Reading The Jury

Employing Litigation Research

To Understand and Shape the Decisions Jurors Make

Copyright © Amy Singer 2000. All rights reserved.

Table of Contents

Dealing with Biased Jurors During Voir Dire

Jury Verdict Award Amounts: Fact, not Fiction

Jury Validated Trial Themes

The Best Jury Research Format to Test Trial Themes

Cueing Positive Memory Recall with Jurors

Exploding the Myths Concerning Voir Dire

Getting Jurors to Deliberate in Front of You

Challenging Jurors for Cause

Litigation Intelligence Surveys

Trial Consulting for the Smaller Practitioner

Intellectual Property Cases Require Strong Themes

Focusing on Jury Focus Groups

Picking a Jury in a Civil Case in Ohio

Trial Consulting

Professionally Prepared for Witness Preparation?

Preparing the Child to Testify in Civil Actions

Don’t Make Voir Dire So Difficult

In Defense of Jury Consulting

Value Beliefs, not Demographics, Key to Seating Jurors

Classically-Conditioning Jurors

Witness Preparations Needs More Attention, Plus a Psychological Dimension

It Don’t Mean a Thing If it Ain’t Got That Theme

S-J-Q’s-Great for Juror I-N-F-O

Using Psychology to Win in Court

Successfully Settling for Case Through Surveys

Witness Preparations for Defense Attorneys

An Overview of Litigation Psychology Research

Women Attorneys at a Disadvantage in Combative Courtrooms? Think Again.

Exposing and Eliminating Biased Jurors During Voir Dire

Litigation Intelligence Surveys: Essential for Large Products Liability Trials

Connecting and Communicating with the Catastrophically Injured, Emotionally Devastated, And/Or Otherwise Severely Challenged Plaintiff in Preparation for Court

Voir Dire in Employment Cases

A collection of articles by Amy Singer, Ph.D. Dr. Singer is founder and president of Trial Consultants, Inc., part of The Singer Companies, Ft. Lauderdale. The Singer Companies provide trial consulting, litigation research, settlement, and related professional services for attorneys across the country.

MORE JURORS THAN EVER BEFORE are predisposed against plaintiffs and plaintiffs rights. What are the best techniques available to spot, then eliminate, biased jurors during voir dire before they can kill your case? Dr. Singer’s article discusses these techniques in detail. An edited version of the article was published in the April 1996 edition of TRIAL.

Dealing With Biased Jurors During Voir Dire

Get rid of the ones you can; de-program the ones you can’t

It’s reality check time for the plaintiffs bar; many prospective jurors across America are, in effect, tainted, i.e., prejudiced against plaintiffs, and a key manifestation of plaintiffs’ basic Seventh Amendment Rights; fair and full recovery for damages. We’re referring to a substantial number of the jurors you may seat now, or ever seat again in the future.

Think not? You need look no further than your next case for proof; plaintiffs’ attorneys are finding it more difficult than ever before to impanel jurors who are not already biased against justifying large damages awards for products liability, medical malpractice, and similar cases. Today’s venire seem to be convinced that: 1) Far too many plaintiffs are receiving lottery-type damages awards today, 2) There are too many frivolous lawsuits, 3) Juries are getting way out of hand; and 4) It is high time for somebody (them) to start slamming on the brakes.

Jury surveys indicate that this anti-plaintiff attitude is becoming more prevalent in all venues, and on a nationwide basis. Interview voir dire panelists anywhere, small towns, medium-size cities, giant metropolises, and you’ll find that a large number all parrot the same notion: Jury award amounts are climbing dizzily out of sight, a principle reason, they claim, why manufacturing, insurance, and medical costs are also rising steeply.

A strategic approach to eliminating biased jurors

This article details numerous time-tested and highly reliable strategies and techniques attorneys can use to target and eliminate, or, alternatively, to de-program biased jurors during voir dire. But since the problem of anti-plaintiff bias is so closely tied to the issue of jury award amounts, it will be instructive to first briefly examine the anti-plaintiff/anti-jury propaganda war that is currently being waged across America. It is hard to win inside the courtroom if you are always getting clobbered outside of it. Unfortunately, this is largely the case for plaintiffs and the plaintiffs’ bar today.

In the court of public opinion, plaintiffs are losing badly

Let’s face it: In terms of their public image today, plaintiffs truly are on the defensive. The reason for this is clear: Powerful, vested interests, who favor constricting Americans’ Seventh Amendment Rights by placing, among other limitations, a cap on plaintiffs’ abilities to recover for damages, have spent untold millions of dollars in recent years to promote their position to the American public. As a result, the idea that jury awards are skyrocketing into the stratosphere has become accepted dogma among wide numbers of the general public.

If you watch television, listen to the radio, or read newspapers and magazines, there is no escaping the message that juries are unreliable and out of control; it comes at you night and day, in every possible form, and from every conceivable angle. Is it any wonder that this anti-jury message has stuck with many Americans, who now consider it gospel? (And yes, the O. J. Simpson verdict has added considerable fuel to the fire.)

The vested powers who are so adept at pumping their anti-plaintiff/anti-jury ideology into every nook, corner, and cranny of America are, at the same time, fervently proselytizing regarding other closely related themes: The notorious Loser Pays rule (losing party must pay the winner’s legal bill in suits alleging defective products or securities fraud), eliminating joint and several liability, reducing plaintiffs’ attorneys’ fees, barring recovery in some negligence suits, requiring that 75 percent of all punitive damages go to the state and not to the plaintiff, and even eliminating the right to jury trials in certain cases.[1]

Powerful anti-plaintiff/anti-jury forces

The robust interests that have lined up against plaintiffs and juries include some of the most influential groups in America; major manufacturers, giant industrial concerns, the insurance companies, the health care industry, plus most of their lobbying groups, the American Medical Association, the American Hospital Association, the National Association of Manufacturers, the American Tort Reform Association, and the Washington Business Group on Health, among others.

These potent anti-plaintiff/anti-jury elements are conducting, a relentless, scorched earth propaganda campaign to massively manipulate public opinion. Money is no object. Every conceivable means of public persuasion is being employed, sophisticated public relations campaigns; hand-tailored communications programs targeting the nation’s most respected citizens and primary molders of public opinion; speeches and lectures; books and articles; radio, TV, and print advertising; direct mail (consider the dire warnings about the need for tort reform that are printed on the stuffers insurance companies regularly [and insidiously] mail to their customers along with their statements), and on, and on.

These anti-plaintiff/anti-jury forces have been enormously successful in their proselytizing efforts. They have successfully converted a large number of Americans, and more to the point, a sizable percentage of potential jurors, to their viewpoint. They have proved that it is possible to radically alter the minds of millions of Americans.[2] You just need to be willing and able to spend millions of dollars to do so.

Alter minds? As a psychologist, I believe that it goes deeper than that. Based on results achieved, the tort reformers are almost like The Shadow, the venerable radio hero of the '30s and '40s, who possessed the mysterious power to cloud mensa minds!

For example, I find it interesting to note that two slurs most commonly voiced against plaintiffs’ attorneys-fees are outrageous, and cases drag on interminably due to endless motions are, in reality, problems more properly associated with defense attorneys. Most plaintiffs’ attorneys, after all, work on a contingency basis. They are not the ones charging their clients $75-100, or more, to return a phone call, or to answer a letter. Nor is it to their pecuniary or logistical advantage to draw court cases out forever by filing copious memos, briefs, and special pleadings. The opposite is true for defense attorneys, however, who many times can (and do) bill their clients every time they do something relating to their cases.

Mind-control?

It is my contention that the steamroller effect of the massive propaganda disinformation campaign against plaintiffs and juries parallels classic mind control techniques commonly associated with police states, cults, and fanatical religious groups. Many Americans, and thus, many jury pool members now seem to accept the anti-plaintiff/anti-jury philosophy on a visceral, even non-rational, level. That’s a tough situation to counter.

Weeding out biased jurors during voir dire

Before discussing how to best deal with jurors who are automatically opposed to the issue of large damages awards for plaintiffs, let’s first discuss the issue of biased jurors in general, and how to target and eliminate them during voir dire. Few tasks are as important for the plaintiff’s attorney. All it takes is one biased juror to kill his or her case and sink the plaintiff for good. Bias on the part of a juror is established primarily by the expression of an opinion that is clearly contrary to the plaintiff’s case, and by the clear inability of the juror to render a verdict one way or the other should the facts warrant it.

With this definition in mind, the primary goals of the attorney during voir dire are twofold: 1) To determine those prospective jurors who are inclined to weigh the facts against the plaintiff in light of their own prejudicial attitudes; and 2) To intelligently use challenges to eliminate these individuals from the panel. Biased thinking is the bitter fruit a prejudiced juror brings to the trial proceedings. When searching out biased jurors during voir dire, it is helpful to keep in mind this often-quoted admonition from the Bible: By their fruits you will know them. [3] Let’s now discuss how to plan for, and to conduct, voir dire so as to easily locate such rotten fruit, and then get rid of it quickly.

First: How not to conduct voir dire

Before detailing how to orchestrate voir dire so as to most effectively de-select biased jurors, it will be useful to first discuss, and eliminate, some wrong-headed approaches many lawyers often take in this essential area. Attorneys are demographic-dependent –far too many attorneys base their juror selections on demographics: age, race, sex, job, religion, and so on, despite various studies showing there is no correlation between demographics and verdicts. Nevertheless, many attorneys cannot liberate themselves from the hoary myths and old wives tales that continue to exist regarding jurors. They often seat jurors who end up unexpectedly torpedoing their cases as a result.

Psychologists know that stereotypes concerning demographic groupings are usually wrong. People’s attitudes and beliefs are not merely a function of race, age, sex, and so on. Not all Jews are liberal, nor all women compassionate. Many bankers have strong social consciences. Many clergy and social workers do not. Nevertheless, most attorneys continue to rely on demographics as an irrefutable Rosetta Stone to determine jurors’ proclivities and biases.

The 20 Questions Approach-Jurors control voir dire, not attorneys. In most cases the attitudes (and biases) jurors hold concerning the issues of the case are not going to be changed by the style, content, and/or direction of the questions the attorney poses to them during voir dire. Nevertheless, attorneys try to control and to contain jurors during voir dire by using what I term the 20 Questions approach. For instance, they ask conditioning questions, e.g., You understand, of course, that it would be improper to diminish the money to which my client may be entitled simply because it is a large sum to get jurors to pre-commit to their desired view of the case before the trial has begun. Or they treat the voir dire panelists as surrogate students so they can teach law school. Do you realize that sympathy must play no part in your verdict? One of the most egregious mistakes attorneys make during voir dire is to direct personally insulting questions at the jurors concerning their abilities: 1) To comprehend the issues of the case, and 2) To render impartial verdicts. Such questions insult the jurors, while making the attorney appear fatuous. They are a large waste of time because they can only be answered in a socially acceptable manner. If you think otherwise, consider the alternative:

Attorney:	Do you fully understand what I have been trying to explain to you (concerning a particular case issue)?
Juror:	Well, I don’t know. I’m pretty stupid, so it takes me a while 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?

Or....

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.

Invariably, asking jurors simple-minded and demeaning questions of this type will result in responses that are equally worthless.

Close-ended questions-Another big mistake many attorneys make during voir dire is to rely almost exclusively on close-ended questions when interviewing jurors. When it comes to determining jurors’ attitudes, this approach is doomed from the outset. Close-ended questions-“How many of you have ever had surgery?” “How many of you have lost their mothers?”, severely limit the jurors’ responses to yes and no, and similar tightly circumscribed answers that reveal little or nothing about them or their attitudes. Close-ended questions do not provide jurors with 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 to ferret out juror bias is like trying to play darts blindfolded-it’s possible to hit the bulls-eye, but not very likely.

Kill the conversation-The most effective voir dire takes place when the jurors can discuss the case issues in an open and animated fashion as a group, i.e., just as they would during actual deliberations. The strong advantage to the attorney of being able to view jurors as they participate in this revealing conversational-type activity is clear.[4] This conversational approach to voir dire can be achieved by allowing the individual jurors: 1) To honestly express their feelings about the case issues, and 2) To feel free to weigh in with their own opinions and attitudes about what the other jurors have said. Many attorneys, however, try to shut down any conversation among the jurors during voir dire. They worry that negative views expressed by one juror will poison the others.

This is an unnecessary concern. Common sense indicates that one negative juror cannot suddenly infect the other jurors by merely voicing an opinion. Attitudes and beliefs are not contagious. Indeed, the key task of the attorney during voir dire is to use probing questions to determine which panelists enter the box already contaminated, then eliminate them as quickly as possible. Attorneys who try to constrict conversations during voir dire should understand this proven fact: Every conversation has a beginning, a middle, and an end. Trying to shut down a conversation that has broken out among the voir dire panel means that it will simply start up again later in the jury room. It is much better to have the conversation take place in front of the attorney during voir dire, where he or she can still control it to some extent by being able to eliminate some of its participants.

What works in voir dire?

I have listed some approaches not to take during voir dire. OK, so then, what works? Following are various strategies and techniques to target juror bias during voir dire. These approaches have proven reliable in thousands of civil cases of every possible type. If implemented as suggested, they will assist the attorney to more efficiently and effectively: 1) Determine with maximum possible certitude those jurors who will be most likely to find against his or her client due to the jurors’ own biases; and 2) Successfully remove these prejudiced jurors for cause. This strategic approach begins with pre-trial litigation research.[5] Let’s take a look.

Litigation research

There is balance to a trial. The closing argument addresses the main points brought out during opening statement. Direct and cross-examination cover the same witnesses and subjects, but from bi-polar perspectives, and with mutually exclusive goals. And what comes out in deliberations should also come out in voir dire. Savvy attorneys can ensure that this takes place through the use of litigation research conducted before the trial begins. Litigation research can provide the attorney with invaluable and otherwise unavailable data regarding what the voir dire panel members will consider to be the core issues of the case, and how they are liable to react to these issues emotionally and intellectually. Such research also enables the attorney to determine the ideal voir dire questions to ask that will most effectively ferret out juror bias. Litigation research uncovers the all-important value beliefs of jurors regarding a particular case. No other information the attorney can discover about jurors is as critical as what their value beliefs may be, i.e., the core internal precepts by which they think and operate. Research shows that it is value beliefs that most clearly correlate with verdicts, not demographics, life experiences, or any other factor. When the attorney gains this key information concerning the jurors’ value beliefs, he or she will also then be able to discern how these internal attitudes will translate into external opinions, prejudicial and otherwise, that will be expressed regarding the primary case issues. Thus, the attorney will be in the ideal position to know what type of biased and negative jurors to watch out for, and to subsequently de-select, during voir dire. Litigation research is usually conducted through focus groups and jury simulations prior to voir dire. This research is similar to the consumer testing that companies employ prior to bringing a product to market. It allows the attorney to see the case as the jurors are likely to see it.

Focus groups-These highly revealing sessions help spotlight vital case information, including, among other data, the relevant issues of the case, the key value beliefs of the jurors and how they relate to these issues, and the relevant attitudes that may predispose jurors to be less than neutral.[6]

Key issues-People are very issues-oriented, and the key issues of the case are the factors upon which it will be decided, e.g., physician indifferences (in a medical malpractice case), commercial arrogance (in a products liability case), gambling with other people’s lives (in an auto crash case), and so on. It is very common for the attorney to assume he or she is in touch with the key issues of the case, only to learn though jury simulations that what was considered important turns out to be far different from what will be important to the jurors.[7]

Value beliefs-These are the precepts, principles, dicta, and codes that people hold most central to their personalities. They often are expressed through the use of such words and phrases as should, must, ought to, 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. Value beliefs represent the internal standards people use to weigh what is proper behavior and what is not. Doctors must not ignore their patients’ complaints, Manufacturers shouldn’t be held responsible for a product that is 20 years old, and everyone knows that you shouldn’t expect handouts are examples of some value beliefs.

Jury simulations-These surrogate jury sessions enable the attorney to fine-tune his or her trial presentation strategy so that it most comprehensively answers the questions and addresses the issues raised in the previously conducted focus groups. During jury simulations, surrogate jurors discuss the important case issues in a manner similar to what will take place during actual deliberations. Jury simulations demonstrate with uncanny accuracy what the jurors are going to deliberate about, and what type of juror will take what type of position. Jury simulations provide the attorney with an almost magical ability to tap into the jurors’ deliberations. A careful analysis of these deliberations will reveal the discrete points in the conversational script where certain jurors felt prompted to voice their negative and/or biased viewpoints. Armed with this data, the attorney can then plan highly specific voir dire questions that will prompt the panel’s problem jurors into clearly revealing their own biases. Basically, the attorney listens to the negative and/or biased beliefs and attitudes expressed during jury simulations and focus groups, and then designs his or her questions to provoke the same type of negative responses during voir dire. This is just like the hunter who uses his or her favorite duck call to trick the unsuspecting prey to come flapping out of the bullrushes for an easy shot. It bears repeating that jury deliberations normally takes the form of a conversation. If the attorney can anticipate this conversation because he or she has simulated the case, then a similar conversation can be held with the panel members during voir dire. But this will be a loaded conversation, and it is the attorney who will have all the ammunition. Thanks to the pre-trial research already conducted, the attorney will know precisely what questions to ask to raise the same concerns during voir dire that will be discussed later during deliberations. Most people love to volunteer their opinions if provided an opportunity. This is particularly true for opinionated individuals. If during voir dire the attorney can ask the question(s) that his or her pre-trial research has shown the negatively opinionated jurors want (indeed, need) to answer, then all he or she has to do is stand back, and wait for these jurors to blow themselves out of the water. If handled properly, the process can seem almost to be scripted.

