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Reading The Jury
Litigation Research To Understand and
Shape the Decisions Jurors Make
A collection of articles prepared for defense attorneys by Amy Singer, Ph.D.
Dr. Singer is founder and president of Trial Consultants, Inc.®, part of The Singer Companies, Fort Lauderdale. The Singer Companies provide trial consulting, litigation research, settlement, and related professional services for attorneys across the country.
Copyright © Amy Singer 2000. All rights reserved.
A note on what follows.....
The articles included in this collection were all authored by Amy Singer, Ph.D.; edited or slightly different versions of most of the articles have been published in well known attorney magazines and journals with nationwide circulations. Some of the articles are now being reviewed for publication in various magazines' upcoming editions.
This collection of articles is furnished for information purposes only and is fully protected by copyright law.
Amy Singer, Ph.D.
Amy Singer, Ph.D., is a nationally recognized authority in the field of litigation psychology, a discipline she helped pioneer; and an expert regarding the psychology of jurors and juries and the dynamics of a jury's deliberations and decision-making processes. She is widely regarded as a visionary leader in employing the tools of behavioral science, applied research, and psychological analysis to develop winning courtroom strategies and tactics for attorneys across the country.
The Singer Companies
Dr. Singer is the founder and president of The Singer Companies, headquartered in Fort Lauderdale and with offices across the country. The Singer Companies are comprised of Trial Consultants Inc. (jury research and trial preparation); Litigation Consultants Inc. (case strategic planning and mapping); Trial Communications Inc. (providing attorneys with specialized services such as "1-800-A JURY DR"), Port-O-Court Inc. (issues analysis, including "Paragon Panels"), and The Institute for Settlement Sciences Inc. (settlement intelligence services).
Multidisciplinary team approach
As president of The Singer Companies, Dr. Singer leads one of the most experienced and successful jury research, trial preparation, and settlement planning & support groups in the country. This multidisciplinary team is comprised of trial consulting and jury research professionals, psychologists expert in research design and statistical analysis, seasoned litigators, and other litigation psychology and settlement support specialists.
Noted author, lecturer, and jury analyst for TV and radio
Dr. Singer is a popular and prolific author and speaker on the topics of juror/jury behavior, trial preparation, and trial presentation tactics and strategies. She is the co-author, along with Texas trial attorney Pat Maloney, of the 3-volume, 1,500-page Trials and Deliberations: Inside the Jury Room, published by Lawyers Publishing Corporation. She is a contributing author to the Wiley Expert Witness Update, soon to be published by Wiley Law Publications. Her articles on jury and trial matters are a regular feature of the legal and business media. Additionally, she has been interviewed, or her professional opinions and work referenced, in many prominent publications, including The New York Times, The Wall Street Journal, Psychology Today, Ladies' Home Journal, The American Lawyer, The Boston Globe, The Miami Herald, The Fort Lauderdale Sun-Sentinel, and The Miami Daily Business Review.
Dr. Singer is called upon on a routine basis by the national broadcast media to provide informed courtroom commentary regarding prominent trials. These have included, among others, the William Kennedy Smith trial and the O. J. Simpson trial. National programs on which Dr. Singer has been featured and/or asked to appear on include Nightline (ABC), 48 Hours (CBS), TalkBack Live (CNN), Larry King WeekEnd (CNN), Talk of the Nation (NPR), Hardball with Chris Matthews (CNBC), and Rivera Live (CNBC).
Dr. Singer is a frequent lecturer on jury and trial matters. Organizations that have sponsored Dr. Singer's lectures as part of their meeting and/or continuing education activities include the American Bar Association, American Trial Lawyers Association, American Board of Trial Advocates, American Law Institute - American Bar Association, along with numerous state and local bar associations across the country.
Trial Consultants Inc.
One of the oldest and most successful trial consulting and litigation research organizations in the United States, Trial Consultants Inc. assists in over 1,000 cases annually. Through Trial Consultants Dr. Singer and her colleagues provide a comprehensive range of highly specialized professional services, including case issue analysis, mock trials, jury simulations, jury focus/mini-focus groups, simultaneous juries, juror/jury evaluations and analyses, and post-verdict interviews. Other services in demand include change of venue studies (along with public opinion and attitude surveys), voir dire consultations and training, supplemental juror questionnaires, witness preparations, and courtroom image consultations and makeovers.
Litigation Consultants Inc.
Litigation Consultants Inc., America's first "litigation think tank," is organized to provide expert brainstorming for litigators across the country regarding complex commercial litigation and similar challenging cases. Litigation Consultants offers attorneys nationwide the singular advantage of being able to immediately tap into the collective wisdom, experience, and savvy of some of America's most eminent trial masters and genuine legal legends: Scott Baldwin (Baldwin & Baldwin, Marshall, Texas), Philip H. Corboy (Corboy & Demetrio, Chicago), Russ M. Herman (Herman, Herman, Katz & Cotlar, New Orleans), J.D. Lee (Lee, Lee & Lee, Knoxville), Salvador A. Liccardo (Liccardo, Rossi, Sturges & McNeil, San Jose), Ronald H. Rouda (Rouda, Feder & Tietjen, San Francisco), Ted M. Warshafsky (Warshafsky, Rotter, Tarnoff, Reinhardt and Bloch, S.C., Milwaukee), and Harvey Weitz (Schneider, Kleinick, Weitz, Damashek & Shoot, New York).
The recent national trend on the part of many corporations and companies is to turn to the superstars of the plaintiffs' bar for legal representation when their cases are clearly headed for trial. The attorneys associated with Litigation Consultants are recognized as some of the legal profession's most creative and original problem-solvers. These attorneys and Dr. Singer can assist with the analysis, planning, presentation or settlement of the most difficult cases imaginable, and ones where no solutions are readily apparent.
Many attorneys despair when they must handle cases with huge stakes that offer no margin for error and no clear solutions. Such cases however have proved to be a staple for the attorneys associated with Litigation Consultants, who are famous for being able to re-think and re-frame key litigation issues, and thus achieve courtroom success for their clients.
The Institute for Settlement Sciences Inc.
The Institute for Settlement Sciences provides attorneys with a huge advantage in the settlement and negotiation arena by providing cost-effective and highly specialized settlement intelligence services. Settlement Support professionals can tap into a data bank of thousands of cases, along with actual and surrogate juror interviews, to provide customized strategies and solutions to specific case settlement needs.
Through Port-O-Court Dr. Singer offers attorneys case issues analyses services, including "Paragon Panels" - opposition-prone jury simulations designed to pinpoint the primary criteria for jurors' decision-making regarding particular courtroom disputes.
1-800-A JURY DR
Dr. Singer is a leader in the development and application of numerous innovative, economical, and highly singular trial consulting services. One of the most popular is 1-800-A JURY DR, a special toll-free number attorneys can contact to immediately receive case-specific voir dire questions, along with trial theme and strategy recommendations for late-breaking trials. Recommendations are formulated through proprietary expert systems developed by Dr. Singer and her colleagues, and are derived from Dr. Singer's vast data bank of previous cases.
Honors and memberships
Dr. Singer is a member of the following professional and honorary groups: American Society of Trial Consultants, American Psychological Association, Who's Who in the South and Southwest, and the Young Presidents' Club at Mount Sinai Hospital, Miami Beach.
Dr. Singer is an honors graduate of Hofstra University (B.A., Psychology; and M.S. and Ph.D. in Applied Research Psychology).
Amy Singer, Ph.D.
The Singer Companies
Headquartered in Fort Lauderdale with offices nationwide
Trial Consultants Inc.
1463 NW 104th Drive
Gainesville, FL 32606
E-mail: JuryDoctor@aol.com & Amy.TrialConsultants@gmail.com
Reading The Jury
Employing Litigation Research To Understand and Shape the Decisions Jurors Make
Table of Contents
Reading The Jury
Employing Litigation Research To Understand and Shape the Decisions Jurors Make
A collection of articles by Amy Singer, Ph.D., founder and president of Trial Consultants (jury research and trial preparation), Litigation Consultants (America's first "litigation think tank"), and The Institute for Settlement Sciences (settlement intelligence services), all based in Fort Lauderdale. Dr. Singer is a nationally recognized authority in the field of litigation psychology, a discipline she helped pioneer; and is considered a visionary leader in employing the tools of behavioral science, applied research, and psychological analysis to develop winning courtroom strategies and tactics for defense and plaintiffs' attorneys across the country.
The following article by Dr. SingER details the most successful strategy defense attorneys should use to successfully challenge biased jurors during voir dire.
Exposing and Eliminating Biased Jurors During Voir Dire
Planning, preparing, and conducting a products liability trial can be a complex and difficult endeavor - countless documents reviewed and organized; scores of depositions taken; numerous witnesses prepared; and every minute aspect of the trial, from voir dire to closing argument, strategized and rehearsed.
Nevertheless, it takes only one biased juror to make the most exhaustively prepared case - the entire grand design - explode like a rotten egg! A biased juror can be the kiss of death for the best planned case, poisoning deliberations - and the other jurors - every time he or she speaks. The attorney must use voir dire to flush out biased prospective jurors and exclude such individuals through an intelligent use of challenges.
How can the attorney spot and de-select biased panelists most effectively during voir dire? The Bible says: "By their fruits you will know them." The attorney must organize voir dire so biased jurors will feel relaxed enough to display their "fruits," i.e., their prejudiced thinking, clearly for all to see.
To understand how this can best be achieved, lets first examine - and hopefully eliminate - some common but wrongheaded approaches many attorneys employ during voir dire. I'll then detail a surefire methodology attorneys can use to successfully spot and challenge biased jurors during voir dire.
Voir Dire Mistake No. 1 - "Demographic Dependency." Many attorneys still rely on demographics - age, sex, race, religion - to evaluate jurors during voir dire, despite the fact that substantial jury research indicates no correlation between demographics and verdicts. People's opinions and beliefs - the key criteria by which jurors base their verdicts - are not merely a function of their demographic groupings. Not all Blacks are liberals nor all businessmen conservatives. That sweet little blue-haired lady may be more at home riding the rapids in Colorado than sitting in the kitchen planning her next pie. Jurors seated according to demographic stereotypes often end up unexpectedly demolishing the case during deliberations.
Voir Dire Mistake No. 2 - The "Twenty Questions" Approach. Voir dire panelists resent being manipulated. Nevertheless many attorneys use voir dire to baldly get jurors to pre-commit to a desired viewpoint without hearing the evidence - "Do you understand that product warning labels are mandated by the government?" Some attorneys insult jurors by questioning their ability to comprehend the case issues - "Do you understand that?" or regarding their ability to be impartial - "Are you sure you can be fair?"
Voir Dire Mistake No. 3 - Close-Ended Questions. Voir dire lets attorneys learn what the panelists think and feel about the case issues in order to root out those who cannot approach these matters with an open mind. Why then do many attorneys use only close-ended questions during voir dire - "Have you or a loved one ever been injured by a product?" - the answers to which are guaranteed to shed little light on the jurors' opinion?
Voir Dire Mistake No. 4 - "Killing the Conversation." Attorneys are not picking individual jurors during voir dire, but rather a jury, i.e., a group of individuals whose collective judgment will decide the case. It is therefore highly useful to see how panelists interact with each other during voir dire. This can be accomplished by allowing panelists to comment regarding each other's responses - e.g., "How do you feel about what (the other panelist) just said?" The best voir dire consists of a free-wheeling exchange where all panelists are able to express (and thus exhibit) their opinions and attitudes.
OK, we've discussed how not to conduct voir dire. So what works? The following strategy, when adroitly applied, enables the attorney to quickly uncover and eliminate prejudiced panelists through successful challenges.
Employ Litigation Research - Jury focus groups, jury simulations, and litigation intelligence (pre-trial) surveys provide an invaluable "snapshot" regarding juror attitudes, both pro and con, concerning the case and its core issues. Litigation research also uncovers the jurors' key value beliefs, i.e., the essential precepts by which they operate; and the relationship of these guiding principles to the case issues at hand. Value beliefs (internal attitudes) are expressed through (external) opinions. Once the attorney understands how prospective jurors' value beliefs relate to the case, he or she can then design the ideal questions to use to elicit juror bias.
