CourtroomLogic http://courtroomlogic.com Thu, 15 Feb 2018 01:53:52 +0000 en-US hourly 1 https://wordpress.org/?v=4.9.4 42277288 Courtroom Conduct Matters. Yes, Counsel: That Includes You. http://courtroomlogic.com/2018/02/12/courtroom-conduct/ Mon, 12 Feb 2018 10:52:53 +0000 http://www.courtroomlogic.com/blog/2012/02/21/conduct-matters-yes-counsel-that-means-you/ I never attend trial without issuing some specific behavioral guidelines to my team. And this includes counsel. The rules for courtroom conduct are, to me, nothing short of Courtroom Commandments. They are: Watch your Ps and Qs from the moment you leave your house/hotel room. Keep your note-passing to a minimum. Whisper only when necessary....

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Sign showing "high road" and "low road" symbolizing the importance of good conduct in the courtroom

I never attend trial without issuing some specific behavioral guidelines to my team. And this includes counsel. The rules for courtroom conduct are, to me, nothing short of Courtroom Commandments. They are:

  • Watch your Ps and Qs from the moment you leave your house/hotel room.
  • Keep your note-passing to a minimum.
  • Whisper only when necessary.
  • Keep your work space clean.
  • Be organized.
  • Don’t stare at the jury.
  • Do not react.
  • Never lose your cool.

In other words, always, always, always exude the utmost degree of professionalism.

One Chance to Make a First Impression

I realize these rules are little more than common sense, and it feels slightly demeaning to discuss them, but I do. With each and every client. To each and every trial team. At each and every trial. In each and every venue. Every. Single. Time. The size of the trial doesn’t matter. The potential damages don’t matter. The number of gray hairs on counsel’s head doesn’t matter. Nor do the decades of expertise held by my team, or the series of letters after an expert’s name.

One of the most important parts of my job is to help the legal team capitalize on those precious first impressions, and to maintain a positive juror perception from voir dire to verdict. Stupid mistakes can tank counsel’s credibility, and when facts are complex (or just plain bad), receiving conduct demerits gets my ire. We can’t control the facts; but we can certainly control our conduct. And behavioral faux pas are preventable. If I get any pushback on my rules, I’m able to produce plenty of juror feedback to support my reasoning.

Follow the Courtroom Commandments and ye shall be rewarded. Ignore them and prepare ye self for consequences.

A Case Study of What Not to Do

One glaring example of “What Not to Do” took place a few years ago. I remember it clearly because it was, quick frankly, so appalling. Fortunately, the violators were the opposing counsel. (Don’t worry, I’ve removed any identifying information to protect the guilty.)

The trial occurred in a rural area, in a venue considered to be plaintiff-friendly. We were in a federal courthouse the size of a shoebox—so small that plaintiff counsel could literally hold hands with a juror in the jury box.

The plaintiffs’ team was comprised of well-known A-listers within the legal community, and they a reputation for winning big verdicts and demonstrating rock-star trial skills. Collectively, they were an extremely formidable opponent. But their conduct got in the way.

Unfortunately for the plaintiffs, although the trial skills of their legal team were impressive, their courtroom demeanor was not. I observed a disorganized, loud, fractured team that seemed to struggle with the basic rules of proper courtroom behavior.

And, apparently, the jury agreed. So much so that, a few days into trial, the jury submitted a note to the judge essentially asking the plaintiffs’ legal team to behave. #thisisnotanexaggeration

Jurors were frustrated with the paper-shuffling. The loud “whispers.” The digging through boxes during testimony. The noise and distraction caused by counsel (and their clients) leaving the courtroom during witness testimony. And, most annoyingly, the “suggestions” by counsel sitting along the bar to the questioning attorney about what to ask next.

Juror Perceptions

Fortunately, my trial team was the epitome of professionalism throughout the entire trial. They followed the rules of conduct and met – dare I say, exceeded – juror expectations. In fact, a couple of jurors went out of their way to contact our lead attorney after the trial ended to extend their personal thanks for being organized and respectful, and for not wasting the jury’s time.

Even better, the jury returned its verdict in less time than it took my team to eat our lunch. My client received a zero-liability, take-nothing verdict (on a potential $15 million claim).

Did counsels’ conduct play any role in the jury’s decision? Maybe. Maybe not.

But it never hurts to always take the high road.

 

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The Rhyming Theme of OJ’s Dream Team http://courtroomlogic.com/2018/01/31/rhymes/ Wed, 31 Jan 2018 22:07:12 +0000 http://courtroomlogic.com/?p=7097 “If it doesn’t fit, you must acquit.” The most legendary trial theme of my lifetime. Probably yours, too (assuming you’re older than 30). Those words, perhaps more than any actual evidence presented at trial, are what will be remembered most about the 1995 OJ Simpson murder trial. In the eyes of many observers, it was...

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Two black leather gloves“If it doesn’t fit, you must acquit.”

The most legendary trial theme of my lifetime. Probably yours, too (assuming you’re older than 30).

Those words, perhaps more than any actual evidence presented at trial, are what will be remembered most about the 1995 OJ Simpson murder trial. In the eyes of many observers, it was what cinched his acquittal (though reasonable minds can differ on that point).

Johnnie Cochran, OJ’s showboat defense lawyer who uttered the unforgettable words, undoubtedly knew the importance of trial themes (we’ve written before about the benefit of developing themes in early discovery).

But what was so special about the Dream Team’s theme? It rhymes.

It’s Rhyme Time

Rhyming goes back to our earliest childhood: it’s the first literary device most of us ever encounter. Most likely, you could recite a childhood rhyme right here and now without giving it any thought. (Apologies if this gives you an earworm.)

One, two, buckle my shoe, three, four open the door. 

Twinkle, twinkle little star, how I wonder what you are.

Brown Bear, Brown Bear, what do you see? I see a red bird looking at me! 

But rhymes work with trial themes, too. For example:

The solution to pollution is dilution.

Birds of a feather, flock together.

Fake it ‘til you make it.

It does not happen often, but when a rhyming trial theme emerges, I typically get pretty excited. But sometimes clients are bit resistant. “It’s too… coy… cutesy … juvenile,” they say. Maybe. But a theme that rhymes can be not only more memorable but also more persuasive than your run-of-the-mill theme.

Really.

Rhymes Seen as More Truthful

Case in point: a psychological science study conducted by M. McGlone and J. Tofighbakhsh (2000).

In the published study, researchers paired rhyming messages with non-rhyming messages. The rhyming words in the non-rhyming phrases were replaced with synonyms, thereby creating the closest apples-to-apples comparison possible. For example: “Caution and measure will win you treasure” was paired with, “Caution and measure will win you riches.” And, “What sobriety conceals, alcohol reveals” was paired with, “What sobriety conceals, alcohol unmasks.” You get the gist.