To illustrate, let’s first consider a deliberation that might have taken place during a jury simulation concerning an auto crash case:

Juror #1:	I’m familiar with the accident scene. I’ve driven through it many times before. It’s dangerous.
Juror #2:	You’re right. It’s not very safe.
Juror #3 [to Juror #2):	You’ve driven that road before, but you’ve never been in an accident. How come? Why did she?
Juror #2:	The plaintiff had a beer before getting in her car. Maybe that affected her ability to make the curve.
Juror #4:	That’s right! Don’t drink and drive.
Juror #5:	But all she had was one beer.
Juror #4:		One beer too many.
Juror #1:		Anyway, I still think that curve is dangerous.
Juror #2:		I think the beer and the curve make it dangerous.
Juror #6:		I agree. Maybe we wouldn’t need to be here today if it weren’t for that one beer.

This simulated deliberation indicates one clear fact: Even though the plaintiff had just one beer prior to her crash, and although the road on which the crash took place is considered dangerous, the surrogate jurors are overly concerned about the issue of drinking and driving. It can be anticipated the actual jurors will feel the same way. Since the issue of drinking and driving appears to be a key issue of the case, the attorney now must: 1) Get the voir dire panelists to participate in a similar deliberation, 2) See which jurors are most negative about the issue of drinking and driving, then 3) Plan how to de-select them. In other words, the attorney must engage the voir dire panelists in a conversation regarding the issue of drinking and driving. He or she must be the spark to get the conversation going, then make sure everyone gets an opportunity to speak. So, for example:

Attorney (to juror #1):	What are your feelings about driving after just one or two drinks?
Juror #1:	I don’t think it’s a good idea.
Attorney (to all jurors):	How many agree with this gentleman? (Notes positive and negative responses, then asks Juror #2, who has voted in support of Juror #1's statement, why she feels the way she does.)
Juror #2:	My mother suffered severe skull fractures when the car she was driving was hit by a drunk in the wrong lane.
Attorney:	I’m very sorry. How does that make you feel?
Juror #2:	To be quite honest, I hate anyone who drinks and drives.
Attorney:	I can see how you might feel that way. Thank you for being so candid. (Then asks juror #3 whether he believes that having only one drink can make a person drunk.)
Juror #3:	Sometimes it only takes one.
Attorney (to juror #4):	Do you agree?
Juror #4:	No, that’s ridiculous. Often, I have an entire six-pack before driving, and I never have any problems.
Juror #5 (in a loud aside to Juror #4):	That’s right. Guys like you give the problems to everyone else on the road.

This is the way voir dire should be handled. By carefully listening to the responses provided by the voir dire panelists, and by encouraging all jurors to speak freely and to offer their own opinions regarding these responses, the attorney will have set up the perfect voir dire, i.e., one in which the jurors pre-deliberate regarding the case’s primary case issues out front and in the open. By getting the jurors to offer their own opinions about the key case issues, the attorney will have a pretty good idea who to de-select, and who to keep. Under these circumstances, it does not take a Sigmund Freud to de-select jurors for bias.[8] When it comes to voir dire, litigation research provides the attorney with an immense advantage. It means that he or she will know how, why, and what buttons to push to get the jurors to reveal their true feelings, and thus, their biases concerning the primary case issues. Trial research is worthless if not organized properly

Most attorneys don’t understand how to properly organize focus groups and jury simulations that will provide meaningful results regarding the primary case issues, and how the jurors will relate to them. Often, the attorney will round up his or her associates and friends, then trial-run various aspects of the case in front of these individuals. Many attorneys often win their cases before such casually selected (yet subconsciously sympathetic) groups, then lose in court later. Clearly, this is not an effective method to mock-try the case. And it is certainly not an effective means to develop any useful information that can help find and eliminate biased jurors during voir dire. [9]

When it comes to organizing focus groups and jury simulations, it makes no sense to use associates, friends, and similar individuals as surrogate jurors. Such individuals likely will all share the same value beliefs. Often, these prove very similar to the attorney’s, but have no similarity to what the jurors are liable to truly think and feel.

Attorneys like to hear thoughts expressed that are positive regarding their cases, but often shun negative expressions concerning them. This tendency is understandable considering the often vital stakes associated with many court cases. It doesn’t assist, however, in the development of an objective understanding and appraisal of the case, or of the jurors who must decide it.

Target the case’s problem areas

The best way for the attorney to organize pre-trial research is not to assemble like-minded individuals who may be psychologically inclined to present a pro-plaintiff viewpoint concerning the primary case issues. Instead, it is far more useful to organize a room full of surrogate jurors who will be intensely negative to the plaintiff’s position, in short, 12 Hitlers.[10]

Focus groups and jury simulations should be organized to concentrate on the problem areas of the case (e.g., the issue of drinking and driving in the case of the woman who drank one beer and then crashed her car). It is the case’s problem areas, after all, that cause the most trouble, and that the attorney must therefore be most concerned about. And it is these problem areas that will yield the most valuable information in determining what type of questions to use to uncover biased jurors during voir dire. Pre-trial litigation research represents the heavy lifting portion of the overall strategic approach to spot, disarm, uncover, then de-select biased jurors during voir dire. It enables the attorney to learn precisely what issues the jurors will be most concerned about, along with the right voir dire questions to ask to elicit juror bias. Remember: Voir dire is an exploration to get jurors to articulate beliefs. With the appropriate questions (gleaned from pre-trial research) asked in the proper manner (open-ended questions regarding feelings and thoughts), the prejudiced jurors will reveal themselves, and their biases for all to see.

Setting up jurors for cause

In order to get jurors to speak up and reveal their true feelings during voir dire, the attorney must make them feel at ease and comfortable; ask open-ended questions that require thoughtful, comprehensive answers; be completely non-judgmental regarding what jurors have to reveal; and be sure to include all jurors in the voir dire conversation to learn what they think and feel about the issues of the case.

Making jurors feel comfortable- The attorney can go a long way to put the jurors at ease if he or she simply employs good common sense, along with good manners.[11] For example, the attorney should come away from the podium and approach the panel members, but maintain a mutually comfortable distance; be sociable and smile; establish and maintain proper eye contact; ask all questions in a friendly and open manner; and permit the jurors to respond according to their own tempo and style. It is also important for the attorney to ensure that all juror responses are treated with courtesy and respect, even the horrible ones.[12] Finally, the attorney must listen carefully to the jurors, and be sensitive to what they have to say. So, for example:

Attorney:	What type of work do you do?
Juror:	I’m a bricklayer, but I recently contracted Parkinson’s Disease and can no longer work.
Attorney:	And what sort of job does your wife have?

Clearly, the attorney is either not paying attention to what the juror is saying or is highly insensitive to the juror’s problem. This is unfortunate. By sympathizing with the juror over his hard luck, the attorney would have probably won a friend on the jury, along with points with the other jurors for being a caring and considerate individual. Additionally, the attorney is blindly passing up a potentially valuable line of inquiry concerning the juror. For example, a follow-up question along this line might be revealing: I’m very sorry to hear that, sir. How does being in this situation make you feel? A juror who answers that, a person must learn to accept his or her fate in life probably will respond far differently to the plaintiff’s problem than someone who would react less stoically.

Open-ended questions-Most people like to speak about themselves and what they think and feel. Indeed, it makes them feel important to be asked about, and to reveal, their thoughts and feelings to an interviewer. Good interviewers know that one of the secrets to get people to open up during an interview is by using open-ended questions. For example:

Can you please share your feelings about obstetrics cases?

How did it make you feel when you lost your father due to an explosion at the plant where he worked?

What are your feelings about the need for standards in the X industry today?

What do you think about compensating people for pain and suffering?

Note that these questions all employ the words feel and think in various contexts. By framing the questions in this manner, the jurors are forced to respond in kind, i.e., with their own thoughts and feelings concerning the issues raised.

Treating jurors non-judgmentally-The great psychologist Carl Rogers was a master in getting his patients to quickly open up and tell him how they truly felt about things.[13] Key to Rogers’ strategy in dealing with patients was being completely non-judgmental regarding what he was told.[14] Rogers understood that his patients would not reveal themselves if they had to worry about being judged harshly for what they had to say. This is a simple truth of human nature, and it applies as much to jurors during voir dire as it does to patients on the psychologist’s couch.

Reinforcement, reflection, clarification-In addition to permitting his patients to say whatever they wanted without fear of retribution, Rogers utilized some additional techniques to promote open, clear communication. Specifically, he would reinforce any statements made with an approving reciprocal statement- I’m glad you brought that up! or Thank you for that comment! Rogers understood that reinforcement increases the probability of a response. He would then openly reflect on the patient’s statement-The confusion and anguish you are now feeling must be difficult to bear, to signal that he had indeed heard what had been said. Finally, he would attempt to clarify the statement-So by that, you mean......to eliminate any ambiguity.

The attorney can effectively employ this same polished approach during voir dire to determine precisely who the jurors are and what their biases may be. For example:

Attorney:	What are your feelings about jury awards?
Juror:	They are way out of line. People are getting fortunes today for minor things. As a result, insurance rates are going through the roof.
Attorney:	Thank you, sir, for that honest statement of opinion. (Reinforcement) Now, I hear you also saying that jury verdicts are driving up insurance rates, is that correct? (Reflection)
Juror:	Yes, that’s right.
Attorney:	Why do you think this is so? (Clarification)
Juror:	With everybody getting sued, the insurance companies have to raise their premiums to make a profit, so the little guy ends up getting the shaft.
Attorney:	You mean the typical person such as yourself? (Clarification)
Juror:	That’s right.
Attorney:	So you’re saying jury awards are directly costing you money? (Clarification)
Juror:	No question about it.
Attorney:	In other words, you feel that it would be against your own personal financial interest to award my client money, even if the facts of this case prove that she should be financially compensated. (Clarification)
Juror:	I’m sorry, but I have to tell you the truth.
Attorney:	Please don’t apologize at all, sir. I very much appreciate your honesty. (Reinforcement)

The attorney in this example has been able to clearly set up the juror for cause.[15] This has been accomplished by reinforcing (and thus encouraging) the juror to reveal his true feelings; by reflecting with the juror concerning these feelings; and then by asking clarifying questions to illuminate the juror’s responses (and possible biases) for all to see and hear.

This is basically how the procedure of setting up a juror for cause works. It is not a complicated or mysterious process, indeed, it is remarkably straightforward. The attorney must be warm, friendly, sensitive, and respectful with the jurors, so they will feel comfortable to speak openly and freely. He or she should ask open-ended questions requiring revealing answers that go to the heart of the jurors’ predispositions. The attorney should attempt to restate and clarify the jurors’ responses and statements so they will feel understood. And he or she should convey an attitude of acceptance and approval regarding all juror responses. If the attorney follows this suggested approach, the jurors will in all likelihood be willing to reveal themselves, along with their attitudes and biases, during voir dire. Once those biases are clearly revealed, the biased jurors should then be able to be struck for cause.[16]

Most important, the attorney should make the jurors feel comfortable to open up, then be quiet and let them speak! The more the biased jurors speak, the more judgmental and brittle they will appear, and thus the deeper they will bury themselves.

Do not sabotage your own challenges for cause

After getting a juror to reveal his or her bias, the attorney should not turn around and ask if he or she can return a verdict. Instead, the attorney should come back to that person at the end of the questioning, get the juror to repeat his or her bias, then thank the person for being candid. For example: You already have told us that you believe doctors should not be held to the same degree of accountability as other people, and that a doctor’s word should be worth more in court than someone else’s. You are to be commended for your honesty. Now your feelings in this regard are not likely to change in the next three days, right? Thank you. A series of follow-up questions along this line allows the attorney to solidify the challenge for cause as the bad juror further commits to his or her initial biased opinion(s).

Don’t forget to poll the jurors

When a biased juror clearly reveals his or her own prejudices, the attorney then has an excellent opportunity to find out how the other jurors feel about the same issue(s). The attorney should immediately take a poll of the other panel members to determine who agrees or disagrees with the juror and his or her biased idea(s).[17]

Get rid of problem jurors right away

The attorney should attempt to strike a biased juror for cause as soon as possible. Problem jurors usually cause more trouble during breaks and over meals than they do in the courtroom. They often engage the other jurors in negative conversations (e.g., about those ambulance-chasing plaintiffs’ lawyers, the plaintiff’s obvious lack of character in bringing a lawsuit against saintly Doctor Bob, and so on). The best thing is to try to dump biased jurors immediately, before they can do any real damages.

De-programming biased jurors

It is not always possible to successfully eliminate all biased jurors during voir dire. In some cases, it may become necessary for the attorney to utilize special goal-oriented communications techniques to de-program such jurors, i.e., to assist them in seeing the particular case issues in a new light. The term de-program is used deliberately. To illustrate, consider voir dire panelists who believe that most jury awards are exorbitantly unrealistic. As detailed earlier, many of these individuals, just as many Americans have, in effect, been programmed to believe that excessive monetary awards for plaintiffs are the norm. This concept has been drummed into them for so long and so often that they now accept it, indiscriminately, as fact. They know it’s true; they don’t need to think about it. These jurors are, in effect, like brainwashing victims who need to learn the truth. It therefore becomes the task of the attorney during voir dire to provide new perspectives for such jurors in order to help them see things more objectively.

Some beliefs can be altered during voir dire

In most cases, it is extremely difficult to alter a person’s attitudes and beliefs. These normally spring from a person’s primary life experiences. An example of a life experience belief: If a man was brutally mauled as a young boy by a large, black haired bulldog, he will probably make sure as an adult to stay as far away as possible from large, black haired bulldogs automatically (subconsciously) assuming (believing) that such dogs will surely attack him if they get the chance. Attorneys should understand, however, that jurors’ attitudes regarding such subjects as large damages awards are likely not central to their bedrock belief systems. True, such beliefs are implanted in the psyche, but not in the same profound manner as the core value beliefs (e.g., the deeply felt internal knowledge a mother holds that she will do anything to protect her small child from harm). It is only the core beliefs that resonate deeply in the psyche (e.g., the shrill alarm bells of terror that go off inside the mind of the dog fearing man when he turns the corner and is quite suddenly and unexpectedly confronted with a large, black haired bulldog).

Since the prejudice against large jury awards is not a primal, life experience belief for most prospective jurors, it is quite possible to be changed during voir dire. Furthermore, such change is liable to have a cathartic effect on the jurors in question.[18]

Scripted behavior by jurors

Attorneys should be aware that some voir dire panel members may exhibit minute but nevertheless unusual demeanor changes if the issue of large damages awards is raised. For instance, their speech may sound a bit scripted, their eyes may appear to glaze over slightly, and they may even seem to be in brief trances, physically present, but not completely there mentally. (These acute changes to demeanor may be noticeable only to a psychologist, psychiatrist, or other trained observer.) The reason for these faint changes in demeanor, however, is very clear when it comes to the topic of excessive damages awards, many voir dire panelists already know the supposed truth. This means they will find it easier to simply close down mentally when the subject of damages awards is raised. It is much easier for them to nod off with their eyes open than it is to think critically about the subject.

Voir dire-a wake-up call

During voir dire, attorneys must wake up jurors so they will be able to consider the issue of large damages awards more objectively. This can be achieved by a carefully planned and directed series of sharp questions to the jurors. Through this bracing query technique, the attorney can snap jurors out of their dull, trancelike states to get them to begin to question their own prejudicial attitudes regarding damages awards.

This interrogatory technique is similar to that used by cult exit counselors to help bring victims of mind-control groups back to reality. It is based on the concept of providing fresh perspectives so the individual can begin to view his or her beliefs in a new, more objective light. The following exchange illustrates what I mean. (Note: I will again use the issue of jury verdicts since it seems to be such a big problem for many jurors today.)