Make the Jurors Feel Comfortable - All panelists must feel relaxed so they will not be inhibited in speaking their minds. The attorney should be sociable and smile; ask questions in a light and easy manner; and let the panelists establish the tempo and pace of the proceedings. He or she should be non-judgmental regarding juror responses, even the bad ones.
Prepare and Submit a Memo of Law - A "pre-emptive" legal guide regarding recent law relating to challenges for cause helps guarantee that both attorneys must operate according to the same standards regarding challenges. The memo should be given to the judge prior to jury selection to avoid the potential problem of bogging down voir dire - and irritating the panelists - by bringing up the appropriate legal references.
Ask Open-Ended Questions - For example: "What are your feelings about products liability lawsuits?" Open-ended questions usually start with such phrases as "tell us your opinion concerning...." or "what are your thoughts about...." and end with specific case concerns, i.e., "corporations," "the toy industry," and so on. Only through open-ended questions can the attorney uncover the panelists' true attitudes.
Record Juror Responses - This step provides the attorney with an accurate record regarding all panelists' responses; and, in particular, how they feel about the key case issues.
Poll the Other Panelists - Want to learn if the other prospective jurors share one particular panelist's bias? Ask them! Simply take a poll and record the results.
Clearly Confirm Juror Bias - To successfully challenge a biased juror, you must spotlight his or her prejudice for all to see. This can be neatly handled with a carefully planned questioning strategy. For example:
Attorney: How do you think most companies feel about product safety?
Juror No. 1: Most care about it only when someone sues them.
Attorney: Thanks...that's exactly the type of honest answer we want. (To the other jurors:) How many agree? (Notes responses.)
Attorney: (To juror No. 1:) How long have you felt this way?
Juror No. 1: Years and years.
Attorney: Do you impulsively change your feelings?
Juror No. 1: No.
Attorney: Not going to suddenly change your mind within the next few days?
Juror No. 1: No.
Attorney: We appreciate your candor.
Get Rid of Biased Jurors ASAP - Once the attorney knows who the problem panelists are, they should be struck for cause immediately. These individuals can only hurt the case while they stay in contact with the remaining panelists during lunch and other breaks.
The typical products liability trial is a minutely planned and carefully balanced construction that nevertheless can collapse like a house of cards due to the biased thinking of one juror. You must eliminate such jurors before the trial begins. The trial-tested methodology outlined above is the surest way to accomplish this essential task.
When it comes to large products liability disputes, litigation intelligence surveys are an invaluable resource for pre-trial planning, for voir dire, and for settlement purposes. The following article by Dr. Singer explains what litigation intelligence surveys are and how they can be used by the attorney most effectively.
Litigation Intelligence Surveys: Essential for Large Products Liability Trials
What is the one tool available to defense attorneys which enables them to determine with reliable accuracy the case's key issues and facts and what jurors will think and feel about them; provides the most appropriate de-selection map by juror profile, along with the optimum de-selection strategy; greatly streamlines discovery; spotlights those aspects of the case which provide the best opportunity to successfully sway jurors; helps hone courtroom arguments with precision and confidence; and can be used to develop scientifically valid information regarding potential jurors' primary attitudes regarding the case - i.e., objective and irrefutable data which will permit the strongest possible settlement position? The answer is the litigation intelligence survey - an absolute must for any products liability trial where the verdict could run into the millions of dollars.
Similar to commercial marketing surveys and public opinion polling, the litigation intelligence survey represents an elaborately planned, carefully controlled, and expertly evaluated scientific study of the inhabitants of the jurisdiction where the trial is to be held. But instead of asking about their preferences regarding toothpaste, automobiles, or political candidates, litigation intelligence surveys investigate the individuals' opinions and attitudes concerning the facts, issues, and arguments regarding a potential or actual legal dispute.
A primary advantage of litigation intelligence surveys is that they enable attorneys to unerringly monitor the probable perceptions of jurors regarding the primary case issues, along with their emotional propensities to these case elements. This is handled on a psychometric basis - i.e., the scientific methodology used to quantify subjective mental data.
Jury verdict behavior is a psychological phenomenon. Jurors enter the courtroom with emotional baggage that automatically predisposes them to favor one side or the other. Litigation intelligence surveys enable the attorney to accurately pinpoint those case aspects to which jurors will be psychologically pre-disposed to respond most favorably, along with those that must be de-emphasized. Surveys help the attorney determine which of the jurors' psychological "hot buttons" he or she should plan to push, along with those to avoid.
This type of information can be extremely useful in any large products liability case. To illustrate, let's assume polling conducted by the defense in such a case regarding two "Generation X" plaintiffs involved in an auto crash shows that: 1) 78 percent of those polled feel a strong emotional attachment to the auto manufacturer in question, who has long maintained a large plant in the area; however 2) 49 percent believe the company can "do more" for the community, and 3) 38 percent think the company "does not offer enough jobs"; 4) only 24 percent believe the auto manufacturer places a higher emphasis on profits than on safety, but 5) 90 percent of the 24 percent who responded affirmatively to the "profits over safety" question agree with this philosophy.
These data present the defense with targeted information that can be put to effective use in a number of different and beneficial ways - e.g., as a possible overall strategic approach to adopt in the courtroom (emphasize the manufacturer's strong ties to the community); and for voir dire questioning (to smoke out negative panelists who may be prejudiced against the manufacturer regarding the "jobs" and "doing more for the community" issues; and by providing the invaluable insight that the attorney doesn't need to "inoculate" panelists regarding the "profits over safety" issue, since more than three-quarters of the people living in the jurisdiction do not believe this attitude applies to the manufacturer; and of those who do, nine out of ten feel profits should weigh more heavily than safety anyway!).
More than any other research methodology, litigation intelligence surveys provide the attorney with the most accurate barometer of local community attitudes regarding his or her case. It is true that community attitudes can also be determined through another worthwhile research tool - jury focus groups. These are excellent for providing in-depth information regarding how potential jurors will think and feel about the case; but they cannot supply the comprehensive breadth of information which enumerated litigation intelligence surveys can uncover.
A clear advantage of the litigation intelligence survey is the use of survey results as a basis to successfully petition the court for change of venue. Such polling can detail with accuracy the extent of prejudicial attitudes that may exist within the jurisdiction against the client and, possibly, his or her product line. Additionally, litigation intelligence surveys can assess the exposure to, and the effect on, potential jurors regarding inflammatory pre-trial publicity directed against the client. They can also establish the likelihood of being able to seat an impartial jury in a different jurisdiction.
The litigation intelligence survey is the attorney's most formidable settlement weapon by far - it is able to precisely and objectively determine what a case is truly worth. Let's assume polling results by the defense in a products liability trial regarding a defective toaster indicate that - given the facts of the case - 89 percent of prospective jurors in the jurisdiction agree that a $5 million award is reasonable; and that these results can be verified with a 95 percent confidence interval, i.e., within a possible error rate of plus or minus 5 percent. With scientifically valid survey results such as these, evaluation by the defense of the plaintiff's suggested settlement amount of, say, $3.5 million boils down to a simple yet inescapable exercise in cost/benefit analysis.
Another advantage: the hard-headed client determined to proceed to trial despite counsel regarding the likelihood of a negative verdict will have to think twice about his or her foolhardy position due to strongly negative polling results.
So how and when should litigation intelligence surveys be employed, and do they take the place of other litigation research activities such as jury focus groups? Litigation intelligence surveys are useful for any large multi-million dollar case such as a products liability dispute; for complex and/or unpredictable cases; and for any large case in which the ultimate goal is to settle.
Litigation intelligence surveys do not take the place of jury focus groups and jury simulations but are designed to work in conjunction with these other research activities. Focus groups are conducted first to pre-determine what jurors will think and feel about the primary case facts, issues, and arguments. Findings are then used to develop a broad range of targeted survey questions that will provide the most comprehensive profile of probable juror opinions and attitudes regarding the case and its key elements.
Regarding timing, polling should be conducted early in the trial planning process. This can aid in streamlining discovery by spotlighting those areas of the case that will be of most concern to the jurors, while eliminating those that are least important. Also surveys organized early provide reliable data regarding probable juror attitudes and opinions that can be essential in planning overall case strategy.
A litigation intelligence survey is normally conducted in two parts. First, a pilot study known as a "core belief survey" is taken among 30-50 individuals who reside within the jurisdiction. This grouping should represent a diverse mix of individuals who are bright and highly verbal. Survey questions are open-ended - e.g., "What do you think about.....?" The purpose of the pilot study/"core belief survey" is to develop as wide a universe of responses as possible. These responses are then evaluated on a "response analysis" basis (similar to decision analysis but involving a "response tree" instead of a "decision tree"), to determine the most targeted and effective questions to include in the second follow-up survey.
The follow-up survey is then conducted among a far larger random grouping within the jurisdiction. At least 400 people must be polled to assure that survey results will fall within a statistically acceptable accuracy rating of plus or minus 5 percentage points. Once survey results are analyzed and evaluated, the most appropriate findings are then tested through additional jury focus groups and jury simulations to determine what will work best in the courtroom.
Litigation intelligence surveys are complex social science experiments that must be organized on a completely professional basis to achieve meaningful results. Primary survey components include sample design, questionnaire construction, interviewing methodology, plus survey presentation, analysis, and interpretation. If each of these is not expertly and/or adroitly handled, survey results are likely to be flawed - and may end up pointing the attorney in the wrong direction regarding the planning of case strategy.
Costs for litigation intelligence surveys range from $5,000 to $50,000, with $15,000 representing the typical expense (which covers both the pilot study/"core belief survey" and the larger main survey). Costs vary according to the number of people surveyed, the methodology employed, the comprehensiveness of questions asked (and results analyzed), and similar factors. Litigation intelligence surveys normally take from two weeks to a little over a month to plan and complete, which includes the tabulation, evaluation, and interpretation of data, along with the presentation of results.
Everyday market research firms are out of their depth when it comes to planning, conducting, and evaluating litigation research surveys regarding trial disputes, juror/jury psychology, courtroom presentation tactics, and related topics. These complex areas require a professional skills set that is outside of the normal area of market research. Only firms expert in litigation research, trial consulting, voir dire planning, pre-trial polling, and statistical analysis are able to competently handle litigation intelligence surveys.
Music lovers who attend Puccini's "Madama Butterfly" don't expect or want to hear a Guns 'n Roses Heavy Metal concert instead. Jurors are no different than concert-goers. Most enter the courtroom with pre-formed attitudes and opinions regarding what they expect the case to be about - before hearing or seeing any evidence or listening to any arguments. It is critical therefore that the attorney know precisely how these predilections and prejudices will affect his or her presentation of the case - and plan accordingly. The litigation intelligence survey is an excellent tool to carry this out most effectively.
THERE ARE MORE WAYS TO DETERMINE WHO THE JURORS ARE than to simply question them during voir dire. One excellent technique attorneys can use to fully get the book on jurors is through S-J-Qs - supplemental juror questionnaires. The article that follows explains what S-J-Qs are and how the attorney can use them most effectively.
S-J-Qs - Great for Juror I-N-F-O
It's vital during voir dire to secure the information you need to make an intelligent selection (de-selection) decision concerning jurors. This can best be handled by using a series of open-ended questions - "What are your thoughts concerning______" - that will permit the jurors to reveal their true feelings about the key issues of the case.
Unfortunately, judges may not provide the full time and/or latitude you need to adequately learn about jurors and what their attitudes and biases may be. This becomes even more of a problem in Federal Court where in most cases it is the judges, not the attorneys, who pose voir dire questions to the panelists. How can you secure the key knowledge you need regarding the jurors if the judge severely restricts your questions during voir dire?
This can best be accomplished through the use of supplemental juror questionnaires (S-J-Qs). These versatile question forms can be used in lieu of oral questioning during voir dire; or they can be used in addition to voir dire questioning, thus providing an excellent opportunity for highly focused follow-up questions to individual jurors. S-J-Qs furnish comprehensive and definitive portraits of the jurors - who they are; what their backgrounds and their life experiences may be; and most importantly, what they think and feel regarding the key case issues.
