. For defense counsel, persuading idealistic jurors is much more challenging. Making excuses, even legitimate ones, only tend to inflame idealistic jurors. Disputing acts of wrongdoing with evidence can even be ineffective, because not only have most idealistic jurors decided to distrust you after opening statements, but jurors also tend to disregard evidence unless it comes from a trusted, perfectly objected source. Even the most valid, conclusive evidence, if it comes from the defendant, is perceived as tainted and suspect by idealistic jurors. The defense’s best method of pacifying angry, idealistic jurors is to either provide corroborating evidence of innocence from an objective third-party or to play to that juror’s distrust by attacking the honesty and motives of the plaintiff.

Keep in mind that few jurors are idealistic in every situation; a juror who may be idealistic in a medical malpractice lawsuit may be cynical or even naive in other types of cases. What matters is each juror’s attitude and approach to the specific environment that your case involves. The comparison between these juror types is separate from categorizing jurors according to personality type and some of the other scales I’ve discussed in the past; each can be used as tools to give insight into how a juror may view your case.

November 2007: UNDERSTANDING NAIVE JURORS

Wed, 28 Jan 2009 13:57:03 -0800

Let’s begin with a group that I call "naïve jurors." When you ask voir dire questions about your central case issues, naïve jurors are those that seem perfectly satisfied with the environment that your case involves. Naïve jurors in medical malpractice cases are happy with doctors and their medical care and have overwhelmingly positive impressions of builders and contractors in construction defect cases, for example. The hallmark of a naïve juror is that all is right with the world, especially in the environment your case involves. Identifying naïve jurors is relatively easy to do; they tend to have overwhelmingly positive experiences and have no complaints to express. Naïve jurors tend to appeal to both sides as prospective jurors because they come across as friendly, happy people who are easy to please and more agreeable than opinionated. As with any type of juror, however, naïve jurors can only be predisposed to favor one side, so beware of being seduced by their positive demeanor. In personal injury cases, your "naïve" jurors are generally carefree people that have never been hurt, don’t worry about dangerous situations, and take few precautionary steps to protect themselves. In business cases, your "naïve" jurors are those that believe the business world is mostly fair and that corporations are usually honest. In employment cases, your "naïve" jurors are those whose employment experiences are overwhelmingly positive and who are satisfied, trusting, and loyal to their employers.

Naïve jurors, within the context of the central case issue, are those who have had overwhelmingly positive experiences and view the world--or the specific environment the trial involves--as safe and fair. As such, naïve jurors are in most cases predisposed to favor the defense. Plaintiff attorneys often talk themselves into keeping naïve jurors; they reason that, since this juror is accustomed to a fair employer, they will react angrily when they realize this defendant is unlike any boss they’ve seen before. In reality, naïve jurors have difficult relating to the plaintiff’s version of the world in which employers are discriminatory, doctors make mistakes, and corporations lie and cheat. These jurors feel so much good will toward the employers, doctors, or corporations they know that they impose these positive impressions onto the defendant and assume that the defendant is equally trustworthy. Changing the way a juror views the world is incredibly difficult even with slam-dunk evidence, so it is wiser to strike unsympathetic jurors than to try to rehabilitate them.

In most cases, naïve jurors will start with the assumption that both parties are honest and competent. The only way to shake up that thinking and rehabilitate naïve jurors is to directly challenge that assumption. As long as a naïve juror’s underlying belief that the defendant is honest, competent, and well-intentioned is intact, even the strongest evidence of negligence will be ignored or excused. The defendant probably had a good reason for doing what he did, the naïve juror thinks. His choices and actions might seem strange to me, but he probably understands what to do better than I do, the naïve juror rationalizes. The best way to persuade a naïve juror is to play to his/her natural inclination to trust or to give him/her compelling reasons to distrust the opposing litigant.

Keep in mind that few jurors are naïve in every situation; a juror who may be naïve in a medical malpractice lawsuit may be cynical or idealistic (the two other types that I’ll discuss in future months) in other types of cases. What matters is each juror’s attitude and approach to the specific environment that your case involves. The comparison between these juror types is separate from categorizing jurors according to personality type and some of the other scales I’ve discussed in the past; each can be used as tools to give insight into how a juror may view your case.

October 2007: BUILDING FOUNDATIONS FOR CAUSE CHALLENGES

Wed, 28 Jan 2009 20:57:07 -0800

The most common--and easily correctable--mistake that I routinely see attorneys make in voir dire is to ask jurors if they can be fair. Although not a trick question, most jurors respond to such questions with less-than-candid, trick answers. From my observation, the "can you be fair" type of question gets asked so frequently because there are so many different reasons that attorneys will ask it, and nearly all are misguided. Some attorneys mistakenly believe that jury instructions delivered in voir dire will persuade an otherwise biased juror to be fair. Some attorneys mistakenly believe that jurors who are aware of their biases will be honest and excuse themselves. Some attorneys mistakenly believe that jurors know whether they can be fair or not in a given trial. In many cases, attorneys are worried about upsetting a trial judge by asking questions that are too subtle or crafty. Although it is true that some judges will stubbornly demand that you stick to questions that ask jurors if they can be fair point blank, these questions rarely if ever accomplish their goal of uncovering bias.

If you truly want to uncover bias, whether to support a challenge for cause or identify peremptory strikes, you simply cannot ask questions that require jurors to admit that they are biased, cannot be fair, or will not follow the court’s instructions and the law. You must be much more clever than that. I’ve stressed in numerous jury tips that the only useful voir dire questions are those that make jurors feel comfortable expressing potentially controversial points of view. If a juror feels that an honest answer may be perceived as controversial, embarrassing, or the "wrong" answer (that either you or the judge doesn’t want to hear), they are much more likely to bite their tongue than voice their opinion. And make no mistake about it; other than those who are looking for a way off your jury, no jurors feel comfortable admitting that they are biased, that they cannot be fair, that they may have trouble listening to both sides, that they already have suspicions about your case, or that they may have concerns about following the jury instructions or the law. For this reason, every time I hear an attorney ask a question like "does anyone here have any negative feelings about large corporations that would make it difficult for you to be a fair and impartial juror?" I am never surprised when that attorney is greeted with a wall of silence.

Getting your biased jurors to speak up and excuse themselves is challenging and often frustrating when you know the bias is out there. On every panel of potential jurors, there are no doubt a handful of jurors that dislike and distrust the type of client you represent, whether your client is a plaintiff, a huge corporation, or an accused criminal. The challenging part is to get them to admit their concerns in open court. Don’t waste your breath asking if they can be fair directly. Never ask your jurors if they can set aside biases; most will tell you that they are willing and able, but you should know by now that they cannot. Never give your jurors "if" scenarios. Asking a juror "would you be able to render a defense verdict and award this plaintiff nothing if the evidence proves that..." will only yield hypothetical answers. Nearly every juror will agree with you, but you still haven’t uncovered the bias that will make it difficult if not impossible for that juror to believe that your evidence has proven anything credibly. Never ask your jurors if they will be able to follow the court’s instructions; every juror learned how to promise to follow the rules in kindergarten, and every juror will promise to play by the court’s rules. Lecturing the jurors on the jury instructions is just as useless; unless you or the judge plans on being in the jury room during deliberations, the jurors are going to interpret the instructions to fit their prescription of justice, not vice versa.

The only way to uncover bias in a way that you can use to support challenges for cause is by asking jurors if they have any discomforts, concerns, hesitations, or troubles with issues in your case. Notice the choice of words here. Words like fairness, bias, objectivity, and any mention of the court’s instructions should never be used. Voice concerns that opposing jurors may have, and be sure to give your jurors the impression that you UNDERSTAND such concerns, even if you don’t agree with them. In business lawsuits, ask your jurors if they have any concerns about the ethics or behavior of corporations. In medical malpractice suits, plaintiff attorneys should ask jurors if anyone has any concerns about the effect of lawsuits on the cost of health care or the welfare of doctors. Better yet, ask the jurors if they have any concerns or reservations about a patient suing their doctor, or if they have the feeling that doctors are so well-trained and careful that it’s hard to imagine doctors making mistakes.

Take extra care to phrase your questions in such a way that the concerns or feelings you are asking jurors to admit seem legitimate, reasonable, and non-controversial to encourage as many jurors as you can to discuss them. Once you’ve uncovered a concern, convince your concerned juror that they feel strongly about the issue and that it would be difficult for them to ignore that concern or abandon that feeling or belief. Use your jurors’ reluctance to abandon their beliefs against them; just as jurors feel uncomfortable admitting that they would have trouble following the court’s instructions, jurors feel just as uncomfortable admitting that they would be able to abandon deeply-held beliefs and concerns once expressed.

Once a juror has expressed an unshakable concern, you can begin to persuade that juror--and the court--that it would be difficult for them to ignore or abandon that concern, even if the jury instructions required them to, and that it would be difficult not to let those feelings influence how they view the case. One way to make jurors comfortable excusing themselves--once you’ve led them too far out on the limb to retreat--is to ask jurors the following:

"Mrs. Johnson, I have no doubt that you will TRY your best to be fair. But in light of the concerns you’ve been telling us about, I have some doubts that you can, even if you try your hardest. Given your concerns, can you tell me that you can be 100% sure that your feelings won’t influence your thinking about this case in any way? Do you think there is any chance that your concerns MIGHT be a factor--even a small one--in how you decide this case?"

Although the success of your challenges for cause will ultimately be in the hands of your trial judge, getting your jurors talking openly about their concerns and encouraging them to admit that their concerns are genuine are your best defense against opposing counsel or the judge rehabilitating jurors into promising they can be fair. And at the very least, you will have uncovered the most crucial biases to eliminate with peremptory strikes.

September 2007: IDENTIFYING INFLEXIBLE JURORS

Wed, 28 Jan 2009 20:31:13 -0800

On any given panel of potential jurors, there will be a handful of jurors that may be so hyper-predisposed against the facts of your case that they might be impossible for you to win over. Beyond biased, there are jurors on every venire panel whose view of the world is so inflexible that they literally cannot accept the POSSIBILITY of situations that conflict with their worldviews. Identifying and removing these jurors from your panel is essential, but the identifying part is trickier than it may seem.

Jurors who have biases against certain types of people and situations--a juror who has a distaste for corporations or lawsuits, for example--are relatively easy to identify because people are usually consciously aware of things they DISLIKE. With these jurors, the identifying is easy but the removing part is challenging; in next month’s tip, I’ll discuss better ways to build foundations for cause challenges with these types of jurors.

On the other hand, jurors whose worldviews are uncompromisingly rigid--we’ll call them ‘inflexible jurors’--are rarely if ever aware that their view of the world is a constructive bias that will color how they view a trial. These jurors don’t dislike litigants or what they represent, but when one side presents a situation that conflicts with their view of the world, an inflexible juror will be completely unable to imagine and accept the possibility of that situation being a reality and will reject it as false, no matter how strong the evidence. My favorite example is the juror who can never imagine a doctor making a mistake in judgment; these jurors hold doctors in such high esteem that they are literally incapable of second-guessing doctors and rendering plaintiff verdicts in medical malpractice trials. And yet most (if not all) inflexible jurors are completely unaware that their worldview is a constructive bias and unaware of how uncompromising their worldview is. As such, inflexible jurors are challenging to identify during voir dire. You cannot simply ask them if they could find against a doctor, a corporation, or an injured plaintiff because they are completely unaware that they cannot, let alone why.

Instead, ask potential jurors questions about their view of the world. Are corporations honest? Do plaintiffs exaggerate or lie? Have you ever seen a co-worker fake an injury or disability to get out of work? Have you ever heard of a police officer arresting and charging someone with insufficient evidence? Ask jurors about their experiences and impressions of the world to get a sense of what they believe is likely and prevalent and what is rare or impossible. In criminal trials, you’ll find that some inflexible jurors are incapable of believing that a police officer could make an error in judgment, intentionally or not, or that the justice system may be flawed. Such a juror may not be able to admit it directly, but they won’t be able to cite a single example of police abuse, a false arrest, inappropriate charging of a defendant, or a single law that they would change, and you’ll find that they cannot conceive that a "good" person could ever commit a crime.

An even more insightful way of identifying inflexible jurors on your panel is to ask questions about your jurors’ approaches to case issues. Inflexible defense jurors in medical malpractice cases are those who have never sought a second opinion, double-checked or disagreed with a doctor’s diagnosis or treatment plan, or asked a doctor for alternative options or to explain his/her reasoning. Instead, they tend to follow their doctors’ instructions implicitly without questioning, and their approach reveals a blind trust in doctors that suggests a worldview that doctors don’t make mistakes.

The blinders that handicap inflexible jurors go far beyond the standard predispositions that every juror has. As discussed in a prior jury tip, every juror is guilty of determining what happened in a given trial on the basis of what they believe is more likely to have happened in a given situation rather than waiting for the evidence to speak for itself. For most jurors, these predispositions can be overcome with overwhelming evidence or persuasive trial presentations (although with great difficulty, so it’s much wiser to remove them in jury selection). Inflexible jurors cannot be rehabilitated. They believe that certain situations are not only less likely but are actually not realistically possible. For example, there are inflexible defense jurors in auto accident cases that truly believe that a cautious, defensive driver should be able to avoid or prevent accidents in any situation; these jurors will actually construct a theory that the plaintiff was somewhat responsible for the accident without any supporting evidence.