Participants were asked to rank their perceived accuracy of each statement (e.g., 1 = not at all accurate; 9 = very accurate). Without delving into the nitty-gritty details of the study, the conclusion was this: people perceived the rhyming messages as more truthful and accurate than their non-rhyming counterparts, even when they weren’t.

The rhymed message was so influential, the listener assumed it was valid. In the world of social sciences, this is known as the Rhyme-as-Reason effect.

The big takeaway is that rhymes matter. But they do have limitations.

When participants were instructed to evaluate only the meaning of the message – as opposed to the meaning and its phrasing – the overall impact of the rhyme decreased. In other words, if the listener made a concerted effort to dissect the message only, and to eliminate any feelings or gut reactions, the rhyme lost some persuasive power. But let’s be real: who really does that in real life except English majors?

The implication is clear: rhymes have the potential to be very appealing to the listener. Any listener. Which means rhymes can be utilized in all aspects of a legal practice. The trick is to ensure they are being used effectively (and, of course, sparingly).

Key Takeaways

Here are a few ways lawyers can incorporate “Rhyme-as-Reason” into their persuasion strategies:

  1. When developing trial themes or influential talking points, consider word choice carefully. Can your message be captured accurately by incorporating rhyme, alliteration, assonance, or something that flows nicely off the tongue? The catchier the phrase, the more memorable it will be. And every advocate wants her message to be remembered.
  2. Can the message be utilized throughout the life of the case? Trial themes are most effective when they can be woven into multiple aspects of case development and are repeatable. Themes are not just for trial; they are important for persuasive motion practice and deposition testimony, too.
  3. Does it make sense and fit with the evidence? If you try to weave a trial theme into a story that doesn’t quite work, you’re essentially forcing a square peg into a round hole. And when this happens – rhyme or not – the trial theme typically falls flat. And flat themes are almost always rejected.

It is a rare case that lends itself well to rhyming, nor can every lawyer pull it off with conviction and credibility. But when used judiciously, a rhyming trial theme can be extraordinarily effective and persuasive.

If you discover a rhyme that works, it just might have some perks.

 

 

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How to Meet Your Witness’s Need for Approval http://courtroomlogic.com/2018/01/16/witnesses-need-approval/ Tue, 16 Jan 2018 15:57:07 +0000 http://courtroomlogic.com/?p=7070 In my younger years as a newbie jury consultant, I worked with Dr. Phil McGraw – if you didn’t have an opportunity to work with him in the pre-Oprah days, you may know him as “Dr. Phil.” Phil developed a reputation for being fairly blunt and “telling it like it is.” Some of his quirky...

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In my younger years as a newbie jury consultant, I worked with Dr. Phil McGraw – if you didn’t have an opportunity to work with him in the pre-Oprah days, you may know him as “Dr. Phil.” Phil developed a reputation for being fairly blunt and “telling it like it is.” Some of his quirky comments became known as “Philisms”, and surprisingly (or not so surprisingly), there are even websites dedicated to these sayings.  (And a funny YouTube video compilation for those wanting a few seconds of comic relief.)

But not every Philism was quirky: some were spot-on, and practical. For example: The number one need is approval, and the number one fear is rejection. Ain’t that the truth? The need for approval is a basic human desire, and it drives many of our choices and communications whether we consciously recognize it or not.

Maslow's Hierarchy of Needs Pyramid and Witness Needs

It all goes back to famed psychologist Abraham Maslow’s “hierarchy of needs,” which start at basic physiological needs (food, sleep, shelter, etc.) and move all the way up to self-actualization and transcendence. The importance of each tier, and therefore its priority, varies from person to person. One person may value feeling needed over feeling confident; another person may believe that ranking high on the good-looks scale outweighs being the smartest one in the room.

The overall message is this: To become the best versions of ourselves – self-actualization – we must first meet our other human needs, which include belonging and self-esteem.

This all comes into play when I’m helping to prepare a witness for testimony (depo or trial). There is a unique dynamic present when an attorney prepares a witness for testimony: the disparity of power and the witness’s need for approval. We’ve all seen it before, but make no mistake – it’s not just a witness need; it’s a human need, and according to Maslow, it’s a pretty basic one.

While the psychological facets of the attorney/witness dynamic are complex, the relationship is deeply affected by the witness’s need for approval, fear of rejection, and general feelings of confidence. And all of this is further complicated by one critical component: trust.

Trust

Trust is a core element of any good relationship, and when it is absent, lacking or misplaced it creates friction within the very dynamic that is supposed to foster a sense of safety. One might assume that a witness will inherently trust the attorney representing (or presenting) him, and will readily accept – and put into action – whatever the attorney imparts. However, I have found this to be far from true.

Think about the last time you were preparing a witness for deposition or trial testimony:

  • Did the witness feel the need to tell all?
  • Did the witness over-equivocate?
  • Did the witness struggle with sticking to personal knowledge?
  • Did the witness fill in the blanks with guesses, or, worse, inaccuracies?
  • Did the witness seem like a control freak?

If you experienced any of these situations, your witness was trying to meet his needs. But in doing so, he created trust issues. Most likely, your trust in his ability to perform took a nose-dive, and it probably resulted in more “don’t-do-this” and “don’t-do-that” moments, which, again, fed into the witness’s insecurities, doubts, and trust in you. And so on…

If you ask your witness, “Do you trust me?” most will give you a head-nod and an obligatory “Of course I do!” It’s the socially acceptable answer, and saying “no” is just too darned risky (for all but the most confident humans). Intellectually, your witness may very well trust you; You are smart, you know the facts, you are a good litigator. But emotionally? He’s not there quite yet.

Practical Suggestions

It’s frustrating for many of my clients to realize that a key witness wrestles with insecurity and trust issues. It’s nothing personal. More often than not, it stems from the witness’s unfamiliarity with the litigation process and the way the game works. But the emotional needs must be met before the witness can effectively handle the cognitive challenges that lie ahead.