Judges like S-J-Qs because they make the voir dire process more efficient and less time consuming (and because they provide judges with a feeling of greater control over voir dire). Jurors like S-J-Qs because they provide a sense of relative anonymity in which highly personal thoughts and feelings can be detailed.
And since S-J-Qs are court affidavits that must be signed under penalty of perjury, jurors are compelled to answer them honestly.
S-J-Qs often provide strong grounds to challenge jurors for cause. The jurors' written and signed statements concerning their basic attitudes and beliefs are down there clearly in black and white - and thus less open to interpretation.
The main value of S-J-Qs, however, is the vast amount of valuable data they reveal concerning the jurors. S-J-Qs enable an attorney to truly get the book on the jurors, discovering through their written responses what they are like, what they believe, what is important to them, and what is not. (As in voir dire, this type of highly personal information is best derived through open-ended questions on the S-J-Qs.)
S-J-Qs expose a great deal about the jurors, and not just through the answers they give. A juror's handwriting, for example, can be significant. Jurors who write their answers in an overly neat fashion, with no errors in spelling and grammar, and with all the "i's" dotted and the "t's" crossed, may prove to be rigid and discriminating, and thus more liable to hold the defendant to exacting standards. Conversely, a juror who rushes through the questionnaire, using sloppy handwriting and stock responses, will probably go easier on the defense side.
Word choice, spelling, punctuation, even choice of writing instrument, can also tell much about the jurors. I recall one juror, for example, who filled out her S-J-Q with wordy answers in red ink that filled up every available bit of white space on the pages. You didn't need to be a psychiatrist to know that this was an extremely opinionated individual - and a person likely to disregard whatever anyone else might say in the jury room.
Comprehensive and carefully reasoned S-J-Q responses almost always indicate more intelligent jurors. Jury research shows there is a strong correlation between intelligence and verdicts. The more intelligent a juror is, the more verbal he or she is, the more weight and influence such a person is liable to have during deliberations. S-J-Qs are useful tools to target intelligent jurors who may already be predisposed to your case. The attorney should plan voir dire to determine if such jurors are comfortable speaking in front of others. If so, it is a good bet they will prove to be jury leaders - individuals you definitely want to seat.
S-J-Qs should be made as inclusive as possible to secure the maximum available useful information about jurors. Regarding mechanics, it is better to have jurors fill out S-J-Qs in the courtroom rather than mailing them to jurors' homes. (Too often they are not sent back on time.) S-J-Qs should be prepared in triplicate with carbons so you can immediately provide a copy to the judge and opposing counsel, while retaining a copy for yourself.
You should ensure that S-J-Qs are given to the jurors so they will have plenty of time to answer the questionnaires completely (most jurors can complete a 60-question form in 15 or 20 minutes); and that there will be sufficient time to analyze them. It is useful to designate one person - normally the jury consultant who designs and analyzes the S-J-Q - to be in the courtroom during voir dire to assist the attorney as follow-up questions are posed to jurors.
S-J-Qs provide attorneys with highly personal intelligence and insights regarding jurors - both in terms of the written responses and what exists between the lines. Be sure and use them if you can.
TOO MANY ATTORNEYS DEAL IN STEREOTYPES WHEN PICKING JURIES - race, age, ethnic background, gender, and so on. Yet studies indicate there is no meaningful correlation between stereotypes and jury verdicts. So what are the criteria attorneys should use to make their juror de-selection decisions? Dr. Singer answers this compelling question in the article that follows.
Value Beliefs, not Demographics, Key to Seating Jurors
Many experienced trial attorneys believe the case has been won or lost by the time the last juror has been seated. It is peculiar, therefore, that a large number of seasoned litigators continue to depend on the antique notion of demographics - race, age, gender, education, religion - as their primary jury selection criteria. Numerous jury research studies plus my many years of practice indicate that demographic stereotypes fail to correlate in any meaningful way with jury verdicts.
"Demographic dependency" is the main reason many attorneys seem to perform so poorly when it comes to selecting jurors. Professor Martin F. Kaplan of Northern Illinois University, a recognized jury expert, conducted a research study in 1990 to determine who would be more successful at picking jurors - lawyers or lay persons. The "demographically dependent" lawyers lost by a mile. Indeed, Professor Kaplan's research results indicated they would have done better by selecting jurors' names out of a hat!
If demographics are not the ideal juror selection criteria, what are?
The answer can be summed up in two words: value beliefs. These represent a person's core convictions - "a person is responsible for his or her actions," "abortion is murder," "life is unfair," "everyone cheats on his or her taxes, so that makes it OK." (Note: In addition to value beliefs, life experiences also are highly predictive of jury behavior.)
It makes good sense that it is value beliefs, not demographics, which determine how jurors will decide cases. What do you think the odds are that 12 women, or 12 Jews, or 12 Black businessmen will all think alike about a particular trial dispute? I sure wouldn't want to make a bet on that basis.
Along these lines, when did you ever hear a juror state during a post-verdict interview that she decided the case as she did because she is a "middle-age Lutheran female college graduate and mother of two from the Midwest?" Instead, she probably would have commented in some manner about her "feelings" or "beliefs" (read: value beliefs) concerning the verdict she reached.
Peoples' value beliefs are the primary prisms through which they view the world. From value beliefs come attitudes - the jurors' predilections and biases concerning how they will weigh the evidence during trials. Discover jurors' value beliefs, and you will be able to determine their attitudes about the case issues. Once attitudes have been established, you can then successfully predict jury behavior.
So how exactly can an individual juror's value beliefs be determined during voir dire?
This can best be accomplished by questioning jurors so they are able to respond with open and revealing answers that spotlight their true feelings. Attorneys need to use open-ended questions during voir dire - "What do you think about...?" or "Please share with us your feelings concerning..." - that will allow the jurors to expound on their central beliefs and attitudes concerning the primary case issues.
This style of questioning stands in marked contrast to the restrictive, close-ended questioning many attorneys employ during voir dire. "Have you ever been involved in an automobile crash?" permits only a rigid "yes" or "no" response, significant of little useful information about the juror and his or her opinions. "What are your feelings about people who become injured in automobile crashes?" will elicit far more valuable insights concerning the basic attitudes, beliefs, and biases of the juror being questioned.
In this regard, attorneys should avoid asking loaded (and insulting) questions - "Can you be fair?" or "Do you understand that you must be willing to sort through all the evidence before making your decision?" Such questions will result in only socially acceptable answers that may run directly counter to a juror's true feelings about the case.
The attorney should listen carefully to jurors' word choices as they respond to his or her questions during voir dire. This is essential to spot key value beliefs. Jurors discuss their central beliefs and attitudes when they use such words and phrases as "I feel...," "I think...," or "I believe that...." Other dead giveaways are phrases such as "a person should...." or "everyone knows that...." or "the policeman could have...."
Research indicates that jurors are most influenced by personal biases (an iteration of value beliefs), secondly by legally inadmissible information acquired through trial, and only thirdly by legally admissible evidence. It is critical, therefore, to uncover the key value beliefs of voir dire panelists before they are approved as jurors. If this is not done, jurors whose basic biases may already predispose them against your case are likely to torpedo it - and you - before you're even out of the box.
ATTORNEYS CAN USE sophisticated neurolinguistic programming techniques to, in effect, "hypnotize" jurors to be more responsive to the desired point of view. The following article discusses this intriguing topic from a "nuts & bolts" point of view.
Cueing Positive Memory Recall With Jurors
Hypnotists, behavioral modification counselors, specialists in neurolinguistic programming, and similar professionals are knowledgeable about, and employ, various highly powerful psychological techniques to convince, persuade, and influence others. Some of these techniques are directly applicable for use with jurors. They are remarkably potent because they operate on the jurors' subconscious mental processes. One of the most effective of these techniques is a process known as "anchoring."
Attorneys can use "anchoring" to get jurors to react positively on cue to an unspoken message. The procedure involves the use of a specific gesture (a positive behavioral anchor) simultaneously with a verbal "message" for the purposes of classically conditioning the jurors (i.e., establishing the famous Pavlovian response).
In most cases it is best to anchor the pivotal point of the case in order to make the strongest possible impression on jurors. For discussion purposes let's assume that the case's pivotal point hinges on the fact that four different witnesses have placed the murder trial defendant in a different state at the time the killing took place. The attorney should anchor this fact every time he or she mentions it with a clear and unmistakable signal - e.g., grasping the chin thoughtfully or gesturing with the hands. Doing this repeatedly associates the gesture with the pivotal point "message" until the gesture stimulus alone will retrieve the memory.
After the stimulus-response mechanism has been adequately established, the attorney need only perform the gesture stimulus to immediately trigger subconscious positive responses among the individual jurors concerning the pivotal point.
This conditioning technique establishes, in effect, an altered state of consciousness among the jurors that is very much like hypnosis. The jurors' concentration will become focused largely on the case's pivotal point, to the exclusion of much else. This altered state of consciousness among the individual jurors allays and to some extent even replaces the anxiety states usually associated with such jurors. Since these anxiety states almost always derive from the customary confusion of the jurors concerning the differing trial arguments, the benefit to the attorney of eliminating such confusion is substantial.
The knowledgeable attorney can anchor the case's pivotal point in another effective way. This is done by always mentioning the point from the same physical spot in the courtroom. This spot should be located next to the flag, the judge's bench, or to any other well-established symbol of authority that is available. In this manner the attorney can create a powerful and positive association in the minds of the jurors regarding the pivotal point of the case and the symbol of authority.
Attorneys need to understand that classic conditioning is not at all a pseudo-scientific or bogus activity. It is rather a proven and widely-used behavioral modification technique that is guaranteed to work if done correctly. It will not work, however, if the stimulus is extinguished or over-generalized. To prevent extinction, the pivotal point "message" must always be paired with the gesture stimulus. If the attorney mentions the pivotal point without making the accompanying gesture stimulus, the association will become extinguished, and the stimulus will no longer have the desired cueing effect with the jurors.
This extinction will also take place if the gesture is overdone. The attorney should employ the gesture stimulus only on a selective basis - when he or she wants the jurors to get in touch with their subconscious predilections concerning the pivotal point. (It is useful, for example, to employ the gesture stimulus at the most critical point during the opposing counsel's closing argument.)
Classically conditioning the case's pivotal point in this manner is an excellent way for the attorney to develop a subtle but extremely powerful edge with the jurors throughout the entire trial.
DEFENSE ATTORNEYS HAVE THEIR HANDS FULL when it comes to preparing CEOs and other top business executives for depositions and trial. Such corporate powerhouses seldom provide their attorneys with the time necessary for adequate witness preparation. This often proves to be a gross error at trial time. The following article by Dr. Singer discusses witness preparation from the defense attorney's perspective.
Witness Preparation for Defense Attorneys
Witness preparation is about people; and to understand people, you must have some insight concerning their psychology. This applies not only to witnesses, but also to the jurors who weigh witness testimony and to the lawyers who conduct witness preparation. Let's take a look at the dynamics of witness preparation from these three vital perspectives.
Today, more than ever, effective witness preparation is critical to a successful trial conclusion. This is due in no small measure to the heavy bias that exists in our society regarding lawyers. These strong anti-lawyer feelings carry directly over to the courtroom where jurors have a tendency to subconsciously tune out lawyer oratory. Automatically distrustful and wary of lawyers, jurors often ignore them but listen carefully to what the witnesses have to say.
Importance of witness preparation
When tightly contested cases don't settle and instead go to trial, witness testimony and demeanor often prove to be the deciding factors regarding who wins and who loses. The lawyer may conduct the case brilliantly for days, weeks, even months. Then, without warning, one bad witness can make the otherwise exemplary case explode like a rotten egg! It could be the witness's overall confused and contradictory testimony, his or her excessive (thus questionable) nervousness, a damaging but unnecessary admission, even the witness's own disagreeable personality. Whatever it is, this one false note often ends up to be the primary negative factor upon which the jurors decide the case - the key trial element they all remember.