Keep in mind that inflexible jurors are not so much a demographic group as a view of the world on a particular topic. Every juror is capable of being an inflexible juror given the right set of facts and situations, and a juror who is inflexible in one type of case may not be on a different case. Some types of jurors--conventional personality types, especially--are more prone to inflexibility, but you should treat every juror as potentially inflexible in any given case.

August 2007: PERFECTIONISTS AND REALISTIC JURORS

Wed, 28 Jan 2009 19:20:31 -0800

In past months, I've discussed a number of ways to assess jurors and distinguish between different types and different predispositions. I've discussed the differences between proactive and passive jurors, sensitive and insensitive jurors, and differences between jurors according to personality type. There are many, many more differences critical to juror decision-making, but this month I am going to focus on the differences between "realists" and "perfectionists."

The degree to which jurors are "perfectionists" (my terminology) shapes the degree to which they need to be convinced of something and, by extension, how convinced they have to be to render verdicts that require judgment calls. Because we know that ALL verdicts require judgment calls and less than 100% certainty, a juror's degree of perfection is critically important.

A perfectionist makes decisions in a far more demanding and careful way than a realist. Perfectionists may have suspicions, but suspicions or hunches are not enough for a perfectionist to justify making a decision as important as a jury verdict. Perfectionists need for claims to be "proven" for them to feel comfortable. For a realist, it is enough that the evidence seems to suggest a conclusion for that juror to feel comfortable accepting the conclusion as fact. Realistic jurors are much more receptive to circumstantial evidence and require less proof of causation and damages; for these jurors, a cause is enough to suggest an effect, and an effect is enough to suggest a cause.

In assessing your jurors, carefully consider their comfort level with doubt to determine not only how much convincing it will take to reach your burden of proof, but also what type of evidence and arguments are persuasive to them. Perfectionists tend to be persuaded only by tangible, concrete proof and tend to be immune to character attacks, patterns of misconduct, and circumstantial evidence that suggests guilt. Realistic jurors are persuaded by all of these forms of argument and feel comfortable jumping to conclusions based on growing impressions of suspicion and guilt.

Perfectionists and realistic jurors have significantly different definitions of preponderance based on significant differences in the tolerance of uncertainty and doubt.

Let's take an example. Presenting evidence that your opposing litigant engaged in wrongdoing or actions of questionable motive can be very effective in damaging his/her credibility and bolstering your case, but only with realistic jurors. Only realistic jurors are willing to translate a growing sense of suspicion into findings of liability, causation, and damages. Perfectionists aren't persuaded by suspicion; they need proof of wrongdoing that relates directly to liability, and they need plaintiffs to connect the dots between defendant wrongdoing and actual damages. Spoliation of evidence, nasty memos, arbitrary and vindictive employment actions, or insensitivity toward an injured plaintiff in a personal injury case all create serious suspicions about the defendant’s motives and credibility, but only realistic jurors allow clouds of credibility to influence verdicts.

My most tried and tested method of flushing out whether a juror is a perfectionist or realist is to assess their comfort level with the burden of proof. Every voir dire should include not only an explanation of the burden of proof, but also a discussion of how comfortable the jurors are with reasonable doubt (in criminal trials) or preponderance (in civil trials). If you are truly interested in selecting a favorable jury panel, be careful not to turn this discussion into a jury instruction or a lecture. Ordering the jurors to accept the burden of proof will persuade no one. Asking the jurors whether they will AGREE to accept the burden of proof will get you plenty of promises, but not meaningful ones. A juror will only make decisions that he/she is comfortable with, and no matter what the jury instruction, each juror’s definition of ‘reasonable doubt’ or ‘preponderance’ is different.

Instead of lecturing to your jurors, listen and learn. In a civil trial, ask if any of them feel even a little bit uncomfortable making decisions without being 100% convinced that it is right. Ask if they feel a little bit uncomfortable making decisions with as much as 49% doubt in their mind. Ask if they would have to feel even a little MORE convinced if the decision were especially important, involved awarding a significant amount of money, or affected someone’s life in a significant way. In a criminal trial, ask if any of them feel uncomfortable making a decision that may send someone to jail (or worse) unless they are absolutely sure. Ask if anyone would feel at all uncomfortable, upset, or hesitant to release a criminal defendant who they felt was PROBABLY guilty.

Jurors who tell you in voir dire that they would feel much more comfortable if something was ‘proven’ or if they feel ‘sure’ and uncomfortable taking a ‘best guess’ are perfectionists with a much higher burden of proof. Jurors who tell you they believe it is impossible to ever ‘prove’ anything conclusively and that it is reasonable to make educated decisions and informed guesses are realistic jurors with a much lower burden of proof. In most cases, perfectionists are advantageous to the party on the defensive. If you are defending an unlikeable client whose conduct, credibility, and motives are under attack, you will need perfectionist jurors who are able to reserve judgment, ignore suspicions, and take a cold, calculated look at the evidence. If you are on the offensive--typically as a plaintiff or prosecuting attorney--you will usually find realistic jurors advantageous. If you have evidence that reveals the defendant as dishonest and strongly suggests guilt, liability, and causation--but need your jurors to take a leap, large or small--realistic jurors don’t need overwhelming proof to agree your case is ‘more likely than not’ true or slam-dunk proof to find guilt beyond a reasonable doubt.

July 2007: IDENTIFYING FALSE ANSWERS IN VOIR DIRE

Wed, 28 Jan 2009 19:18:34 -0800

It is never easy to catch jurors in a lie during voir dire, but jurors do send verbal and visual cues of dishonesty-especially unintentional dishonesty-that can be identified by an attuned, attentive observer.

A primary red flag that indicates juror dishonesty is the qualifying of answers when no qualification is necessary. If a juror truly agrees with a statement, they will have no qualms about answering "yes." If the juror feels a need to qualify their belief with an IF-or worse, with an ONLY IF-they are not merely revealing a limited agreement, they are revealing an underlying discomfort with that agreement. In reality, qualified 'yes' answers mean 'no' more than 'yes.'

Early in my career, I made the mistake of taking juror answers at their face value. I once believed that jurors could make decisions in trial-and follow jury instructions-that they were personally uncomfortable with but promised to make, if the evidence warranted it. I have learned. In a recent mock trial in an employment case, every one of the mock jurors claimed that they supported an employee's right to complain if mistreated. Several of the mock jurors made no further comment; several more added the qualification "if the complaints are valid" or "legitimate." Every one of the former became pro-plaintiff jurors by the conclusion of the mock trial; every one of the latter turned out to be a pro-defense juror.

On nearly every jury I select, I hear at least a few qualified 'yes' answers that in reality mean 'no.' Jurors feel uncomfortable giving answers that they perceive to be opposed to jury instructions, especially answers they perceive to be contrary to what you'd prefer to hear. Every week, I hear jurors claim that they agree with awarding damages "if they are justified," awarding emotional distress damages "if proven," and that they have no problem with lawsuits "as long as they're not frivolous." Answers like these are not genuine agreements; they are expressions of skepticism. Make no mistake; these jurors will be aggressively looking for reasons to invalidate your claims.

Often I will ask jurors what they have done or would do in similar situations or analogous situations to get a sense of how they will critique the litigants. In commercial trials, I will often ask jurors if they formalize agreements in written, signed contracts or rely on verbal promises. In medical malpractice trials, I will often ask jurors if they seek second opinions or rely completely on their doctor's advice. When the juror answers, I like to ask them how they feel about people who do the opposite; the answers are often illuminating. Some jurors clearly have no problem with an opposite approach, while others will honestly tell you they disagree. But there are some jurors who try to be evasive, and here is where you must be attentive. More than likely, you will find that jurors who tell you that those with a contrary approach "are entitled to their opinion" (and you will hear that answer often) have strong disagreements with that approach. Make no mistake; these jurors will be harshly critical of a litigant who has acted in a different way from that juror's approach.

Sensing discomfort and an internal or philosophical struggle within a juror is the key to identifying a false 'yes' answer. We've discussed that qualified answers are the verbal evidence of discomfort, but there is also a clear non-verbal sign: hesitation in answering questions. Hesitation is the best physical and visual cue that reveals discomfort with a 'yes' answer. Jurors who pause and struggle with giving a simple answer have trouble admitting something, likely that they disagree with you. If a juror takes more than one second to agree that exceeding the speed limit is wrong, something is amiss. That something is usually that the juror doesn't truly disagree, but has concerns admitting their contrary point and view, needs time to weigh the benefits of honesty over making a controversial statement, and needs time to figure out what the 'right' answer is.

Don't confuse hesitation with a thoughtful pause; some jurors honestly haven't considered the issue and need time to think about it. Be attentive to discomfort; hesitant jurors often stall for time ("well...") or smile during their pause to put an agreeable face on a difficult answer. Jurors who are being thoughtful and honest tend to look confused or perplexed; jurors who are searching for ways to dress up their answer tend to maintain eye contact and don't appear to be doing much serious thinking.

Admittedly, it would be ideal to help the jurors give honest answers, and there are ways to encourage your jurors to be more honest. Most of the 'dishonesty' I have discussed is not because jurors want to lie, but rather because jurors feel uncomfortable admitting that they cannot be fair, that they disagree with you, or that they have controversial points of view. If you can make your jurors feel more comfortable giving controversial answers, you can encourage a great deal of honesty. Rather than asking your jurors to admit bias, or that they cannot be fair, or that they might be AGAINST something, tone down your language and their answers. Instead of asking your jurors if they have a "problem" with corporations or awarding emotional damages, ask them if they may "feel a little uncomfortable" (or hesitant, troubled, skeptical, suspicious, or upset) with whatever you are discussing. Jurors feel much more comfortable admitting and expressing discomfort than disagreement or dislike. Some attorneys will try to tone down voir dire by asking jurors what "trouble" or "difficulty" they might have with certain issues, but even admitting trouble being fair is too uncomfortable for many jurors. If your goal is to uncover and identify biases and predispositions on your jury panel, you must make it as easy as possible for your jurors to answer.

Harry Plotkin is a jury consultant in Los Angeles. Mr. Plotkin specializes in assisting trial attorneys in pre-trial jury research, jury selection, and crafting persuasive trial themes and opening statements. He can be reached at 626-975-4457 and at harry@yournextjury.com.

June 2007: THE CREATIVE JUROR

Wed, 28 Jan 2009 19:17:19 -0800

Among the most helpful criteria to consider in jury selection--and one of the simplest to identify--is a juror’s personality type. A juror’s experiences, opinions, and attitudes about the issues of your case create biases and shape the juror’s decision-making and verdict but tell you nothing about the juror’s motivations. A juror who is bitter about being fired from a job is more likely to mistrust employers and side with a plaintiff in an employment case, but the experience tells us nothing about that juror’s underlying reasons for his/her verdict.

Learning to identify and categorize jurors according to personality type is an incredibly valuable skill in voir dire, and the selection of your jury should consider personality as a major criteria. I identify six different personality types on my panels: (1) Sympathetic, (2) Analytical, (3) Practical, (4) Conventional, (5) Persuasive, and (6) Creative jurors.

This month’s jury tip brings us to the final chapter of juror personality types and to the sixth, and by far the most illogical and unpredictable, type: the creative personality.

Creative personalities are artistic, independent, and open-minded individualists. They like to express themselves and often feel passionate about principles they respect but often lack focus, patience, and an attention span. They are often idealistic but rarely optimistic, an unusual combination. They are often hard to pin down and stereotype; the same artistic juror will often argue passionately for one side of a case and then suddenly switch sides with equal passion within the same deliberation.

As jurors, creative personalities are unlike any of the other five personality types. Unlike sympathetic jurors, creative jurors have trouble empathizing with strangers. Even though most are fairly liberal politically, they are often very self-involved and self-centered; here in Los Angeles, jurors from the entertainment industry in Hollywood are typically not as pro-plaintiff as many expect. Many creative jurors, especially the struggling artists, can be cynical and bitter. In order to support a plaintiff (or defendant), a creative juror must be forced to personalize that litigant’s situation and be convinced that the same thing could happen to them. However, unlike practical jurors, creative jurors are capable of becoming highly emotional and attuned to feelings-based general damages if the plaintiff’s case strikes a chord and forces them to internalize the plaintiff’s plight. Although not nearly as predisposed to favor plaintiffs as sympathetic jurors, creative jurors can go just as high with damages.

Perhaps an even more crucial distinction between practical and creative jurors is in their burden of proof. Whereas practical jurors demand tangible proof of liability, causation, and damages, creative jurors are far more imaginative and willing to support one side’s case based on speculation and trial themes. In fact, creative jurors are so bored by complex detail that they are often prone to get carried away by persuasive trial themes unsupported by the evidence, very unlike analytical jurors. The reason for this is two-fold. First, creative personalities tend to have short attention spans, are easily distracted, and, as visual learners, are easily bored by minutiae and detail, so they rarely pay full attention to expert witnesses and the evidence. Second, creative jurors are strongly idealistic and dramatic, and thoroughly enjoy taking passionate stands in support of vague principles.