Attorney:	What are your feelings regarding jury verdicts?
Juror:	Well, I know there are a lot of people out there who will sue, then get paid off royally, and all for the stupidest things.
Attorney:	Could you give us an example?
Juror:	I guess that McDonald’s case would be the best one. Suing because you spilled some hot coffee on yourself in your car? Ridiculous!
Attorney:	Do you think that’s all there was too it?
Juror:	As far as I recall, yes.
Attorney:	Sir, did you know that prior to this case there had been hundreds of complaints against McDonald’s because of its scalding hot coffee?
Juror:	No, I didn’t know that.
Attorney:	Did you know that in this particular case, the woman was severely burned by the hot coffee?
Juror:	No.
Attorney:	Or that she was not driving her car when she was scalded but instead was sitting stationery in the McDonald’s drive-through, simply trying to add some sugar to her coffee?
Juror:	Uh, no, that’s news to me, as well.
Attorney:	Since McDonald’s had already received so many complaints about scalding hot coffee, do you think they should have made some adjustment to the temperature of coffee served to people who would then have to balance it in their cars?
Juror:	Yes, that would make sense.
Attorney:	Where did you learn about the McDonald’s case?
Juror:	Newspapers, TV, that sort of thing.
Attorney:	Do you suppose that because McDonald’s is a major national advertiser, some of the details we have been discussing here might not have been fully reported?
Juror:	That’s possible, I’m sure.
Attorney:	Do you still feel the way you did a few moments ago concerning the McDonald’s case, and the subject of damages awards, in general?
Juror:	No. I think I would prefer to look closer at the particulars of each case.
Attorney:	Thank you, sir.

This type of brisk questioning prompts jurors to think, to examine their premises, to cut through all of the propaganda and malarkey they have been force-fed over the years concerning excessive jury awards, so they can begin to see the facts clearly for what they really are.

If the attorney is probing for information concerning attitudes about jury awards, but the judge does not permit the extended form of questioning as illustrated above, the de-programming can still be accomplished, albeit in a condensed fashion. After the juror references the McDonald’s case (or one similar), the verdict of which he or she does not approve, the attorney might then handle as follows:

Attorney:	Considering the information that has been presented so far, is there anything that would lead you to believe this case will be like the McDonald’s case?
Juror:	No, it sounds pretty different.
Attorney:	So this case should be judged on its own merits, that is, independent of any other cases and verdicts that you may have heard about?
Juror:	Sure.
Attorney:	Thank you, sir. I can’t ask for anything more than that.

The attorney must realize that providing fresh perspectives to biased jurors during voir dire will not always result in changed attitudes. But, short of being able to get biased jurors off for cause, or of using up valuable peremptory challenges, this interrogatory process does offer the best chance for the attorney to balance the scales during voir dire with negatively opinionated jurors.

What about contamination?

Many attorneys may be reluctant to engage a biased juror in the manner suggested for fear of contaminating the other jurors. As discussed earlier, this is largely a needless worry. The propaganda campaign that has been waged so skillfully by the anti-plaintiff/anti-jury forces has probably contaminated most of the panelists in the box anyway, along with a majority of their fellow citizens. Attorneys who cannot accept this fact are in denial. Attorneys must keep in mind that this deprogramming process is designed to eliminate the effects of tainting that have already occurred. Plus, it offers an additional benefit: Once voir dire panel members begin to realize they have been conned about jury damages awards by powerful but unseen forces, they are going to become very angry. Their anger will, in turn, make it more likely that they will go the other way when it becomes time for them to set an award amount should they determine to rule for the plaintiff. IS THE JURY CRISIS that we hear so much about from the media today real, or merely a concoction dreamed up to promote the interests of the anti-plaintiffs’ lobby? Dr. Singer’s article discusses this and related topics.

Jury Verdict Award Amounts: Fact, not Fiction

Plus, a prescription for positive PR for plaintiffs’ attorneys

When it comes to the subject of excessive jury awards, as weighed against the larger question of justice in and out of our courts for plaintiffs, truth is very much on the side of plaintiffs, and the plaintiff’s bar. Let’s put the propaganda aside and consider some facts.

The supposed jury crisis we constantly hear so much about today is based on several false claims. The anti-jury forces state that products liability cases cost American businesses $100 billion a year. The true cost is $4 billion annually, according to the National Association of Insurance Commissioners. That’s less than what Americans spend each year on dog food.

Furthermore, the number of products liability cases has been declining. Russell F. Moran, publisher of The New York Jury Verdict Reporter, writes in The New York Times that, from 1985 to 1991, the number of products liability cases (excluding asbestos claims) in the Federal courts decreased by 40 percent. And products liability cases amount to only about 4 percent of tort cases filed in state courts, according to a report published in 1994 by the National Center for State Courts.

In terms of medical malpractice, Public Citizen Congress Watch reports that malpractice insurance accounts for less than one-half of one percent of total health care costs; and that doctors spend about the same amount of their gross income on professional car upkeep as they do on malpractice insurance. Only one out of 10 malpractice victims even file claims. Only one in 25 victims gets anything in the way of compensation. And of those who sue and are awarded damages, very few receive payments that are unjustified, according to a study published two years ago in the Annals of Internal Medicine.

Nor is it true that runaway juries are coming down increasingly on behalf of plaintiffs. An authoritative study by Jury Verdict Research, of Horsham, Pa., indicates that the proportion of personal injury cases won by plaintiffs dropped from 68 percent in 1989 to 52 percent in 1992. Furthermore, the study shows that average damages award amounts have hardly changed.

Only around five percent of civil cases filed in state courts (one million of 19.7 million cases filed) are tort cases, according the National Center for State Courts report referred to above. (Most cases are contract and matrimonial disputes.)

So, where, exactly, is the much vaunted litigation crisis?

High stakes involved

Powerful business, industry, health, and insurance interests, along with their PR and publicity minions, have a tremendous stake in making it as difficult as possible for plaintiffs to successfully sue for damages. A case in point: Medical negligence in hospitals is the third leading cause of preventable death in America, accounting for 80,000 deaths annually, according to a Harvard University study. What would the situation be like if angry family members were able to successfully sue for full and fair damages in each of these cases? Or consider how vital it now has become for the tobacco industry to limit plaintiffs’ rights, in light of what we have learned during the past few years regarding various cigarette companies’ shady research, product development, and marketing practices; and of course, what subsequently appears to be their increased liability posture.

Must fight fire with fire

This brings us to a key challenge facing the plaintiffs’ bar today, i.e., countering the massive anti-jury/anti-plaintiff propaganda wave that continues to roar across America. Plaintiffs’ attorneys and their allies must join forces and institute their own publicity and PR campaigns to educate American citizens about the truth concerning juries, damages awards, and related issues. After all, the truth is on our side. Plaintiffs’ attorneys should begin to redirect a portion of their marketing budgets away from cutthroat advertising against each other, and towards joint PR programs that promote plaintiffs’ rights (along with the attorneys who advocate on behalf of plaintiffs). These communication programs should be both educational and image building in nature. Additionally, plaintiffs’ attorneys should take a long, hard look at their individual advertising programs. If they do, many will find them sadly wanting. Yes, many Americans are displeased with plaintiffs and the plaintiffs’ bar today, and one reason for this may be the highly irritating advertising that some plaintiffs lawyers place on TV, in the newspapers, and in the yellow pages. We’ve all seen and heard the annoying TV & radio spots and print ads, some tassel-loafered, $2,500-suited, blow-dried, ultra-tanned, gold-braceleted barrister bleating:

Hurt? Injured? Not sure? Don’t worry! You deserve financial compensation! We will get it for you! And then some! Call today! We handle everything! You will win! You cannot lose!

This ad and its spokesperson are rendered with broad brush strokes to make a point: Does anyone really believe that such obnoxious advertising accomplishes anything worthwhile? Is it any wonder that many plaintiffs’ lawyers have come to be regarded as ambulance chasers when they pay good money to promote themselves in such denigrating fashion? Too many Americans think of plaintiffs’ attorneys as grasping and greedy. How can advertising of this type change such an image? Indeed, if these print and broadcast ads are the way some plaintiffs’ attorneys think of themselves, how then can they possibly expect Americans to regard them otherwise? Attorneys should not promote their own professional legal services as if they were trying to sell used automobiles.

I work with plaintiffs’ attorneys every day. The great majority are dedicated and caring professionals, performing the absolutely vital, and even sometimes heroic, role of ensuring that everyone, no matter how poor and powerless, gets to have his or her day in court. The attorneys I know, respect, and am proud to work with bear absolutely no resemblance to the print and television ad shysters referred to above.

There are other far better ways for plaintiffs’ attorneys to promote their practices than through such schlocky advertising. Adopting a worthy cause is one highly effective technique. The attorney who handles a large number of auto crash cases may want to sponsor ads on TV, or in the newspapers, for a group such as Mothers Against Drunk Driving. The attorney whose practice is comprised largely of medical malpractice cases might sponsor ads for the local chapters of the Red Cross, the American Heart Institute, or some similar organization. This type of promotion permits the attorney to keep his or her name in front of the public, but in an entirely altruistic manner.

Another worthwhile technique is to create, sponsor, and broadcast public service announcements (PSA) regarding important safety, health, and similar concerns for the public, e.g., a commercial advising parents to always be sure and buy fire-resistant sleepwear for their small children. Such a PSA should include a brief reminder that the current universal availability of this type of protective sleepwear is a direct result of numerous liability suits successfully fought in the courts by plaintiffs’ attorneys against the manufacturers of dangerously ignitable sleepwear for children.

Planning and sponsoring such advertising and PR will go a long way to improve the image of plaintiffs’ attorneys in the eyes of many Americans. But the time to begin is now. The abilities of plaintiffs to pursue their interests in court for full and fair recovery for damages is a time honored and essential part of Americans hallowed Seventh Amendment Rights. Today, however, this basic right of plaintiffs hangs very much in the balance.

ATTORNEYS CAN NOT EXPECT TO COMMUNICATE effectively with jurors if they do not employ a strong trial theme throughout all segments of the trial. The article by Dr. Singer which follows discusses trial theme development, why it is so essential for attorneys, and how the trial theme that achieves the widest possible level of acceptance can be realized. An edited version of this article was published in the October 1994 edition of TRIAL.

Jury Validated Trial Themes

How to Establish, Enhance, and Employ Such Themes for Courtroom Success

A jury trial is a dramatic debate waged by two star orators-attorney for the plaintiff (or prosecutor) versus attorney for the defense. But far more depends on the outcome of this electrifying exchange than who takes home the silver loving cup at the end of the evening. For criminal trials, the defendant’s liberty, even his or her life, can hang in the balance. For civil trials many thousands, even millions, of dollars may be awarded from one party to another. Persuasion is the key and the jury decides all.

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, ask not what your country can do for you but what you can do for your country. Strong themes such as these crystallize complex concepts and arguments while at the same time making the ideas they represent impossible to forget and many times even impossible to deny.

Despite their abundant other courtroom skills, many attorneys don’t know how to develop strong themes for their cases most effectively or put them to optimum use in the courtroom. They are further at a loss when it comes to integrating the trial theme throughout all the important trial segments-voir dire, opening statement, direct examination, cross examination, closing argument and thus constantly reinforcing the theme in a positive way in the mind of the jurors. Such attorneys are less effective trial advocates as a result.

Few attorneys think thematically

It should come as no surprise that many attorneys find it difficult to determine and develop compelling trial themes. Attorneys are not trained in law school to think thematically, nor are they encouraged to do so at most law firms. They are taught instead to focus with laser intensity on the law in all of its sometimes mindnumbing minutiae. It would be absurd to suggest that any individual can hope to become an adequate lawyer without a thorough understanding of the law. But too rigid an emphasis on strict legalistic thinking can become a major problem at trial time. What’s important to the attorney may prove to be of little interest to the jurors (the old problem of lawyer perspective versus juror perspective). While the attorney may be arguing convincingly regarding Critical Legal Issue (A)- the jurors may instead be concerned about critical non-legal issues (B) or (C) (or, for that matter, Issue (Z) which may not even show up on the attorney’s radar screen).

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. A narrow legal issues only viewpoint often makes it difficult for attorneys to communicate with non-lawyers. As a result, many attorneys are unable to develop trial themes that jurors will find compelling. Their tendency is to focus case development primarily on complex or arcane legal issues that jurors may neither understand nor care about.

For example, a large number of attorneys mistakenly believe negligence to be a workable theme upon which to build a case. Negligence is not a theme, however, but rather a theory that attorneys try to prove in court. More to the point, negligence is a dry legal concept that creates no emotional or psychological valences with juries. While negligence is a perfectly acceptable legal theory, an ounce of prevention is worth a pound of cure is a theme to which everyday folks (jurors) can relate.

Another problem: some attorneys’ trial themes, even though workable, may not resonate as strongly with most juries as the attorneys would have preferred or as other more appropriate themes might have done.

Rhetoric requires themes

Remember high school composition class? The instructor tried repeatedly (probably valiantly but vainly) to drum home the importance of theme development. The reason is simple. Theme development is the rock upon which all writing and oratory are constructed. It is the most basic and essential concept for planned and structured communications. You can’t have the chicken without the egg, and you can’t communicate in any sustained and meaningful way without a theme.

Themes essential for juries

The idea of theme development is particularly fitting when it comes to all forms of persuasive communications, including courtroom argument and debate. Attorneys should consider the following trilogy of truths regarding trial theme development: 1) trial themes personalize case issues, 2) themes help jurors form impressions, and 3) impressions win lawsuits. Along these lines, over three decades of scientific jury research show that: 1) jurors deliberate in themes, 2) the case theme is the primary mental organizer that helps jurors remember the facts, 3) a good theme enables jurors to look for evidence that fits the story and to disregard evidence that does not fit, and 4) themes facilitate evidence comprehension and enable juries to reach pre-deliberation verdict decisions.

As these and other findings indicate, trial theme development is a subject that should merit the most intense scrutiny, interest, and attention on the part of trial attorneys.

What makes a good trial theme?

A trial theme is a summary of the attorney’s case, it’s raison d’etre. It should be able to be expressed in a few words or less. Safety first, not last (for accident cases), David vs. Goliath[19] (valuable for many commercial cases), paying for someone else’s mistake (for negligence cases) and a Philip Corboy (Philip H. Corboy, Corboy & Demetrio, Chicago) special - destruction of a Van Gogh painting (for damages) are examples of such themes. These make excellent trial themes because they are easy to explain and easy to understand.

Even better than themes of a few words are one-word themes - indifference (for medical malpractice and accident cases), accountability (for liability cases), and greed (for commercial cases). Other popular one-word themes include integrity, prejudice, conspiracy, arrogance, and protection. One-word themes act as laser beams of meaning and significance to illuminate and clarify the case and make it understandable for the jurors. They help jurors focus on the key idea or concept essential to a favorable disposition of the case (the case’s pivotal point). One-word themes bind the entire case together. They are like life rafts that jurors can hold onto throughout all the trial’s tempests and tumult, complexity and confusion, bewilderment and brouhaha. They help jurors rationalize away all the case conflicts and justify the desired point of view.

A good trial theme should also be memorable. He couldn’t hit a curve with an ironing board is the way Hall of Fame pitcher Bob Feller described retired NBA Hoop God Michael Jordan during Jordan’s Spring 1994 tryout with the Chicago White Sox. Feller’s colorful description is a great theme summary because it describes Jordan’s baseball playing abilities in a few words, and because it’s easy to remember. Additionally, a good theme should be consistent with the evidence and the juror’s beliefs. And it should create a sense of shared value between the attorney (and thus his or her client) and the jury.

How not to determine themes

Much misinformation exists among trial attorneys regarding how to determine the best trial theme most effectively. Some believe that a random gathering of colleagues and support staff, organized to listen and deliberate on a presentation of the case, is an adequate way to determine the best trial theme. This could not be further from the truth. Such an arbitrary group’s intuitive grasp of the case, vis-a-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 such ad hoc groups can lead away from the best trial theme and strategy! Relying on any such group’s intuitions concerning the best trial theme and case strategy is a highly unreliable way to forecast jury attitudes. A theme developed in this haphazard fashion often proves to be a shocking disappointment for the attorney at trial time and a disaster for the client.

Intuition

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 many 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. To determine the best trial theme, the attorney must make sure to employ the most rigorous theme testing methodology available and not a random sampling of opinion.

Finding the ideal trial theme

The most effective way to determine the best 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. Major corporations never introduce their products without first thoroughly testing their appeal with consumers. Political parties use opinion polls and primaries to test a candidate’s appeal with the voters before they sponsor any individual for public office. Similarly, the trial attorney should use jury focus groups and jury simulations to test market alternative trial themes and case strategies. Not just any jury focus group or jury simulation will do the job. Some mock juries organized for attorneys often prove to be no more reliable in predicting jury attitudes than the ad hoc groups attorneys organize. What jury focus groups and jury simulations genuinely work? A textbook definition will be helpful:

Meaningful results in determining a trial theme that will gain the widest possible level of acceptance (i.e., the theme that is most consistent with the jury members’ thought processes) can only be achieved by carefully constructed and controlled social science experiments using scientifically valid jury focus groups and jury simulations; and precise theme choice recommendations based on statistical and other sophisticated analyses of the results of these experiments. This definition is extremely precise, and for good reason. Each of its deliberate qualifiers and conditions is needed to describe the type of surrogate jury research that can predict jury attitudes and behavior with reliability. Take a look:

Meaningful results-Attorneys are assured that the procedures outlined, i.e., scientifically valid jury focus groups and jury simulations can determine the best possible case theme with real certitude. The theme recommendation is validated by the scientific methodology employed.