Witness preparation gets short shrift
A lack of adequate witness preparation often proves to be the Achilles Heel for many lawyers at trial time. This is particularly true for defense lawyers who many times are unable to convince busy senior executives to commit the time necessary to properly prepare for their testimony in court. This problem becomes particularly acute when it comes to CEOs and other corporate powerhouses accustomed to setting their own agendas and priorities. A useful rule of thumb regarding witness preparation: three hours of preparation time are required for every hour of deposition or testimony. It is the rare executive however who will block out such time for his or her lawyer regarding witness preparation.
Another problem: As absolute rulers of their own corporate kingdoms and fiefdoms, CEOs and other senior executives seldom permit themselves to be second-guessed, particularly regarding how they communicate with others. Such constructive advice is however an essential component of the witness preparation process. Because of this negative dynamic, some CEOs and other high level executives have a tendency to "shut down" psychologically during witness preparation, unconsciously filtering out or ignoring useful advice. For these and similar reasons preparing CEOs and top corporate executives for courtroom testimony can be a wrenching experience for lawyers (and in particular, associates), and one easily put off until later.
Besides client avoidance, witness preparation does not always get the attention it deserves from the lawyers themselves. The reason for this can be summed up in one word - control. The key psychological imperative for most lawyers is their overriding need to be in complete and total control of every minute aspect of their cases. But witnesses, like all human beings, are not always subject to control and direction. This means the witness may end up saying almost anything during deposition or in court. For the lawyer, the average witness can often seem as a dangerous grenade with the pin pulled out, ready to explode. Is it any wonder that many lawyers unconsciously attempt to avoid witness preparation until the last minute, despite the potential dangerous consequences of such evasion?
The problem with down-playing witness preparation
When it comes to witness preparation, failure by the lawyer to step up to the plate and take a full swing at the ball can have disastrous consequences later. If witness preparation is not handled adroitly, numerous problems can develop during deposition or trial - "skeletons in the closet" that no one learns about during witness preparation, but surface like stink bombs later; overt and uncontrollable nervousness on the part of the witness during testimony, thus tending to damage his or her credibility; the propensity of the witness to reveal too much during cross-examination, or to get tripped up during cross and offer contradictory testimony; and many others.
Treat what you can
The lawyer cannot wave a magic wand and change national (or juror) attitudes regarding antipathy towards lawyers. Nor can the lawyer alter the psychology of CEOs and other senior executives to make them more agreeable regarding witness preparation. But with a little introspection and self-knowledge, the lawyer can deal with his or her own possible psychological avoidance to adequately address the issue of witness preparation in a comprehensive and timely fashion.
One of the cardinal tenets of cognitive therapy is that self-knowledge provides power for personal change. Most lawyers almost always end up handling witness preparation more effectively when they come to understand, and thus make allowances for, their own possible (and understandable) negative feelings and fears regarding this key trial planning component. Psychologically forewarned is forearmed.
Witness preparation - vital to courtroom success
As stated, witness preparation is about people - who they are, what they think and feel (and fear), what makes them tick. Most importantly, witness preparation is about how people perform in stressful, difficult, and demanding situations. If the witness has psychological hang-ups, these almost always will come out during deposition and/or courtroom testimony - usually to confound the witness, and to damage his or her testimony.
Such negative psychological burdens know no barriers and can just as easily affect a CEO or other top corporate officer as they can a janitor or streetsweeper. Indeed, it is a safe bet that many CEOs and other senior executives who must successfully operate in the high-pressure corporate world already carry around a heavy amount of psychological stress; the added pressure of high-stakes legal testimony may be all that is necessary for some of these individuals to temporarily "crack," resulting in ineffective or damaging testimony.
It is incumbent therefore that the lawyer find some way to address the witness's psychological strengths regarding deposition and courtroom testimony, and also try to minimize the witness's psychological weaknesses. This can be accomplished through the assistance of a trial consultant or similar professional with formal training in psychological counseling. Techniques to help the witness will vary according to that person's individual psychological make-up, and in particular regarding how the witness deals with difficult confrontational situations such as cross-examination - i.e., with hostility, avoidance, passivity, and so on.
Effective witness preparation should also be designed to help the witness maximize his or her likability with the jurors (jury research indicates that witness likability is more important to jurors than witness credibility); offer strong, effective, and relevant testimony (research shows that after "likability," "relevance" is the most important factor for juries); reduce nervousness while in deposition or on the stand; improve speaking style, along with poise and physical presence; and mentally organize and have readily available all necessary information and/or knowledge.
Another key goal of witness preparation is to raise the consciousness of witnesses regarding the dynamics of depositions and in-court testimony. Witnesses need to know exactly what to expect during deposition and while on the stand. They should realize that one of the opposing counsel's primary aims is to trip them up during their testimony through various mind games and word games.
Nervous witnesses are not strong witnesses
Providing legal testimony can be one of the most stressful activities imaginable. Some witnesses turn into a bundle of nerves as a result. Witness nervousness is a major problem because it works against witness likability (it is extremely difficult for the witness to present a positive image to jurors if he or she is excessively nervous); and credibility (jurors immediately begin to ask themselves the same question: "What does the witness have to be so nervous about?").
Psychologists have developed numerous cognitive rehearsal exercises that, though time-intensive to master, can help people become less nervous in stressful situations; this type of training works well with witnesses who must provide legal testimony.
How do you help the witness virtually paralyzed by the fear of having to provide legal testimony overcome this all-encompassing internal panic? If left to his or her own devices, such a witness will probably prove worthless in court. Indeed, a witness who is so abjectly fearful of testifying may end up, in effect, willing to say almost anything during cross-examination simply to get off the stand!
While obviously a tough case, this type of witness can be taught to face up to his or her fears of testifying. The psychologist/trial consultant uses a combination of classical conditioning and relaxation techniques to help the witness discover manageable ways to overcome the deep nervousness associated with the act of providing legal testimony.
The witness first learns to successfully deal with the least troubling aspects of testifying, and then the more stressful ones. This is achieved by utilizing selected cognitive exercises relating to the real courtroom scenarios to follow. For example, the witness may be encouraged to imagine resting comfortably by the shore, with soft, gentle waves lapping; sea birds soaring gracefully overhead; the sun shining; large ships sailing majestically by, and all peaceful and serene. He or she is then shown how to successfully call up these peaceful images during the most worrisome parts of testimony - during deposition; upon taking the witness stand; while establishing eye contact with the judge, the jury, and the lawyers; while taking questions during direct examination; and, finally, while responding to questions from opposing counsel during cross-examination, and possible rebuttal. Over and over the witness is prompted to summon up the calming images during each fearful testimony scenario.
For years psychologists and psychiatrists have successfully employed similar therapeutic techniques to help patients deal with their fears concerning driving, flying, public speaking, and so on. When professionally administered, such training can work equally well to help witnesses overcome their fears of testifying in court.
Another worthwhile technique to assist witnesses in feeling more comfortable while testifying involves evoking positive imagery regarding the key courtroom players. As the witness answers questions concerning the facts of the case, the psychologist/trial consultant continually prompts him or her to envision affirming responses - "Imagine the jurors standing up and cheering as you answer....." "Picture the judge smiling broadly as you speak....." "Visualize the people in the courtroom vigorously nodding their heads in agreement with what you have to say." Many times these mental training exercises prove valuable in assisting witnesses who will be required to reveal disconcerting personal or professional information during deposition and trial.
Over and over, through such carefully structured sessions of positive reinforcement, the psychologist/trial consultant shows the witness how to feel comfortable while testifying; and provides a proven methodology the witness can quickly summon up and draw on for strength when being questioned for real later.
A common weakness most witnesses share is not paying close attention to the questions being asked, then providing uncalled-for answers that may negatively influence the jurors. In this regard, many witnesses often make the mistake of being far too responsive, even outright talkative, on the stand. This is due to the fact that, subconsciously, witnesses need to explain themselves to others, one of the most common of human drives.
Witnesses must be taught to: 1) listen intently to the questions being asked of them, and 2) neatly limit their answers only to those questions asked. The psychologist/trial consultant may use various operant conditioning techniques to help witnesses attend closer to the questions, and to carefully confine their responses.
For instance, the psychologist/trial consultant may have a loud buzzer sound every time the witness answers a question that was not asked, or goes overboard with his or her answer. Conversely, the training exercise may be structured as a contest in which the witness "earns points" each time he or she answers a question directly and succinctly.
Another useful training exercise is to instruct the witness to slowly count out loud to three before answering a question. Once the witness has mastered this activity, he or she will then be asked to practice counting silently to three before answering. This period of silence, of course, provides the witness time to carefully think about and plan his or her answers. Plus, it permits the witness's lawyer time to raise objections to improper questions during cross-examination.
The repetition of these and similar mental training exercises strongly reinforces in the mind of the witness the importance of paying close attention to the questions being asked, and of tightly controlling the answers being given.
The witness must also be made wary regarding certain questioning tactics the opposing lawyer may use to get him or her to inadvertently (and unnecessarily) say more than is necessary. For example, opposing counsel may mutter "Yes" or "And?" or something similar after the witness has answered a question, then wait, in anticipation, for additional information (the "pregnant pause").
Witnesses must learn that questioning by opposing counsel during deposition and trial is a mind game and a word game. Witnesses who understand the "rules" of such games will do better when providing testimony.
Opposing counsel knows that if the witness can be tripped up on the stand so he or she appears to be lying, the jurors will begin to question the individual's credibility. Often it is not difficult for a clever interrogator to plan a goal-oriented and carefully directed conversation in order to make the person answering the questions appear not to be telling the truth. To illustrate, consider the following sample exchange:
Have you ever received a loan?
You're sure about that?
I certainly am.
Didn't your family lend you $300 right after college so you could take a trip?
Oh, that's right.
Money you were to repay in full?
Yes, I suppose....
So when you claimed you never took a loan, you were not telling the truth, isn't that so?
I wouldn't say that.
No? How would you describe it?
This Q&A dialogue is painted with broad brush strokes to clearly make a point - the witness may try to respond truthfully, but often can easily be maneuvered so as to appear to be lying.
The witness needs to learn that - during deposition and in the courtroom - he or she is the hen, and the opposing counsel is the fox out to get the eggs. The only way the witness can protect the eggs - that is, his or her testimony - is to carefully answer questions according to what he or she knows right now, remembers right now, is aware of right now, feels right now, or has been told right now.
This means that witnesses must learn how to answer questions strictly according to information they currently retain or remember - and that's it. In this context, "I can't recall" or "I don't have the necessary information to answer that question" may be completely valid answers. The witness needs to become versatile in framing his or her responses in this carefully controlled way. So, for example:
Did you ever take a loan?
As I think about it right now, I don't recall doing so.
Didn't you receive $300 from your family to take a trip after you graduated from college?
Yes, now I remember. That was over 20 years ago.
By answering questions in this controlled but truthful style, the witness automatically inoculates himself or herself against being manipulated into committing a faux pas regarding a particular line of questioning. Different responses can be given later if needs be, without appearing to be deceitful.
Witness preparation procedures
Since witness likability is so important, it is useful to provide meaningful feedback to the witness regarding how he or she is coming across during the preparation sessions. Mirrors and video cameras enable the witness to "grade" his or her own performance. The mirror is excellent for instantaneous feedback; the video camera provides a method to carefully study witness demeanor and responses to particular questions, and to make the required corrections later.
Another worthwhile technique is to have the witness testify before surrogate jurors. This form of witness preparation is valuable, not only in helping the witness improve his or her performance, but also in determining what information jurors will most want to hear about and consider relevant.
On the witness evaluation forms used at my firm, for example, we normally ask surrogate jurors not only to grade witnesses according to the criteria mentioned above, but also to detail specific other valuable information - for example, the most relevant thing the witness said, the least relevant thing the witness said, the topic(s) jurors would like to hear more about, the testimony jurors found most confusing, and so on. This information can then be used by the lawyer to carefully plan how to question the witness in court.
We also utilize a sophisticated juror electronic monitoring device we call the "Opinionator" that instantly analyzes juror responses to witness testimony. The device is linked to a computer that tabulates and analyzes the data (moment-to-moment juror responses), and then displays it as an electronic overlay directly over the videotape of the witness testimony. The lawyer and witness can see precisely how the witness is coming across for each specific portion of his or her testimony - and then make the necessary adjustments.