Unlike conventional jurors, creative jurors have a disdain for the rules and authority. Creative jurors are non-conformists by instinct and, as such, are among the most pro-defense jurors in criminal trials and are often strongly anti-corporate in civil trials. They embrace individuality; one of their most sacred principles is individual rights and civil liberties. Unlike conventional jurors, they are rarely swayed by defenses based on policies and proper procedures; creative jurors are rarely critical of rule-breakers and mavericks. Unlike persuasive jurors, creative jurors are not big on pro-activity and personal responsibility; they are often passive themselves and rarely blame the plaintiff for being similarly passive.

In identifying creative personalities, search for jurors who have chosen jobs that allow them freedom to be expressive, imaginative, and artistic. Some have a need for validation and enjoy entertaining others; some simply enjoy the artistic process and satisfying their own creative impulses. Actors, artists, authors, poets, dancers, musicians, producers, directors, jurors involved in the film, television, music, theatrical, or entertainment industries, or those who enjoy any artistic pursuits in their own free time are likely creative personalities.

Because they are so illogical and volatile, it is often difficult to predict which side creative jurors will support, but here are some general guidelines. As I mentioned earlier, creative jurors love sweeping trial themes based on idealistic principles; the side with more sizzle and less content may appeal more to creative jurors in many cases.

Creative jurors, like most younger jurors from generations X and Y, are visual learners; they are persuaded by visual exhibits and have shorter attention spans. If you need your jurors to pay attention to the technical, complicated, and mind-numbingly boring issues and explanations in your case, you cannot expect a creative juror to stay with you. Jurors from generations X and Y have grown up in the digital age with televisions, computers, and the internet. As such, they not only have shorter attention spans, but they also are used to having information delivered to them immediately and having that information at their fingertips. Creative jurors are much the same; they do not have the patience to wait for you to get to the point, answer their questions, and deliver them the information they demand.

May 2007: THE PERSUASIVE JUROR

Wed, 28 Jan 2009 19:14:53 -0800

Resuming our discussion of the six juror personality types, let’s now discuss the most vocal and influential type of juror: the persuasive personality.

Persuasive personalities are opinionated, forceful group leaders in a variety of styles--some pushy and controlling, others gracious yet manipulative and influential. No matter how they come across to others, all persuasive personalities are competitive, value control, strive to dominate, and love to get things done. Whether they appear to listen to others or not, persuasive personalities share an unwavering belief in themselves and focus less on listening open-mindedly than on imposing their beliefs on others.

As jurors, persuasive personalities will no doubt dominate your panel during deliberations. Some may forcefully assume control of the jury panel, declare themselves foreperson, and monopolize the deliberations; others may give the illusion of working within the group but carefully control the discussion and steer the group toward their own conclusions and often put their own words in the mouths of others. In any case, identifying your persuasive jurors is imperative, and scrutinizing them more than any other juror type is even more so. While some jurors may be harmless, persuasive jurors have a profound impact on every panel, and leaving a single persuasive juror with unknown predispositions on your panel is probably worse than a strongly biased but relatively quiet juror.

In identifying persuasive personalities, search for roles in which leadership, initiative, and persuasive power is wielded on a daily basis. Persuasive personalities will NEVER be found hidden behind a desk or in a position lacking authority or control; search for decision-makers, and not just in high-level jobs. Jurors in sales, business, politics, marketing and advertising, and management are likely candidates. Persuasive jurors need not be professional or successful; a used car salesman or insurance rep may have the same vocal leadership skills as a corporate power-broker or real estate sales person. Self-reliant jurors who welcome great deals of power or responsibility--from a CEO to a self-employed small business owner--are typically forceful, roll-up-your-sleeves persuasive personalities. During voir dire, assess which of your jurors are willing to accept--even welcome--control and responsibility. Inquire about your jurors’ outside interests; whereas charity work is a hallmark hobby of the sympathetic juror, involvement in leadership roles on the local city council, PTA, labor union, or their condo’s homeowner association are often trademark signs of a persuasive juror.

Perhaps the most telling key to identifying a persuasive personality on the jury panel is to be closely attuned to strong, unwavering opinions. Where other jurors hesitate or express doubt or open-mindedness, persuasive jurors tend to answer every question with confidence and definitiveness, even ambiguous questions that probably demand qualified answers. Persuasive jurors might believe that they can prevent all wrongdoing from their employees, or find any problem with a home, car, or company they consider buying simply by doing a diligent enough inspection.

Persuasive personalities are leaders and go-getters by instinct. Not surprisingly, persuasive jurors tend to approach trial with a hyper-critical view of the litigants. They have high, sometimes unreasonable expectations of the amount of control plaintiffs and defendants have over the situations at issue in trial and fault passive litigants for their failure to avoid being harmed (or causing harm). I cannot stress this point enough; persuasive jurors are often the strongest examples of the ‘do-it-yourselfer’ types discussed in last April’s jury tip. In determining whether a persuasive juror will be your strongest advocate or harshest critic in deliberations, make an honest evaluation of all potential mistakes your client made and weigh these mistakes against the mistakes made by the opposing party. And realize that, in most cases, the plaintiff’s mistakes weigh much heavier on jurors, most likely due to growing skepticism of lawsuits and the natural skepticism that comes with the plaintiff’s burden of proof.

Did your plaintiff forget to wear his seatbelt? Was she wearing high heels when she slipped and fell at the supermarket? Did he have a few negative performance reviews before being wrongfully terminated? Did your clients decide against hiring a plumbing inspector before buying a defective home? Even if the defendant ran a red light, left the floor of the produce department slippery and wet, fired your client without cause, or failed to disclose major defects in a real estate deal, your plaintiffs’ failure to look out for themselves may outweigh defendant negligence in the mind of the persuasive juror.

Even worse, and the one thing that persuasive jurors will not tolerate from litigants, is passivity. Remember, persuasive personality types are pro-active go-getters. They firmly believe that, in the shoes of the plaintiff, they would have taken all appropriate action to avoid being harmed. In cases where the plaintiff did everything he/she could have to avoid injury, your persuasive jurors will be outraged and your strongest advocate. But in cases where your plaintiff was passive, persuasive jurors will likely fault your client for their own harms.

Plaintiff attorneys, avoid persuasive jurors if your client failed to question a doctor/lawyer or seek a second opinion in the face of continuing bad treatment in a medical/legal malpractice trial. Avoid persuasive jurors if your plaintiff barely searched for a new job in the months after being fired in an employment case or did little research or due diligence in a fraud case. If you have persuasive jurors on your panel, focus on trial themes that persuade them that your client did everything in his/her power or that the defendant made it impossible for your client to escape harm.

Defense attorneys, avoid persuasive jurors if your client is accused of the ‘failure to act’ type of negligence. If your government agency failed to replace a damaged guard rail or warning sign, if your pharmaceutical company did the bare minimum of product testing, or if your physician defendant sent away a patient without ordering a critical medical test, strike the persuasive jurors on your panel; they will likely blame your defendant for their passivity. Keep persuasive jurors when your client took an action that can be explained and defended; regardless of the consequences, persuasive jurors respect litigants who took well-intentioned action.

In any case, dealing with persuasive jurors is about managing their impressions of who could have avoided the harmful situation and who could have done what when. Not only should you evaluate the mistakes and lapses in judgment made my both sides, you need to gain an understanding of your persuasive jurors’ expectations and approach to similar situations in voir dire. Find out how they deal with similar or parallel situations and how much control they feel they have in those situations.

April 2007: REPLACING ASSUMPTIONS WITH UNDERSTANDING

Wed, 28 Jan 2009 19:12:41 -0800

Never assume that all jurors are logical. Many are anything but. No matter how strong your case may be and how airtight your evidence in supporting or disputing liability, there will be jurors out there who are strongly predisposed to be against you. Never assume that all jurors will agree with your strongest points, even if your evidence is compelling and the opposition has nothing to dispute it. All it takes for a juror to disagree with you is for your case to clash with their version of reality, skewed by a single fluke experience. As illogical as it may be, your strong evidence itself can destroy your credibility, in that juror’s mind, by conflicting with their skewed vision of how the world works.

How can your credibility be breached, even in a slam-dunk case with strong, undisputed evidence? If a juror has had any experience that tells them reality is different than the one your evidence suggests--perhaps they survived a car crash at 50 mph without a scratch, while your client is paralyzed from a low-speed fender bender--your logical evidence seems illogical to them. If your juror has any reason to mistrust your honest client--perhaps you represent one of Fortune 500’s top companies to work for, yet the juror has had a string of bitter employment experiences--your honest company will be assumed to be dishonest (along with their evidence and testimony) by the juror.

Notice, however, that the key to understanding juror bias and predisposition is not the experiences themselves, but rather how jurors interpret those experiences, how they feel about them, and how they react to and deal with them. Not all jurors who survive violent car crashes are pro-defense; those who recognize that lesser crashes often cause serious injury, understand how lucky they are, and drive much more carefully now may very easily be pro-plaintiff. Not all jurors who have been fired and discriminated against are pro-plaintiff. Some may recognize that they had uncommonly bad managers and maintain an optimistic view of employers and the world. Some may be practical or optimistic by nature and shrug off any trauma or resentment. Some might take some personal blame for those negative experiences--perhaps they shouldn’t have taken the job in the first place, or quit their job earlier--learned from them, and now expect others to do the same. All three of these jurors may be strongly pro-defense, despite their negative experiences, simply because of their outlook.

By the same token, never make assumptions about your jurors based on superficial traits. Although occupation, age, education, income, political and religious views, and even personality type may provide clues to how a juror might think, it is much more important to gain an understanding of your jurors’ approach to the issues and situations that come up in trial. If your juror has a vastly different set of experiences, values, or approaches to the issues and situations at trial than you might expect from someone like him or her, that juror will have a vastly different set of biases and predispositions too.

Don’t always expect your jurors to follow the ‘industry standard’ within their fields. Most real estate developers are strongly protective of the principle of due diligence and are highly critical of plaintiffs with fraud claims who barely looked at a piece of property and refused to hire a professional inspector or appraiser, but some aren’t. Make sure to ask them what their approach is to buying or selling property, because any whose approach matches the plaintiff’s more so than the defendant’s will, obviously, have pro-plaintiff dispositions.

How is a surgeon going to judge a pathologist’s diagnosis in a medical malpractice trial? How is a personnel manager going to judge claims of employment discrimination or wrongful termination? How is a secretary, waitress, or flight attendant going to judge allegations of sexual harassment? As tempting as it may be to fall back on assumptions and stereotyping, the best way to make an informed decision about a juror is to ask about his or her unique approach to a given situation. Perhaps the stereotype might fit, or perhaps that juror has a wildly different philosophy.

In the latter example, there are a variety of approaches to sexual harassment by jurors who are exposed to high levels of it. Some have experienced it and are outraged; some brush it off and minimize the emotional impact. Some have been exposed to the worst kinds of harassment and yet never bring it to court, preferring to deal with it in other ways; these jurors may be outraged by the plaintiff’s litigious approach. Some may believe that they can prevent harassment by changing their dress or tone and may blame victims for failing to be equally pro-active ("look at what she was wearing!"), while others may feel completely powerless and non-judgmental toward victims. In every type of case, the key is in finding out which jurors agree with your client’s approach and which diverge.

The lesson to be learned here is to never judge your jurors based on a superficial examination of their experiences or traits. Experiences are just the jumping off point in voir dire and in gaining an understanding of how your jurors think. Much more important is to dig deeper and probe how they feel about those experiences, how they dealt with them, and what they have learned from them. Not all car crash victims, accountants, jurors who have been fired, homeowners, or even tort-reform jurors think alike.

March 2007: THE CONVENTIONAL JUROR

Wed, 28 Jan 2009 19:10:25 -0800

Last month we discussed the analytical juror. Now let’s discuss the personality type most diametrically opposite to the sympathetic juror: the conventional personality.

Conventional personalities are rule-following, rule-oriented types with a preference for hierarchy, organization, and structure. Unlike the analytical personalities we discussed last month, conventional personalities tend to view the world in terms of black and white, right and wrong, and in a stark and simplistic way. They are uncomfortable dealing with complicated answers, complexity, and ambiguity, and prefer to be told right and wrong by an authoritative source, hence the name ‘authoritarians’ often used to describe them.

Conventional personalities are perhaps the least objective jurors. Rather than focusing on what the evidence says about the credibility of each side, conventional jurors feel much more comfortable forming impressions of each side’s credibility based on demeanor, personality, appearance, visual and verbal cues, who they are, and what they represent. The most judgmental type of juror, conventional jurors acutely scrutinize litigants (and attorneys) and jump to conclusions about their honesty and integrity based on superficial traits that may or may not be fair.