I’ve found the following strategies to be helpful in building trust in the attorney/witness relationship. And there’s a gigantic bonus: by establishing a greater sense of trust, you inadvertently meet some of those pesky needs related to acceptance and confidence:

  1. Lead Gently. As lead counsel, you have been litigating for a long time, and you know the nuances of the legal process. You are intimately aware of the facts of your case, and you have worked with hundreds (if not thousands) of witnesses over the years. It’s. What. You. Do. The witness is obviously very important, but ultimately, it is your job to steer the ship. Be the leader within the relationship dynamic, but do so with kindness and kid gloves. If you come out swinging like a dictator rather than a teacher or coach, you’re making your job 10x harder than it needs to be.
  2. Define the Roles.  By comparing the testimony process to a football team (or your sport of choice), you assume the role of head coach. The witness is one of many teammates, and each member of the team has a specialized role and adds a unique value to the team. A coach would never ask an equipment manager to hit the field and be a running back; nor would a coach ask his quarterback to play kicker. Similarly, each witness has a special role in the trial story. Most witnesses believe the whole case rests on their shoulders. Does it? Maybe, but the witness sure as heck doesn’t need to hear that. Talk about an anxiety-inducing confidence-buster! Assuage witness fears by defining the roles, and assuring him that he is not the one-and-only storyteller. You will create the plays and provide the tools, but it’s ultimately the witness’s responsibility to stick to his role.
  3. Remove Goals of Perfection. As the coach, you know every witness’s unique strengths, weaknesses and how to build a team that works. But you also know that mistakes happen, and that despite the best laid plans, things are never perfect. Your witness needs to hear (and believe) that perfection is impossible. We’re human, and every human is fallible. Does this mean the witness (or you, for that matter) can be sloppy or “phone it in” with regards to preparation? Absolutely not. But when a witness hears he will still be accepted, valued, and trusted even if things go a little off-track, you’re establishing trust, and meeting those hierarchical needs.

Will these strategies turn your witness into an amazing storyteller? No. Being a good communicator is a whole ‘nother can of worms and requires a ton of skills (that, yes, can be taught to even the worst witness).

But, if your witness recognizes – emotionally and intellectually – that you have his back, you’ve won half the battle.

 

CourtroomLogic offers a full array of witness preparation services, including DepoPrep, which prepares a witness for the uniquely anxiety-inducing experience of being deposed, and TrialPrep, which helps ensure that your witness delivers a compelling courtroom performance. If you need help preparing a witness – or have any other litigation strategy need – contact us at info@courtroomlogic.com.

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The Top Ten ‘Persuasion Matters’ Posts of 2017 http://courtroomlogic.com/2018/01/09/top-ten-posts-2017/ Tue, 09 Jan 2018 16:48:09 +0000 http://courtroomlogic.com/?p=7043 As we gear up for an amazing 2018, we thought it’d be fun (and let’s be honest, easier on our sluggish, post-holiday brain) to feature the Top 10 posts from 2017 (according to Google Analytics). What’s kind of cool is that the #1 post was an article published in Texas Lawyer, and seven  posts were...

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As we gear up for an amazing 2018, we thought it’d be fun (and let’s be honest, easier on our sluggish, post-holiday brain) to feature the Top 10 posts from 2017 (according to Google Analytics). What’s kind of cool is that the #1 post was an article published in Texas Lawyer, and seven  posts were recognized by Texas Bar Today as one of their weekly Top 10 posts!  Now that’s what we call a pretty nice incentive to continue writing.

While we noodle new ideas and worthy tips to share, we hope you’ll visit, revisit and share the posts below!

 

Getting a Bigger Bang for Your Litigation Buck

Litigation is expensive, which can cause some major anxiety for both law firms and corporate clients. I partnered with my client and friend, Charlie Armstrong (VP and Assistant GC at Flowserve Corp.), to author an article published in Texas Lawyer. In it, we discuss 5 ways in-house counsel and outside counsel can work together to control costs in complex litigation.

Get a Bigger Bang


A Primer on EDTX Jury Research Rules

The standing orders in the Eastern District of Texas pose a few challenges if you are a litigator (or client) wanting to conduct a mock trial, focus group, or even do a little internet recon on the jury panel. There are rules. And they vary from judge to judge, and from division to division. So, what do you need to know about them? It gets a little complicated, so we’ve compiled a cheat sheet.

Our EDTX Cheat Sheet


Vacated J&J Verdict Offers Insight into Jury Deliberations

An appellate ruling in California tossed a $417 million verdict against Johnson & Johnson in one of the talcum powder cases. The court cited several reasons for its decision, but the one that piqued our interest was jury misconduct. J&J supplemented its motion for a new trial with affidavits from actual jurors, and lucky for us, the court attached portions of those affidavits to its order. The court’s ruling provides a priceless peek into the deliberation process, what jurors are thinking, and what they take into consideration when awarding damages.

Take a Peek into Jurors’ Minds


How to Use the ‘Anchoring Effect’ to Persuade

The “anchoring effect” is a cognitive bias that occurs in everyday situations, usually without us even knowing it exists. The impact of this bias, if strategically woven into argument, can play a major role in persuasion, especially when you’re trying to sell something to a jury, a judge, or even folks in a boardroom. In a nutshell, it’s the strategy of deciding what you want your audience to conclude and then positioning that answer between other plausible options. It can be quite effective when arguing damages, but tread lightly: it can backfire if not done carefully.

Anchor Your Argument


Learning About Your Jury from Facebook Likes

Just because a potential juror has a friends-only, seemingly private Facebook page does not necessarily mean the “likes” are private, too. Find out why researching “likes” may help you seat a better jury panel.

Find a Jury You Like


Is There a Perception Problem with the American Jury System?

Everybody hates jury duty, right? Well, maybe not, if a recent Pew Research Center study is accurate. It found 67 percent of respondents equate jury duty with being “a good citizen.” Unfortunately, that overall sunny outlook masks some troubling findings that should concern anybody who values our justice system.

Our Jury System’s PR Problem


4 More Myths about Juries

In the post above, we dispelled the myth that most Americans hate jury duty. But there are plenty more myths about juries. In this post, we take the ax to four more myths, all of which attempt to degrade the reputation of American jurors, and the justice system in general.

Bust Those Myths


Googling Your Jury (Part 1)

Are you following ethical guidelines and professional standards when you scour the internet for scoop on your jury? We’ve summarized some legal info from the ABA, NY State Bar Association, and the Eastern District of Texas to help guide your next search.

Ethical Googling


Googling Your Jury (Part 2)

While plenty of commentary exists on whether to Google the jury, there is not much discussion on what to do if (or when) we discover something untoward about a potential juror or actual juror. After all, the information gleaned during an internet search on John Q. Public includes not only the information that can make it into the jury box, but it also includes the information that comes out of the jury box. This post provides various jury-Googling scenarios and how they were addressed in real-life examples.

What to Do After You Google


5 Tips for Complying with EDTX Standing Orders on Jury Research

In my opinion, none of the standing orders severely limit a trial team’s ability to conduct focus groups, mock trials, community attitude surveys, or any other sort of pretrial research. You simply have to be aware of the orders and conduct your research within the parameters. This post offers suggestions for doing just that.