Widest possible level of acceptance-Determining the best trial theme for the typical red light, green light type case is usually not too difficult. Finding themes with the broadest possible appeal for more complex cases is a far more demanding task.

Scientifically valid-Anyone can organize a meeting of colleagues and friends to try out various trial themes and then make a recommendation on what he or she deems to be the most popular theme. But this is not valid scientific methodology. Any theme recommendation developed in this manner will have no quantifiable significance regarding the appeal it may have with a jury. (It may have none.)

Statistical and other sophisticated analyses-Even if the surrogate jury is properly organized and administered, all comments and opinions expressed by the surrogate jurors must be scientifically evaluated and interpreted to achieve meaning. A lawyer is professionally able to interpret the law. But it is the social scientist (generally a psychologist specializing in jury research) who is needed to professionally analyze and interpret the deliberations of subjects in controlled psychological studies. These include jury focus groups and jury simulations.

Only jury focus groups and jury simulations that are organized and evaluated on a scientific basis can reliably determine a true jury validated theme, i.e., one that is guaranteed to develop the widest possible appeal with the jury. An ad hoc group cannot. Maybe such a group will come up with the right theme, and maybe it won’t. The attorney won’t know for sure until the verdict is read.

Litigation Research

The organization of jury focus groups and jury simulations is not an art, it is a science. This field of science is known as Litigation Research. It employs actuarial methods based on experimental design[20]. Its product is the statistical analysis and interpretation of systematically collected scientific data concerning probable jury responses to selected stimuli[21]. Nothing is intuited. Litigation research is concerned with juror predispositions, beliefs, opinions, and attitudes.[22] The findings that derive from this branch of psychology are not foolproof. However, they do significantly increase the probability of developing jury validated trial themes and of impaneling the best possible jury for a particular case. The product of Litigation Research involves scientific results and findings which often are presented as a series of if, then statements, if this theme is used, then jury response (X) will occur; if this evidence is presented, then (Y) will occur. Such information can be invaluable in planning courtroom strategy. Much of this information derives from surrogate jury research. How are these research projects organized and what can they achieve?

Surrogate juries

Jury focus groups and jury simulations function like a Rorschach test, illuminating jurors’ cognitive processes. They consist of abbreviated versions of an upcoming trial presented before a carefully selected sample of surrogate jurors. The deliberations of these jurors are professionally evaluated and interpreted to determine jury attitudes concerning the case and all of its key aspects. This includes the basic theme of the case and its presentation. Formats for surrogate juries vary considerably. The choice of format depends on such factors as the experimental design to be used, the specific issues to be determined, the type and complexity of the case, and so on. Each surrogate jury conducted is always case specific. Surrogate juries usually are conducted in the venue where the trial will take place. This aids in recruiting surrogate jurors whose values and beliefs will match the jury pool’s. The number of surrogate jurors generally will be the same as that of the actual jury.

In most cases, two separate series of jury simulations are conducted. (A typical series involves a presentation that is repeated with different groups of surrogate jurors at least three to 10 times. As in any other scientific test, this repetition is essential to ensure the validity of the results.) The first series of jury simulations takes place at least 90 days before trial or before discovery is complete. It is organized to determine the issues of importance for potential jurors, along with the best trial theme and strategy. The second series of jury simulations is performed again shortly before the trial is to take place. It helps determine how jurors will perceive the facts, evidence, and arguments once discovery is completed. The specifics concerning how surrogate juries are organized and evaluated are too technical to be of interest to anyone but psychologists and other social scientists. What is of interest is the uncanny amount of precise information concerning juror attitudes that jury simulations and jury focus groups can uncover regarding a particular case. Just as a crystal ball into the minds of jurors, jury focus groups and jury simulations can reliably indicate what jurors will think and feel about the case; what personality types will perceive the case facts favorably (and unfavorably); what are the relevant attitudes that may predispose jurors to be less than neutral; what issues jurors will consider most important; what trial theme and case strategy will have the most appeal; what voir dire questions will work best; what information jurors will need to hear (and even when they want that information presented); what areas of the case are subject to faulty perceptions by the jurors; what are the problem areas of the case; what case issues and facts are likely to be misunderstood; what is the assessment of damages; and what questions, if left unanswered, will stay on the jurors’ minds...and possibly destroy the case. Once armed with this invaluable data, the attorney can determine a winning trial theme and presentation strategy. He or she learns how to answer every question and address every issue that the jury simulations show are critical to a favorable verdict. It’s like a poker player knowing in advance what his hand will be, and exactly what cards each other player will be dealt!

Who owns the theme?

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 patient die due to the fault of the doctor (person)? Or did death result because the patient was very sick (situation)? Did the plane fall out of the sky because of pilot error (person)? Or because of weather conditions (situation)? Certain linguistic signals cue specific juror responses regarding how they place blame. One type of signal cues a blame response towards the person; a different signal cues a blame response towards the situation. Through our firm’s research we have discovered that these special linguistic cues are owned either by the plaintiff or the defendant. (We have termed this status Ownership theory.) Recognizing such cues and knowing how to put them to use can make the difference between success and failure in the courtroom. The following example will help demonstrate the point.

In the winter of 1993 I worked on a product liability case with Buddy Payne (R.W. Payne Jr., Spence, Payne, Masington & Needle, Miami) concerning a vehicle rollover. When we first tested the case, we found that the surrogate jurors spent much of their time speculating on how the driver probably overcorrected his steering, thus resulting in the rollover. Who owns overcorrection? The driver does...so the jurors blamed him for the incident. We recast the deliberations by introducing two new terms - steerability and steerworthiness. Who owns these terms? Steerworthiness clearly belongs to the vehicle manufacturer...and guess whom the jurors now blamed for the incident? The manufacturer, of course. We repeatedly tested steerability and found that this possible trial theme achieved broad acceptance with different groups of surrogate jurors. We proceeded to trial and won the case handily for the plaintiff. The vehicle manufacturer lost because: 1) it owned the steerability theme, and 2) we made sure to hang the theme on them whenever we could during the trial.

It is important to understand the power of certain words and the responses they can fire off in jurors. For example, the attorney representing the plaintiff in a medical malpractice case should avoid use of the word disease because it is owned by the client. Safer words to use are treatment or solution. Why did the doctor not come up with the right treatment? Why was the right solution not developed? Is the proposed trial theme owned by the plaintiff or the defendant? Who benefits and who loses due to its use? Any determinations concerning what trial theme to employ should be made with these key considerations in mind.

Using themes effectively in the courtroom

The 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. One of the best ways is by enveloping the theme so it is integrated into every aspect of the attorney’s presentation; voir dire, opening statement, direct examination, cross examination, and closing argument. This strategy of enveloping the trial theme is like packaging and sending a message (i.e., the theme) that the jurors are guaranteed to receive. To demonstrate, consider the following example: A negligence case has been brought against a defendant, a large hotel. Jury testing indicates prevention to be the ideal theme for the case. The attorney must envelope the theme throughout all the key segments of the trial:

Voir dire-“Do you believe it’s important to prevent bad things from happening to people?” “What do you think about companies that don’t do anything to prevent avoidable injuries from taking place on their properties?”

Opening Statement- The basic issue in this case is simply, “Could the defendant have prevented the injury from occurring to my client?” Why is prevention apparently not an important concept to them?

Direct Examination- As a major hotel with over $(X) million in assets, couldn’t they have been more concerned to prevent people from being hurt when on their premises? What steps could they have taken to prevent this type of horrible injury from paralyzing my client?

Cross Examination- Please look at this chart showing the many injuries that have taken place at your hotel since 19XX. Can you tell us how many of these injuries could have been prevented if proper safety measures had been implemented?

Closing Argument- We’ve been here for six days but not once has the defendant described a single step it has taken to prevent injuries from taking place, like the one that has condemned my client to a wheelchair for the rest of his life.

A great trial theme is like a Swiss Army knife-it can be used in 1,001 different ways to win the case! And it can be used in conjunction with many powerful rhetorical techniques:

Analogies & Metaphors-If members of a jury don’t understand what you are talking about, they probably will not find in your favor. That’s why the use of analogies and metaphors are so important. If the theme is your trial story, then analogies and metaphors are the language you must use to tell that story so jurors will understand it. The defendant’s failure to prevent this injury from occurring is like failing to move a pair of dangerous children’s roller skates from the middle of the cellar steps.

Rhetorical Questions-The use of rhetorical questions will produce more favorable results with juries than statements where strong arguments are employed. (Studies show that introducing a counter-attitudinal message with questions leads to a more intensive processing of the message’s content than introducing it with statements.) Use of rhetorical questions is predicted to increase award, diffuse more responsibility on the decision makers (jurors), and make the presentation more interesting. Unless the defendant is simply too arrogant to worry about preventing this type of injury from taking place?

Expectancy Statements-Framing statements to the jury by saying, You can expect us to show that... is an excellent way to get the jurors to anticipate (and wait for) trial theme messages and other key information you plan to introduce later. In psychology, this is termed gaining the selective attention of the subjects. This means that jurors will unconsciously look for information that supports the case argument and disregard information that doesn’t. You can expect us to show that the defendant could have prevented this injury from happening, but failed to do so.

Visual Aids-Jurors take an essential first step toward forming opinions through a memory process called encoding. Attorneys must help jurors encode with pictures and visual aids. All demonstrative evidence should support and enhance case themes. Colors that evoke associations with feelings or symbols, e.g., red for stop, green for go, should be used. For example, a PREVENTABLE ACCIDENTS chart that lists in red all preventable injuries that have taken place at the hotel will help show jurors what the attorney has been telling them throughout the trial.

Parallelism-One good way to get jurors to pay closer attention to what you have to say is by parallel structure in language. The injury to my client was preventable because it was avoidable. It was avoidable because it was foreseeable. (This example also illustrates the power and energy of rhythmic language.)

Rule of Three-Studies in communications research show that an idea must be repeated at least three times for it to be remembered. Prevention! Prevention! Prevention! If only the defendant had given some thought to this basic concept, none of us would have to be here today.

Montgomery Variable-Bob Montgomery (Robert M. Montgomery Jr., Montgomery & Larmoyeux, West Palm Beach) is able to turn a juror’s natural fear of being injured (as the plaintiff) into a righteous anger. He takes the jurors’ fear energy and turns it into anger energy. (Such replacement is essential. Emotional voids inside the psyche must-and will-be filled.) If the defendant had tried to prevent this type of injury from occurring, my client would be able to walk today. What if it were you, and not my client, who could no longer walk again? How would you feel...knowing your injury could have been easily prevented?

Use of Double Binds-Characterizing the opposition in either or terms that are both negative is an effective way to minimize juror sympathy for the opposition. Did the defendant fail to prevent this injury because they were negligent...or because they were arrogant and just didn’t care about preventing injuries to their guests?

It is important to understand that jurors use an idiosyncratic approach to handle information from a case. Repetition, key phrases, analogies, visuals, tone of voice, and other non-evidentiary factors have an extremely powerful effect on each juror’s subconscious and the way he or she processes information and reaches decisions.

By constantly enveloping the theme throughout every point of the trial, the attorney is able to acutely orient the viewpoints of the individual jurors to the case as he or she wants them to see it. The theme becomes the jurors’ primary trial road map, showing them the best route to take to a good verdict decision.

However, the trial theme cannot guide the jurors to a successful verdict if it is the wrong theme. Indeed, repeated mentions and use of the wrong theme throughout the trial will likely irritate the jurors and turn them off.

This is why the trial theme must be thoroughly tested through jury simulations before its actual use in court. If this vital step is not taken, there’s no reliable way to tell whether jurors will react positively or negatively to the proposed trial theme. It’s a roll of the dice either way.

What is the best METHODOLOGY to plan, organize, and administer a jury focus group designed to find the right trial theme and similar information? Dr. Singer explains exactly how this should best be handled. Much of the information contained in her article was published in the October 1994 edition of TRIAL.

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 witnesses testimony, and so on. What special jury focus group or jury simulation format works best to determine the right trial theme?

After planning and organizing more than 5,000 jury focus groups and jury simulations during the past 17 years, our firm has determined that one specific surrogate jury research 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, 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-a-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.

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. An edited version of Dr. Singer’s article was published in the October 1994 edition of TRIAL.

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.[23] 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 mentions it with a clear and unmistakable gesture, e.g., grasping the chin thoughtfully or straightening a tie. 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[24] 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 pseudoscientific 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 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.

DESPITE THE CRITICAL IMPORTANCE OF VOIR DIRE, many attorneys operate with serious misperceptions concerning this key trial segment. In the article that follows, Dr. Singer separates fact from fancy regarding the topic of voir dire. An edited version of this article was published in THE LOS ANGELES DAILY JOURNAL.

Exploding the Myths Concerning Voir Dire

When it comes to tips for picking jurors, there sometime seem to be as many moldy ideas bumping around out there as there are trial lawyers.

For instance, defense counsel should always make sure to pick an Irishman for the jury because he will be emotional, kindly, and sympathetic. You would be guilty of malpractice if you got rid of him, the famous trial attorney Clarence Darrow once counseled. (Mr. Darrow also wanted Universalists, Unitarians, Jews, and agnostics on his juries.)

Or what about these other hoary notions for selecting jurors? Women are more compassionate than men in criminal cases. African American jurors are always going to give African American defendants a break. Defense counsel should never take a wealthy man on a jury-he will convict unless the defendant is charged with stock fraud or something similar. Prosecutors should seat grandmother-types as jurors in wrongful death cases concerning children. The ideal prosecution juror overall is the little old Lutheran lady in pearls, quick to judge and slow to forgive. These gross stereotypes should clearly be perceived as such, the great Mr. Darrow not withstanding. (Considering the widely accepted courtroom line on women, it seems odd that Mr. Darrow so distrusted women jurors.) Still, many trial lawyers continue to pick jurors on the basis of just such woolly stereotypes and arcane prejudices. This tendency remains despite overwhelming scientific evidence that such variables as race, age, gender, and so on fail to correlate in any meaningful way with jury verdicts.

It comes as no surprise that many trial lawyers often perform poorly when picking jurors. Martin F. Kaplan, a psychology professor at Northern Illinois University and an expert on jury research, organized a study of juror selection to determine who would fare best in picking jurors-lawyers or lay persons. Overall, the lay persons picked jurors correctly 50 percent of the time (correct being defined as selecting jurors who voted for the desired verdict). The lawyers didn’t perform as well. The study showed that the attorneys would have been better off picking the names of jurors blindfolded out of a hat, then sitting them in the box. The reason many trial lawyers find it difficult determining ideal jurors for their cases is due to their demographic dependency. They simply cannot break free of the fossilized myths and old wives tales that continue to exist concerning jurors. They often seat jurors who end up unexpectedly killing their cases as a result.

Psychologists know that stereotypes concerning demographic groupings are usually misleading. People’s attitudes do not just pop out, pre-formed, from the supposed cookie-cutter molds of race, color, sex, and so on. Not all Blacks are liberal nor all women compassionate. Many businessmen have hearts of gold. Many social workers and church leaders do not. And some elderly grandmother types are more at home playing poker in Las Vegas than they would be knitting in the parlor.

It is understandable that attorney myths concerning ideal jurors have persisted over the years. In the courtroom, millions of dollars in damages, even the very life or freedom of a defendant, depend on how jurors will view things. Faced with these immense stakes, it is natural that attorneys will want to use any available benchmarks to seat jurors who will see things their clients’ way. In the absence of other verifiable data, objective variables such as race, age, sex, and so on can be enticing. And in a random, luck of the draw kind of way, these variables may seem to offer better guidance than none. The attorney who thinks this way, however, often falls victim to a common cognitive distortion.

Here’s what I mean. You try a case and there is an army colonel on the jury. You get a losing verdict and end up thinking, No more colonels; they’re too conservative. So every time you have a case in which you run into another colonel or other army officer during voir dire, you deselect him or her. This means you are never able to prove or disprove your hypothesis that colonels are conservative and should not be seated for trials.

Of course you pass along your anti-colonel information to all your law partners. They in turn make sure to stay away from colonels for their own cases. As a result, the myth of conservative colonels as crummy jurors is perpetuated. Which brings us to the primary psychological rule attorneys should consider when it comes to jurors: Those variables that are most observable are least predictive of verdicts and jury behavior. If demographics do not offer reliable clues to juror attitudes, what does? The answer is jurors’ values and beliefs. Numerous jury research studies indicate these to be the key factors, along with life experiences, that correlate with how individual jurors will actually behave when deciding a case.

Our values and beliefs shape the way we view the world and all that happens in it. This shaping manifests itself as attitudes. the basic filters by which jurors weigh the evidence during trials. Uncover the core values and beliefs and you can predict attitudes. Predict attitudes and jury verdict behavior can also be projected.