Far from analytical, conventional personalities dislike making their own determinations. They are often uncomfortable dealing with and synthesizing complex information and prefer to be spoon-fed the truth by sources that they trust. Rather than listening to which expert, attorney, or litigant makes the most sense, conventional jurors will often prefer the source with the most authority. As authoritarians, conventional personalities tend to have blind faith in authority figures like government officials, high-level executives and professionals, doctors, and police officers. In fact, conventional jurors have been highly researched over the years to be incredibly pro-prosecution in criminal trials, largely because of their blind trust in the police and the justice system; these are the jurors who firmly believe that if a defendant has been arrested and charged, he/she is almost certainly guilty.

Conventional jurors have the same mindset in civil trials: authoritative and institutional powers are trustworthy and almost always right. So for these jurors, opening statements are an exercise in sizing up both sides and determining which side is "right" and which side is "wrong." And because of their confidence and trust in figures of authority, conventional jurors often need to be convinced beyond a reasonable doubt--well beyond preponderance of the evidence--to side against the most authoritative side in trial.

In identifying conventional personalities, search for the overly-formal, rigidly-structured rule-followers who have chosen jobs that involve a lot of rules and structure and as little creativity, judgment, or problem-solving as possible. Accountants, administrators, administrative assistants, bureaucrats, post office mail sorters, police officers, mathematicians, bankers, clerks, librarians, most nurses, and people in human resources, finance, and clerical roles are likely conventional personalities. During voir dire, ask your jurors how they approach specific types of situations--the closer to the situation at hand in trial the better--and look for those who demonstrate a hyper-conventional, by-the-book approach. After a car accident, conventional jurors are those who immediately filed a police report, asked for the other driver’s insurance card, and notified their own insurance company. In medical situations, conventional jurors tend to follow their doctor’s advice implicitly; when selling or buying a home, conventional jurors rely on their agent’s recommendations with undisputed confidence. In any situation you bring up in voir dire, look for an approach that eschews problem-solving and a reliance on seeking an expert’s advice and guidance; conventional personalities prefer to be spoon-fed the truth from trusted experts.

If you are representing an authoritative or powerful plaintiff against a smaller defendant accused of breaking the rules--obvious examples would include an RIAA suit against individuals accused of sharing music files, government-led anti-trust suits, or a large corporation suing a smaller company for trademark or patent infringement--you will certainly want conventional personalities on your panel.

If you are defending a case on behalf of an authoritative or powerful defendant, especially against a small individual or against claims that undermine the credibility of an institution such as fraud or discrimination, conventional jurors will likely be your most valuable skeptics. Not only do conventional jurors have strong feelings of confidence and trust in government and authority figures, they are also well-attuned to obeying jury instructions and rules of liability and are relatively un-emotional and unsympathetic.

Even better (for defendants), conventional jurors are suckers for the common defense theme of following policy and procedure. In mock jury deliberations, I have on many occasions seen conventional jurors admit that a corporate defendant’s policies were flawed or harmful but refuse to find against that defendant as long as it followed its OWN policies and procedures. As illogical as that stance may be, you must never underestimate a conventional juror’s fixation on rules, polices, and procedures.

February 2007: THE ANALYTICAL JUROR

Wed, 28 Jan 2009 19:04:30 -0800

In months past we have covered sympathetic and practical jurors, polar opposites on the spectrum of sensitivity and emotion. This month, let’s discuss the most thoughtful and intellectual personality type: the analytical personality.

Analytical personalities are calculating, logical, and curious intellects. They like to learn new things, discover how things work, and solve problems. Unlike conventional personalities (their polar opposite that we’ll discuss next month), they don’t like to be spoon-fed the truth; instead, they love to investigate complex problems and find the answers for themselves. Never content to follow hunches, make assumptions, or view the world simplistically, analytical people actually enjoy delving into challenging problems and finding complex solutions.

As jurors, analytical personalities are primarily concerned with determining liability and calculating appropriate damages by carefully and objectively analyzing the evidence and the opinions of experts, as long as they support their opinions well. Unlike sympathetic jurors, analytical personalities are able to divorce their emotions from their analysis of liability, although many do have sympathy. Unlike practical jurors, analytical jurors are able to divorce misgivings about a plaintiff’s perceived whining, malingering, or hyper-sensitivity from their analysis as well, and don’t hold a plaintiff’s personality or demeanor against them.

Truth be told, analytical jurors are the most purely objective jurors available in any jury panel. They tend to be reasonable in balancing fault and responsibility without pre-judging the litigants, rarely let emotions or the personality of the litigants interfere with their judgment, and focus heavily on the evidence and experts in trial. They are the least likely to let predispositions influence their decision-making because they are so interested in analyzing the evidence that they usually withhold making judgments about credibility during opening statements.

In fact, personal credibility--the credibility impressions that jurors form based on the personality and demeanor of the litigants and attorneys, as well as juror feelings about what the litigant represents as an insurance company, auto accident victim, or whatever--is relatively less critical to analytical jurors. Many jurors, especially conventional and practical jurors, are more comfortable viewing the world in simplistic, right or wrong terms; these jurors find it important to make quick assessments about right and wrong, which litigant to trust and which is dishonest. This view of the world motivates jurors to take shortcuts in assessing liability in trial. On the other hand, analytical jurors are quite comfortable with ambiguous fault and causation, blurred lines between right and wrong, complicated answers to complex problems, and prefer seeking their own answers rather than being told by an authoritative source.

Analytical jurors will usually side with the party that best explains and supports its position with thoughtful reasoning and compelling evidence. If your side has the upper hand in the science, details, and common sense, you will want analytical jurors on your panel. If you need your jurors to pay attention to the technical, complicated, and mind-numbingly boring issues and explanations in your case, you will want analytical jurors on your panel to understand and explain those complexities to the rest of the jury. No emotional content or plea to a greater cause is needed to sway an analytical juror; preponderance of the evidence is plenty.

In identifying analytical personalities, search for jurors who have chosen jobs that involve investigative, intellectual, and problem-solving work. Critical thinkers, scientists, researchers, lab technicians, investigators, journalists, computers, economists, engineers, surgeons and doctors, professors, architects, consultants, do-it-yourselfers, avid non-fiction readers, and people who watch the discovery channel and Jeopardy are likely analytical personalities. During voir dire, ask your jurors how they approach specific types of situations--the closer to the situation at hand in trial the better--and look for those who demonstrate a logical, analytical approach. Analytical personalities will almost always have a well-reasoned, uniquely methodical approach to problem-solving. A juror who decides how much to sell her home for by finding the average sale price per square foot of all 3-bedroom, 2-story houses within a 5 mile radius (and then has a separate methodology for determining the additional value of her pool) is surely analytical; in contrast, a conventional juror would probably rely on their real estate agent’s recommended sale price, and a persuasive juror would probably choose the most aggressive sale price and expect to negotiate down.

One key to identifying analytical jurors--and in dealing with them during trial--is to understand that most analytical personalities have a great breadth and depth of knowledge and expertise. NEVER assume that an analytical juror’s knowledge and expertise is limited to their own field of work; most analytical jurors have a deep understanding of engineering, finance, construction, the medical field, real estate, and how cars and machines work. In short, analytical jurors are well versed in just about every issue that trials involve, and you need to be aware that any analytical jurors on your panel are likely to become influential ‘expert jurors’ in the deliberation room. Be sure to find out what your analytical jurors know--and what their understanding is--about the issues involved in your case, because sometimes they can mislead the rest of the jury panel with bad information they think is right.

Despite my plea in last month’s jury tip to simplify your language and messages in trial, analytical personalities are the one type of juror that will NOT want you to leave out the technical words or dumb down your explanations. The same lesson applies to your expert witnesses’ communication style; while most jurors are more receptive to experts who speak clearly and in lay terms, analytical jurors are the type best able to understand the technical content. While most jurors determine how credible an expert is based on how honest, intelligent, and authoritative he/she is, analytical jurors alone look past superficial traits and require experts to support their opinions and conclusions with careful analysis and evidence. However, it never hurts to keep your trial themes simple and clear; even the most analytical of jurors can lose sight of your message unless reminded.

If you are representing the side whose evidence is stronger but whose emotional themes are weaker, if your case relies on boring, complicated technical issues, and if you are concerned that the opposing side might distract the jury with insubstantial, tangential issues, you will want to rely on analytical jurors to remain focused on the evidence. Although not the most persuasive and well-spoken jurors, analytical jurors are useful in bringing other jurors back to the facts.

If you are representing a defendant against a plaintiff attorney armed with strong emotions, an incredibly sympathetic client, but weak or circumstantial evidence of liability, causation, or damages, analytical jurors are incredibly adept at deflating the emotion on a jury panel and focusing jurors on the evidence. If you are defending a case against a plaintiff who was partially at fault, your analytical jurors are the best suited to understanding and assigning comparative negligence.

January 2007: WINNING COMMUNICATION STRATEGIES ARE SIMPLE

Wed, 28 Jan 2009 18:59:01 -0800

Pardon me for interrupting our series of juror personality types--I promise to return to the third personality type, the Analytical Juror, next month--with a discussion of communication strategies for those attorneys striving to be more persuasive.

Among many of the mistakes I see attorneys make--and, yes, even the best attorneys make mistakes in this challenging profession--one of the simplest mistakes to correct is the use of large, complex, impersonal, technical words--and concepts--in opening statements. As I’ve stressed so many times before, the goal of your opening statement should be to clearly communicate your persuasive themes and for your jurors to be left with a clear understanding of what the case is about, in your terms. Winning in trial is as easy as selecting a jury panel predisposed to agree with your case’s view of the world--by deselecting those predisposed to disagree with it--and then playing to those predispositions in your opening statement.

Repeat after me: I will not use large, complex, or technical words when speaking to my jurors, especially in my opening statement.

Nor should you get into overly complex, technical, boring explanations. Not only do jurors become confused, bored, and tune you out when you do, but technical jargon strips your arguments of the personal connections necessary to be persuasive. Even if a juror knows what a subdural hematoma is--and many do not--use of technical jargon makes jurors think of impersonal medical charts and x-rays, not the pain and horror of a serious injury and its impact on the victim. Fight the temptation to talk about intellectual property, post-traumatic stress disorder, and breaches of implied covenant; instead, talk about stealing ideas, depression, or breaking one’s word. Jurors don’t get as angry at corporate defendants who made intentionally fraudulent omissions on their operating statement as they do at companies who lie about their profits and losses on purpose to trick someone. Big words don’t impress your jurors; they allow jurors to put emotional distance between themselves and the case at hand.

If you must use technical words or get into explanations of complex issues, be sure to step back and "translate" what you have said frequently and patiently. If you are forced to read from a dry insurance policy, business contract, vehicle code or legal citation, immediately step back, pause, and tell jurors "what this means is that Mr. Johnson had to maintain the plumbing system in his house for his policy to cover water damage." Oftentimes you may become comfortable and familiar with technical jargon simply because you have spent time working with expert witnesses and have had the luxury of absorbing complex information, but never lose sight of the fact that jurors do not have this luxury; most jurors lack the ability to understand complex medical, financial, scientific, or technical issues. And even if they understand, simple, everyday language helps your case hit home with jurors.

Even jury consultants and experienced trial attorneys with different perspectives seem to agree that simple, clear language works best in the persuasion of jurors. David Ball tells plaintiff attorneys not only to use simple language in describing injuries but also to touch those parts on their own bodies while discussing them to help jurors personalize those injuries. Gerry Spence and proponents of "psychodrama" advise plaintiff attorneys to imagine what it would be like to be in their clients’ shoes so that they can better understand and communicate their injuries and quality of life to jurors. I wholeheartedly agree with both approaches; one of the most critical ingredients in persuading jurors is to help them to relate to your client and personalize the situation that they are in, and big, impersonal words are a roadblock to personalization.

The same goes for lengthy explanations of dry, complicated issues--they may be necessary, but they bore and confuse jurors, and often distract them from the important ideas and principles jurors should be focused on. While it may be necessary to explain the complex, yawn-inducing details of how a salesperson’s commission is properly calculated, the clauses and exemptions in an insurance policy, or the standards of due diligence in the real estate or construction industry, be sure to step back and "translate" the complexities into simpler terms. More importantly, be sure to step back frequently to provide a clear context and remind jurors why all these details are relevant to your case themes, and to remind them what those broad themes are. Telling jurors why the details are important only once is not enough; reinforcing your themes as often as possible helps jurors to understand your message and to better organize trial information.

The point that I cannot stress enough is that jurors need to be focused on your broad themes and principles, not on the minutiae of your case, especially during your opening statement. If your primary theme in defending an employer against a discriminatory failure to promote suit is that Mrs. Gonzalez didn’t deserve a promotion, why are you spending two days of court time--or worse, two minutes of your opening statement--talking about the present value of stock options? Don’t feel the need to address and rebut every plaintiff argument, especially if it leads your jurors away from your themes and into the quicksand of boring, complex issues that may not be necessary. If you spend valuable time in your opening statement discussing the interactive chemistry of two pharmaceuticals in your wrongful death medical malpractice suit, your jurors will lose sight of the tragedy and emotional harm that your clients have suffered.