Keep the Court Happy

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Finding Scrooge: Trial-Tested Tips for Seating a Defense-Friendly Jury http://courtroomlogic.com/2017/12/13/finding-scrooge-defense-jury/ Wed, 13 Dec 2017 23:48:43 +0000 http://courtroomlogic.com/?p=7025 The holidays are a wonderful time of generosity, when we open our hearts and wallets to those we love, and sometimes, complete strangers. But in the legal industry, some litigants shy away from jury trials during the holidays, if for no other reason than to avoid a box filled with jurors who feel a tad...

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The holidays are a wonderful time of generosity, when we open our hearts and wallets to those we love, and sometimes, complete strangers. But in the legal industry, some litigants shy away from jury trials during the holidays, if for no other reason than to avoid a box filled with jurors who feel a tad indulgent.

Civil defendants roll the dice each and every time they go to trial and risk of receiving a multi-million-dollar judgment. (Just ask J&J.) When it comes to money damages, defendants typically fare better when bleeding hearts are not seated on the jury panel – and this is true at any time of year.

As a civil defendant, it’s crucial to probe potential jurors’ attitudes on lawsuit validity and damages during voir dire. This is especially true in cases where David is hoping to slay Goliath, or in cases seeking dollars for medical issues, earning capacity, or loss of consortium. Surprisingly, some clients are still reluctant to have that conversation with prospective jurors. The main pushback I hear is this: “We can’t talk about damages or jurors will think we’re admitting liability!”

Wrong.

Failing to have some conversation with potential jurors about their views on lawsuits and damages could bite you on the backside. After all, should jurors deliberate and determine that money damages are appropriate, dollars will obviously be discussed. Voir dire is your one and only opportunity to up the odds of seating jurors who exhibit a healthy dose of skepticism and frugality, rather than blind faith and generosity. As the defendant, don’t you want a little Scrooginess on your panel?

Our mock jury and post-trial interview data shows that a few attitudes about damages and lawsuit validity are fairly universal and merit some discussion during jury selection. The conversation doesn’t need to be deep, expansive, or even long. But it really should be woven into your outline. You can decide once you’re on your feet whether you need it or not. Effective voir dire boils down to implementing a planned strategy, having a purpose for each question, engaging the panel, and making the best use of your (sometimes very) limited time.

Since it’s the holiday season and I’ve caught the generosity bug, I thought I’d share a few of my favorite voir dire strategies for finding Scrooge-y jurors in high-stakes commercial defense litigation.

Lawsuit Validity

Our jury research and post-trial interview data indicate the majority of people feel that because a lawsuit makes it all the way to a courthouse and in front of a jury, it must be pretty darned valid. We all know that’s not necessarily true, but the general public seems to have that sentiment. And it’s pretty entrenched.

Plaintiff attorneys typically spend a bit of time identifying jurors with lawsuit experience, but very few ever address the issue of validity. As a commercial defendant, it’s important to locate venire members who already assume – before any evidence has been presented – that plaintiffs’ claims are valid and that your client has done something wrong.  Here are a few tried and tested ways to identifying the sympathizers:

  • If time permits, educate the panel that anyone can file a lawsuit by walking down to the courthouse and paying a filing fee. There’s no litmus test for determining whether the claims are truthful or supported by facts. In fact, if you so desired, you could walk downstairs, pay $30 or so, and file a lawsuit against McDonald’s claiming that its iced mocha coffee was just too cold and gave you such horrendous cold headaches that you lost your job for too many absences. The goal here is to learn if this filing process surprises anyone; if it does, he most likely assumed it was a more difficult process (and thereby gave more credibility to the party suing). It also allows you to plant a subtle seed that claims in a lawsuit are not necessarily all they’re cracked up to be.
  • Ask jurors how they feel about lawsuit validity, but do so in a conversational tone. For example, “X, I’ve talked with a lot of jurors in my day, and I meet folks who tell me that my client must have done something wrong or we simply wouldn’t be here in court. Do you tend to agree with that?” Ideally, you’ve already pegged that juror as a possible strike and fully expect her to agree, so use her affirmative answer to invite others to agree with the juror – not you. “Y, do you agree with X?” (Yes) “How many of you agree with X and Y and have a gut feeling that because we’re here, my client probably did something wrong?” Boom. Potential strikes.

Burden of Proof

Most attorneys talk about burden of proof and the magical scale of “greater weight of the credible evidence.” Here’s the deal: (1) very few jurors are going to admit in open court that they cannot (or will not) follow the judge’s instructions, (2) phrases like “greater weight of the credible evidence” are legal mumbo-jumbo to most in the venire.

By the time a defense litigator stands up for oral voir dire, the judge and/or plaintiff counsel has already educated the panel on the burden of proof. There is really no need to reeducate the panel, and by no means should you try to convince jurors that they are wrong. They feel what they feel. Accept it graciously and move on.

But what you can do is ask who disagrees with the burden. It’s not a matter of determining whether a juror will follow the burden – almost everyone will say they will. Discover how they feel about the legal requirement. For example:

  • “Z, do you feel it’s fair to make the plaintiff prove its claims?” [Note: Some judges halt discussions about whether the burden requirement is “right” or “wrong”; it is, after all, the law. But discussions about how jurors feel about the law should be fair game. Choose your phrasing carefully.]
  • “Y, would it make more sense to you if my client were required to prove to you that it did not do what the other side claims?”
  • “Before learning about the law, how many of you were thinking, ‘Ooooh… they’d better show me a lot of evidence to prove they didn’t mess up.’?”

Any juror who feels the burden of proof requirement is backwards, strange or just plain wrong is most likely a juror who will expect your client to prove why it’s not a wrongdoer… whether she admits it or not.

Corporate Greed / Deep Pockets

If the case involves a well-known corporate defendant, the issue of “deep pockets” and “corporate greed” will be percolating in jurors’ minds. However – despite the need to weed these folks out – I normally do not recommend talking about these issues in oral voir dire (they are much better for a written questionnaire). If it’s an unusually big concern, we will typically discuss the topic in a more positive light (thus, planting seeds for our story) and focus on finding folks who don’t agree with our premise.

For example, in a quest to flush out anti-corporate jurors, we might develop a scenario that allows us to humanize the business, brag about our employees, and to portray the company as having good judgment and a people-first persona. It’s an easy way to weave very casual Q&A into the discussion and to encourage participation from the “quiet ones.” Here are a few jurors we’d want to identify and, possibly, strike:

  • People who are unhappy or dislike their current job.
  • People who have little to no experience working in big business.
  • People who think big businesses should just “pay some money” so everyone can avoid a lawsuit simply because it has the funds.
  • People who believe corporations value profit over people. [Note: In a general query, this will elicit a significant number of hands in the air.]