So what is the best way to uncover jurors’ values and beliefs during voir dire? The way not do it is by asking close-ended questions, the technique most attorneys use to question jurors. Close-ended questions are excellent when questioning witnesses because they prompt narrow responses that clearly delineate the case facts. But narrow responses are the last type of responses attorneys should want from jurors. With close-ended questions, that’s all they will get. Such questions prohibit jurors from responding in an expansive way. This means the attorney never gets a chance to understand who the jurors really are, and, more to the point, what their attitudes will be concerning the case. Have you lost your mother? is a typical close-ended question. Jurors can only answer affirmatively or negatively restricted responses that reveal little. Attorneys will do much better if they pose such questions so that jurors must answer with I think, I feel, or I believe type responses. What are your feelings about losing your mother? is going to elicit far more useful information than a close--ended question.

Open-ended questions give jurors the freedom to say what they want without fear of criticism. Open-ended questions usually begin with “What are your feelings about...or “Please share your thoughts about...or “Please tell us your opinion about... Questions usually end with references to actual case issues, jury verdicts, medical malpractice law suits, people accused of child abuse, and so on. Open-ended questions promote honest exchanges about the primary case issues and the way jurors are likely to feel about them. As such they provide the most straightforward way to elicit information about jurors’ values and beliefs. People truly do need to express their feelings. Ask jurors to share their feelings about the primary case issues and they will do so gladly. And don’t worry if the responses are not what you want to hear. The only way to get panelists off the jury for cause is to let them expose their biases. So let them state fully exactly how they feel. If their biases are extreme, they will dig there own holes right there in front of you.

Attorneys should not treat voir dire as a job interview in which the juror is applying for a position during the trial. This makes jurors feel nervous and uncomfortable. Yet this is exactly the way many attorneys conduct voir dire, asking such loaded questions as “Can you be fair?” or “Do you have any biases?” Obviously, jurors will be bound to answer such questions with socially acceptable responses that will lead attorneys away from the jurors’ true feelings.

You need to be sociable during voir dire. Come away from the desk or podium so there are no barriers between you and the jury. Establish a comfortable distance with the jurors. Treat them as newfound companions whom you want to get to know. Pose your questions to them in this spirit. It’s important to reinforce all juror responses, whether positive or negative. Say, I’m glad you brought that up, sir. Other people feel the way you do. Can you elaborate? Psychologists know that reinforcement increases the probability of a response.

So how do you get jurors to deliberate in front of you? Instead of a dry question and answer session between jurors and attorney, voir dire should be organized as a collective social conversation. The idea is to get the jurors speaking as much as possible, so that eventually, they are speaking-deliberating with each other. The attorney must first establish a conversation with and among the jurors, and second, keep it going. The following dialogue illustrates how this can be accomplished.

Attorney (to the first juror):	What are your feelings about lawsuits?
First Juror:	I don’t have a problem with lawsuits, but I do have a problem with attorneys’ fees.
Attorney:	Thank you for that honest comment. I’m glad you brought that up. You’re not the only person who feels that way. (To the second juror:) Sir, what do you think about what she just said?
Second Juror:	I’m a salesman. I work on commission. Sometimes I put a lot of effort into a sale, but it just doesn’t go through, so I can relate.

The attorney then polled the room and everyone volunteered his or her opinion. By the time the last person spoke, all had agreed that people, even lawyers are entitled to make a living.

The attorney in the example above did not attempt to close down the conversation at the first sign of trouble. Instead, he let it evolve. In so doing, he was able to pick up excellent information concerning how the individual jurors felt about attorneys’ fees, damage awards, and associated issues. If he had tried to stifle the conversation, it’s likely that the same subjects would just come up again later in the jury room. And he would not be able to guide the conversation in any way.

When it comes to trial matters, attorneys are control freaks. Indeed, they must be, considering the stakes at risk inside the courtroom. Attorneys believe that if they don’t exercise absolute control over every minute aspect of the case, they and their clients will go down in flames. This extreme need to control everything inside the courtroom is particularly evident during voir dire. Attorneys try to brainwash jurors during voir dire. They structure questions to force jurors to commit to a particular point of view. They ask jurors highly restrictive questions - Are you familiar with the accident scene? to keep their responses tightly reined. And they are extremely reluctant to ask questions - What do you think about jury verdicts? that may prompt answers they fear will contaminate the other jurors. When it comes to jurors’ values and beliefs, attorneys should realize that contamination is largely a needless worry. Beliefs are not contagious nor easy to change. Let’s say that a juror drops the following bomb during voir dire: Doctors shouldn’t be held responsible for every mistake in judgment. Instead of worrying about contamination, the clever attorney should see this bald statement for what it is, a special opportunity to determine with certainty the key attitudes of the other jurors. He or she should immediately ask for a show of hands to learn how many people share the expressed viewpoint. Those who do have not suddenly become contaminated; they have probably felt this way for some time. But now the attorney knows who they are. Just as important, the attorney also learns who the jurors are who feel otherwise. The task now is to examine the intensity of beliefs among the negative set of jurors. The more intense the beliefs, the more likely it is they can be dismissed for cause. If negative attitudes and beliefs are expressed during voir dire, you can be sure they will also come out during deliberations. Obviously it is better that these negative feelings be aired while time is still available during voir dire to do something about them. It will be too late once the jury is sequestered.

The bottom line on voir dire? Attorneys should not regard it as a dangerous lion that must be tamed. Instead, it can be a trusted bloodhound, leading the way to successful verdicts. To achieve this transformation, attorneys simply need to put away the whips and chains and bring out the dog biscuits. In other words, attorneys need to adopt an open, unguarded approach with jurors so jurors can do the same. You cannot learn what makes jurors tick in any other way.

WHAT COMES OUT AMONG JURORS DURING DELIBERATIONS can also be revealed during voir dire. Attorneys who understand this also understand how to coordinate voir dire so jurors will feel free to reveal their true feelings about the key trial issues; and to deliberate with each other about these issues openly, for all to see. Dr. Singer explains how to approach voir dire so as to promote the most open and honest juror responses. An edited version of this article was published in the May 22, 1995, edition of LAWYERS WEEKLY USA.

Getting Jurors to Deliberate in Front of You

Voir Dire and Deliberations: Flip Sides of the Same Coin

As in life, there is balance in a trial. Both sides in a trial get an equal opportunity to present their case, fully, and without prejudice. For both sides, essential points made during the opening statement must also be hammered home during the closing argument. And direct examination and cross examination present a radical, sometimes almost Yin/Yang, contrast regarding testimony from the same witnesses.

The raison d’etre of a trial is to restore fairness (balance) to a current state of imbalance. So, if the defendant is guilty of the charges, they should be required to pay damages, or to be sentenced according to the law; conversely, the prosecutor or plaintiff should not be able to benefit from a trumped-up charge. In addition to the trial segments mentioned, there also should be a balance regarding voir dire and jury deliberations. What comes out in deliberations should come out in voir dire, and vice versa. In this regard, voir dire is most effective when the jurors are prompted to engage in pre-deliberation conversations concerning the key trial issues, i.e., they deliberate almost as they would when sequestered. When voir dire is orchestrated thusly, the comments and opinions jurors express should closely mirror the same comments and opinions they would express during deliberations. Which brings us to the $64,000 question: How can voir dire be organized to accomplish this goal?

Use open-ended, not close-ended, questions

The way not to do it, i.e., not to get jurors to open up during voir dire and thus reveal their true feelings about the key case issues, is to address them with close-ended questions, a common practice among many trial attorneys. These are questions that can only be answered in a few words, and usually only in the affirmative or negative: Do you have any problems with doctors? or Are you familiar with the accident scene? or Can you judge this case impartially? Close-ended questions promote tightly circumscribed responses from jurors that normally reveal little or nothing about their true attitudes concerning the case. In fact, such questions almost always result in socially acceptable responses that may actually run counter to a juror’s true feelings. Further, some close-ended questions often used during voir dire (Can you be fair?) will be viewed as insulting by many, if not most, jurors.

Instead of using close-ended questions during voir dire, the attorney should address jurors with open-ended questions that permit them to elaborate on their feelings. Such questions target the jurors’ basic values and beliefs, generalizations concerning right and wrong and other primary principles from which people operate, and how these personal standards relate to the case issues at hand.

Open-ended questions usually begin with such phrases as, “What are your feelings about...” or “Please share your thoughts about...” or “Please tell us your opinion about...” Questions usually end with references to actual case issues, e.g., jury verdicts, medical malpractice law suits, people accused of child abuse, and so on.

Voir dire as collective social conversation

The attorney should try to organize voir dire as a collective social conversation in which all the jurors become involved. After asking an individual juror how he or she feels about a particular topic, the attorney should then give the other jurors an opportunity to freely weigh in with their own opinions concerning the subject. Through this interplay, the jurors will, in effect, be deliberating, almost as they would in the jury room. To illustrate, consider the following dialogue, taken from a wrongful death case in which I was involved:

Attorney:	How do you feel about lawsuits?
First Juror:	There’s no question that everyone should have the right to sue in court, but I’m not sure we need all these expensive attorneys’ fees.
Attorney:	That’s a very honest comment. It’s good that you brought that up. Other people feel the way you do. (Then, to the second juror:) Sir, how do you feel about what she just said?
Second Juror:	I’m a salesman and work on commission. Sometimes, despite weeks or months of hard work, I just can’t close a sale. So I can relate to attorneys who also must work on a contingency basis.
Attorney (to the third juror):	And what are your feelings about the issue, sir?
Third Juror:	I agree with the gentleman that just spoke.

The attorney then polled the remaining jurors and each volunteered his or her view. In some cases, the freely-voiced comments of a particular juror seemed to spark other jurors to be even more expansive in their own comments. By the time the last person spoke, all had agreed that everyone, even lawyers, should be allowed to make a living.

It’s important to note that group conversations by jurors during voir dire should not differ substantially from what will take place later during deliberations. And why should they? It is only natural that the basic manner in which jurors relate to specific values and beliefs-type issues during voir dire will be the manner in which they relate to these same issues behind closed doors. It is the attorney’s task during voir dire to provide jurors with the opportunity to detail as fully as possible exactly how they feel about the basic issues they will be asked to judge later. The jurors will certainly do so, if given a chance.

Listening: the key to voir dire

In order to pick a jury (or to build an effective trial), the attorney needs to: 1) ask the right type of questions during voir dire, and 2) listen correctly for the right answers, i.e., the ones that frame the jurors’ basic values and beliefs. Juror word choices offer the best clues, such words as should, must, could have and ought to are commonly used when basic beliefs are being discussed, along with such phrases as I feel, or I think or I believe. For example, Doctors should... or People must.... or The patient could have... The attorney should be alerted when such words and phrases are being used by jurors during voir dire. They are sure indicators that values and beliefs are being discussed.

What about contamination?

Some attorneys are nervous to use the open-ended question approach during voir dire. They are afraid that opinions freely expressed by one juror may contaminate the others. This is a needless worry. Remember, the attorney should be focusing during voir dire on the jurors’ basic values and beliefs, i.e., the primary intellectual/emotional Leitmotif from which all the jurors other judgments proceed. People’s values and beliefs represent primal, personal credos; as such, they are stronger than iron and far less malleable. Psychotherapists often must work with their patients for years to alter these bedrock belief systems, and even then may prove unsuccessful. How extremely unlikely it is, then, that a brief comment made by one juror during voir dire could somehow convince other jurors to amend core values held so dear. The truth is that juror contamination during voir dire is a fantasy, and should not be an element of serious concern for the attorney.

The voir dire payoff

When jurors can be prompted to deliberate during voir dire, the attorney will have gained a tremendous advantage. He or she will learn what each juror’s basic attitudes are concerning the primary case issues, how these attitudes are likely to be expressed during deliberations, and how the other jurors will relate to them. It will be easier to determine which strong-minded individuals among the panelists may perform as primary shapers of opinion during deliberations. The attorney may even be able to gauge, though in most cases to a far lesser degree, how a juror’s opinions (concerning less firmly-held issues than values and beliefs) can be shifted or changed as a result of group discussion. Armed with these invaluable insights, the attorney can then more intelligently select (de-select) the appropriate jurors. Also, he or she can fine-tune the basic trial presentation strategy so as to optimize its effect regarding the dynamics of the actual jury to be seated.

And the result? Combine a carefully selected jury with an improved trial strategy that is both voir dire-refined and juror-specific, and you will be well on your way to courtroom success.

IT’S CRITICAL TO FERRET OUT AND REMOVE BIASED JURORS during voir dire. Dr. Singer explains how to utilize voir dire to spot, then eliminate, biased jurors so they are not around to poison the case during deliberations. Her article is now being considered for publication in a nationally known legal journal.

Challenging Jurors for Cause

A Surefire Six-Step Approach, Based on Thousands of Jury Research Case Studies, To Assure an Unbiased Jury

The Sixth Amendment to the Constitution guarantees all trial parties an impartial jury. But it is only through the skillful use of challenges that the able litigator can make that guarantee a reality for his or her client. Since it takes only one biased juror to poison other jurors and ultimately kill a case, it is vital to seat jurors who can approach the case with open minds. What, therefore, is the most effective method to successfully challenge biased jurors for cause?

Over the course of 15,000 jury research case studies during the past 16 years, our firm has developed a surefire approach to get biased and/or problem jurors off for cause. This six-step plan is straightforward and easy to implement. It provides a proven methodology to eliminate biased and troublesome jurors before they can damage your case. Plus, it helps the attorney immediately get off on the right foot with jurors, while at the same time setting a positive mood and tempo for voir dire. Here’s how it works.

Step One-submit a Memo of Law

First, the attorney must submit a Memo of Law to the judge. This Memo should detail all recent law regarding challenges for cause. This enables the attorney to help guide the judge in establishing the basic ground rules regarding how jurors can be struck. This is extremely important because it means both attorneys will be required to operate according to the same strictures concerning challenging jurors for cause.

Our firm’s experience indicates that you will have a far easier job getting problem jurors off for cause if the Memo of Law is submitted before jury selection. By handling in this manner, you will avoid the often awkward and time consuming task of repeatedly dredging up various parts of the law concerning juror challenges at inopportune moments during voir dire.

Experienced litigators know that having to examine the law concerning juror challenges on a juror by juror basis during voir dire seldom sits well with jurors, or, for that matter, with the judge. It is much better, therefore, to get the necessary ground rules established concerning juror challenges before voir dire. (One essential rule to be sure and request: It is not possible to rehabilitate a biased or opinionated juror. If it has become clear that the juror holds a preconceived notion or attitude that can reasonably be interpreted to be prejudiced against your client and/or their case, then you should be able to have that juror quickly removed for cause. Short of this, you should try to at least get the ground rules straight regarding bad jurors, and what the procedure should be if a potential juror gives a cause for alarm answer.)

Step Two-employ open-ended questions during voir dire

Attorneys often use voir dire to try to subtly (and sometimes not so subtly) argue the case; or they employ close-ended questions to attempt to pin jurors down to preconceived notions favorable to the client. Both of these approaches are wrongheaded and likely to irritate the jurors and the judge. And these tactics fail in another important way: they will in no way enable the attorney to elucidate the jurors’ true feelings about the case.

The fact is that, during voir dire, far too many attorneys rely on useless (and often insulting) close-ended questions that are almost guaranteed not to shed any light on a juror’s real attitudes (“Are you sure you can approach this case with an open mind?”). Our research shows that close--ended questions designed to condition (You’ll be fair, won’t you?) or to educate (You understand they have the burden of proof, don’t you?) anger jurors because they insult intelligence, and negatively affect the attitudes of jurors towards the attorney asking the questions.

Instead of close-ended questions, attorneys should plan on a series of open-ended questions designed to elicit meaningful (and thus illuminating) responses from the jurors. It is only through such responses that you will be able to determine the jurors’ true attitudes, and thus weed out bad jurors before they can taint the other panel members.

Open-ended questions usually begin with phrases such as these: “what are your feelings about...” or “please share your thoughts about...” or “please tell us your opinion about...” And they usually end with your specific concerns, such as corporations, employment, lawsuits, people accused of child abuse, the motorcycle industry, or lower back pain. For these questions, the beginning is just as important as the ending.

Open-ended questions act as lodestars that accurately point the way to how the jurors truly feel about the key case issues. They are designed to promote full and open responses from the jurors. Therefore, be sure and let jurors elaborate on their feelings and attitudes. React positively to all responses, especially the horrendous ones. The only way to get a juror off for cause is to let them broadcast their biases and prejudices so that they become obvious. Be sure, therefore, to let prospective jurors speak as fully as they feel necessary. (The bad ones are digging their own graves right there in front of you.) Do not attempt to rehabilitate the jurors as they respond.

Step Three-accurately record all responses

In order to effectively de-select problem jurors, you need to keep an accurate record regarding exactly how each juror feels about all of the important case issues. I suggest that you have someone transcribe the full responses as given. This written record will help you keep all juror responses in order. Plus, you will be making a worthwhile record detailing juror attitudes for possible later use in the trial.