Spend as little time on tangential or complex case issues that distract jurors from your main message as you can, use simple words that help your jurors relate to you and your case, simple explanations that jurors can relate to and understand. Not only will jurors better understand and relate to your case, they will be more likely to trust you as a straight-shooter and not view you as the shifty, silver-tongued lawyer that cynical jurors are wary of.

December 2006: THE PRACTICAL JUROR

Wed, 28 Jan 2009 19:36:37 -0800

Last month we discussed the sympathetic juror. Now let’s discuss the personality type most diametrically opposite to the sympathetic juror: the practical personality.

Practical personalities are realists that lack the hyper-sensitivity of sympathetic people and tend to deal with situations pragmatically and without emotion. Practical personalities value hard work, common sense, and accomplishment. They don’t like to waste a lot of effort and energy in daydreaming, complaining, or feeling feelings. Practical people never cry over spilled milk, make lemonade when life gives them lemons, and get going toughly when the going gets tough.

As jurors, practical personalities are primarily concerned with fairness, justice, and restitution. In a recent trial in which I was selecting a jury, the judge instructed jurors to be "from Missouri" and instructed them to be "show me" jurors; in other words, to avoid being influenced by assumptions and focus on the evidence. In reality, practical jurors are the only pure "show me" jurors. To win over a practical juror, a plaintiff needs to show tangible causation and injury.

Practical jurors will only award a plaintiff money if there is clear causation, if damage numbers are clearly explained and calculatable, and if there is a clear purpose to the damages. Practical jurors view damages as restitution and nothing more; if Mr. Jones totals Mrs. Smith’s car, he buys her an equal replacement and nothing more. As a result, practical jurors are very comfortable with most economic damages, such as medical bills, lost earnings, and property damage. Causation is often straightforward, and there is relatively little gray area in calculating economic damages.

On the other hand, practical jurors are very uncomfortable with non-economic damages. Feelings, emotions, quality of life, and vague ideas like consortium have little value to practical jurors. They see little reason to award money to plaintiffs for hurt feelings when that money serves no tangible purpose and cannot make hurt feelings go away. I have often heard practical jurors--in mock deliberations and in voir dire--insist that plaintiffs who can no longer enjoy favorite activities because of a disability should find a new hobby instead of asking for money. Practical personalities deal with hardships and trauma by being tough and making the best of the situation, and they expect plaintiffs to do the same. They tend to view plaintiffs as whiny and malingering if they complain about pain or cannot work, and they don’t like to reward whining with money.

In identifying practical jurors, search for jurors who have chosen jobs that involve hands-on and constructive work. Blue-collar, manual, and skilled laborers, truck drivers, technical tradesmen, farmers, firefighters, auto mechanics, physical therapists, pilots, military forces, and athletes are likely practical personalities. Most rural venues are dominated by practical jurors. Apart from their jobs, practical jurors are the "tough-it-out," types who are insensitive to trauma and hardships, who keep working through pain and illness, who rarely see their doctor, and who downplay difficult experiences in voir dire that you might expect to be traumatic to the average person.

If you are representing a plaintiff with clear, obvious injuries and causation, practical jurors will be more than willing to find for your client. If your plaintiff is tough-spirited and is trying his/her best to deal with injuries, keep working, and make the best of a bad situation, they may very well admire your client. If your plaintiff is asking for non-economic damages, it will be hard to get much from practical jurors, unless you can clearly demonstrate the need and usefulness of such an award. If your plaintiff used to enjoy teaching his daughters to ride horses, practical jurors may be willing to pay for a professional riding instructor, for example.

If you are representing a defendant in a case with murky causation, or a plaintiff whose injuries are difficult to see or assess, practical jurors will be among your strongest skeptics. If you are defending a case against a plaintiff with any hint of malingering, weakness, or unsupported claims for damage, your practical jurors will be the most likely to dismiss the plaintiff’s case as frivolous.

Understanding your jurors’ core values and personality types is essential to understanding each juror’s underlying motivations for making decisions in trial. Although it is important to appeal to the unique values and characteristics of each personality type in your trial presentation, it is nearly impossible to deliver a presentation that appeals to all six personality types, simultaneously. Adjust your presentation strategy only if you find yourself with a panel dominated by jurors of the same personality type, or in a particularly homogenous venue--such as a rural, conservative venue where "practical" jurors abound. Much more effective is to carefully and honestly consider the strengths and weaknesses of your case, and adjust your jury selection accordingly.

November 2006: THE SYMPATHETIC JUROR

Wed, 28 Jan 2009 19:39:22 -0800

For the next few months, let’s discuss each in detail.

Sympathetic personalities are "people persons" that value the welfare of others above all else. Sympathetic people are primarily motivated by caring, nurturing, and helping others, and as jurors, sympathetic personalities are primarily concerned with protecting and healing victims of harm. To win over a sympathetic juror, a plaintiff’s attorney often needs only to get the juror emotionally invested in his/her client.

Not surprisingly, sympathetic jurors are overwhelmingly pro-plaintiff in most cases, and many attorneys have learned to recognize schoolteachers and social workers as the most obvious pro-plaintiff jurors on a panel. For sympathetic jurors, focusing on how they can help someone in need is primary; assigning blame for why someone is in need is very much secondary. A volunteer at a homeless shelter or a good Samaritan is driven by an instinct to care for others, not judge whether the homeless person is lazy or whether someone with a flat tire is at fault for his predicament.

Sympathetic jurors are highly emotional and feelings-based. This trait produces two curious results. First, sympathetic jurors tend to be less concerned with logic and, as a result, may often overlook or ignore the evidence, the experts, jury instructions, and even the rules of liability. Second, sympathetic jurors are highly sensitive and receptive to awarding non-economic damages. Sympathetic jurors are highly in tune with their feelings, they place a high premium on feelings and emotions, and they are very comfortable awarding high numbers for "feelings-based" damages such as pain and suffering, emotional distress, loss of consortium, etc.

I have seen sympathetic jurors willfully reject the rules of liability and find for the plaintiff even when they know that the defendant wasn’t directly responsible, simply to help a plaintiff in need. Sympathetic jurors are always the highest-damage jurors; I have seen sympathetic jurors award far in excess of the plaintiff’s demand, especially if they are concerned for the well-being of an injured plaintiff.

If there is a silver lining for defense attorneys, it is this: sympathetic jurors tend to be weak at influencing others in deliberations. Their arguments are highly emotional and tend to lack the substance that other personality types are persuaded by; they express their feelings by saying things like, "I feel terrible for Mr. Smith" but focus little on the responsibility and liability of the defendant.

As with every personality type, the best way to identify sympathetic jurors is to learn about what they choose to do with their time, and why. Search for jurors who have chosen jobs that involve interacting with people, especially in cooperative and nurturing roles. Schoolteachers (but not college professors), social workers, pediatricians, therapists, counselors, caregivers, and those who work or volunteer in charitable agencies, community service organizations, or non-profits are likely sympathetic personalities. Jurors who seem overly emotional or sensitive to the plight of others fit in this category.

If you are representing a sympathetic plaintiff, sympathetic jurors will be among your best jurors. If your case is relatively weak on the evidence and details but stronger on themes and emotions (i.e. your opening statement is powerful but your details fall short), sympathetic jurors are your best bet; they tend to gloss over the nitty-gritty details and be sold on overarching themes and principles. If your plaintiff’s case relies heavily on non-economic damages, you will need sympathetic jurors on your panel.

October 2006: ASK QUESTIONS YOUR JURORS CAN ANSWER

Wed, 28 Jan 2009 19:43:06 -0800

One of the many crucial ingredients of a well-planned voir dire--and an element that so many attorneys ignore--is a heavy dose of pragmatism. Voir dire never plays out as ideally in the courtroom as it does on paper, and every attorney needs to plan for these unexpected obstacles. Sometimes the judge will give you 10% of the time you will need to ask all of your questions, and try as you might, you find yourself cut off without having covered critical case issues or heard from several jurors on the panel. Sometimes the judge will object to an entire area of questioning that you need to know, and try as you might, you can’t quite phrase the questioning innocently enough to satisfy the judge’s objections. Sometimes your jurors will be unexpectedly silent, unexpectedly un-opinionated, or unexpectedly hostile, or perhaps you’ll have a blabbermouth on your panel that monopolizes your limited voir dire time and prevents others from talking.

You must be prepared to deal with every one of these situations by planning your voir dire realistically, not ideally. For example, you may have a list of 50 essential questions to ask, but know which 5-10 are absolutely essential. There are thousands of lessons I could apply this critical principle to, but this month I am going to focus on how to select voir dire questions that avoid judicial objections and that uncover opinions and biases from your entire panel, not just a select few jurors.

In an ideal voir dire, you need to know what your jurors would have done in the same situation as the litigants, or what your jurors have done in similar situations. As I’ve emphasized in prior jury tips, jurors agree with litigants who think and act and react to situations the same way that they would. When a juror identifies with a litigant ("that could have been me!"), the juror will almost certainly hold that litigant blameless for their actions or their condition. When a juror disagrees with a litigant’s actions, the juror will almost certainly hold that defendant responsible for their actions or that plaintiff responsible for their injuries, with or without sympathy.

In an ideal voir dire, you could ask your jurors how they have dealt with a situation similar or identical to the one involved in trial. Has anyone here ever been in a head-on traffic collision? Has anyone here ever been the victim of discrimination in the workplace? Has anyone here ever been treated for primary sclerosing cholangitis? In an ideal voir dire, several hands go up. In reality, most cases involve situations that most of your jurors have never been in, and zero hands go up. We want to know about the similar situations our jurors have been in—how they responded to the situation, which side they are likely to identify with, the actions they took and their thought processes, how they dealt with the situation and the aftermath, if they have any lingering opinions, feelings, or injuries from the situation, and what they learned from the experience.

Unfortunately, our case issues are far too specific and uncommon, and our questions are useless. This is where pragmatism comes in.

In most cases, it is far more fruitful to cast a wider net by asking questions about parallel situations that most jurors will have dealt with. Instead of expecting jurors to have been though a side-impact collision between a motorcycle and a bus, ask them whether they have suffered serious injury in any type of accident. The way your jurors reacted to avoid an accident, or the way they dealt with a serious injury, will give you direct insight into how they would approach the issues at hand in trial.

Some cases make it more challenging to devise parallel situations on which to base voir dire. For example, probably only half of your jurors have purchased a new or used home. Even fewer have purchased a complicated asset like a commercial property, a business, or a parcel of land. This makes it challenging to understand how your jurors will view a business litigation trial involving fraud, or valuation, or issues of due diligence, but not impossible. Be creative in thinking of a widely-experienced, parallel situation that forces jurors to deal with issues of due diligence, valuation, selling and buying, or whatever issues are at the heart of your trial.

I have found it incredibly insightful to discuss buying a used car with jurors in these situations. Almost every juror has bought a used car, but there is a wide variety to how jurors approach the buying (or selling) process. How thoroughly does the juror inspect the car? Do they take the car to a mechanic before buying? Do they do a title search? Ask for maintenance records? Research the blue book value or consumer reports? Do they even take a test drive? Or are they willing to accept only the seller’s word, or perhaps rely solely on a warranty? What do you expect the seller to provide to you or tell you without you having to ask for it? These answers will tell you much of what you need to know about how your jurors will view the actions and responsibilities of plaintiffs and defendants in business fraud cases.

Selecting a parallel situation helps you to avoid judicial objections by steering clear of case specifics. Many judges are acutely sensitive to any attempt to try your case in voir dire and will probably lecture you if you ask for general opinions on direct case issues. This is not to say that you should avoid asking questions about case-specific experiences. Some cases involve common experiences that several jurors may have dealt with. And you should never miss the rare jurors on your panel that may have had an identical experience or familiarity with your case issues. Always ask if anyone has had the specific experiences involved in the case, but don’t expect to find much, and move on quickly.

In selecting appropriate parallel situations with which to probe your jurors, be creative. Select situations that force jurors to rely on the same decision-making processes, values, and instincts that they would in the situation at trial. How thorough and how trusting a juror is in purchasing a used car reveals much about how a juror would approach purchasing any asset. How carefully and defensively a juror drives reveals much about how that juror believes he/she would react to a potential collision. In criminal cases, I find that asking jurors how they feel about fighting terrorism--"is it better to lock up a few potentially innocent people in Guantanamo to make the world safer or better to release a few potentially guilty people whose guilt we cannot yet prove to protect individual rights?"--strongly applies to how jurors view our criminal justice system and reasonable doubt.

When you write voir dire questions for your next trial, think about more than the ideal answers that you’d like to hear. Think also about how likely you are to uncover useful answers to your questions, and be sure to include questions that are likely to produce useful responses from most of your panel. Never miss a juror during voir dire, because the silent jurors are no less likely to be biased than the talkative ones, but they are more likely to wind up on the seated jury if you don’t give them an opportunity to voice their opinions.

September 2006: EXPOSITION DURING VOIR DIRE

Wed, 28 Jan 2009 19:45:42 -0800

Voir dire is not only about uncovering bias and learning about your jurors; it is also your jurors’ first opportunity to learn about your case. In previous jury tips, I have often stressed how critical the jurors’ first impressions of your case are, how quickly jurors build a framework of your case, and how influential this framework is in shaping how they view the evidence and their verdict decisions.