Dollars

When I’m consulting with a defense team, I often discourage counsel from spending too much time discussing monetary damages because plaintiff counsel usually does the job for us. Whichever prospective jurors the plaintiffs don’t like, we on the defense side typically do. Usually, we plan on asking some global queries and making assessments and adjustments as needed.

Of course, each trial is different, and there are some cases, venues, and circumstances that merit a more in-depth discussion of damage-related issues.

Here are a few questions we’ve used in recent jury selection proceedings. The matters included claims related to wrongful death, discrimination, breach of contract, manufacturing defect, and just plain negligence. You’ll notice the language is simple and the tone is casual: it is conversational and (hopefully) promotes a safe environment for honest feedback. Jurors will be more candid and vocal if they believe you are genuinely interested in what they have to say, and will accept their answer without judgment.

  • “This is an emotional and difficult case because we are dealing with the death of a child. There isn’t a person involved in this case on either side who doesn’t feel sympathy and sadness for the family. Y, based on your recent experience of [insert whatever you have learned], do you think it might be hard for you to set sympathy aside and reach a verdict based only on the facts? Do you feel a twinge in your gut that the Plaintiff should receive at least some money as compensation for her troubles, and for the time and energy she invested in this lawsuit?”
  • “X, how comfortable would you be looking [insert name of Plaintiff] in the eye at the end of the trial and saying, ‘[Plaintiff], I am so sorry you felt that you were treated unfairly, but based on the evidence in this case, I cannot award you any money’? Is this something that you could do, if the evidence supported it?”
  • “Z, how difficult would it be for you to face your friends at work next week and tell them that you did not award a fellow [insert job] any money in his lawsuit for wrongful termination?”
  • “Which is more important to you: compensating someone who was injured, or determining who or what actually caused the injury?”

Final Thoughts 

Ultimately, jurors must believe your version of the facts. My preference is to focus the bulk of voir dire on discovering the juror attitudes and beliefs most likely to impact juror expectations of my client, and influence a juror’s willingness or resistance to embrace our story.

I rarely advise my clients to strike a potential juror based solely on feedback related to perceptions about lawsuits or damages. But all things being equal, I’d much prefer a potential damages juror who exhibits attitudes consistent with my client’s story than a possible low-damages juror who seems resistant to our themes. Wouldn’t you?

 

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How a Cold-Hearted Bully Illustrates the Importance of Theme Development http://courtroomlogic.com/2017/11/28/theme-development/ http://courtroomlogic.com/2017/11/28/theme-development/#comments Tue, 28 Nov 2017 17:56:46 +0000 http://courtroomlogic.com/?p=6982 Remember when the name “Lance Armstrong” was synonymous with cycling, Tour de France, and über-athleticism? And remember how all that love came to a screeching halt when Armstrong was essentially banned from competing in the sport for life due to his long history of using performance-enhancing drugs? What you may not remember is the post-doping...

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Tour de FranceRemember when the name “Lance Armstrong” was synonymous with cycling, Tour de France, and über-athleticism? And remember how all that love came to a screeching halt when Armstrong was essentially banned from competing in the sport for life due to his long history of using performance-enhancing drugs?

What you may not remember is the post-doping lawsuits that were borne from various companies’ attempts to recover damages stemming from prize money, endorsements, and a host of other contract-related perks. In fact, the U.S. Postal Service filed a federal lawsuit against Armstrong under the False Claims Act back in 2010 — even before Armstrong was officially stripped of all competition accolades and rights. The case is currently set for trial in 2018 and the government hopes to recover more than $100 million. [United States of America, ex rel. Floyd Landis v. Tailwind Sports Corporation, et al. (1:10-cv-00976-CRC) in the District Court of the District of Columbia]

But there’s another case I want to talk about: SCA Promotions, Inc. v. Lance Armstrong, et al. (DC-13-01564) in the 116th Judicial District Court of Dallas County, Texas. Although I did not personally work on this case—and have no idea how it ended—the Original Petition provides a textbook example of how to use compelling themes in litigation.

Theme development is a fundamental part of every single case, no matter the size, the court, or the cause of action. At multiple points during the life of your case, someone will make outcome-determinative decisions based on personal perceptions and interpretations of your case. And that decision-maker could be a judge, arbitrator, insurance carrier, mediator, or a panel of jurors.

A Manipulator, a Liar and a Bully

In SCA v. Armstrong, it was evident that counsel had already noodled ideas, tossed around phrases that could “hook” the audience, and boiled down their story into a handful of key themes. The first nine pages of the petition read like a story rather than a regurgitation of facts and legal issues and core themes were woven into the allegations. The petition was designed to appeal to human emotion. For example:

  • Lance Armstrong is a “cold-hearted”, “deliberate” liar.
  • He is a “bully” who manipulated others.
  • He built a “wall of deceit.”
  • Lance’s circle lived with a “code of silence.”
  • Armstrong “stopped at nothing to maintain his fiction.”
  • Armstrong “made a mockery of the legal system.”

And it gets better.

Counsel even included visual images to emphasize the validity and importance of various statements made by Armstrong, including images from deposition testimony. And interviews with Oprah. Yes, Oprah. For example:

Using Themes_Original Petition

Pretty powerful stuff.

Why is Theme Development Important?

Themes are important for four reasons:

  1. Themes can help organize new information and categorize the character and conduct of the parties.
  2. Themes breathe life into factual elements of your case, and provide “soundbites” and “taglines” that are memorable and catchy. If the case is newsworthy, there’s a very good chance the media will latch onto some of your soundbites, too.
  3. Themes resonate with our life experiences and preconceived attitudes about how the world should work. In addition, themes that are personally meaningful ignite emotion. And emotion triggers a desire for change.
  4. Themes provide the trial team with an initial framework for case management. Early theme development helps organize known and to-be-known facts, determine requests for production and interrogatories, develop questions for depositions, assert legal positions, identify supporting facts, determine witness roles and scope of testimony. The list goes on.

As we mentioned earlier, everyone benefits from the strategic use of themes: judges, arbitrators, insurance carriers, jurors, even witnesses.

But how in the world do you find case themes before you begin to draft the Original Petition or Response?

It can be difficult to convince an end-client that pretrial research is beneficial at such an early stage. But it’s always best to conduct some form of jury research to confirm that you’re on the right track (or to correct your path if you’re on the wrong track).