Step Four-poll the other jurors

Step four is conducted in conjunction with step two. It involves polling the other jurors to determine whether they may also share prejudicial attitudes as expressed by those jurors already questioned.

It is handled thusly (considered from the defense attorney’s point of view, and using a product liability case as an example): You ask a prospective juror what his or her attitudes are concerning corporations that manufacture consumer products. The juror responds that, Manufacturers are only interested in their bottom lines, and don’t really care that much about product safety. You immediately thank the juror for providing such an honest and open response, and for evincing the courage to speak his or her mind so freely.

You then ask how many jurors agree with the sentiments expressed, and note those jurors who respond positively. Be sure and reinforce any positive responses just as fully as you did when the problem attitude was expressed by the first juror. You then repeat this tactic with any other problem responses that come up.

Voir dire is a psychological process

Attorneys must understand that voir dire is primarily a psychological process more than it is a legal one. It will therefore be helpful to keep in mind the most basic psychological principle:

Reinforcement increases the probability of a response.

This key principle, plus our firm’s own extensive jury research findings on how to get jurors to open up and give honest answers, point to the following: If you want someone to do something (e.g., let you know how he or she truly feels about your client’s case), you must be sure to reinforce a positive response (i.e., an honest answer).

What about contamination?

Many attorneys think that negative responses expressed during voir dire are likely to contaminate the other jurors. Our jury research indicates otherwise. Remember: voir dire is primarily a psychological process - 12 individuals are, in effect, being cued by the attorney to react at a subconscious level according to their deeply felt individual beliefs and prejudices. Psychologists know that you really can’t change beliefs, people either have them, or they don’t. One person may believe, for example, that a black cat crossing his or her path is an ill omen; the mere statement of this belief, however, is unlikely to change the minds of others who don’t believe in omens.

To relate this concept to our product liability case, some jurors may believe that manufacturers only care about increasing the sale of their products, and that consumer safety is of far less importance to them than are sales year-to-date. Other jurors, on the other hand, may feel much differently about the issue. The litigator’s job during voir dire is to find out exactly who among the jurors feels each way, make sure these feelings are clearly expressed, then plan to challenge for cause accordingly.

Another objection sometimes raised to the voir dire strategy described is that through the polling process, the attorney will be needlessly polarizing the jurors. But think about it: in this particular instance, polarizing the jurors is clearly beneficial. If half the panel believes without evidence that your company is probably just another business entity without ethics, willing to sell anything to boost profits, then half the panel won’t be returning after lunch, they will be off for cause.

Step Five-clearly confirm juror bias

It is important during voir dire to flag juror bias so the judge and others in the courtroom will be able to clearly perceive it. This can be accomplished through a series of goal oriented type questions. For example:

Attorney:	What are your feelings about the attitudes toward product safety of companies that manufacture consumer products?
Juror:	Most of them only care about product safety when someone sues them.
Attorney:	Thank you (reinforcement). That’s exactly the type of honest answer we are looking for. (To the other jurors:) How many of you agree? How many of you believe that most manufacturers could care less about product safety?
Other Jurors:	Yes, we agree.
Attorney:	(Repeats some variation of the necessary reinforcement, then ask them to expand on their attitudes about manufacturers.)
Attorney:	(To the appropriate juror:) How long have you felt this way?
Juror:	Five years.
Attorney:	Your feelings don’t change like the wind, do they?
Juror:	No.
Attorney:	Not likely to change in the next few weeks, are they?
Juror:	No.
Attorney:	Thank you for your honesty.

Step Six-strike problem jurors immediately

The final step is to strike biased or otherwise problem jurors for cause as soon as you can. Our research indicates that problem jurors often do more damage during breaks and lunchtime than they do inside the courtroom. Problem jurors often engage other jurors in negative conversations about case related matters (e.g., about certain types of attorneys, your reputation, Uncle Walter’s undiagnosed heart attack (the doctor should have seen it coming), and so on). It’s best to get them out of the picture as soon as possible, before any real contamination can occur.

One bad apple can spoil a barrel. One bad juror can taint an otherwise objective panel. Follow these six steps, and you will have established the groundwork to successfully challenge for cause those prospective jurors who may already be predisposed against your client, and/or their case.

JURY FOCUS GROUPS AND JURY SIMULATIONS aren’t the only litigation research tools attorneys can use to determine how jurors will regard their cases. Another excellent aid is the litigation intelligence survey-it provides a highly accurate picture of the key issues that will be most important to jurors concerning a particular case, along with how jurors will feel about these critical issues. Since litigation intelligence surveys sample a large number of individuals, survey findings generally carry a great deal of weight during settlement negotiations. Dr. Singer’s article discusses what litigation intelligence surveys are, the valuable benefits they provide attorneys, and how they should be organized. The article is scheduled for publication in THE Academy of Florida Trial Lawyers Journal.

Litigation Intelligence Surveys:

Invaluable Strategic Case Mapping & Settlement Tools

Resourceful attorneys are discovering a valuable but heretofore underutilized new tool to help them prepare and win their cases, the litigation intelligence survey. Similar to market research surveys companies use to predict and gauge consumer preferences, litigation intelligence surveys help determine how jurors will relate to the case’s pivotal point, along with other critical issues, i.e., the facts, disputes, and arguments.

It is a commonplace that jurors have a tendency to perceive the facts, disputes, and arguments of the case differently; that they have a propensity to judge one way or the other without ever hearing any arguments or testimony or evaluating any evidence; and that they can be swayed to a particular verdict by powerful argument. To win in court (or to successfully settle) it is important, therefore, to predetermine, as precisely as possible:

• How the jurors will perceive the facts;

• What the jurors’ psychological propensities towards the evidence will be; and

• Which courtroom presentation strategy and arguments will most influence the jurors.

Litigation intelligence surveys help attorneys answer these vital questions. Since jurors have a tendency to react to, and to analyze, the facts, disputes, and arguments differently, litigation intelligence surveys help determine the ideal juror types for a particular case. Such surveys are conducted among a large number of people to get the most reliable readings regarding what jurors will think and feel about the case. (An accuracy rating of ±5% can be established statistically if 400 or more people are surveyed.)

Juror/jury verdict behavior is to a large degree a psychological phenomenon. To accurately predict jury behavior with the highest degree of possible certitude, it is worthwhile to understand psychology and how it can be used to help decipher the minds of jurors at trial time.

Jurors’ perceptions/misperceptions

Peoples’ perceptions are freighted heavily with accompanying associations. When the word dog is mentioned, for example, one person immediately thinks of a sweet little poodle; another of a vicious rottweiller. Misperceptions occur when individuals illogically carry such associations over to facts, situations, and events for which they clearly are not warranted. Such misperceptions are very likely to occur in the courtroom where the issues to be resolved can be quite complex and confusing. So it is vital during case planning for the attorney to be able to anticipate how some jurors may automatically misperceive the facts, disputes, and arguments of the case.

Jurors’ psychological propensities

Many jurors bring heavy emotional baggage with them to the courtroom. As a result they will be psychologically inclined to favor one side or the other before learning anything at all about the case or its particulars. This fact has enormous ramifications for the attorney who must plan his or her case accordingly.

Persuasive arguments

An argument to the attorney is what a hammer is to a carpenter. A poor hammer means no building for the carpenter; a poor argument for the lawyer often means a courtroom loss. It is critical therefore for the attorney to pre-test his or her arguments prior to trial.

Monitoring and measurement through surveys

Litigation intelligence surveys monitor and measure the probable perceptions and propensities of jurors, along with the persuasiveness of arguments, on a psychometric basis prior to the actual trial. Additionally, litigation intelligence surveys pinpoint those aspects of the case that provide the attorney with the most promising opportunities to successfully sway jurors to the desired point of view; along with those case aspects which should be de-emphasized. They efficiently streamline discovery by steering the attorney away from non-productive areas. They are useful for complex cases where juror attitudes concerning a wide range of issues must be determined; and for unusual cases where it is difficult to predict how jurors will react.

Ideal for settlement purposes

Litigation intelligence surveys demonstrate to all concerned precisely how much a case truly is worth. If survey results indicate with a 95% confidence factor that 87% of 400 or more potential jurors scientifically polled believe the true value of a particular case to be $5 million dollars, this finding will be far more credible to an arbitrator than the self-serving estimates of opposing counsel. When properly utilized, litigation intelligence surveys can literally mean the difference of millions of dollars at settlement time.

Litigation intelligence surveys vis-a-vis focus groups

Litigation intelligence surveys should be used in tandem with, and not in place of, focus groups. (Focus groups are jury research studies in which six to 12 surrogate jurors jointly assess the problem areas of the case; afterwards, the litigation psychologist develops creative solutions regarding these problems.) Focus groups provide far more in-depth findings than do litigation intelligence surveys; but they do not provide the breadth of useful information that detailed surveys can reveal.

Costs and other factors

Litigation intelligence surveys cost from $5,000 to $50,000, with $15,000 representing the average expense. Costs vary depending on the number of people surveyed, the comprehensiveness of the questions, and the methodology employed. Litigation intelligence surveys should be conducted as early as possible in the trial planning process. This helps make the discovery process more efficient, while helping with overall case strategizing.

Attorneys should use litigation research firms with statistical expertise and backgrounds in social/behavioral psychology to conduct litigation intelligence surveys. Such firms are professionally equipped to determine how the case’s primary issues will correlate with the jurors’ value beliefs, i.e., the individual jurors’ predispositions, opinions, and attitudes. This is an absolutely vital consideration. Numerous studies indicate that it is jurors’ value beliefs, and not demographics, that comprise the only factor proven to be predictive of verdict behavior.

LITIGATION RESEARCH-jury focus groups, jury simulations, litigation intelligence surveys, and similar activities provide invaluable benefits to the attorney at trial time. But what about costs? Is litigation research only practical for larger trials? Dr. Singer’s article demonstrates that litigation research can be employed on a highly cost-effective basis for even the smallest of trials. The article was published in the January 15, 1996, edition of THE FLORIDA BAR NEWS.

Trial Consulting for the Smaller Practitioner

You can choose margarine or the high-priced spread

More and more, trial consulting is becoming almost a given for high stakes court cases. Indeed, many lead attorneys in the larger court cases are reluctant to enter into a courtroom without the assistance of a trial consultant. A growing number of attorneys who regularly handle large cases have come to regard trial consulting as a vital litigation tool. Also, they know the other side will likely use a trial consultant, and they don’t want to be (or appear to be) outgunned.

But what about the smaller cases? Does trial consulting offer true value for these cases in relation to its cost? Or is it rather an unnecessary elegance, as some smaller practitioners seem to feel?

To examine the question of trial consulting’s value for the smaller practitioner, it is necessary to first understand what trial consulting is all about. In this regard, it will be helpful if we look briefly to the world of modern marketing.

No responsible company will introduce a product into the marketplace today without first doing extensive product research. Companies who fail to test their products before introduction do so at their peril. Everyone may want to drive a nice new car, but few want to drive an Edsel.

Product research is often conducted through focus groups and consumer panels. It’s goal is to determine whether the members of the sample groups interviewed will be motivated to purchase the product as currently planned, and why (or why not).

Testing is done again and again until a consensus opinion clearly emerges: Yes, we would purchase the product if it is configured thus; or No, we would not purchase the product under any conceivable circumstances.

The logicality of this product research approach is obvious. Through testing, a solid determination is made that potential customers, as represented by the surrogate customers of the focus groups and panels, will purchase a particular product, if it is planned and designed according to a specific set of criteria.

Trial consulting determines what jurors are willing to purchase

Trial consulting parallels product research. But instead of focusing on how customers will respond to a particular product, trial consulting test markets how jurors will respond to a particular trial presentation strategy.

Trial consultants use jury focus groups and jury simulations to reliably determine how and why jurors will react to a particular trial theme, to an opening statement and closing argument, and to other key aspects of the case.

Such jury research can also clearly delineate what the jurors will consider to be the most essential attributes of the case (thus showing the attorney what evidence to stress), along with those case aspects the jurors will consider inconsequential.

Just as valuable, jury research can reliably determine what type of jurors should be seated for a particular case (often, with very surprising results for demographic-dependent attorneys). And it can even elucidate the specific voir dire questions the attorney should use to best determine who these ideal jurors are within the venire panel.

In addition to other benefits, trial consulting also is an excellent aid in overall settlement strategy, and in determining how much a case is worth.

True jury-validated findings

It’s important to note that any voir dire and trial strategy recommendations the trial consultant develops will not be based on intuition and instincts. Rather, they will be (or should be) based on true jury-validated findings achieved through carefully controlled social science experiments using scientifically valid jury focus groups and jury simulations. Such findings offer the attorney the very best evidence available on how the jurors are predicted to react to the case he or she plans to present. Short of sitting in the jury room during deliberations, you can’t get closer to the horse’s mouth than that.

Clearly, such bona fide pre-trial test marketing of a case can be of inestimable value to the attorney. The unique advantages of trial consulting and jury research are applicable no matter how large or how small the case. Therefore, trial consulting must be considered a highly worthwhile litigation tool, not only for attorneys trying large cases, but also for the smaller practitioner.

What about costs?

When it comes to smaller cases, are the obviously singular benefits of trial consulting outweighed by its costs?

The attorney trying a small case cannot commission the same full-fledged jury simulations, jury focus groups, and shadow juries that are becoming de rigueur for the larger court cases. The economy of the case may simply not warrant such expense.

This does not mean the attorney is precluded from conducting any form of jury research. When handled professionally, such jury research can be organized and conducted very cost-effectively.

For example, a scaled-down jury reaction to arguments can be organized, administered, and evaluated for $300 per hour, depending on the case; similarly, mini-issue analyses can be conducted for as little as $300 per hour. While very economical, such jury research can provide an important amount of specific and highly reliable data concerning how jurors are likely to deliberate about the case.

The above-mentioned outlays are not out of line when considering the overall expense of litigation today. Indeed, the cost of such jury research should be looked at as a very prudent investment against the valuable returns provided.[25]

Attorneys weighing costs should also consider that jury research makes for a far more efficient case preparation process. It is estimated that attorneys can save about five hours of preparation time for every one hour of jury research time.[26]

Reading the jury in economy paperback edition

While reduced, the costs detailed above may still not be warranted for a particular case. In this event, there are other less costly yet highly valuable trial consulting/jury research services the attorney can specify for even the smallest court cases. Often, they can be made available for as low as $500-$1,000, depending on the case. Following are just a few:

Mini-focus groups-An economical alternative to standard jury focus groups, mini-focus groups can be very valuable in determining how jurors will react to the facts of the case, whether there are any case problems, and in planning discovery.

Voir dire counseling-While voir dire is a vital trial element, it is more a psychological process than it is a legal one. Trial consultants formally trained in psychology can be extremely helpful in showing the attorney how to most effectively use voir dire to find and seat the jurors needed for a particular case.

Supplemental juror questionnaires-Trial consultants are expert in the development and use of supplemental juror questionnaires. These help increase the likelihood of self disclosure and can provide a strong foundation to challenge for cause.

Trial consulting is still a relatively emerging field, and new services are being developed all the time. For example, our firm now offers an 800-number service, 1-800-A JURY DR, that attorneys can contact to quickly receive case-specific voir dire questions, along with trial theme and strategy recommendations for late-breaking trials. All information is derived from our automated data files of past court cases, and is accessed by our litigation psychology specialists through targeted key word searches.

Along this line, we have just introduced a special DIAL-A-JURY-REACTION service (1-305-892-0000) that attorneys can use to secure immediate jury reaction to vital aspects of their cases. We assemble defense-prone jurors for plaintiffs’ attorneys on Thursdays, and plaintiff-prone jurors for defense attorneys on Tuesdays. This is a creative yet inexpensive way for the attorney to quickly learn if there are any important holes in the case that may have been overlooked.

Do-it-yourself jury research?

A word of caution: attorneys are advised against doing their own jury research. Attorneys need to understand that litigation research is a very technical field; that it employs scientific methods based on experimental design; and that its product is a psychological analysis and interpretation of systematically collected scientific data concerning probable jury responses to selected stimuli, for strategic planning and communications.

Litigation research, when done correctly, means far more than randomly organizing a group of people, seating them in a room, and then listening to them comment about the case. Any findings developed under these circumstances will likely have no statistical significance regarding how the actual jury may see things. To provide meaningful results, jury research cannot be done on the fly.

Trial consulting shines a spotlight on the jury

For the attorney, all depends on the jury. He or she can try the greatest case in the world, provide stunning courtroom oratory, and cross-examine witnesses like Perry Mason. But if the jury rules against his or her client, all this means nothing. Therefore, any reliable benchmarks the attorney can develop to anticipate the jurors’ attitudes concerning the case, and thus their deliberations are extremely worthwhile. Trial consulting can provide such valuable benchmarks, and at reasonable costs for even the smallest of cases.

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. An edited version of the article was published in THE LAW WORKS.