In those tips I have emphasized that 80-90% of jurors are closed to persuasion and locked into their verdicts by the end of opening statements. Keep in mind, however, that your opening statement is not your first opportunity to begin persuading jurors. A properly done voir dire can guide jurors to frame the case in your terms, make them more receptive to your themes, and highlight aspects of the case that will give your strengths added importance in their minds throughout trial. All of this can be done without arguing a position, discussing case information directly, or even using direct pre-conditioning techniques, using a subtle persuasive technique called exposition.

The principle of exposition, as it applies to voir dire, is to let jurors know what the case is about through the topics and phrasing of the voir dire questions themselves. In a theatrical or literary context, exposition is a narrative device used at the beginning of a play, story, or film to give the audience necessary background information and introduce them to the characters, the conflict, and the plot. Keep in mind that you are telling a story during voir dire, and consider how clearly that story is coming through.

In a case about a car accident, a voir dire session revolving around questions about occupations, hobbies, former jury experience, feelings about lawsuits and damages, and opinions about vague principles and values presents jurors with a confusing, disjointed story that leaves them confused about what your case is about. Failing to use exposition wastes a golden opportunity to guide your jurors in building their framework about what the case is about and, more importantly, to persuade them about what is important.

Spend time thinking about not only the topics that you want the jury to focus on, but also about the order of your voir dire questions. The order of the topics you bring up should mirror your introduction of topics, evidence, and themes in your opening statement. For example, a strong expository voir dire in a breach of contract case might begin with questions about experiences with business deals and contracts, delve into experiences and feelings about broken contracts, highlight evidence by asking the jurors if they have ever been involved in dispute with a vendor who refused to remedy faulty products or services, and move into questions about lost revenues, business valuations, and damages. By the end of voir dire, your jurors should know what the case is about, what the defendant or plaintiff did wrong, how the plaintiff was harmed (or was not), and how damages should be defined.

With each question you ask, think about more than the answers your jurors give you; think also about the message that each question sends to the jury. Each question implicitly tells your jurors that the topic of the question is an important topic in the trial, and may tell them even more than that. Questions may give jurors information about the actions of the litigants, and may even give jurors the impression that you are concerned or nervous about certain topics. Lingering too long on a topic, no matter how important (plaintiff attorneys, this often includes feelings about frivolous lawsuits and tort reform), sends the message to many jurors that you are overly concerned and nervous about the topic and is a red flag to many that this reveals a weakness in your case.

When listening to your questions, jurors will assume that the situations your questions present are identical to those involved in the case, so make sure to highlight your strongest evidence, your client’s strongest conduct, and the opposing litigant’s worst actions in your questions. Defense attorneys, ask your jurors how they feel about an employee who takes 38 unrelated sick days off from work in a year, or how they feel about a plaintiff in an employment lawsuit who applies for only 3 jobs in a year without success and remains unemployed for 18 months. Plaintiff attorneys, ask your jurors if their employer has ever passed them up for promotion in favor of a less-qualified employee of a different race or gender, if their doctor has ever failed to respond to an emergency phone call, or if their contractor has ever gone over budget on their home improvement project without providing adequate justification. These questions not only uncover potential biasing experiences and opinions, they also give the jurors a strong, persuasive sense of what your case is about.

Exposition during voir dire takes a great deal of care and thought, especially when your primary goal is to learn about your jurors and uncover biases. If properly done, jurors will be far more receptive to your matching opening statement and your trial themes, and will be far more likely to view the case in your terms throughout trial.

August 2006: HEALTHY SKEPTICISM IN OPENING STATEMENTS

Wed, 28 Jan 2009 19:47:24 -0800

The notion of the "frivolous lawsuit" has saturated jury pools across the country and has a tangible influence in every jury trial nationwide. No doubt every plaintiff attorney that has had the pleasure of going to trial in the past few years has had to squirm and suffer through at least a few complaints on every jury panel about frivolous lawsuits, outrageous damage awards, and the harmful effects on our economy and our society of each. In my own experience picking juries across the country, I have heard at least one juror on every panel mention the infamous McDonalds coffee case in each of my last ten trials.

By the same token, anger against corporations, attorneys in general, and those who dodge responsibility generate plenty of juror distrust against defendants and defense attorneys. Both sides now begin trial in the unenviable position of having to overcome healthy doses of juror skepticism and doubt, and every attorney faces an uphill battle just to establish credibility, which is the biggest ingredient of success in trial.

From the first moment you open your mouth, jurors begin actively and acutely scrutinizing you, your client, and your case. Their antennae are sensitively attuned to evidence of "frivolous lawsuit" content from plaintiffs and dishonesty and responsibility-dodging from the defense, and even the slightest hint of a red flag is enough to reinforce their skepticism and destroy your credibility. Even worse, the window of opportunity to persuade even the fairest of jurors that your lawsuit is different is very short, rarely lasting beyond opening statements. Establishing credibility among the jurors needs to be done quickly and thoughtfully.

Now to the hard part; how can you steer around the minefield of red flags in the jury panel, defuse suspicions of dishonesty and convince twelve skeptical jurors that your lawsuit or defense has merit? The answer begins with immediately establishing your own credibility in opening statements.

It’s easier to say than do, but it bears repeating; if your jurors trust you, they will trust your client and your case. This is a crucial point, because too many attorneys try to establish credibility backwards, which never works. Never assume that your jurors will learn to trust you and your client AFTER they objectively look at facts and evidence that you believe are in your favor. If you give jurors a reason to trust you, they will have a compelling reason to trust your facts and evidence.

Think about how a salesperson gains your trust. Do you trust the salesperson who tries to challenge your beliefs and convince you that you should buy something different than you were planning to buy? Of course not. In the same way, NEVER challenge a juror’s prior beliefs. Persuasive attorneys work around biases, and convince jurors that their case is different from those that a juror should be skeptical of.

Do you trust the salesperson who tells you that their product is the best on the market? Probably not, especially if you had prior doubts about their product. This is the problem with taking a strong, stridently confidant position about your case from the start of opening statements. Jurors expect that dishonest lawyers will say anything to sell their case, regardless of its merits.

Do you trust the salesperson who tells you about all the problems with the product they are selling and voices all of your doubts and concerns? The answer is usually yes. The best salesperson is the one who gives customers a reason to trust him/her by demonstrating that he/she has your best interests at heart.

The key to establishing credibility and delivering a persuasive opening statement is to approach the jury and begin trial in the frame of mind that you were in when you first met your client. Be the open-minded, objective, skeptical person you were when you were unsure whether to take the case, not the confidant, closed-minded lawyer you have become learning about the case and preparing for trial. Take the jurors through your skepticisms, doubts, and reservations. Say them out loud, because these are the same skepticisms, doubts, and reservations that your jurors will be thinking about at that moment. Share with them the questions you asked and the answers you needed to know to determine whether the case was legitimate, or worth defending. What did YOU need to know to determine if the case had merit? Your jurors probably have the same questions, and voicing your questions show the jurors that you were focused on seeking the truth, not building a smokescreen.

Give the jurors examples of things that, had you found them, would have convinced you NOT to take the case. Tell the jurors things that, had you found them, would have made you drop certain claims or damage requests, or concede liability or causation (or perhaps settle the case entirely). For example, "had I found that Mr. Martinez was being lazy about searching for a new job, I wouldn’t be asking for lost wages." Or perhaps "had human resources suspended the defendant or allowed Ms. Johnson to transfer to a different location, I wouldn’t be suing the company for this sexual harassment as well." Build additional credibility by admitting all your weaknesses, and give the jurors your honest opinion about why (in your mind) your strengths outweigh those weaknesses. Even better, tell the jurors about all the damages that you are NOT asking for (or conceding), and why. Show the jurors that you are being reasonable instead of greedy, because skeptical jurors assume that frivolous lawsuits don’t leave any claims and damages out, and that dishonest defenses deny any and all liability and causation.

Showing the jurors how you were transformed from a skeptic into a believer addresses their doubts and concerns and leads them down the path toward your conclusion. Only once you have shown the jurors how you reached your conclusions can you begin to take the position of your client’s advocate. The opening statements that most of you give probably form a terrific second half of a perfect opening statement; simply withhold advocacy until you establish credibility and explain away your jurors’ doubts.

July 2006: THE SENSITIVITY SCALE AND DAMAGES

Wed, 28 Jan 2009 19:49:56 -0800

Distinguishing between high-damage and low-damage jurors, especially in the gray area of non-economic damages, is often best achieved by understanding that juror’s emotional reaction and practical response to trauma. No doubt you have noticed that some jurors are sensitive and expressive about difficult situations they discuss during voir dire--injuries, illnesses, emotional or financial difficulties of their own or of others--while some jurors seem to shrug off equally traumatic situations without a hint of emotion or concern. What you may not realize is that these differences are usually your best glimpse into your jurors’ attitudes toward damages.

Some attorneys mistakenly believe that harmful, traumatic experiences (especially those similar to those suffered by the plaintiff) predispose jurors to identify with the plaintiff and emotionally invest in high damage awards. They are only half right. What matters is not the experience itself, but rather the juror’s own feelings about the experience--an experience is only traumatic if the individual feels traumatized. Never assume that the juror was traumatized by a difficult, harmful experience, no matter how horrific it might seem to you. Some jurors are deeply traumatized by the most trivial of experiences, and some jurors are completely unfazed after being slammed into by a drunk driver and watching their young child sit through hours of brain surgery in critical condition. What matters is how that juror feels about the experience, which has less to do with the experience itself and more to do with the underlying personality type of the juror.

Any time I evaluate a potential juror and his/her likely response to damages in trial, I am most interested in fitting them into something I call a "sensitivity scale." That is, I want to know how sensitive they are to difficult experiences and trauma. My sensitivity scale starts with the acutely sensitive on the high end--jurors who are intensely emotional, who express sadness, anger, or sympathy on their face during voir dire (especially when another juror is sharing a difficult story), who complain about their own lives and who talk about how incredibly traumatic and distressing and painful it was for them when they were reprimanded at work or their 19 year-old son had the flu. When discussing a more serious or catastrophic experience, their responses are off the charts. These jurors are highly in tune with their emotions, sensitive to the physical and emotional plights of themselves and others, and place a high premium on a person’s well-being. They will assume that others are just as sensitive as they are.

At the far opposite end of my sensitivity scale are the insensitive, acutely practical jurors. Depending on how I look at it, I sometimes call this spectrum my "practicality scale." These jurors put practicality far above emotion and rarely, if ever, feel traumatized or affected by their experiences--and more importantly, the experiences of others. These are the jurors who shrug off harmful situations, who can talk about their mother’s Alzheimer’s or their broken back with only a few words and a smile on their face as if it was nothing, and who focus on how they dealt with situations rather than emotions. "Deal with it," "things happen," and "get over it" are mottos that practical jurors live by. These jurors place a minimal premium on feelings and, even if they have sympathy and compassion for others, they are firmly against indulging misfortune with money. They simply assume that others are just as tough-minded and practical as they are, or insist that others should be.

Plenty of jurors fall between the two extremes on the spectrum of the sensitivity scale, but you may be surprised how few fall close to the middle. Dealing with difficult situations and trauma is a polarizing experience, and the vast majority of jurors are not difficult to evaluate if you ask the right questions and listen carefully. First uncover relevant experiences on your jury panel, the closer to the plaintiff’s situation the better. But never stop there; be sure to follow up with questions that probe their responses. What was that like? How did it make you feel? How did it impact your/his/her/their life? How difficult was it for you/them to live with and deal with? How much did it bother you? How did you deal with it?

This technique, although best applied in trials that involve a non-economic damage component, is effective in any type of case with any type of damages. Ask jurors how they felt about an injury (perhaps a car accident), an illness (perhaps a medical malpractice, failure to diagnose or treat), wrongful death (dealing with the loss of a loved one), job difficulty (perhaps a disability, mistreatment, discrimination, firing), financial difficulty (perhaps related to fraud or business litigation), depression or anxiety (nearly any case), or problem with their home (perhaps a construction defect).

The more emotional the juror is in discussing the experience, the more the juror seems to have been impacted or upset, and the more the juror complains or expresses difficulty with the situation, the higher on the sensitivity scale they fall and the higher their damage interpretation is likely to be in trial, liability aside. The less emotional the juror is in discussing a normally-traumatic situation, the more the juror seems to shrug off and downplay difficult experiences, and the more the juror shifts the emphasis toward dealing with loss in a practical way (I’ve heard many jurors argue against damages for lost enjoyment of life on the basis that the plaintiff could easily replace a lost hobby--the ability to walk, for example--with another alternative), the lower on the sensitivity scale they fall and the lower their damages will likely be in trial.

Next time you uncover a normally-traumatic experience on your jury panel, don’t make assumptions--follow up and listen carefully to how your juror felt about the experience. Don’t focus solely on evaluating jurors based on liability concerns when damages are supreme, and don’t underestimate the vast influence of sensitivity on damages.