Trial themes can still be effectively developed early in the case with a shoestring budget. It’s as easy as spending 3-4 hours brainstorming with your trial team. Ideally, that team should include a litigation consultant who can offer insight on emotional hot buttons that may be irrelevant to legal strategy or liability issues, but critical to juror perception and decision-making.

Identifying themes early on – as soon as the initial filings and response – can help litigants shape a vision for where the case is ultimately headed and provide the trial team with a roadmap for success.

 

At CourtroomLogic Consulting, we help our clients think like a juror from the get-go by helping them develop themes at the earliest stages of litigation. Don’t wait until the evidence is set in stone to start developing your case for a jury. Contact us at info@courtroomlogic.com for a consultation.

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Anchoring Your Argument: How to Use The ‘Anchoring Effect’ to Persuade http://courtroomlogic.com/2017/11/08/anchoring-effect/ Wed, 08 Nov 2017 20:41:57 +0000 http://courtroomlogic.com/?p=6966 I recently worked on a federal jury trial where our main objective was damage control: keeping the verdict as low as possible. Plaintiff counsel, of course, wanted to maximize damages, and thus needed the jury to buy in to his damage number as early as possible. The plaintiff lawyer (knowingly or not), attempted to benefit...

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anchoring effectI recently worked on a federal jury trial where our main objective was damage control: keeping the verdict as low as possible. Plaintiff counsel, of course, wanted to maximize damages, and thus needed the jury to buy in to his damage number as early as possible.

The plaintiff lawyer (knowingly or not), attempted to benefit from the “anchoring effect” during his opening statement.

A bit of background: The anchoring effect is a cognitive bias that causes us to rely on a reference point, or “anchor,” when making future decisions or evaluations. It’s a well-tested psychological phenomenon. We rely on the anchor as a starting point, and because we typically make decisions by comparing one thing to another, we then search for additional clues to help us adjust our decision as needed. Although ever-present, we don’t necessarily recognize the impact of the anchor.

For example, when you’re at the store purchasing a bottle of wine (red, please), an anchor is established when you first examine the price tag. That initial price – no matter how high or low – ultimately influences your final spend. When examining each additional option, you’ll compare its price to the initial bottle. Does it seem fair? Is it overpriced? Within reason? Too cheap to be any good? How does it compare to other bottles that pique your interest? Eventually, you’ll decide how much you’re willing to pay.

Anchoring Effect at Trial

The anchoring effect occurs in the courtroom, too. The most common anchor relates to damage numbers – good old-fashioned dollars. But anchors can be percentages, distances, time, and even rules or guidelines. But for the sake of this post, let’s stick with cash.

In the trial mentioned above, plaintiff counsel repeatedly showed the jury the front page of a report published by a governmental agency. The agency attributed roughly 33,000 deaths a year to a particular industry, at a cost of roughly $871 billion. With some basic division ($871 billion divided by 33,000 deaths), counsel then attempted to establish his $28 million damage request as an anchor point for the jury. With luck on his side, any adjustments would be minor. Makes perfect sense from a mathematical perspective, but was it truly effective?

Yes and no. Here’s why:

Any number – even an arbitrary or completely inaccurate one – can serve as an anchor. About ten years ago, a study was conducted at MIT (Ariely et al., 2016) whereby graduate students were asked to bid on a random group of auction items, including a bottle of wine (see the pattern here?). But before students could submit their bids, they were instructed to write down the last two digits of their social security number. Then, they were asked to decide whether they’d be willing to pay that amount for each auction item. For instance, if a student’s social ended in -12, she had to decide whether the bottle of wine was worth more or less than $12. Only after completing those two random tasks were students allowed to actually submit a bid on the auction items. The results demonstrate just how influential an anchor can be: students who had higher digits were willing to spend 300% more than those who had lower digits! The social security digit “anchors” were completely irrelevant to the bidding process, yet they clearly influenced their decisions.

Using Anchors Effectively

But there’s good news for those who are bound by things like the rules of evidence: findings from a 2015 study indicate that anchor points are more influential when they have meaning to the fact-finders. Tossing a generic number in the air may technically be an anchor, but it may not have much impact.

The $28 million damages anchor did not work out so well for plaintiff, and our attempts at damage control prevailed. The courtroom is like a living organism – there are so many moving parts that factor into juror decision-making that it would be intellectually dishonest to attribute the outcome to the anchor.

But every litigator wants to be as persuasive as possible and there are strategies you can employ to help ensure that the anchors you choose have a little more impact on the decision-maker. Here are some practical suggestions:

  1. Choose a realistic number.
    While any number will have some influence on the decision-maker, if you want to maximize the persuasive power of the anchor, choose wisely. Try to identify an anchor that even opposing counsel would have a hard time arguing with. If the number is perceived as too “out there,” jurors may dismiss the number altogether, at best, and question your credibility, at worst.
  2. Provide context for the expert source.
    The effects of anchoring can have a greater impact if the source is deemed as credible, expert, and reliable. Jurors absolutely need to know the source of the anchor, but just because you think it’s a credible source does not mean your jury will. In an environmental contamination case, citing water quality standards from the ACGIH (American Conference of Governmental Industrial Hygienists) will have a lot more oomph if jurors understand who the group is, why it exists, and what familiar agencies rely on its work (e.g., OSHA, CDC, etc.). Invest a few extra minutes to provide ample context so jurors will trust the source of your anchor.
  3. Create a connection between the obscure and the ordinary.
    Making the unfamiliar familiar is always a challenge in the courtroom. In a products liability case, if the probability of a product malfunction is, at worst, “one in a million,” the anchor sounds compelling, but it has no emotional meaning. But look what happens when you connect the anchor to something more familiar: “The odds of being struck by lightning in any one year are 1 in 700,000, which means you are more likely to be struck by lightning than you are to experience a product malfunction.” That’s memorable. And memorable anchors are more influential.
  4. Use visuals to punctuate your anchor.
    A nice clean graphic can go a long way in making your anchor powerful. Some anchors work better than others, but it is especially important in situations where the numbers are so large (or small) that it’s next to impossible to fully grasp just how large (or small) they are. The brilliant folks at TEDEd created an original animation to connect the obscure “one part per million” with ordinary objects. It’s extremely creative, and worth a watch.
  5. Know your audience.Certain personality characteristics indicate a greater susceptibility to the anchoring effect. This isn’t a hard rule, but it is something to consider as you evaluate peremptory strikes during jury selection.
    • People who feel sad, downtrodden, or otherwise identify themselves as victims are more likely to be influenced by the anchoring effect
    • People with specialized knowledge tend to be less affected by anchors. [Alevy et al., 2011]
    • People with higher-level cognitive abilities are less likely to be influenced by numerical anchors (although the anchor effect still applies). [Bergman et al, 2010].
    • Extroverted, outgoing individuals are less susceptible to numerical anchoring.