Make witness preparation a priority
A bad witness can kill the case, either during deposition or trial. It is vital therefore that the lawyer take the time necessary to comprehensively prepare his or her witnesses so they can 1) create the most positive impression with jurors, and 2) provide the most favorable testimony. To successfully accomplish these essential goals, the lawyer should consider witness preparation not only from a legal but also from a psychological perspective. Witness preparation should be undertaken early and with the witness's psyche in mind. By handling in this manner, and through the use of specific cognitive conditioning exercises, it is possible to arm your witnesses so they execute at the very optimum level during deposition and trial.
COMPLEX AND CONFUSING CASES such as intellectual property disputes require strong, straightforward themes to clarify issues for jurors. Dr. Singer discusses the importance of the trial theme for intellectual property and similar cases.
Intellectual Property Cases Require Strong Themes
A Great Theme Helps Jurors See the Case Your Way
The most able litigators know that you always need a good trial theme in order to effectively present and successfully win your case in court. This is particularly true when it comes to complex commercial cases such as intellectual property disputes.
A good theme summarizes the sometimes difficult to understand intellectual property case in a few words so the jurors can make sense of it. It frames the case so that jurors see it the way the attorney wants them to see it. And it provides jurors with an essential peg upon which they can hang their deliberations.
This means that the case will be discussed in terms favorable to the client. Furthermore, accentuating the theme throughout all aspects of the trial helps to establish the tone and rhythm of the case. As in tennis, it's like keeping the ball in the opponent's court for the entire match.
The trial theme binds the case together. It is a life preserver jurors can hold onto throughout all the trial's tempests and tumult. It helps jurors rationalize away all the case conflicts and justify the preferred viewpoint concerning the case facts.
The trial theme is essential for juries. You can't have the chicken without the egg, and you can't communicate in any sustained and meaningful way with jurors without a compelling theme.
Themes work well for intellectual property cases
Intellectual property disputes generally lend themselves well to strong themes. Stac Electronics, a relatively small computer software firm, beat mighty Microsoft Corporation in court a few years ago over a patent infringement suit regarding disk compression technology. "David and Goliath" is the ideal theme for such a case - a small company battling for their rights against an industry giant.
"Thou shalt not steal" is another strong theme that often works well for many copyright, patent, trademark and similar infringement cases. A couple of years ago the humor columnist Art Buchwald and Alain Bernham were awarded $900,000 in damages by Paramount Pictures, producer of "Coming to America." Mr. Buchwald claimed that he thought of and presented a story similar to "Coming to America" to Eddie Murphy four years prior to the movie's production.
Mr. Buchwald was able to argue successfully in court that his idea had been stolen and used by others to enrich themselves. When employed as the theme in such a case, "Thou shalt not steal" creates a sense of shared value with the jurors. Everyone agrees it is wrong to steal.
A great trial theme locks the jury's attention to the case's pivotal point (e.g., Microsoft Corporation arrogantly appropriated for themselves the hard-won technology of a much smaller firm). It crystallizes complex legal concepts and arguments, while at the same time making the ideas they represent impossible to forget, and many times even impossible to deny.
Must use the right theme
While it is important to build your case around a basic theme, it is critical to use the right theme, i.e., a theme guaranteed to achieve the widest possible appeal with a jury. The problem is that too often, attorneys tend to rely on intuition, hunches, and guesswork to come up with the right themes for their cases.
Intuition has its uses. The methodology by which novelists, artists, poets, and other creative individuals develop themes for their work is usually intuitive. Intuition is also an indispensable forecasting technique for persons occupied in other colorful fields of endeavor, including sports handicapping, professional gambling, prospecting for gold, and weight-guessing at carnivals.
However, theme development for the courtroom should not be based on intuition, instincts, or guesswork. The attorney has a professional responsibility to determine - with as much certitude as possible - how the jury will judge the merits of the case as presented. The trial theme is the heart of the case. A flawed theme can kill the case. The client deserves more than an educated guess concerning what the best theme for his or her case should be.
This means that the theme should be thoroughly tested prior to trial. The attorney who does not take this essential step often learns only after the jury has ruled against his or her client that the selected theme was wrong. Perhaps it did not support the case facts and was not considered credible by the jurors; it may have run counter to the jurors' beliefs and prejudices, or it was inappropriate in some other essential way.
Testing a theme to make sure that it will develop the widest possible appeal with jurors does not mean trying out various themes, ad hoc, on a random assembly of colleagues and office staff. Such an arbitrary group's intuitive grasp of the case, vis-â-vis the most appropriate trial theme, may differ substantially from how a jury will consider things. Some attorneys learn to their chagrin that the recommendations of casually organized theme-testing groups often can lead away from the best trial theme and tactics!
The bottom line is clear: to determine the ideal trial theme, the attorney must make sure to employ the most rigorous theme-testing methodology available - and not a random sampling of opinion.
Developing the right trial theme
The best way to determine the ideal trial theme is through jury focus groups and other jury simulations. This parallels the test-marketing of products common in the commercial sector and of issues and individuals in the political sector.
Jury focus groups and jury simulations function like a Rorschach test, illuminating jurors' cognitive processes. They consist of abbreviated versions of the upcoming trial, as presented before a carefully selected sample of surrogate jurors. When professionally organized and evaluated, jury focus groups and jury simulations can reliably determine a true jury-validated trial theme, i.e., one guaranteed to develop the widest possible appeal with the jury.
Additionally, jury focus groups and jury simulations provide a wealth of other useful information, such as the most effective voir dire questions to ask, the best way to structure the opening statement and closing argument, how to handle direct and cross examinations, the likely impact of expert witness testimony, and so on.
"Enveloping" the theme
The trial theme is an invaluable tool the attorney can use to build the strongest case possible. To do so, the attorney must understand how to maximize use of the theme in court. This means that he or she should be sure to incorporate the theme through every phase of the trial - voir dire, opening statement, direct examination, cross examination, and closing argument.
I term this process "enveloping" the theme. It is like packaging and sending a message (i.e., the theme) that the jurors are guaranteed to receive. By putting the theme to work in this manner, the attorney can strongly reinforce it in the jurors' minds throughout the entire trial. In doing so, the attorney can ensure that the trial theme will become, in effect, the primary wheel upon which the jurors spin their deliberations.
How important is this? Research shows that jurors deliberate in themes. And if it is your theme upon which the jurors focus and deliberate, you're going to be on your way to a successful verdict.
What is the best METHODOLOGY to plan, organize, and administer a jury focus group designed to find the ideal trial theme and similar information? Dr. Singer explains how this should be handled most effectively.
The Best Jury Research Format to Test Trial Themes
There are special jury focus groups and other special jury simulations that are planned and designed specifically to test a particular trial variable or variables - the most effective voir dire questions, the case's true settlement value, the effect of a particular witness's testimony, and so on. What special jury focus group or jury simulation format works best to determine the ideal trial theme?
After planning and organizing thousands of jury focus groups and jury simulations over the years, our firm has found that one particular format - the "interactive" focus group - works best to test trial themes.
This distinctive jury focus group is organized on an informal basis to encourage the surrogate jurors' full and open participation and interaction. The surrogate jurors can sit, stand, or move about as they desire, hors d'oeuvres and other refreshments are available, and the overall setting is kept as casual as possible to promote a relaxed "social-type" ambiance. (An ideal setting for the "interactive" focus group is a hotel suite with one or more sofas and numerous easy chairs.)
Both sides of the case are presented during the focus group proceedings, followed immediately by comprehensive deliberations among the surrogate jurors. A behavioral scientist is present to stimulate but in no way lead these deliberations. His or her primary goal is to keep the discussion focused on what the surrogate jurors determine to be the basic issues of the case.
The surrogate jurors are subtly encouraged to simplify the case - i.e., to break it down into its fundamental components and issues. They are further encouraged to develop answers for some essential questions: What is the significance of the case? What is it all about? What is its underlying message? What word of phrase best describes the case and brings it all together? What is its theme?
In addition to a professional analysis of the group's deliberations, each surrogate juror is interviewed privately to determine his or her attitudes concerning the basic issues of the case. These individual responses are evaluated psychometrically (the methodology for quantifying mental and other subjective data) vis-ˆ-vis the various trial themes being investigated and/or tested; and each individual response is again measured psychometrically against the surrogate jury's group deliberations concerning the theme of the case as they envision it.
Through this highly focused investigatory process, the basic theme for the case clearly emerges. This special "interactive" focus group testing is then repeated again and again with different sets of surrogate jurors to ensure the validity of the results as established - i.e., the trial theme guaranteed to achieve the widest latitude of acceptance with potential jurors.
MANY ATTORNEYS MAKE VOIR DIRE OVERLY COMPLICATED, but it does not have to be. Indeed, if handled correctly, voir dire can be a straightforward process whereby the attorney engages the prospective jurors in friendly, earnest conversation and in the process learns precisely who they are and what they believe. The article that follows explains how this can best be accomplished.
Don't Make Voir Dire So Difficult
The great humorist Will Rogers once said, "The minute you read something you can't understand, you can be sure it was drawn up by a lawyer!" It's true; lawyers do tend to complicate things. Voir dire, for example. The term "voir dire" translates from the Latin as "true talk" and from the French as "to see them talk" - simple, clear concepts. Why then do many attorneys take voir dire - the trial component organized to let jurors "speak the truth" - and make it so complex, difficult, and uncomfortable for the jurors and themselves?
Instead of permitting the jurors to reveal their attitudes and opinions, for example, many attorneys rely almost exclusively on close-ended questions - "Have any of your relatives ever been party to a lawsuit?" - to tightly control, contain, and limit the jurors' responses. They use their restricted voir dire time to present a "mini" version of the case; or to force the jurors to agree in advance to one-sided conditions - "If I can prove _______________, you understand you must then find for my client?" - regarding how they should decide the case.
Additionally, they turn off the venire by grilling them as if they are undergoing strenuous job interviews; by lecturing them about abstruse aspects of the law pertaining to the case; by asking insulting questions - "Will you follow the law?"; or by subjecting them to a bone-headed "20 Questions" approach - "Please tell us the names and ages of your 10 children."
Dale Carnegie said that if you're the one doing all the speaking, your listeners end up judging you. Many attorneys nevertheless squander their one brief opportunity to learn about the jurors by dominating voir dire so the jurors barely have an opportunity to speak.
Finally, many attorneys waste their time evaluating jurors primarily on "demographic" factors - age, sex, religion, occupation, income - despite the fact that scientific research has clearly established demographics have little or no bearing on jurors' attitudes concerning specific cases. Numerous jury studies indicate that it is jurors' value beliefs - the bedrock principles they hold most dear - and not demographics that correlate with verdicts.
Off to a poor start
What do you suppose is the result of all these convoluted, wrong-headed, and mentally exhausting efforts?
Bored jurors. Insulted jurors. Irritated, even angry, jurors. Hardly a propitious way to begin the case. Plus various socially-acceptable responses, or even out-and-out lies; along with a bunch of often misleading demographic data about the jurors.
What the attorney does not have is any truly worthwhile information concerning the jurors and what they think and feel about the case. (What the attorney often does have is a failed voir dire.)
Voir dire does not have to be so difficult (or so pointless and self-defeating). It should and it can be much simpler. Indeed, when the attorney properly orchestrates voir dire, he or she can use it to readily achieve voir dire's primary purpose - uncovering and eliminating biased jurors who are automatically predisposed against the case.
The perfect voir dire
So how do you achieve the ideal voir dire? The answer could not be less complicated. The most effective voir dire is accomplished when the attorney briefly phrases questions about the case's key issues (not facts, since judges will not allow this), asks the jurors their opinions concerning these points, and then carefully listens to and observes their responses. When a juror offers an opinion concerning a central case issue, the attorney quickly determines through a show of hands who agrees with the opinion and who doesn't. He or she asks individual jurors to discuss why they voted one way or the other, and to comment on the opinions already expressed. The jurors are encouraged to speak fully and freely. Through this process the attorney uses voir dire to, in effect, "converse" with the jurors - and in the process get the jurors to "converse" with each other for all to hear and see - regarding the key case issues. The attorney sparks the conversation among the jurors, keeps it going, and listens carefully to what is said. And that's all there is to it. What could be more natural?