June 2006: ALL LITIGANT ACTIONS SHAPE LIABILITY

Wed, 28 Jan 2009 19:52:18 -0800

Never forget that the audience of your persuasion is the jury, not the judge, opposing counsel, yourself, or the rules of law. What matters to your jurors--no matter how foolish, tangential, or irrelevant--is the only thing that matters to you, because it is their point of view that shapes verdicts. There are thousands of lessons I could apply this critical principle to, but this month I am going to focus on how to handle the post-injury, post-liability conduct of the litigants in trial.

Many attorneys with whom I work insist on focusing too narrowly on the events and issues surrounding liability at trial while ignoring what the plaintiff and, more importantly, what the defendant did following the act of liability and the plaintiff’s initial injury. Sometimes defendants, at fault or not, do wonderful, benevolent things after the plaintiff has been injured. Many times, defendants do horrible, insensitive, and damaging things following the moment of liability. There are times when the plaintiffs themselves do foolish, lazy, and negligent things following their own injury that make their injury worse or that slow their ability to recover, and these actions are not always relevant to claims of contributory negligence. Often attorneys with whom I work insist that what follows the act of liability is not relevant to the jury’s assessment of liability and that emphasizing post-liability conduct will only distract the jurors from what they should be focused on.

Why does it matter if the supermarket manager in a slip-and-fall case called 9-1-1 or went back to re-stocking shelves after the plaintiff cracked her back after slipping on a grape? It has no relevance to the issue of the supermarket’s liability, and don’t we want the jurors focusing entirely on the cleanliness of the floor in the produce section and the supermarket’s floor-cleaning policy? As much as the law and jury instructions intend to keep jurors logical, the reality is that the actions of the litigants matter immensely to the jury, and influence their decision-making in four distinct ways.

First, what the litigants do after liability gives jurors a glimpse into the character and motivations of the defendant or plaintiff. As backwards as it may seem, jurors use these impressions of character to retroactively make assumptions about the litigants’ motivations and to influence decisions about liability. For example, who a manager hires to replace a fired plaintiff in an employment discrimination case may not be relevant to the issue of liability, but his decision to replace the African-American female with the MBA with a white male with an undergraduate degree casts shadows onto his motivation for the initial termination of the plaintiff in the eyes of the jury.

Second, what the litigants do after liability is often viewed by jurors as a second opportunity to correct an initial, potentially excusable, mistake. If done without malice or intent, defendant negligence is often excused by jurors. Too many plaintiff attorneys make the mistake of expecting jurors to set aside intent and motivation in punishing negligence that causes harm. Both sides need to realize that it is often difficult for jurors to punish defendants for actions interpreted as honest mistakes. The actions taken by the defendant after the plaintiff’s injury are often the litmus test used by jurors to distinguish between honest, well-intentioned mistakes and hurtful negligence. A doctor who makes a mistake in surgery but runs an exhaustive battery of tests, does everything in her power to correct the injury, and closely monitors the patient’s condition is a difficult target for a medical malpractice jury; a doctor who makes a mistake, leaves the clean-up to the hospital staff, doesn’t check on the patient again until the next morning, and hides behind the "standard of care" runs the risk of having his lazy in-actions interpreted as further proof of lazy negligence by the jury in trial.

The third effect of how the litigants’ actions influence juror decision-making, as pointed out by trial consultant David Ball in his influential book On Damages, is that in many cases the actions or in-actions of the defendant following the plaintiffs injury has a direct effect on the extent of injury and damages, if not liability. At fault or not, a defendant who stalls in calling for medical help may worsen the injury and prevent treatment.

The fourth and final effect is simply that the litigants’ conduct following liability has enormous potential to anger and inflame the jury, and that anger is going to go somewhere. Never assume that juror anger will be hermetically-sealed off from the liability choice and isolated in punitive damages. Angry jurors, especially "sympathetic" personality types, will find a way to translate their anger into plaintiff verdicts and general damages. Anyone who has had the opportunity to observe deliberating panels of jurors in mock trials knows that jurors, knowingly and unknowingly, ignore the jury instructions to punish offensive defendants in any way available. Liability issue or not, when a corporate defendant responds to consumer injuries caused by its product not by improving safety or pulling the product but by doing a cost-analysis to determine whether it would be more profitable to continue hurting customers and settling lawsuits, jurors get angry. Likewise, how a company responds to allegations of sexual harassment in the workplace is just as important to jurors as the evidence of that harassment in determining liability; jurors get awfully angry when reported sexual harassment is dealt with slowly, insensitively, or inappropriately.

Also, understand that the plaintiff’s post-injury behavior matters too. If a plaintiff seems quicker to sue than to seek treatment and/or resolve the matter with the defendant, jurors will question their character and motivations, and scrutinize liability even harder. If a plaintiff doesn’t take enough initiative to fix their injury themselves--like failing to follow a medical treatment regimen or being lazy about a job search--jurors will hold them somewhat accountable.

In your next trial, make absolutely sure to consider the actions of your client and the opposing litigant in the time period following the initial injury and be sure to emphasize the good things your client did and the bad things the opposing side did. It does matter to your jurors, probably more than you realize.

May 2006: UNCOVERING HIDDEN BIAS

Wed, 28 Jan 2009 19:54:31 -0800

Perhaps the trickiest part of uncovering juror bias during voir dire is getting jurors to honestly admit to biases involving sensitive, controversial, or inflammatory issues. While it may be (relatively) easy to get a juror to discuss his/her distaste for doctors or police officers, insurance companies or Wal-Mart, and frivolous lawsuits or emotional damages, it is very difficult (but hugely important) to get jurors to admit feelings of racism, distrust of foreigners, or opinions about sensitive topics like sexual harassment or capital punishment in front of a crowd of strangers and figures of authority in open court.

Even seemingly non-controversial topics may be difficult for some jurors to discuss in open court. Many jurors feel embarrassed admitting to any bias and are unwilling to appear unfair to the judge, attorneys, and fellow jurors. But because all biases are crucial to juror decision-making and critical to the success of your case, you need to do everything in your power to uncover these biases and identify jurors with unfavorable predispositions toward your client and your case.

Before I discuss some voir dire techniques to better elicit juror biases, I should mention that using written juror questionnaires to supplement the voir dire process is often highly effective in getting jurors to divulge controversial opinions on sensitive issues. Juror questionnaires filled out privately help jurors feel more comfortable and anonymous in expressing sensitive opinions and save valuable court time. Not only are questionnaires more private, but for some reason (likely boredom), jurors tend to provide you with far greater detail while filling out a lengthy questionnaire than during voir dire in open court.

During the voir dire process, the key to uncovering guarded juror biases on sensitive issues is to create a comfortable environment for the jurors to express themselves. Questions must be carefully worded, prefaced, and posed in a way that shields the jurors from even the slightest perception that the questions are controversial, judgmental, or have a right or wrong answer.

The secret to creating a comfortable, honest voir dire process lies in PERCEPTION. As long as you create the perception for jurors that any answer they may give is reasonable and safe, the jurors will have no problem divulging what may be a deeply guarded and explosive point of view. Nothing you do can prevent a juror’s response from being controversial or offending other jurors. But in order to elicit a controversial opinion from a juror, you must ask it in a way that implicitly suggests that even the most outrageous answer is commonplace or acceptable.

Take a moment to think about the effect that a voir dire question asked judgmentally may have on your jurors’ answers, and what you are implicitly asking jurors between the lines. When you bluntly ask your jurors if they have negative opinions or biases against a group of people, you are in essence asking them to admit that they are prejudiced or unfair. Not only are most jurors uncomfortable admitting prejudices in open court, many jurors do not recognize that the opinions they may have are biases, and so few jurors will volunteer honest answers.

If you want an honest, insightful response, never ask a juror if he/she is biased. For the most part, the only jurors who will answer "yes" are the savvy jurors attempting to get off the jury. The only time to directly ask a juror if he/she is biased is to support a cause strike for the judge, and only do so once you have already led the juror to build a foundation of biased and opinionated statements that you can use to corner the juror into admitting bias.

A much more effective technique of eliciting honest biases is to avoid using words such as "prejudice," "negative opinion," or "bias" and instead pinpointing specific feelings and opinions that you believe would translate into bias. Using a controversial example, instead of asking jurors "would anyone here hold the fact that my client is an illegal immigrant against him in trial?" try putting it this way: "A lot of Americans feel that illegal immigrants take advantage of our system without contributing fairly to it; does anyone here agree with that, or feel that illegal immigrants should not have the same right to a lawsuit, protection under American law, or the right to recover damages as a legal citizen?"

Certainly this is a controversial topic and question, but by mentioning that many Americans agree with either side, and more importantly, by phrasing it as a public policy question rather than a question of prejudice, jurors will feel more comfortable giving honest opinions without fear of their answers being interpreted as prejudicial or offensive.

Of course, this technique comes with the caveat that you should NEVER give the impression to the rest of the jury panel that you agree with an offensive or controversial position on a sensitive issue. Playing devil’s advocate to encourage prejudiced jurors to be forthcoming runs the risk of offending the rest of the jury panel. Instead, position yourself as a neutral party who is curious as to which side of an evenly-disputed issue each juror identifies with, and save any signs of judgment until after the jurors have answered.

The same principles to asking questions on sensitive topics apply to gathering honest responses during everyday voir dire. Any time you ask a question in which your point of view as the attorney is obvious or in which you are asking them to directly acknowledge a bias runs the risk of pressuring jurors into censoring themselves. Worried that your jurors may mistrust your large company defendant in a lawsuit? Rather than asking your jurors directly if any have biases or negative opinions about large corporations, be more subtle yet to the point; ask the jury if anyone believes that a large company, because of its larger resources, is more able or likely to conceal damaging evidence. Worried about jurors who will not award non-economic damages to your plaintiff? Rather than asking your jurors if they have a problem with awarding money for pain and suffering, first ask them if they believe that a person’s physical and emotional well-being are valuable.

Another caveat is that not every voir dire question should be asked neutrally. The use of persuasive questions to subtly pre-condition the jury is a necessary and effective tool, and questions designed to persuade should certainly be asked in a way that implicitly communicates right and wrong answers. Subtle, judgmental pressure created by leading questions is what persuades jurors to accept your viewpoint, build consensus around your point of view, and relate that viewpoint to your interpretation of the case.

You significantly reduce your opportunity to receive honest answers from jurors when you ask questions that make your jurors feel judged or outspoken. With every question you ask during voir dire, carefully consider whether you are asking your jurors to acknowledge a prejudice, whether it is obvious which answer you would prefer to hear, whether they may perceive their answers as offensive to the other jurors, and whether or not your intentions are transparent. Taking great pains to ensure that your jurors feel comfortable with any answer they may give is your best chance to uncover honest answers and to uncover hidden biases.

April 2006: DO-IT-YOURSELFERS AND DELEGATORS

Wed, 28 Jan 2009 19:57:02 -0800

When jurors disagree with the actions taken by both sides in a lawsuit, a not-too-uncommon situation, feelings of sympathy and identification are difficult to come by, and the jurors become emotionally objective. That is, because both litigants have failed to establish instant credibility, the jurors will intensely and cynically scrutinize the actions of both sides. When jurors believe that neither side has done the right thing, they tend to focus largely on issues of personal responsibility.

For the jurors, the trial then becomes less about which party took the wrong action and more about which party was obligated to take the right action (and didn’t). If a pharmacist fills a wrong prescription and a patient suffers, should the pharmacist be responsible for the patient’s injuries or should the patient be responsible for failing to check the prescription, read the label, or switch medications when the symptoms or injuries began? If a house is sold with undisclosed defects, is it the realtor’s fault for failing to warn or the homebuyer’s fault for failing to adequately inspect the house?

Not surprisingly, jurors’ views on personal responsibility are perfectly aligned with their own patterns and practices. Jurors who are hands-on in every aspect of their affairs tend to be very unforgiving toward plaintiffs who made mistakes and failed to do everything they could have to avoid the injury suffered. I call this group of jurors "DO-IT-YOURSELFERS," because they tend to be pro-active, involved, and knowledgeable in every aspect of their lives. These are the jurors who balance their own checkbook and do their own taxes, who read every line of every contract or lease they sign, and who are just as familiar with the blueprints, city planning codes, and power tools as their architect and contractor when they are renovating their home. Do-it-yourselfers tend to be strongly pro-defense because they find it difficult to relate to and sympathize with plaintiffs who made mistakes that they themselves would not have made. Do-it-yourselfers take great responsibility in their own affairs and subscribe to the theory that "if you want something done right, you have to do it yourself." In trial, do-it-yourselfers can on occasion be sympathetic toward plaintiffs who had little opportunity to avoid injury, but are generally unforgiving toward plaintiffs who were not proactive enough in avoiding or correcting a potentially disastrous situation.