(For more on the use of statistics in persuasion, see my recent blog post, The Benefits (and Occasional Perils) of Using Statistics in Trial.)

Like it or not, the anchoring effect influences our daily decision-making, and it can be equally potent in the courtroom. But, as with most things in life, it will have a bigger impact if wielded surgically and mindfully. And above all else, make sure the evidence supports your anchor.

 

At CourtroomLogic Consulting, we help our clients navigate the invisible forces that influence decision-making. We understand how cognitive biases (like the anchoring effect) and other quirks can be used to our clients’ advantage at every stage of dispute resolution. Contact us at info@courtroomlogic.com for a consultation.

 

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Vacated J&J Verdict Offers Insight into Jury Deliberations http://courtroomlogic.com/2017/10/30/jury-deliberations/ http://courtroomlogic.com/2017/10/30/jury-deliberations/#comments Mon, 30 Oct 2017 16:29:36 +0000 http://courtroomlogic.com/?p=6940 A recent ruling in California tossing a $417 million verdict against Johnson & Johnson provides trial lawyers with a priceless peek into how jurors think and what they take into consideration in awarding damages – even when they shouldn’t. The $417 million verdict against J&J was in one of several suits against the company alleging...

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A recent ruling in California tossing a $417 million verdict against Johnson & Johnson provides trial lawyers with a priceless peek into how jurors think and what they take into consideration in awarding damages – even when they shouldn’t.

The $417 million verdict against J&J was in one of several suits against the company alleging that their iconic baby powder, and other talcum powder products, causes ovarian cancer and that it failed to warn consumers about the risks of using their products.

On October 20, however, the Superior Court of California issued an order granting defendants a new trial. The court cited several reasons, but the one that interests me most is jury misconduct.

The jury misconduct had nothing to do with rogue jurors or social media posts. Instead, it centered on how the jury calculated damages, and what it considered when doing so. According to the court, the jury’s calculations of compensatory damages was improper, and its calculation of punitive damages was excessive.

Jurors have great difficulty calculating damages and working through the jury charge (something I’ll cover in a separate post), and the declarations filed by J&J and co-defendant JCCI illustrate this point quite clearly.

In J&J’s motion for new trial, it offered up affidavits from four jurors, including the foreperson. Although I have absolutely nothing to substantiate this, I would assume J&J conducted thorough post-trial interviews with any juror willing to participate, and either designed the interviews to support their assumptions, or discovered a few nuggets during the discussions that gave rise to a new appellate argument. Either way, the declarations are fascinating.

Because admissibility of juror statements is rarely all-or-nothing, the court included with its order portions of the juror affidavits and its specific rulings on whether certain excerpts would be admissible.

Here are a few excerpts from actual juror affidavits (plus my takeaways and tips):

“There were extensive discussions among the jurors about the distinction between ‘possible’ and ‘probable’ causes.”

Takeaway: Jurors need your help figuring out the jury charge. Don’t expect the jury to perceive the finer nuances between certain words. They speak in generalities, not in legalese.

Tip: Weave these terms, and their meanings, into your Q&A of key witnesses throughout the entire trial. Then tie it all together as you walk through the jury charge during closing.

“[Jurors who voted in favor of liability] …stated that taxes, appeal costs, and expenses would be taken out of…the money received. … After jurors raised those arguments, other jurors expressed an agreement to raise the amount of damages.”

Takeaway: Many jurors assume the dollar amount written on the verdict form will be much lower by the time the money makes it into the plaintiff’s bank account. Some jurors – consciously or subconsciously – adjust their numbers accordingly.

Tip: Consider reminding jurors during closing that the law requires them not to consider such issues. This language is typically included on the verdict form, so use that to emphasize your point.

“…jurors who voted in favor of liability discussed and agreed to set the number based on a percentage of the Defendants’ net worth, as [plaintiff’s counsel] had argued in closing argument.”

Takeaway: Jurors pay attention to what you tell them during closing, and if they are not provided with alternate numbers, they typically go with the number they are given.

Tip: If you’re a defendant arguing no liability, in most cases, it’s extremely important to provide jurors with an alternative damages number. Zero doesn’t do you any favors.

“On Monday…after almost no discussion, two more jurors switched to the plaintiff side, giving the plaintiff [the required] 9 votes.”

Takeaway: When there is a stalemate, the jurors who stick to their guns and refuse to budge are typically “leaders.”

Tip: Be sure to evaluate potential “leaders” and “followers” during jury selection. It could make the difference between a hung jury and a bad verdict.

I’ve written multiple times about my faith in juries, and, despite the legal issues that gave rise to the court’s decision to order a new trial, this California jury did an incredible job and should be applauded for their efforts to deliver a true and just verdict.

 

 

 

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4 More Myths About Juries http://courtroomlogic.com/2017/10/19/4-jury-myths/ Thu, 19 Oct 2017 22:14:51 +0000 http://courtroomlogic.com/?p=6923 My recent post, Is There a Perception Problem with the American Jury System?, busted the most common myth about jury duty: that everybody hates it. In this blog post, I’d like to bust four additional myths about juries and jurors, all of which attempt to degrade the reputation of American jurors, and the justice system in...

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My recent post, Is There a Perception Problem with the American Jury System?, busted the most common myth about jury duty: that everybody hates it.

In this blog post, I’d like to bust four additional myths about juries and jurors, all of which attempt to degrade the reputation of American jurors, and the justice system in general. I passionately believe it’s the best in the world, and that’s largely because Americans who serve on juries take their jobs very seriously.

So, fasten your seat belts while I bust a few more myths.

 

Myth: Jurors do not want to participate

Yes. They. Do. In fact, jurors want to be more involved than you think. But (yes, there’s always a “but”), maintaining a juror’s attention and keeping things interesting rests wholly on the lawyer’s shoulders. A good voir dire is as easy as having a casual conversation with jurors. But don’t forget that it’s a conversation with a clear purpose: to identify those who might be biased or otherwise unlikely to embrace your trial story. Jurors enjoy being a part of the conversation, but it’s up to you to make it feel like a genuine give-and-take of information, instead of an interrogation.

Myth: Jurors cannot fully appreciate the impact of bias

Actually, they can – assuming counsel takes the time to address the issue. Many lawyers use boilerplate language to get this message across, and jurors typically tune it out. But the most effective communicators explain why certain feelings, views, or experiences can get in the way of evaluating the evidence fairly, impartially and in accordance with the law. Even better, they illustrate the “why” with real-life, universal examples that resonate with jurors.