A "conversational" approach
This "conversational" approach to voir dire offers the attorney a number of clear advantages. Through it he or she can gain a superior understanding of each juror's individual opinions and attitudes concerning the central issues of the case and thus quickly learn who is on his or her side and who isn't. Additionally, the attorney can employ this conversational (and unguarded) format to prompt biased jurors to bury themselves with their own words in front of everyone. As a result it will be almost impossible for the judge to rehabilitate such jurors later.
Another valuable attribute of this conversational approach to voir dire is that it enables the attorney to observe how the jurors as a group will relate to the key case issues.
The attorney must remember that he or she is not selecting 12 individuals for the jury but rather assembling 12 people who will decide the case together. It is highly worthwhile therefore to use voir dire to observe the venire's group dynamics in order to determine how they will deliberate with each other later.
For example, when the jurors are polled regarding whether they share a particular opinion, how do they react? Do they quickly raise their hands to signal assent or do they check with each other first? How do the jurors respond to their more vocal members - meekly or confrontationally? What about their body language? Do some jurors nod in agreement to what is being said while others roll their eyes in disgust? Do jurors who share the same opinion make eye contact, even smile briefly at each other? Are there any indications that certain sub-groups may form during deliberations? Which jurors are likely to dominate such groups?
Jury deliberations are marked by information pooling and error correction, along with an overarching desire to achieve harmonious results. Do any of these characteristics become manifest during voir dire? For example, does one juror try to add to - or correct - what another has said? How do the other jurors react? Approvingly? Disapprovingly? Are the most intelligent jurors also the most vocal? Which juror is most liable to play a leadership role during deliberations?
Such broad-gauged determinations can only be gained during voir dire when the attorney uses a conversational approach that permits the jurors to speak openly about their attitudes and feelings.
There is balance to a trial. The opening statement balances the closing argument. Cross-examination counter-balances direct examination. And what comes out during deliberations also should come out during voir dire. Jury deliberations are nothing more than a series of conversations among the jurors concerning the case and its key issues. The goal of the attorney is to encourage (and to "tap" into) the same conversations among the venire during voir dire.
Use open-ended questions
The attorney should use open-ended questions - "How do you feel about ____________?" or "What are your thoughts concerning _______________?" when sharing with jurors. Such questions will result in narrative-type responses that can fully portray how the jurors think and feel about the case. These type of detailed responses stand in marked contrast to the brief "yes" and "no" answers that reveal little or nothing about the jurors' true attitudes and opinions.
During voir dire questioning the attorney needs to listen for the expression of jurors' all-important value beliefs, the primary clues regarding how they will determine the case. He or she should be alert when jurors use words and phrases such as "must," "should," "ought to," or "everyone" and "anyone." These often are dead giveaways, introducing the jurors' value beliefs, as in "everyone knows that _________," or "the manufacturer should have __________."
Let the jurors speak
It is important to let prejudiced jurors fully expose their own biases while being questioned. Too often however the attorney will try to shut down a negative juror when he or she speaks. This is exactly the opposite of what should be done. The point of voir dire is to flush out biased jurors so their slanted thinking is unmistakable. Only in this manner can they be intelligently and successfully challenged.
Each conversation has a beginning, middle, and end
To achieve an effective voir dire, the attorney needs to keep two key points in mind: 1) Every conversation has a beginning, a middle, and an end; and 2) A conversation that is shut down during voir dire will re-surface again during deliberations. The attorney initiates a conversation each time he or she questions a juror during voir dire. If the juror is prevented during the discussion from speaking about his or her negative and/or biased feelings, be assured that these same feelings will be raised in the jury room later. It's better to let the jurors air their negative beliefs and feelings during voir dire where the attorney still has control, and can do something about them.
Getting jurors to open up
Successfully engaging the venire in conversation during voir dire requires a light touch. Jurors are wary and uncomfortable in the courtroom. The trial will be a new, even unique, experience for many. The gravity and importance of the proceedings are almost guaranteed to make the jurors feel ill at ease. How does the attorney deal with these inhibiting circumstances?
Again, the answer is simple and straightforward. The attorney must adopt a friendly and relaxed demeanor with the jurors, treating them almost as VIPs at a social gathering he or she hosts. The attorney should move away from the desk or podium, a barrier to friendly communication; approach the jurors with a smile; and address them from a point of mutual comfort. Eye contact should be maintained in a respectful and non-challenging manner. Body language needs to be open and relaxed. The attorney should be earnest and attentive to all answers provided by jurors, but an associate should take notes. The attorney must never cut jurors off as they speak, and should be sure to thank jurors for their responses, whatever they may be.
This last point is a crucial one. The primary rule of psychology is that reinforcement increases the likelihood of response. If you want someone to do something, you reinforce them when they do. If the attorney wants to ensure that the jurors provide honest answers to questions asked, he or she must reinforce (show appreciation for) all responses, even the negative ones.
Most people enjoy offering their opinions to others but rarely are asked to do so. Jurors are no different. The attorney can capitalize on this common human urging during voir dire. He or she needs to be like Oprah Winfrey or Phil Donahue, treating the venire as honored guests, asking them what they think and feel about the case, and applauding them for the answers they provide.
Litigation research reveals the best grounds on which to question jurors
I've stressed that jurors should be allowed to provide full answers during voir dire questioning. But what are the best questions to ask? These can be determined most effectively through litigation research - i.e., jury focus groups and jury simulations.
Jury focus groups and jury simulations are used to reliably determine what will be most important to the jurors about the case. They consist of abbreviated versions and/or key aspects of the case, presented to surrogate jurors to gauge their reactions. They are similar to the test-marketing of products in business and of politicians competing for elective office. They allow the attorney to see the case as the jurors will.
Jury focus groups and jury simulations let the attorney know in advance what will be on the minds of jurors, along with what questions they will ask, and what their rationalizations will be, as they deliberate about the case. Armed with this invaluable data, the attorney can design voir dire questions to target jurors whose value beliefs will run counter to his or her case, then deselect on that basis.
Attorneys should use voir dire to question jurors on the potential problem areas of the case. This is the best method to determine which jurors will react most negatively towards these problem areas - and thus prove most eligible for deselection.
Utilizing a conversational approach during voir dire provides a wide array of valuable benefits for the attorney. These include permitting the attorney to quickly learn how the jurors think and feel about the case; to reliably uncover biased jurors, and also to learn which jurors are favorably disposed towards the case; to see how the jurors perform as a group; to spot and evaluate potential jury leaders; and to supply adequate grounds for successful challenges for cause. In short, this conversational approach to voir dire provides the attorney with the information he or she needs to make the most intelligent juror deselection decisions.
Plus, handling voir dire in this manner helps the attorney start off on the right foot with jurors - a crucial advantage. In trials as in life you don't get a second chance to make a good first impression. But you certainly cannot make a good first impression with jurors if your voir dire style is to harangue them and put them on the spot. You can do so, however, if you converse with them as friends.
In Dr. Singer's long tenure as a trial consultant she has proven that thorough litigation research, a focused visual presentation, and pointed persuasion are powerful keys to unlocking jurors' minds before trial and, thus, to predicting trial outcome. Dr. Singer discusses methods, tips, and practical applications in the following article, which she presented at a June 2000 conference.
JUROR VALUE BELIEFS AND THE POWER OF PERSUASION
Do your homework with jurors before and during trial to win the day in court.
Why didn't Marcia Clark and Christopher Darden persuade the jury that O.J. Simpson was guilty of murdering his ex-wife Nicole and her friend Ronald Goldman?
Many have said it was because one of O.J.'s lawyers, Johnny Cochran, used the "race card" - that is, it was a matter of a mostly minority jury not wanting to convict a hero of the black community.
Nope. Want to know the true reason? O.J. Simpson was not convicted in the criminal trial because the jury heard something other than the race card. What they heard combined with their value beliefs and life experiences to distrust the evidence collected by the Los Angeles police. A deep-rooted distrust of police was evident on the day the "not guilty" verdict was rendered. Following generations of racial tensions in L.A., each juror's core value beliefs brought them collectively to their ultimate conclusion that there was reasonable doubt that the police could have planted evidence and had a one-track mind to "go after" O.J.
Far too many attorneys base their juror selections on demographics: race, gender, age, religion, etc., despite overwhelming scientific evidence that there is no correlation between demographics and verdicts. People's attitudes and beliefs are not merely a function of demographics. Not all women are compassionate, and not all Jews are liberal. Many times, attorneys select jurors for the wrong reasons. These jurors are ticking time bombs waiting to explode in the attorney's face on judgment day.
Instead of focusing on demographics, attorneys should concentrate on juror value beliefs. Underlying values and life experiences are the windows through which each individual views the world. Such values often are expressed through the use of such words and phrases as "should," "must," "could," or with such terms as "everyone" and "anyone" For example, "doctors should," "people must," "the patient could have," "everyone knows that...," and so on. These value beliefs are the foundation of biases and predilections that determine what each juror hears at trial and how each juror will weigh the evidence presented. Unfortunately, prospective jurors seldom admit their biases and often are not aware of them. The impartial juror truly is a myth. Therefore, uncovering jurors' value beliefs will give attorneys insight into predicting how the jurors will hear their case.
LITIGATION RESEARCH AND PERSUASION
We can't persuade people until we know not only what we want them to agree to but also more about those people's general values and viewpoints. Armed with the right information, we can decide how to persuade them from their predetermined thought patterns to a different way of thinking. To that end, persuasion is the art of voicing the right questions and comments for the intended audience, listening carefully to feedback, then using that feedback to your best advantage. Information is the key to persuasion - not just facts about your case but also information about how certain people will view or hear those facts. From there, you will be in a powerful position to work wonders for your case.
So, how does an attorney learn to persuade jurors? The savvy attorney can ensure that optimum persuasion will take place during voir dire and beyond if he first develops an excellent trial theme, then employs litigation research before the trial begins.
Persuasion is a story-telling skill that depends on a clearly-defined and broadly-accepted theme to be successful: "Give me liberty or give me death," "We have nothing to fear but fear itself." Strong themes such as these crystallize complex concepts and arguments. At the same time, they make the ideas they represent impossible to forget and often impossible to deny.
Theme development is the rock upon which all persuasive writing and oratory is constructed. The theme is the heart of the case, the main mental organizer that helps jurors remember the facts. Jurors deliberate in themes. Pre-trial litigation psychology research can tell the attorney the best trial theme to use and how it should be presented at various points during the case for maximum effect. The right theme helps jurors look for evidence that fits the trial "story" and to disregard contrary evidence. A bad theme can kill a case. The case's theme facilitates the comprehension of evidence and allows juries to reach a verdict with a minimum of deliberation. You can't communicate in a sustained, meaningful, and convincing way without a theme. And you can't count on having a witness like Jack Nicholson's Colonel Jessep in A Few Good Men to blurt out the truth that acquits the innocent while incriminating the guilty. Trial themes personalize case issues and help jurors form impressions. Favorable impressions then win lawsuits.
The best trial themes sum up a case in one word, such as "indifference" (in medical malpractice suits and accident cases) or "accountability" (for liability cases). Themes with one word make the case understandable and bind various aspects of the case together like glue. They help jurors pigeonhole conflicts and justify the desired point of view. This is done best through the use of analogies and metaphors. For example, if "prevention" is the case's theme, explain the theme this way: "The defendant's failure to prevent this injury from occurring is like digging a deep pit next to a playground and failing to put a fence around it."
I'll take that one step further. A psychological principle known as "Attribution" theory predicts how individuals will place blame. It is a key determinant regarding the method by which jurors reach decisions in court cases. Attribution theory posits that blame devolves to a decision between "person" versus "situation." Did the plane fall out of the sky due to pilot error (person)? Or because of weather conditions (situation)? Certain linguistic signals cue specific juror responses regarding how they place blame. Through our firm's research we have discovered that these special linguistic cues are "owned" either by the plaintiff or the defendant. Therefore, we have termed this status "Ownership" theory. By recognizing such cues and knowing how to put them to use through proper theme development, you can make the difference between success and failure in the courtroom.