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, recently beat mighty Microsoft Corporation in court 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. When presented in such a way, the jurors are predisposed to side with the plaintiff, because natural sympathies almost always are with the little guy in a fight.

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, another plaintiff, 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 between the jurors and the plaintiff. Everyone agrees that it is wrong to steal.

(Note: Dozens of valuable themes involving riches, wisdom, good versus evil, and so on can be found in the Bible. Along this line, the Seven Deadly Sins make powerful themes for commercial cases.)

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 many 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-a-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 that is 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.

JURY FOCUS GROUPS-spotlighting jurors and what they think and feel about the litigation dispute provide a virtual cornucopia of innumerable advantages to the attorney in the planning and preparation of his or her case. The following article provides a comprehensive analysis of focus groups; what they are, how they should be organized, and what they can achieve. Dr. Singer’s article will soon be carried in a prominent legal magazine published nationally.

Focusing on Jury Focus Groups

The Ideal Tool for Learning What Jurors Think and Feel About Your Case

No baker worth his or her salt would make a cake without knowing the ingredients; no doctor would prescribe a pill without understanding how it will affect the patient; and no marketing executive would introduce a new product without first testing its consumer appeal. And yet many attorneys often go into court without performing essential pre-trial litigation research to determine how jurors will regard and thus decide their cases. Is it any wonder they are often shocked when negative verdicts are reached?

The attorney has a professional responsibility to determine with as much certitude as possible the bases, psychological and otherwise, upon which the jury will decide the case. This can only be achieved through pre-trial litigation research.

Litigation research consists of pre-trial surveys, jury simulations, focus groups, and similar scientific studies. These activities parallel the test-marketing of products common in the commercial sector and of issues and individuals in the political sector. Litigation research activities are designed to help the attorney understand the case from the perspective of the jurors, i.e., to see the case the way the jurors will.

Jury focus groups and jury simulations function like a Rorschach test, illuminating jurors’ cognitive processes. They consist of abbreviated versions of an upcoming trial presented before a carefully selected sample of surrogate jurors. They are formal scientific experiments in which the surrogate jury response group receives various stimuli (alternate case presentations).[27] A professional evaluation and interpretation of the jurors’ deliberations (responses) is conducted. This exercise can reliably determine jury attitudes concerning the case and all of its key aspects. Just as a telescope into the minds of jurors, jury focus groups and jury simulations can provide a vivid picture of what jurors will think and feel about the case.

Pre-trial litigation research is absolutely critical for effective trial lawyering. Attorneys are trained to focus with laser beam intensity on the law in all of its sometimes mind-numbing minutiae. But most jurors have only a lay person’s interest in the law, if that. What’s important to the lawyer may prove to be of little or no interest to the jurors. Indeed, the jurors need not worry at all about the lawyer’s concerns, but the lawyer must worry mightily about the jurors’ attitudes and concerns. If not, he or she is liable to get a very sorry surprise when the verdict is announced.

All jurors enter the courtroom with preconceived attitudes. Litigation research assists in uncovering those attitudes, and how they are likely to affect the ways jurors are likely to perceive the case. Without such critical knowledge, the attorney’s otherwise careful case planning and preparation efforts are beside the point-the jury decides all.

Focus groups-invaluable in deciphering juror attitudes

One of the most effective tools available to help the attorney understand jurors, the case issues they will consider most critical, and how they will evaluate these issues, are focus groups. These litigation research activities are designed to help determine what the jurors’ expectations will be concerning the particular case, and how to subsequently plan the case according to these expectations. Focus groups can be used to help determine methods to improve and clarify arguments and evidence so that it will be directly responsive to the jurors’ concerns. They permit the attorney to test-market alternative trial themes and case strategies to determine what works best. These options can be examined without imperiling the case before the real jury.

After planning and organizing more than 5,000 jury focus groups and jury simulations during the past 17 years, our firm has determined the following to be the most important points to consider when conducting jury focus group research.

Forget demographics

Many attorneys mistakenly believe that a properly organized focus group should represent the venue demographically. (Such a grouping is termed a random quota sample.) But since focus groups normally are comprised of only six to 12 individuals, it is simply not possible, statistically, to create a true random quota sample among such a small grouping. You need to test at least 400 individuals for your research to achieve statistical significance.

The heavy attention attorneys place on demographics when planning their juries is completely misplaced. Overwhelming scientific evidence indicates that such factors as race, age, gender, occupation, and so on fail to relate in any meaningful way with jury verdicts; and, indeed, often increase error rate during voir dire. Attorneys should keep this primary psychological rule uppermost in their minds when selecting juries: Those variables that are most observable are least predictive of verdicts and jury behavior.

Value beliefs

The only factor which correlates with jury behavior has to do with value beliefs. These are the basic beliefs, ideas, assumptions, and attitudes that people hold most central to their personalities. [28] Numerous studies indicate value beliefs to be the key factors, along with life experiences, that correlate with how jurors will actually judge the case.

A room full of Hitler’s

It is not useful (indeed, it’s impossible) to attempt to create a demographically accurate grouping for a jury research focus group. It will be far more productive to recruit six, eight, 10, or 12 individuals (the number depends on the research design being employed, along with the research objectives) who will, in effect, constitute a room full of Hitler’s.[29] By this, I mean an assortment of highly negative and extremely verbal contrarians.

In addition to being contrary and difficult, your focus group participants should possess value beliefs and opinions that run directly counter to the desired point of view. Such individuals almost always can be counted upon to uncover and to spotlight the problem areas of even the most perfect case. They will quickly identify and hone in on the case’s weak points, and thus perform the essential role of devil’s advocates.

Stay away from colleagues and friends

Conversely, focus group participants should not be friends and/or associates of the attorney. A random gathering of friends and/or colleagues to judge the merits of a case seldom proves fruitful. Such individuals almost always will share the same value beliefs as the attorney, hardly an objective test. Attorneys learn to their chagrin that recommendations developed as a result of such ad hoc groupings often lead away from the optimum trial strategy. [30]

The best approach to use when organizing jury focus groups is to assess the opinions of individuals who are already negatively predisposed against the case-the true acid test. Remember: the key consideration in any jury research is to determine those arguments that will provide the greatest possible opportunity to convince the jury. This goal can best be achieved by first testing your arguments on a difficult audience to eliminate what doesn’t work, so as to find what does. This is your optimal trial presentation strategy.

Setting and atmosphere

Focus groups should be conducted in a setting that will promote, not prohibit, free and open discussion. This rules out most offices, particularly law offices, which can often be intimidating. Focus groups also should not be conducted in law offices is because it is critical that a complete air of neutrality and impartiality be projected for the proceedings. Focus groups are blind scientific experiments. If the test subjects (surrogate jurors) are able to sense the identity of the party sponsoring the research from the surroundings, they may be inclined to give only socially desirable answers which favor the sponsor.

An ideal setting for focus group research is a hotel suite (the more comfortable the hotel, the better) with one or more sofas and numerous easy chairs. Everything should be as relaxed and casual as possible. Surrogate jurors will feel most free and uninhibited in such an environment. As a result, they will be more inclined to offer their true opinions about the case and its primary issues. My firm conducts the majority of our focus group research on the Courtship, our Ft. Lauderdale-based yacht (the world’s only fully equipped floating mock courtroom). The relaxed and carefree yacht surroundings help to ease any surrogate juror inhibitions, thus promoting the most free-wheeling and open discussion of the issues. (We also use other relaxed settings such as cabins in the woods, beach houses, and so on.)

Repetition and timing

In terms of the number of jury focus groups/simulations[31] that should be conducted, a typical series involves a presentation that is repeated three to five times. As in any other scientific test, this repetition is essential to ensure the validity of the results.

Regarding timing, it is always recommended that jury focus groups and simulations be conducted as early as possible in the trial planning process at least 90 days before discovery is complete. When planning focus groups, it is useful to keep in mind that such litigation research activities help guide the attorney away from peripheral concerns that may be of little or no consequence to jurors; as such they can greatly reduce the amount of discovery time that will be required.

A second series of focus groups/simulations should be conducted immediately before trial to help determine how jurors will perceive the facts, evidence, and arguments once discovery is completed.

What about venue?

It is commonly accepted that jury research should be conducted in the venue in which the trial will take place. In most cases, however, venue is not an overriding consideration. The key factor in securing focus group participants is to find individuals who will possess value beliefs that run counter to the desired point of view; the addresses where such individuals live is, in most cases, simply not a factor.[32]

Presentation

A universal misconception concerning focus groups is that it is important to always make your case shine in front of the surrogate jurors. In this regard, focus group leaders often attempt to provide the surrogate jurors with a biased perspective that leans heavily in their favor. They leave out incriminating evidence. They provide a questionable chronology of events that is weighted towards the client. They fail to provide the surrogate jurors with a simple explanation of the facts, and instead editorialize to color the surrogate jurors’ perceptions. They emphasize their case’s strong points while minimizing any trouble spots.

This approach is the exact opposite of how focus group research should be conducted. Surrogate jurors need to be able to react to the facts of the case, not to the attorney’s interpretation of the facts. Presenting an overly rosy picture of the case is bound to prompt surrogate juror responses that will have no little or no relevance to what will come out in court later.

The most effective focus group research is achieved when the opposition’s strongest points are stressed, along with the weaknesses of your own case. Surrogate jurors should be asked to concentrate on the various depositions that directly attack your position. All interpretations regarding minor case issues and other close calls should automatically be presented in favor of the opposition.

You can’t solve a problem if you don’t know you have one. This tough love approach to jury focus groups will spotlight the major problem areas of the case, along with effective ways to deal with them.

Scripting

What and how do you present? Jury focus group presentations are organized and handled by professional facilitators who are especially trained to conduct such affairs, and who bring the important element of objectivity to these research activities. The facilitator helps determine what information is presented to the surrogate jurors regarding the case’s facts, issues, disputes, theories, and arguments. He or she also determines how and when this information will be presented.

A professional facilitator should be expert in interviewing individuals on a one-on-one or a group basis. He or she will normally come from a professional background and will often have worked in such fields as social or behavioral psychology, journalism, marketing, sales, or even theater. A professional facilitator should not be the actual attorney involved in the case, or his or her colleagues or office personnel.

A good facilitator will have an open and engaging manner; will possess a warm and friendly personality; and will be highly intuitive and insightful concerning what motivates people to act, think, and feel in certain ways. Often, he or she will have been trained, either formally or informally, in Rogerian psychology techniques,[33] and will be expert in getting people to open up.[34]

One of the primary attributes a good facilitator must possess is perceptiveness, he or she must be able to immediately recognize during the focus group sessions when a surrogate juror is detailing his or her value beliefs vis-a-vis the case and its primary issues. Value beliefs are the key indicators regarding how jurors are likely to evaluate, and thus decide, the case.

The facilitator is an information-getter and data-gatherer. He or she should be able to identify the theme of the case, the case’s problem areas, the surrogate jurors’ key beliefs and critical value beliefs, and the other points most critical to the case. Once this information has been noted and recorded, it is then turned over to the litigation psychologist. This professional analyzes and interprets the data, then makes recommendations concerning the optimum trial planning and presentation strategy.

The facilitator’s primary goals are to develop the maximum amount of useful information during the focus group session(s), and to ensure that the key investigatory areas of the case are fully covered so as to promote the maximum relevant juror responses.[35]

The facilitator does not necessarily have to determine the ideal analogies and metaphors to use to explain the case to the jurors, or the optimum strategies and tactics to present the case, this is the litigation psychologist’s domain. The facilitator does, however, need to be able to understand, note, and intelligently report about the information, key insights, and other valuable data developed during the focus group session(s). The litigation psychologist then takes this information and uses it to develop the most on-target and creative case planning strategies.

More than just getting reactions

Many attorneys mistakenly operate with various misperceptions concerning jury focus groups. Some think, for example, that focus group research simply means assembling a number of people in a room, asking for their opinions concerning a particular case, then noting their reactions. If this is all that focus groups were about, the attorney would not need the assistance of a litigation research firm. He or she could simply round up a few stray bodies, hire people from a temp agency or market research firm to ask questions and note responses, turn on the tape recorder or video recorder, and be done with it.[36]

Anyone can get and record reactions, just put a bunch of people in a room, then listen to, and note, their comments regarding whatever you tell them. Jury focus group research represent much more opinions expressed by the focus group participants must be scientifically evaluated and interpreted to achieve meaning. Let’s take a look.

Analyzing the metaprograms

A key aspect of litigation research concerns understanding, analyzing, and interpreting the surrogate jurors’ metaprograms; and how such programs relate to the primary trial issues and the manner in which the case will be judged.

What are metaprograms? This psychological term derives from the Latin word meta, meaning goal or end, and used, figuratively, to describe a turning point, or critical moment; and the word program, meaning a system under which action may be taken to achieve a desired goal. A metaprogram refers to the internal and quite unconscious propensities of individuals (for our purposes, jurors) to make decisions on the basis of important goals and/or events they want to achieve or avoid.

It may be helpful to think of a metaprogram in this way: people are motivated and energized to think, feel, and react in a certain way, i.e., to provide pleasure and/or happiness (a towards metaprogram), or to avoid pain or sadness (an away metaprogram). For example, a juror may want to put a limit on the amount of money a plaintiff can receive for pain and suffering (an away metaprogram); or the juror may want to make sure that a manufacturer keeps making a life-saving drug in case he or she may need it in the future (a towards metaprogram).

The attorney cannot develop an effective trial or settlement strategy, or even pick a jury, if he or she does not understand how the jurors’ various metaprograms may affect the manner in which they evaluate and decide the case. The attorney needs to know, in other words, how the case will affect the jurors, i.e., which of their psychological buttons will be pushed. Such information can be determined most effectively through the professional analysis and interpretation of highly directed research findings accumulated during jury focus groups and jury simulations.

Metaprograms and value beliefs

Metaprograms are closely tied to value beliefs, the bedrock principles upon which people operate. Value beliefs can be identified when jurors use such words and phrases as should, must, and ought to; or when they generalize, such as everyone and anyone. So, for example: doctors should, people must.....the manufacturer ought to.....,the company could have.....,everyone knows that.....,anyone could have seen.....,and so on. Value beliefs also can be identified when people use this type of phrasing: it is dangerous to.....,it’s natural to expect that.....,and/or I feel.....I think.....,and I want.

Juror metaprograms can be elicited by asking the following type of questions during focus group research: What is important about.....?Why do we need/want.....?What do you expect when.....?How do you know when.....?or How can you decide if.....? [37]

Uncovering the jurors’ various metaprograms should be a key element in any litigation research; this information can provide a strong foundation for litigation planning that has the best opportunity to achieve courtroom success.

Trial theme discovery

Focus groups are the optimum research tools available to determine the all-important trial theme. What is a theme? A theme is a brief, often one or two words- summary of the case, it’s raison d’etre. A strong theme is absolutely essential to courtroom success; indeed, theme development is the most basic and essential concept for all planned and structured communications. You can’t have the chicken without the egg, and you can’t communicate in any meaningful way, in court or out, without a compelling theme.

Theme development is particularly fitting when it comes to all forms of persuasive communications, including courtroom argument and debate. Attorneys need to consider the following trilogy of truths regarding theme development: 1) trial themes personalize the primary case issues; themes help jurors form impressions, and 3) impressions win lawsuits.

Decades of jury research indicate that jurors deliberate in themes. The trial theme provides essential meaning to the jurors, and helps them organize and remember the case facts. A strong theme will prompt the jurors to look for evidence that supports the theme while ignoring evidence that doesn’t. The right theme helps jurors rationalize away all the case conflicts and justify the desired case viewpoint.

Some examples of worthy trial themes include David and Goliath or arrogance (for commercial cases), an ounce of prevention is worth a pound of cure for negligence cases, and covering all bases for medical malpractice cases.

It is essential that the attorney find a theme that will achieve the widest possible level of acceptance with juries (i.e., the theme that is most consistent with the jurors’ thought processes and metaprograms). This can best be achieved through focus group research.

When you find the right theme, you will know it, the whole case comes swiftly together and falls neatly into place. The jurors’ individual frames of reference shift positively towards you; and it suddenly becomes clear that your point of view regarding the case dispute is the right one and the other side is wrong. A good facilitator does not rest until he or she finds the ideal theme.

In a recent disposable lighter case in which I assisted, the manufacturer had a childproof patent for years, but did not make it available to the marketplace. The mother in the case had kept the manufacturer’s non-childproof lighter well hidden. Nevertheless, her small son was severely burned after finding the lighter and playing with it.

The lighter met all applicable standards and worked precisely as intended. For these reasons our focus group participants did not accept any of the various concepts proposed by the plaintiff, i.e. that the lighter was unreasonably dangerous, that it was defective, or that the manufacturer had been negligent in its failure to warn of possible danger.