Myth: Jurors don’t consider what’s said during voir dire to be “evidence” 

Technically and legally, what’s said during voir dire isn’t evidence, but make no mistake: Jurors form impressions from the moment voir dire begins. In fact, sometimes these first impressions are so strong that all new information (e.g., actual evidence) is filtered through that initial perception. Even in federal or criminal courts, where counsel is typically more limited in what can be shared with the panel, jurors enter the box with strong opinions about who’s who, the conduct of the parties, and the validity of the claims. What jurors hear (and see) may not be evidence, but it’s definitely persuasive.

Myth: Jurors who are dismissed don’t want to talk

As relieved as potential jurors may be to hear the judge say, “You’re dismissed,” don’t forget that they formed opinions about what they heard before they bolted for the door. Many times, released jurors want to talk about what they thought about the process, and some are so intrigued that they have questions. And trust me, if that juror has a good question, you can be certain others do, too. If you’re in a venue where the court will allow parties to contact dismissed jurors, it’s an excellent way to measure knee-jerk reactions. But before making any sort of contact whatsoever, clear it with the court and the local rules.

 

It’s tempting to believe the conventional wisdom that everybody hates jury duty or that jurors are more swayed by style than substance. The good news is that, most likely, the jurors in your trials take their jobs seriously and will, when it’s all done, admit they actually enjoyed the process.

And, of course, just like death and taxes, jury duty is one of society’s great levelers:

President Bush Jury Duty

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The Benefits (and Occasional Perils) of Using Statistics in Trial http://courtroomlogic.com/2017/09/20/using-statistics-trial/ http://courtroomlogic.com/2017/09/20/using-statistics-trial/#comments Wed, 20 Sep 2017 18:54:58 +0000 http://courtroomlogic.com/?p=6899 A few weeks ago, one of my #TrialTwitter friends asked whether anyone had experience with using statistics in opening statement. It prompted an interesting conversation, but there’s only so much one can share in a 140-character tweet. Hence, this blog post. Are statistics ever appropriate for opening statement, witness testimony, a hearing, or even an...

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A few weeks ago, one of my #TrialTwitter friends asked whether anyone had experience with using statistics in opening statement. It prompted an interesting conversation, but there’s only so much one can share in a 140-character tweet. Hence, this blog post.

Are statistics ever appropriate for opening statement, witness testimony, a hearing, or even an MSJ? Absolutely. In fact, your presentation (or brief) can actually be more persuasive if it includes statistics. But a statistic isn’t persuasive or powerful simply because it exists. A statistic is persuasive and powerful because of the way it’s incorporated into your trial story.

Here are five tips to help ensure that the statistics you use are persuasive and memorable.

 

1. Choose Carefully

It’s important to choose the right statistic for the right reason. Just because a statistic is important to you does not mean it will be important to your audience. Statistics are most memorable (and, therefore, powerful) when they are directly tied to your message or supporting evidence. It’s best to identify the key takeaways you want to communicate and then find a supporting statistic because you want the jury to remember your message, not just the number.

For example, in a federal trial a couple of months ago, the plaintiff’s counsel repeatedly referred to a statistic in opening (and throughout his entire case) that referenced the financial impact of trucking accidents in America. He clearly believed it supported his request for almost $30 million in damages. I disagreed. I thought citing the statistic so early in trial – before any evidence or credibility had been established on either side – was likely to be perceived by jurors as a money-grab. The dollars were clearly important to counsel, but the jury would likely have found statistics related to the odds of being involved in a trucking accident, or the number of fatalities, more memorable.

Ultimately, the jury wasn’t persuaded by the plaintiff’s evidence or damage request, and delivered a defense-friendly verdict.

2. Connect the Dots

Don’t assume your audience will make the connection between the actual statistic and the point you hope to make. Jurors (or any audience, for that matter) will be influenced more by the “here’s-why-it-matters” information than they will by the number itself. Tangible statistics are more powerful and persuasive.

For example, a Centers for Disease Control and Prevention study claims that approximately 900,000 Americans die each year from cardiovascular disease (CVD). But what does that mean? Is that a low number? A high number? If your goal is to make it seem very common and a high risk, perhaps it would mean more to jurors to share that the CDC also reports that every 40 seconds, someone dies of CVD. “So, that means in the eight minutes I’ve been speaking,” the attorney might say, “12 people have died of CVD.”

3.  Be Precise

Sometimes in trial, the “spirit of the message” is more important than the precise details of the message. Not so with statistics. If you’re going to cite a statistic, be sure to couple it with the source, the date, and the sample size (if relevant).

For example, telling your audience, “Research shows that approximately 2% of federal defendants had their cases decided by a jury” is an interesting nugget, but leaving out the details could cause jurors to question the veracity of the information. Sharing greater detail can have more impact:

In 2016, the administrative office of the United States Courts noted that there were 77,318 federal cases on file, but only 2% of those cases were ultimately decided by a jury.

The greater detail you provide, within reason, the more credibility and reliability your statistic will have. And if your opponent cites a statistic without the source or date of the study, you might want to do a little digging. It may not be nearly as credible as you initially think.

4.  Give It Life

Stories persuade. Statistics can also persuade. Combining the two together can really take things up a notch.

For example, if you are defending a neurosurgeon against allegations of a medical mistake, rather than sharing a generic statistic about the number of brain surgeries that are performed each year in America with success, why not couple that statistic with a story of a successful surgery your client performed? That successful surgery opened a world of possibilities, for the patient, the patient’s family and all the people the patient can continue to positively impact.

Giving your statistics life can breathe new meaning into them, and increase a juror’s ability to empathize or identify with your client.

5.  Less Is More

Finally, just because you can find a bunch of fabulous statistics does not mean you should use them all. Incorporating one powerful, well-presented statistic can have a much bigger impact than sharing a handful of numbers with little context or poorly executed delivery.

The most illustrative example of this I could find is compliments of Cindy Griffin’s book, “Invitation to Public Speaking,” which used the following as an example of death by statistics. I think we can all agree the important message here (whatever it is) is lost in a sea of numbers:

Based on these 2008 figures, we can say of the 1,393 males between the ages of eighteen and twenty-one with incomes above $24,000 a year and less than two years of training who attended this event more than three times but less than five, 743 drove their own vehicles, 259 rode with friends, 128 took the bus, and 11 walked. This leaves 252 unaccounted for. Now, let’s look at the 2010 date. These figures change slightly.

Telling the Bigger Story

When used sparingly and in the proper context, statistics can be a powerful tool of persuasion. They can help us tell a bigger story and attach our trial themes to a context that is more relatable to jurors.

 

 

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