On the other hand, jurors who are hands-off in their affairs tend to be very forgiving of litigants who made mistakes or didn’t do their due diligence; these jurors tend to be very sympathetic toward plaintiffs who have been wronged, even when those plaintiffs made foolish mistakes. I call this second group of jurors "DELEGATORS;" these jurors tend to delegate responsibility to trusted agents of their affairs, and they put blind trust and sole responsibility for their affairs in these agents. Delegators regularly rely on others to take care of their affairs and are unforgiving when these agents fail in their duties. Delegators hire doctors to care for their health, accountants and financial planners to care for their finances, contractors or painters or plumbers to care for their homes, and lawyers to care for their liability and legal health. They subscribe to the mentality that "I hire these people to take care of me; if something goes wrong, it’s their fault." In trial, delegators tend to be highly pro-plaintiff and easily angered by defendants because they do not view victims as having to be responsible for protecting themselves; as in their own life, they would prefer to blame the person who directly caused the injury, even if it could have been avoided by the plaintiff. Do-it-yourselfers are the practical, defensive drivers in life; delegators expect and demand others to follow the rules of the road.

I have found the distinction in personal responsibility outlined above to be one of the most critical in distinguishing between pro-plaintiff and pro-defense jurors. On which side of the fence a juror falls when questioned about issues similar or parallel to the central issues of the case will often tell you exactly how a juror would have acted in the situation at hand in trial.

So how can you figure out what your jurors would have done in the situation at hand, and how can you distinguish the delegators from the do-it-yourselfers?

In a medical malpractice case, how proactive are your jurors in their own health? Do they double and triple check their doctors’ diagnoses and treatments in medical guides and WedMd? Do they seek second opinions? Do they practice preventative health measures? In a business dispute, do your jurors write their own leases and contracts—or at least read every paragraph and all the fine print? Do they put every contingency in writing, or do they rely on a promise and a handshake? In a sexual harassment case, do your jurors immediately address and report all abuses when they are wronged, or do they wait for their problems to go away or be solved by others? In a fraud case, how rigorously do your jurors do their due diligence when they buy a house, a used car, or make an important investment? Do they hire inspectors, lawyers, or auditors? Do they get their hands dirty and check under hoods, look at plumbing, and pore through financial statements? Or, in any of these situations, do your jurors simply trust a figure of authority and rely on their honesty and judgment?

In every case you try, carefully consider if which actions (or inactions) the litigants took that could be considered a critical mistake by your jurors. Aside from addressing and explaining those actions during trial, think about the types of jurors who might hold your client accountable for those mistakes. You need to know which jurors would have made the same decisions as your client, and to do this you will need to distinguish the do-it-yourselfers on your jury panel from the delegators. Because you cannot ask your jurors how they would have acted in the situation at hand in trial, you need to be creative; think of a few similar or parallel situations that your jurors have found themselves in, and ask them how they dealt with them. Then decide whether the do-it-yourselfers and delegators on your jury panel will relate to your client, or find reasons to hold your client accountable.

March 2006: HARNESSING YOUR JURORS' SELF-INTEREST

Wed, 28 Jan 2009 19:59:25 -0800

Nothing is more persuasive than the force of self-interest. Eliciting sympathy from the jury for your client may be powerful, but getting your jurors to identify with your client and imagine themselves in the same situation is the most effective form of persuasion because it harnesses self-interest.

Jurors identify with litigants whose actions, motivations, and explanations match their own, because a juror can only imagine themselves in the shoes of a litigant who did exactly what they would have done in a given situation. If a juror agrees with every action and decision that a plaintiff made that led to a physical injury or financial disaster, that juror will identify ("that could have been me!") and side with the plaintiff. The same goes for the defendant; if a juror agrees with the defendant’s actions and conduct, that juror will assume that the defendant did the right thing and is being sued unfairly.

On the other hand, should a juror question or disagree with a litigant’s actions, eliciting sympathy becomes problematic. The underlying principle in juror decision-making is that jurors assume that their decisions are always the right ones and that alternate decisions are usually the wrong ones. It is fairly common, and disastrous, for attorneys to overlook or underestimate this principle.

In many cases, litigants may have taken actions that are very different from those the jurors would take because many cases involve complex issues that are far different from "common sense." Most jurors don’t understand the inner workings of complex industries such as business, finance, medicine, construction, and manufacturing, to name just a few.

Never assume that a juror will be open-minded enough to fairly evaluate your litigant’s way of making decisions and question their own decision-making; jurors rely on their limited scope of knowledge and a lot of "common sense."

Trial is about constant juror scrutiny, and when jurors question or disagree with a litigant’s actions, most blame the litigant to some degree for the end result. If a plaintiff gets hurt in a car crash because the rental car was out of brake fluid, the juror who scrupulously gives his car a 20-point inspection every morning will blame the plaintiff for the accident because he would have caught the problem and avoided the accident. If a venture capitalist loses millions in an investment deal because of an unfair contract, the juror who reads every clause of every contract, lease, or waiver that she signs will blame the plaintiff for failing to do their due diligence. If a company defends itself against claims of compensation discrimination by arguing that its average male employee is more productive than its average female employee, the small-business owner on the jury panel who pays his employees according to tenure alone may view the company’s complicated compensation structure as flawed and potentially biased.

Just like in life, we tend to blame others for their misfortunes when they make poor decisions different from our own.

In your next trial, make it a top priority to get jurors on the same page as your client.

Think about the choices your client was faced with and the decisions and actions they chose, and carefully consider what your jurors think they would have done in your client’s shoes. Think about the types of jurors who would agree or disagree with those actions and base your jury selection on this distinction. Once your jury panel is seated, think about how best to explain your client’s actions to the jurors in a way that they can identify with. If your client’s actions deviate from "common sense" and what the jurors are likely to identify with, acknowledge that your client took a different approach to what they might expect and tell them why this situation is different. Only by clearly and directly acknowledging your jurors’ expectations can you challenge them to keep an open eye out for an unexpected situation, and an open mind.

January 2006: WHY BIASES OUTWEIGH EVIDENCE

Wed, 28 Jan 2009 20:01:48 -0800

One of the most common (and fatal) miscalculations made in trial strategy is relying heavily on the persuasive power of evidence and underestimating the power of juror bias and cognitive decision-making during their "framing phase" in the first moments of trial. Never assume that jurors make informed decisions on the basis of the evidence. In reality, juror attitudes and verdicts are shaped much more by the biases they bring into the courtroom that predispose them to choose one side’s case over the other.

Trial is ultimately about jurors making choices between the versions of reality offered by the plaintiff and the defense. Although the justice system demands that jurors make these choices based solely on an objective view of the evidence presented, cognitive psychology understands that this is impossible; in interpreting information and making judgments and decision, jurors are forced to rely on their cognitive framing of the case to make these choices, and the jurors’ framework of the case colors their interpretation of the evidence to fit their preconceived ideas.

For example, if a juror goes into trial believing that doctors are honest, benevolent, highly trained and competent, this juror will almost certainly justify plaintiff’s evidence of malpractice in a manner favorable for the doctor. To this juror, it is more likely that the evidence was manufactured, taken out of context, has a reasonable explanation, or is the result of an honest mistake than convincing evidence of malpractice. Because the presentation of evidence comes long after the jurors have heard what the case is about and who is involved, the jurors build the framework that determines how they view the evidence based largely on biases and predispositions. As illogical as it may seem, jurors determine what happened on the basis of what they believe is more likely to have happened in a given situation rather than waiting for the evidence to speak for itself.

Take the example of an insurance bad faith case. Logically speaking, everyone would agree that there are some situations in which insurance companies mistreat policy holders and some situations in which policy holders mistreat their insurer. Anyone would agree that the best way to determine who is at fault in any given case would be to examine the evidence: the insurance policy, the claims, and evidence of damage and how both parties interacted. In practice, jurors never evaluate the evidence objectively; having formed impressions of credibility and what is more likely to have happened before they view the evidence, jurors use their predispositions to make the evidence fit their framework.

In insurance bad faith cases, some jurors are predisposed to trust insurance companies and mistrust plaintiffs. These jurors may have positive experiences with insurance companies, may work for an insurance company, may have negative attitudes toward plaintiffs, view lawsuits as "frivolous," or may belong to a personality type known as "authoritarian" that blindly trusts institutions. If asked prior to trial, these jurors would tell you that it is far more likely for a claims holder to exaggerate claims and defraud an insurance company than for an insurance company to refuse to pay claims they are entitled to pay. Another group of jurors will be predisposed to distrust the insurance company; they have likely had negative experiences with insurance companies and negative attitudes toward large corporations in general. These jurors likely view corporations as greedy, unethical, and profit-driven, and will find it much more likely for an insurance company to defraud its policy holders than vice versa. These pre-trial attitudes will be far more influential in shaping verdict than the evidence itself. These prior experiences and deep-seated beliefs determine what a juror will readily believe. Once predisposed, a juror is very difficult--if not impossible--to rehabilitate and to persuade to believe something that does not fit their view of the world.

In your next trial, think about your case not in terms of the evidence, but instead in terms of the arguments involved, and think about the type of experiences and attitudes that would predispose a person to find your account of what happened a more likely scenario than that of opposing counsel.

November 2005: STRIKING VOCAL JURORS

Wed, 28 Jan 2009 20:04:26 -0800

As counterintuitive as it may seem, there are situations in which it is better to use a peremptory strike on a juror you have little information about than on a juror whom you believe to be somewhat biased against your case.

These situations arise because not all jurors are created equal; some jurors tend to be far more vocal and persuasive than others, and these jurors are far more influential than their counterparts.

A juror identified as potentially vocal can be an influential advocate or your worst nightmare in deliberations, depending on how they feel about the case. A relatively dispassionate juror, on the other hand, is not likely to sway other jurors during deliberations, even if they take a negative position on your case.

Although not an exact science, vocal jurors are often not difficult to identify. Dynamic, engaging, opinionated personality types almost always translate into persuasiveness on a jury panel. Take a closer look at your jurors’ occupations to find the dynamic, leadership types; more often than not, the entrepreneurs, executives, managers, and salespeople are the most outgoing and forceful jurors on the panel. The other group of vocal jurors is those who take a personal interest in the case due to personal experience. Although not necessarily vocal by nature, jurors who have a similar personal experience with the events of the case (i.e. a relative suffered a similar injury) or who have special knowledge of the case issues (i.e. a contractor in a construction defect trial) are in a better position to personalize the case and thus become much more vocal.

If you feel comfortable about the makeup of your panel toward the end of jury selection and you are faced with the choice of striking a vocal juror whose biases are unclear and a non-vocal juror whose biases may be negative, opt to strike the wildcard vocal juror. Whereas the non-vocal juror will merely be a quiet, dissenting minority voice on your panel, the vocal juror has the potential to throw a monkey wrench into your plans. If you like your panel but spot that Henry Fonda in the eighth seat, you’ll know what to do.

October 2005: THE TWO PHASES OF JUROR DECISION-MAKING

Wed, 28 Jan 2009 20:05:45 -0800

Never assume that a juror will keep an open mind about your case during the entire course of the trial. Your window of opportunity to persuade jurors is shorter than you may think; 85-90% of jurors do not change their verdict decision between the end of opening statements and the conclusion of the trial. This is not to say that jurors realize that their minds are made up, but rather that they have made crucial (and subconscious) decisions about credibility and likelihoods that determine how they interpret the ensuing evidence and ultimately how they make verdict decisions.

In absorbing the opening statements, persuasive arguments, and evidence presented to them in trial, the mind of the juror goes through two distinct phases. The first phase is framing the case. During the framing of the case, the mind of the juror is actively wondering "what is this case about?" and, during this phase, is open to persuasive techniques. As the juror collects information about the case and starts to make sense of what the case boils down to (which is different for each juror), the mind of the juror rapidly builds a framework with which to conceptualize the case. The framework contains strong opinions on which litigants and attorneys are trustworthy and who are not, what likely happened and what seems farfetched, and what the motivations and relevance of each party and issue are.

As soon as this framework is solidified, which is generally during the defense’s opening statement, the framing phase is over and the juror’s mind becomes essentially closed to external persuasion. Once the juror has built a reliable framework, the mind of the juror begins the second phase of scrutinizing the case. For most jurors, the entire presentation of evidence, witnesses, experts, and closing arguments occurs during their scrutinizing phase. In this closed-minded phase, the mind of the juror is actively comparing the evidence to their framework and determining whether or not the information is believable based solely on whether or not the information fits their framework. Rarely will a compelling piece of evidence or testimony override that framework and persuade a juror to change their mind; in determining whether a piece of evidence is credible or not, jurors consider the source as the primary indicator or reliability, and the credibility of the source (the litigant and attorney) is the main ingredient of the framework of the case.

What can a savvy trial attorney learn from the two phases of cognitive juror decision-making? First, focus your persuasive efforts heavily on your opening statements; once the window to persuade your jurors is closed, it is nearly impossible to rehabilitate a juror. Never save a persuasive piece of evidence for the latter stages of trial. Second, rather than trying to persuade your audience or rehabilitate jurors during your evidence presentation, focus your strategy on arming your supportive jurors with strong arguments with which to argue your case during deliberations. When a jury is split going into deliberations, the side whose jurors have the most ammunition and memorized evidence generally win out.