You may recall the prosecution's one-word theme from the movie A Few Good Men. For those of you who aren't familiar with it, two young Marines, Dawson and Downey, were accused of killing another young Marine named Santiago on their U.S. base stationed in Guantanamo Bay, Cuba. The prosecution claimed that Santiago was murdered because (a) he couldn't keep up with the other Marines on long marches; and (b) he had ratted on one of the defendants who had fired his rifle over the fence into Cuban territory. Therefore, the prosecution's one-word theme was "Retribution!" By contrast, the defense maintained that the two defendants were innocent - that they had merely followed orders. The young man died accidentally while the defendants were "teaching" him a lesson via what they termed a "Code Red." Therefore, the defense's theme was "Code Red." These one- and two-word themes, "Retribution" versus "Code Red," made it easy for the jury to keep track of the case's key arguments.
Because the theme is such a powerful persuasive tool, it should be modified for application and incorporated into each respective area of the case: voir dire, opening statements, direct examination, cross-examination, and closing arguments. By "enveloping" the trial theme in this manner, attorneys send jurors a message (the trial theme) that they are sure to receive.
To achieve balance in a trial, the attorney should follow theme development with pre-trial litigation research to gain important insights for use during voir dire and trial. Jury psychology experts use different methodologies to achieve different results. For purposes of understanding jury psychology, the value of jury research cannot be overstated. Litigation psychology research removes much of the guesswork from trial planning and preparation. To see the case as the jurors are likely to see it and to predict jury behavior, it is helpful to understand psychology and how it can be used to get into the minds of the jury during trial.
Findings from litigation psychology research can determine a case's pivotal point, that is, the primary element of a case on which a jury's decision is likely to rest. Winning the pivotal point with jurors answers their questions and removes their doubts. Focus groups also help to determine how to break complex arguments down into easy-to-understand yet highly compelling "word pictures" (analogies, metaphors, and similes). This research also can show the attorney, for example, the most effective questions to ask of potential jurors during voir dire and the opening and closing statements that will work best. Focus groups and simulations, as well as litigation intelligence surveys, are invaluable tools to help decipher the minds of the jurors. Focus groups should be conducted early in the trial planning process, certainly before discovery.
While not foolproof, litigation research does significantly increase the probability of developing a true jury-validated trial presentation strategy and of impaneling the best possible jury for a particular case. Professionally organized litigation psychology research also can be a powerful settlement tool. No matter how extensively you use this research, it can be employed on a cost-effective basis for even the smallest of trials or case budgets.
Through litigation intelligence surveys, the attorney will be able to predetermine, as precisely as possible, how jurors will perceive facts, their psychological propensities toward the evidence, and which strategies will most influence them. These surveys should be used together with focus groups. Focus groups are research studies that use surrogate jurors to assess the problem areas of the case. Specialized voir dire techniques developed by litigation psychology research also can help to forecast how the jurors will relate to each other. For instance, these techniques can predict whether a particular type of decision-making personality will influence other members of the jury or whether another juror will be a follower who will adopt others' opinions.
Fortified with the results of his litigation research, what is or is not persuasive will begin in earnest from the moment the attorney opens his mouth before a panel of potential jurors during voir dire. Voir dire is primarily a psychological process, not a legal one. Remember: Voir dire is an exploration to get jurors to articulate beliefs. So, being persuasive in the courtroom begins by establishing a good rapport with the jury. For this, you need good "people" skills. Developing a strong sense of trust and positivism with them can go a long way. Jurors often feel that they are treated disrespectfully . . . that the everyday lives they've abandoned for the courtroom and their generosity of personal and professional time are of no consequence.
Understandably, then, attorneys should build strong, positive feelings with jurors and to treat them with the respect and dignity they deserve. Be sensitive to what they have to say. Once the framework of mutual respect is grounded, a greater openness for communication and persuasion will be allowed. After all, the jury decides the case. For the attorney, the jury is everything.
When mutual respect has been parlayed and open communication is flowing, the attorney can further his ability to persuade during voir dire by deselecting those jurors who exhibit unfavorable preconceived ideas. How can the attorney do that? The answer: there's a wrong way and a right way.
The best way to turn off a jury is to ask them close-ended, useless, and often insulting questions.
Close-ended questions that severely limit jurors' responses to yes or no, and similar tightly circumscribed answers that reveal little or nothing about jurors or their attitudes, do not allow jurors the opportunity to tell what they think and how they feel about the primary case issues. Without such knowledge, it is virtually impossible for the attorney to accurately gauge what the panelists' biases will be concerning these key issues. Using close-ended questions is like a detective testifying about a crime scene that hasn't been dusted for fingerprints. Some attorney questions can be both close-ended and insulting. Most jurors will respond with socially acceptable answers; some may not. The following exchanges between attorneys and potential jurors are good examples of the wrong way to proceed--and of jurors who don't supply meek answers:
Attorney: Do you fully understand what I have been trying to explain to you about this case issue?
Juror: Well, I don't know. I'm pretty stupid, so it takes me awhile to get the gist of things. How about if I tap my right foot - that is, if I can remember which foot is the right one - two times when I don't understand, and three times when I do?
The next one is not only close-ended but also even more insulting than the last.
Attorney: Sir, are you sure you can be fair?
Juror: No, in all honesty I really can't. That's why I will now publicly humiliate myself by proclaiming to you, the judge, and this room full of total strangers that I am a close-minded bigot. As such, I am hopelessly biased to judge this or any other court case on its merits. Please strike me from the jury, so I can quickly slink out of here and back to the hole from which I crawled out.
Now you know that attorneys who erroneously rely on the use of close-ended questions will accomplish nothing. Not only will they not uncover jurors' preconceived ideas but they also may insult the juror in the process. You can accomplish so much more by asking a series of open-ended questions that elicit meaningful responses and allow the juror to feel respected. This method is one of the secrets to get people to open up during interviews. Open-ended questions should begin with emotion-generating phrases such as:
"Could you kindly give us your opinion about . . . ?"
"What would be your feelings regarding . . . ?"
These types of questions more accurately elicit how each juror truly feels about particular key issues and illuminate real attitudes. Ask jurors to share their feelings about the primary case and they will do so gladly. Their responses to open-ended questions usually begin with "I think ________" or "I feel that ________"
Similar to asking close-ended questions, restricting juror comments and conversation is an equally big mistake. Most trial attorneys want to do all the talking and control juror responses during voir dire. Attorneys should remember that jurors get a chance to speak on only two occasions - once to you during voir dire, and then later to each other during deliberations. Successful lawyers realize that these are not two conversations but one. If you don't listen to the first half, you will lose the second half. Some attorneys erroneously assume that a long-winded answer from one juror and conversations among jurors may taint the opinions of other jurors. However, as a professional I know that is not likely to happen. People don't suddenly disregard the bedrocks of their very existence because Juror Joe in front of them disagrees with the case.
The most effective voir dire takes place when the jurors can discuss the case issues in an open and animated fashion as a group - as they would during actual deliberations. In this scenario, the attorney has the clear advantage of viewing and listening closely to each juror while the group talks as they would when sequestered behind closed doors. When such conversation takes place in front of the attorney during voir dire, he can control it to some extent. The attorney immediately can identify and expose a prejudiced juror's biases on key issues and then remove that juror for cause right away.
One important, proven theory of psychology is that reinforcement increases the probability of response. This means that people are more likely to open up and reveal their true feelings if they are complimented when they do. This reinforcement principle also can be put to valuable use during voir dire. The attorney should be completely nonjudgmental while questioning and commenting to jurors regarding their value beliefs, the core attitudes and opinions they hold most dear. Otherwise, the jurors will not feel comfortable in revealing their true feelings about the primary issues of the case. Therefore, the back-and-forth exchange, the reinforcement of all responses (whether good or bad), and the recording of juror responses will leverage your position. A jury consultant can provide valuable feedback to counsel on juror behavior.
Clearly, attorneys must focus with laser intensity on juror selection and persuasion. With each step of the trial process - from initial contact with the jury, through voir dire - the attorney gets closer to being able to persuade the jury to render the most favorable verdict.
OTHER PRACTICAL TIPS FOR THE LITIGATOR
By now, at the end of voir dire, you have made every possible attempt to weed out biased jurors. You are left with what you think is a group of individuals who trust and respect you and are open to considering your view of the case. How do you present your case persuasively to them?
You can know the law and eat, drink and sleep your case. But presenting a compelling, persuasive argument will be greatly enhanced by garnering the input of a jury consultant early in the game. Trial consultants bring a unique understanding of jury psychology before and during trial. Many knowledgeable attorneys have come to regard trial consulting as an essential litigation tool. They recognize the fact that the other side most likely will use a trial consultant, and they don't want to be at a disadvantage.
Jury psychology can focus on individual and group decision-making dynamics and the factors that affect both. Understanding the psychology of the minds of the jury and how personalities and value beliefs correlate with other jury verdicts, attitudes and prejudices is one of the litigator's best tactics. Jury psychology resources offer such advantages that the failure to employ a trial consultant in an important trial could be considered malpractice. When a client's life, liberty, or financial well-being hangs in the balance, nothing should be left to chance.
Attorneys will become better litigators when they employ every trial strategy improvement tool at their disposal.
Another good tip for the litigator is to approach the problem areas of your case head on. Every case has its negative points, and it is essential to affirm those difficult issues at the very outset of trial. Attorneys are tentative to confront their problems, believing that they will be overlooked and ignored or that they will have significant negative impact on their case. However, your problems will not vanish mysteriously. They must be addressed openly and not permitted to fester in the minds of the jurors. From a practical approach in the courtroom and in general, isn't it better to confront these problems? By doing so, you can place your own spin on how insignificant they are. Or if they are relevant, place them in a reasonable context and quickly move forward. Introducing them will do the least damage and may gain some ground for you with the jury.
I already have touched somewhat on the fact that all courtroom professionals should treat jurors with respect and should deal with them as people, but I must emphasize that in doing so the good litigator should not underestimate the jurors' intelligence. In my research as a jury observer, I often discover that jurors feel as though they are being talked down to at trial, and they resent it. The fact is that jurors are brighter than ever before, so litigators always need to be thoroughly prepared and sharp in the courtroom.
Another important tip is to never assume that the jury perceives your case the same way you do. You could be referring to an animal that is an old lap dog named "Fluffy," when half of your panel is thinking about a German Shepherd attacking a small child. Or, you may be thinking "blue" while the jury is thinking "periwinkle." There are no "right" ways to perceive the world. Everyone is different. How many times have you said after a trial, "Gee, I just didn't think the jury would see it that way"? This different perception is called correspondence bias. The best way to overcome correspondence bias is to conduct litigation research. Once you have discovered how a juror is likely to react and to interpret the key issues in your case, you can plan your case strategy appropriately.
When you are presenting your case, a good tip is to weave your strong case theme, which I previously talked about, into an interesting story. Don't be boring and don't show off by using big legal words. Jurors think lawyers are just big bags of wind when their presentations are loaded with a lot of highfalutin legal talk. Using too much legalese was one of Marcia Clark's mistakes in prosecuting O.J. Simpson - the jury couldn't keep up with her. So, again, don't talk down to the jury; instead, speak to them as people. Always be polite and bond with your client, especially so that you can communicate the client's story or daily struggle to the jury. Make the jurors like you while, at the same time, you make your client look good. These are persuasive points in your favor.
A trial is like a symphony. The lawyer is the conductor; the witnesses, the orchestra; the jurors, the audience. And just as in a symphonic performance, one false note served up by a key witness can kill the lawyer's case. Therefore, preparing your witnesses is one of the best moves you can make for your case and in connecting with the members of the jury. Post-verdict interviews with jurors indicate that cases are won or lost primarily on the basis of what witnesses say and how they act. Good, credible witnesses make cases; bad witnesses break them.
Witness likability is an interesting dynamic that must not be overlooked. Juries will tend to forgive the foibles of a case if they like a witness. In some cases, they may tend to disregard negative issues of the case just to help a witness they like or to give that witness the benefit of the doubt to serve to your detriment. If you are opposing counsel, you will want to tread lightly and cautiously during cross examination of such a person on the stand. Questioning a likable witness as a hostile witness may turn the jury against you and your client. Again, knowing this type of information before trial will benefit your case. Litigation psychology research tells the attorney how and what witness testimony should be introduced and what should be avoided.
Various techniques are available to help you prepare your witnesses. Mirrors and video cameras can be used to let the witness see how he or she comes across when giving testimony. It is also extremely worthwhile to have the witness practice giving testimony in front of surrogate jurors who have been organized expressly to grade his or her style, demeanor, credibility, sense of personal honesty, and so on. This form of witness preparation is very valuable, not only in helping the witness improve his or her performance but also in determining what information jurors will most want to hear and consider relevant. The concept of primacy tells us that jurors remember best those facts they hear first. By breaking up the witness's testimony through a series of questions, the attorney, in effect, continually re-establishes this all-important primacy effect for each new answer given.
Normally, it is a good idea to prepare the witness shortly before a deposition and, again, directly before he or she is to appear in court. A good rule of thumb is that at least three hours of preparation time should be spent with the witness for every hour of planned testimony, either in deposition or in court. Attorneys sometimes leave critical witness preparation until the last minute or assign this key task to a junior associate, which can lead to trouble.
This lesson is dramatically illustrated in the film A Few Good Men. In one scene, Cruise is outraged because the inexperienced lawyer assisting him with witness preparation did not secure vital information about the defendant's whereabouts. This information was disclosed later in a damaging manner during cross-examination. Although Cruise screams at his assistant for failing to get all key facts from the witness during preparation, he later realizes that he, as lead counsel, was at fault for failing to pay more attention to witness preparation that could have persuaded the jury.
Increasingly, attorneys turn to trial consultants to help prepare witnesses for deposition and trial. The assistance of a trial consultant or a psychologist can be invaluable when helping witnesses to project their personalities in the most positive light. Many studies, and my own 20-plus years of jury research, indicate that witness likability is even more important to jurors than credibility. If jurors don't like a witness, they tend to ignore what the witness says. If jurors like a witness, however, they often disregard credible incriminating testimony, as occurred during the O.J. Simpson criminal trial.
Attorneys may need to devote extra time to prepare certain types of witnesses who routinely fail to persuade jurors. A nervous witness is ineffective because jurors wonder why he is so nervous. When preparing this type of witness, the goal is to encourage calmness during questioning. Psychologists use many techniques, such as mental relaxation training and positive response therapy, to help witnesses overcome their fear of testifying in court. Also, witnesses who do not always pay close attention to questions might give answers that can negatively influence jurors, and overly gabby witnesses might say more than they should. Conditioning techniques can help witnesses to pay close attention to the questions and to refine their responses. The unemotional witness is equally unconvincing for the jury. Unfortunately, although some personal injury plaintiffs feel deep emotional pain about their experiences they are unable to express emotion when questioned about their damages. Intensive clinical counseling techniques can help this type of witness to exhibit emotions that undoubtedly are present at a subconscious level and then to persuade the jury accordingly.
During your presentation there are various rhetorical tools you can use to persuade a jury.
You can use expectancy statements whereby you introduce concepts to the jury by using statements such as, "You can expect us to show that the accident was caused because the defendant failed to properly secure the latch." The jury then can anticipate key information to look for during trial.
Another good tip during discovery is to ask rhetorical questions. Asking a "why" question to a deponent leads the audience to think more intensively about your message. For example, asking "Why didn't you ensure that the latch was properly closed?" will alert him to his decision-making responsibilities.
You also can use double-binded questions to characterize your opponent in a negative light to minimize jury sympathy for the opposition. You could ask, "Did the defendant fail to close the latch because he was negligent or because he just didn't care about the welfare of others?" Be cautious. Asking this type of double-bind question works effectively in direct examination but could bring disastrous results if the same question were asked during cross.
Classical Conditioning - Anchoring
From a physical standpoint in the courtroom, attorneys should avoid using body language - it often misleads the jury. However, attorneys can use a psychological technique known as "anchoring." Anchoring gets jurors to react positively to an unspoken message when certain gestures are used. This approach is clinically derived from the classical conditioning made famous by Pavlov's dogs. It ties a specific gesture to a verbal message by classically conditioning jurors. For example, if you want the jury to focus on the accused's alibi, fortified by other witnesses, a prominent hand gesture can be made every time the alibi is mentioned. Or, perhaps a slight shaking of the head can be used, each time the alibi is presented, to indicate that the prosecution has the wrong person. Repeating the movement several times over will trigger the subconscious positive response among the jurors.
Rule of 3
A final practical rhetorical tool of persuasion for your case presentation is to remember the rule of three. Research shows that an idea will be better remembered if it is repeated three or more times. As we all clearly recall from the O.J. Simpson criminal trial, "If it doesn't fit, you must acquit."
That specific example reminds me of another crucial tip for attorneys. Litigation psychology research can show you how and what evidence should be presented, and at what stage of the trial such evidence should be brought forth. Be positive about your evidence in the case - don't assume or leave anything to chance. Christopher Darden knows that he made one of the worst mistakes in litigation history: Even though he believed all along that the glove the police found in the garden behind O.J.'s house was worn by O.J. during the murder, he failed to provide for the possibility of weather and blood shrinking the glove so much that it might not fit O.J. If Darden had tried the glove on O.J. before trial or refused to present this display at all, the outcome might have been different.
The art of successfully persuading a jury requires more than thorough preparation and research. It depends on many other subtle, less obvious but equally important persuasion components, some of which I have just talked about.
Oh, one final practical tip: Wear matching socks.
EFFECTIVE VISUAL PRESENTATIONS
Now, how does this jury decision behavior impact the development of effective oral and visual presentations? First, we must remember that litigation psychology research involves testing to determine how jurors will respond to, and be persuaded by, a particular trial presentation strategy. It will tell you what effect visual evidence and courtroom graphics will have on jurors. Misperceptions are likely to occur during a trial when the testimony, evidence, and arguments are complex, contradictory, and confusing. Armed with valuable insights from pre-trial litigation research, attorneys can adjust their presentations to avoid perceptual problems among jurors and to maximize juror understanding through the use of graphics that clearly and quickly highlight the key points that jurors need to know.
Knowing how to structure your trial presentation to achieve the widest level of jury acceptance can mean the difference between courtroom victory and defeat. Armed with the results of your research, you can begin to prepare a visually enriched presentation that will persuade a jury. Other research shows that jurors have about a 17-minute attention span. More importantly, the attorney has only the first 4 of those 17 minutes to grasp the jury's interest. What he says in opening remarks will determine whether or not he will keep the jury's attention for another 13 minutes.
Research also shows that jurors are better able to retain information when it is presented with visual support from pictures, diagrams, and other graphics. Visual aids can be particularly useful during those first 4 critical minutes. From a psychological perspective, visually demonstrative evidence, such as colorful animations or three-dimensional models, assists the viewers in encoding a message and in forming their opinions. In this highly visual age, jurors are more likely to remember what they are told if the attorney's presentation includes graphics.
From a courtroom approach, bigger is not always necessarily better. The attorney must use the best graphics that will enhance his presentation. There have been cases wherein counsel has spent thousands of dollars on state-of-the-art graphics, only to discover that their case would have been more persuasive with a simpler presentation. For example, you may recall that in the movie My Cousin Vinnie the case turned completely when the expert witness, Marisa Tomei, was able to determine from a simple photograph that positraction was not available on a 1964 Buick Skylark but was available on an early-model Ford Tempest.
When designing visual aids, don't forget the power of color. Jurors learn best through colorful visual evidence. The psychological effects of colors evoke positive or negative feelings and emotions. The color red is an exciting, energetic color and is used to command attention. Under a psychological microscope, red actually can incite anger and should be used judiciously in visual aids. Soft blues and pastels are more soothing colors that tend to promote trust. And black is a heavy, dense energy that usually conjures up negative associations. When complementary colors are combined in the same graphic, they mold a balanced energy that promotes a pleasing sense of completion to the viewer.
Anytime you use color combinations in your visual aids, each graphic should be thoroughly tested prior to trial to determine its overall acceptance with the jury.
Using the proper graphics in a case can elicit the feelings and emotions you wish your jury to experience. Let's say that you are representing a victim of a plane crash. How will others understand what your client experienced during that traumatic event? Today's high-tech graphic artists are able to recreate astounding visuals that seem to place the viewer right at the scene. My counterpart at this presentation, DOAR Communications, created for a similar case an animated presentation of an airplane that ascends and descends 500 feet every few seconds. Certainly, if you were viewing this recreation you would have a better understanding of what a victim experienced during such an event. And if you were presenting a similar visual aid, perhaps you should consider having barf bags handy for the jury. When the jury emotionally conceptualizes the event through colorful visual graphics, your likelihood of persuading them becomes that much greater. You will want to ensure that all of your visual aids enhance and do not detract from your presentation. Remember, your goal is to persuade the jury, not to confuse them. For optimal results, you should enlist invaluable assistance from litigation graphics specialists to create your best visual presentation.
It's important for attorneys to understand that effective voir dire may serve to predict an equally effective trial outcome. To that end, Dr. Singer recommends that attorneys employ the following, which has been published in a summer 2000 edition of the American Bar Association's "TortSource" and served as the basis for Dr Singer's July 2000 speech to the Academy of Florida Trial Lawyers.
9 Questions for Valid Voir Dire
Ask the right questions and listen, then use the answers to your advantage.
Voir dire and jury deliberations definitely are interrelated. That's why you should bring the deliberations into the courtroom via voir dire before the trial begins. Gather information about prospective jurors and bond with them while discussing the problem areas of your case. Your main goal is to predict juror behavior. How can you achieve it? By asking questions that reveal WHY jurors feel the way they do. Consider the following nine types of questions, which I developed for valid voir dire.
Determine a juror's case disposition and whether that juror should be de-selected due to preconceived bias to a problem area of your case. For instance, if a juror responds negatively to your open-ended question, "What are your thoughts or feelings about someone who has two glasses of wine and then drives?" you can use a preemptory challenge to remove that juror from the panel.
Reveal juror responses to abstract issues, such as pain and suffering. Asking, "Why is it important to compensate someone for pain and suffering?" more effectively plants in jurors' minds a favorable idea to your case than commanding, "You would agree ________" Record juror comments carefully; then, restate those comments in your closing statement to hook the jurors.
Teach without sounding uppity when cases involve legal or complex matters. Asking, "Someone who commits murder during an episode of insanity is not guilty by reason of insanity. What's your opinion?" clearly outmaneuvers the condescending "Do you understand ________?"
Make the jurors, not yourself, look good; make them like you. Ask, for example, "What is your occupation?" and then reply, "That sounds interesting." Thank jurors for their input and avoid being patronizing.
Fix a bad answer (for the opposition) by your "friendly" juror and make the opposition use a preemptory strike instead of giving the opposition the chance to eliminate the person for cause, by saying something like: "You stated that you once had a bad experience with a police officer; are you going to hold that against all police officers?"
Have jurors with unchangeable pre-conceived notions? Close-ended Cause questions will reveal bias against your case and provide argument to strike for cause. For instance: "You stated that you don't trust police officers. Is this opinion likely to change in the next week?" The juror replies, "No." You then say, "Thank you for your honesty." Keep at it until it is obvious and you get ________
To cause a juror to commit to his earlier biased statement, restate his comment in close-ended question form, and let him talk uninterruptedly while nodding your head as if in agreement; then, remove him for cause. Similarly, identify other jurors' related biases by asking, "How many of you agree?" and have them removed for cause.
Fake-out questions can make the opposition think that something non-essential is important enough to use a preemptory challenge.
Sensitize jurors early on to negative aspects of your case. Avoid excessive detail; mention issues, concepts, and prejudices rather than facts.
Next time you're preparing a case for the courtroom, employ these nine types of questions to master voir dire.
 Influencing a person's subconscious is always far more powerful than influencing his or her conscious level of perception. As the renowned scholar and author Joseph Campbell has pointed out, consciousness is a secondary organ that, on a more basic level, must subordinate and serve the body, and the more basic body functions, including the subconscious. There is no mystery to hypnosis and similar altered states of consciousness. They simply make use of a natural, physical state commonly experienced at various times, such as while listening to music, running, or driving.