The case was going nowhere fast. Then, during additional focus group research, the concept of effort suddenly surfaced. It was as if someone had turned on a giant spotlight in the room, brightly illuminating and clarifying the case so all could understand and agree on it. The surrogate jurors felt in unison that while the mother had at least made an effort to prevent an accident by hiding the lighter, the lighter manufacturer had made no effort at all to market a safer product, even though it was fully capable of such action. The effort theme was subsequently employed in court to win a substantial award for the plaintiff.[38]

Once the appropriate theme is discovered, it needs to be rhetorically adjusted to the jurors’ key metaprograms so that it will resonate most strongly. In our lighter case, for example, a valuable and revealing voir dire question was developed via this technique: Why is it important for a manufacturer to put forth some effort to prevent injuries, even if their products meet the prevailing standards?

Identifying the conversation

Deliberations are simply conversations among the jurors. Jury focus groups are excellent strategic planning aids because they demonstrate in vivid fashion how the jurors will likely converse about the case and its key issues. Normally there is one critical conversation regarding the defendant and another critical conversation regarding the subject of damages. Consider the following example of a deliberation conversation concerning pain and suffering:

Juror No. 1:	No amount of money will compensate her.
Juror No. 2:	I agree. How can we even consider this?
Juror No. 3:	You’re right. It’s very difficult to get a handle on just what is the responsible thing to do.
Juror No. 4:	It’s difficult, but does that mean she gets nothing?
Juror No 1:	No, let’s give a fair amount.
Juror No. 3:	What is fair?
Juror No. 1:	Well, I guess that’s for us to decide, isn’t it?
Juror No. 5:	In that case, what will the money be used for?

Note that during their deliberations, the jurors constantly pose questions to each other (and to themselves); all questions must be answered before they have discharged their duties and can go home. If pre-trial litigation research is conducted properly, it can be anticipated that the same questions will be raised during jury focus groups and jury simulations that will also be raised during deliberations. Armed with this key information, the attorney can rhetorically pose these questions during the trial, then immediately answer them. The jurors will then have ready answers to these questions during deliberations.

Pre-trial litigation research enables the attorney to anticipate the deliberative conversation that will take place; and thus be in an excellent position to influence its overall content and direction. This capability provides the attorney with tremendous power. In the pain and suffering conversation described above, the jurors will be more psychologically predisposed to rely on the attorney’s answers as a useful framework when they must consider these issues.

Enveloping the theme

The theme is an invaluable tool the attorney can use to build the strongest case possible. To do so, he or she must understand how to maximize use of the theme in court. The best way to accomplish this is to envelope the theme throughout every segment of the trial.

The attorney may have learned during pre-trial research, for example, that the jurors will consider precaution to be a primary issue for the premises liability case he or she is planning. The attorney has decided therefore to use precaution as the basic theme for the case. He or she should then envelope the theme throughout the various trial segments:

Voir dire-As a homeowner, sir, do you take precautions to prevent accidents from occurring? How do you feel about another homeowner’s failure to take the same precautions that you do?[39]

Opening statement-The key issue of this case is whether the defendant could have taken precautions to prevent this grievous injury from occurring to my client. Why didn’t they? Was it because they were negligent, or because they just didn’t care about instituting adequate precautions to prevent injuries from occurring to their guests?[40]

Direct Examination-Sir, when you entered the premises, did you notice whether the defendant had set up any safety fencing, had posted any warning notices or signs, or taken any other precautionary measures, to advise against possible hazards due to the renovations taking place above?

Cross-Examination-Four people have been injured at your office building during the past three months. What type of injuries do you think could have been prevented, if you and your staff took some preliminary safety precautions at the property?

Closing Argument-In four days of testimony, the defendant has not been able to detail a single action it took as an essential precaution to protect people visiting the office building while the extensive ceiling renovations were under way.

The perfect voir dire

There is balance to a trial. Themes and theories expressed during opening statement are reinforced during summation. Direct examination and cross-examination treat the same topics but from bi-polar perspectives. And what comes out during deliberations can also be treated during voir dire.

For this to happen, the attorney must orchestrate voir dire as a collective group discussion regarding the issues that he or she has learned will be most important insights gained through pre-trial litigation research.

In our premises liability example described above, jury research indicates that precaution will be a key issue on the jurors’ minds. The attorney should therefore raise the concept of precaution at every opportunity during voir dire, and give all panelists an opportunity to weigh in with their individual opinions on the subject. This will provide the attorney with an opportunity to pre-deliberate with the jurors, and thus get a sample of their deliberative behavior.

For instance, the attorney might ask Juror No. 1 to offer his or her opinion on whether it is critical that a landlord take every precaution to prevent injuries from occurring to guests on its premises. After the juror answers, the attorney might then ask for a show of hands to determine who agrees with Juror No. 1, and who disagrees. The attorney could then ask Juror No. 6 who has voted in the negative to explain his or her views, then immediately ask other jurors to comment on this juror’s point of view.

When handled in this manner, the attorney can spark a discussion among the panelists during voir dire that will parallel the conversation that will eventually take place during deliberations. The attorney will gain an excellent picture regarding which panelists will line up as favorably disposed to precaution, the basic premise of his or her case; and which jurors will consider precaution to be an unimportant issue. Efforts can then be made to eliminate the undesirable panelists before the trial commences.

What is the case’s pivotal point?

In addition to spotlighting the problem areas of the case, the trial theme, and the primary issues and how jurors will relate to them, focus groups also can be used to identify the pivotal point of the case. The pivotal point is the key concept that wins the critical issue of the case. i.e., convinces jurors that your point of view is correct regarding this critical issue. It is the primary element upon which a jury’s decision is likely to turn.

Once the pivotal point is identified during focus group research, the attorney must ensure that it is fully exploited during the trial. When this is adroitly handled, the jurors’ tendencies will be to latch on to this key trial element to the exclusion of all other confusing or even contradictory information presented to them.

When the pivotal point of the case becomes clear to the jurors, the effect is often that of an epiphany. That’s why it is so essential for the attorney to determine the pivotal point, then continuously exploit this knowledge during the trial. Doing so can answer all of the jurors’ questions and remove all of their doubts. When successfully handled, the average juror’s mental response might go something like this: “By golly, that’s all I need to know about medical malpractice in this case!”[41]

Innumerable benefits provided

When properly planned, organized, and evaluated, jury focus groups can prove immensely valuable to the attorney preparing his or her case. We have discussed some of the benefits that derive from focus group research, determining how the jurors will perceive the case, along with their attitudes regarding the key case issues; identifying the most and least persuasive arguments, spotlighting the ideal trial theme, and so on. But jury focus group research can be useful in many other ways. Consider the many other valuable attributes that result from jury focus group research:

• Helps determine how to break complex arguments down into easy-to-understand yet highly compelling word pictures (analogies, metaphors, and similes);

? Supports or rejects the supposed hypotheses of the case;

? Shows what the jurors want to hear, and how and when they want to hear it;

? Demonstrates the best way to reframe the issues to achieve the maximum positive reception;

? Determines the ideal questions to use so as to select less negative, more approving juries;

? Spotlights the jurors’ responses to technical evidence;

? Notes key words and their associations;

? Helps to assess numerous vital trial factors, including the effectiveness of the evidence, lawyer and witness believability, and potential damages amounts; and

? Helps to avoid surprise verdicts.

Valuable settlement tool

In addition to the many benefits described above, jury focus groups are also excellent for settlement purposes. Settlement negotiations are based on how the jurors will consider and decide the case. Jury focus groups provide a highly credible scientific analysis and findings report that show precisely what the jurors will think and feel about the case. This information can be very compelling when shared with opposing counsel regarding a settlement, or with a client who is unwilling to settle but should. Keep in mind the primary criteria for motivation to settle during settlement negotiations, i.e., What will a jury think...? Focus groups provide a highly convincing answer to this essential question.

True jury-driven case planning

Jury focus groups help to reduce case planning error to the absolute minimum. They provide a virtual cornucopia of highly valuable and focused information regarding how the jurors will think and feel about the case. They are becoming de rigueur for almost all larger cases, and even for smaller ones, the benefits far outweigh the costs. [42] Attorneys who enter trial without benefit of the incredibly perspicacious insights and information that derive from jury focus groups are denying themselves, and their clients, a major advantage to win in court.

MANY KNOWLEDGEABLE OBSERVERS BELIEVE THAT THE CASE IS WON OR LOST by the time the last juror is seated. How should the attorney pick jurors who will offer the best opportunity to achieve a successful verdict? The article which follows answers this critical question. It was jointly authored Dr. Singer and Jeffrey D. Boyd, Esq., managing partner, McCarthy, Palmer, Volkema, Boyd, and Thomas, Columbus, Ohio. The article was published in OHIO TRIAL.

Picking a Jury in a Civil Case in Ohio

I. Reflections on the Jury Selection Process

by Amy Singer, Ph.D.

In a trial, 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.

But active listening during voir dire is only half the battle, indeed, active listening is worthless if you don’t have anything worth listening to. That’s why it’s critical during voir dire to set a tone so the jurors will feel free to openly express themselves, and thus reveal their true attitudes and opinions concerning the primary case issues. This is the only way that you can get to fully know the jurors, and what their attitudes may be about your case.

Unfortunately, this objective is seldom achieved during many trials. In fact, some attorneys often seem to be working to achieve quite the opposite outcome during voir dire. The questions they ask jurors, and the manner in which they ask such questions, almost seem to be designed to inhibit juror responses, rather than to promote them.

Voir dire: More Psychological than Legal

The primary reason for the above discrepancy is that many attorneys don’t seem to understand what voir dire is really all about. Few attorneys realize, for instance, that voir dire is primarily a psychological process, rather than a legal one. As such, its terrain is composed of beliefs, attitudes, opinions, and prejudices, all psychological entities. As a psychological process, voir dire requires a far different set of skills than those employed during the other trial segments.

For example, expertise in employing close-ended questions, while an invaluable asset during cross-examination, is worth little during voir dire. Close-ended questions are great for tightly pinning a witness down with strict “yes” or “no” responses. But “yes” and “no” responses tell you virtually nothing about a juror’s values and beliefs, your primary subjects of interest during the jury selection process.

Nevertheless, most questions posed to jurors during voir dire often seem to take the form of close-ended questions. Attorneys use such questions to try to control jurors and to limit their responses; many attorneys, in fact, seem to mistakenly believe this to be a worthwhile goal for voir dire. They worry that the open expression of feelings by one juror may contaminate the others.

The truth is that juror contamination is a myth. Juror attitudes and opinions, i.e., their bedrock beliefs, are very unlikely to be changed simply due to the mere utterance of a contrary belief by another juror.

Similar misperceptions about other key aspects of voir dire often make this vital trial section an uncomfortable and unrewarding one for many attorneys. In this regard, it will be worthwhile to try to eliminate some of the more ill-conceived (yet widely held) notions regarding how voir dire should be structured, before examining what really works.

How Not to Conduct Voir Dire

I have observed three approaches to voir dire that are all dead wrong. The first wrong-headed approach comes from lawyers who seem not to want to learn anything about the jurors, instead, they just want to tell them things. For example:

Attorney: Voir dire is a French term meaning “to speak the truth.” (Subtext: See how smart I am...much smarter than you!)

Attorney: I’m not trying to pry into your personal life. I’m just trying to determine if you are qualified to sit on this jury. (Subtext: I’m morally qualified to be here. Are you?)

Attorney: You can set aside your personal experiences, right? (Subtext: If you are a good person you will surely see things my way, even if my way is completely contrary to your entire belief system.)

The problem with this approach is twofold - 1) it does not permit you to learn anything about the jurors, and 2) it provides the jurors with ample reasons to dislike you.

The second ill-conceived approach for voir dire comes from lawyers who concern themselves almost entirely regarding juror demographic factors, gender, age, occupation, marital and family status, economic class, ethnic and religious background, and so on. Many lawyers contend that such demographic factors are the cornerstones of predictability concerning how jurors will judge a case. They believe that just as a compass always points due North, demographics also reliably point to probable juror attitudes concerning the case. It’s the old, Which sides of the tracks did you grow up on? question, with juror attitudes conveniently lining up one way or another, depending on the answer.

Demographic dependency is a common characteristic among trial attorneys. Nevertheless, it represents an extremely flawed approach to voir dire. Numerous jury research studies indicate that observable, objective variables (demographics) are often the least predictive of jury behavior and verdicts. Further, jurors are not stupid and will resent it as demeaning and/or discriminatory if they sense that they are being classified according to such stereotypical factors as race, gender, and so on.

The third poorly planned approach to voir dire concerns attorneys who ask insulting questions that presume possible moral and ethical flaws among the jurors: “Can you apply the law on a reasonable basis?” , “Can you listen objectively?” . “Can you be fair?” “Can you withhold judgment until all of the evidence is presented?”

The problem with this approach is obvious, socially acceptable responses are the only ones the attorney will ever receive. Further, such questions will often irritate the jurors, who are being required to publicly affirm that they are not close-minded idiots and/or bigots.

Attorneys who pose such poorly-conceived questions flag their own insecurities for all to see. They are exhibiting a desperate need to be reassured that the potential jurors will somehow be able to put aside their presumed prejudices for the purposes of rendering a verdict the lawyer hopes to achieve.

Clearly, the above approaches are likely to prove ineffective to discover anything worthwhile about jurors during voir dire. But to learn what actually does work, we must first more fully understand what voir dire is really all about.

Deciphering Voir Dire

To properly understand voir dire, it will be worthwhile to break the subject down into its two primary objectives vis-a-vis the attorney - 1) securing useful information from and about the jurors, and 2) understanding what to do with that information once you get it, i.e., knowing whom to select (de-select) from the panel. These two components comprise the essence of voir dire, it’s raison d’etre.

Many attorneys often fail to achieve the first objective of voir dire, i.e., securing useful information about the jurors and their key values and beliefs. This makes the second objective, the de-selection process, a virtual crapshoot.

The reason many attorneys have such a difficult time realizing their first objective is due to a common human emotion: FEAR.

Attorneys need to be in control. They can do so during opening statement, closing argument, direct examination, and cross-examination, but voir dire offers them little or no traction. In fact, voir dire often proves to be a blind leap into the Great Unknown for many attorneys, the primary reason why they fear it so. This is also the main reason attorneys rely so heavily on demographics during jury selection, they mistakenly believe that demographics gives them at least some element of control. If their client is black, they feel that loading the jury with Blacks is the best way to stack the odds in their favor; if the case concerns child abuse, then elderly grandmother-types will be most desired.

The fact is that much of what attorneys do during voir dire is in response to their own fear. This is why so many attorneys always ask jurors the same insulting question during voir dire: “Can you be fair?” It is reassuring for them to hear a juror state in a courtroom that he or she can be fair, whether this will actually prove accurate or not. And it helps reduce the FEAR quotient.

Along this line, it is also reassuring to think that you can predict attitudes, opinions, and beliefs from race, gender, or age. It is reassuring to hear what you want to hear. It is reassuring to think you are in control during voir dire, even though you really never are. This need by attorneys to be constantly reassured during voir dire points up its essential truth: Voir dire truly is dire for many attorneys.

No Fear

To successfully achieve your goals during voir dire, to learn who the jurors are, what they believe, and how they are likely to feel about the primary case issues, it is essential to put your fears aside. This means that you must approach the jurors openly and forthrightly. You must be prepared to let the chips fall where they may (the essential point of voir dire, after all). You must assure the jurors through the questions that you use, and the manner in which you use them, that your only expectation is for them to speak honestly, i.e., to give truthful answers, and not answers they think judges and lawyers want to hear.

Remember: while it may be comforting to hear nice answers from jurors, it’s critical to hear the honest ones. You must not be afraid of what the jurors will tell you during voir dire, and what they will reveal about themselves. It is only through such knowledge that you will be able to make intelligent choices regarding which jurors you wish to impanel, and those you don’t want to include.

Getting Jurors to Open Up

You need good people skills for voir dire. This means that you must know how to let other people speak, and you must be able to listen to what they have to say. You can accomplish these modest-sounding goals by following a few simple rules:

?         Never cut jurors off while they are trying to respond to your questions;

?         Don’t try to steer the conversation in ways you think may be good for you;

?         Don’t write responses down while the jurors are speaking;

?         Pay attention to each juror as he or she speaks; avoid planning your next question while the juror is trying to answer your last one;

?         Don’t try to take control, or to fix things if a juror says something you don’t like; don’t try to rehabilitate a juror, it can’t be done;

?         Instead, thank a problem juror for being open and honest; signal the other jurors that they have nothing to fear by revealing their own likes and dislikes;

?         Finally, treat all jurors, regardless of their answers, with courtesy and respect.

Structure Voir Dire as a Collective Social Conversation

Voir dire should be treated as a collective social conversation. When one juror responds to a question, ask the next juror how he or she feels regarding what the previous person had to say, then poll the remaining jurors so they each can weigh in with their own opinions. Don’t concentrate on any one juror, be aware of the whole panel instead. Keep the conversations moving from beginning, to middle, to end.

It’s important to point out that group conversations by jurors during voir dire should not differ substantially from what will likely take place later during deliberations. It’s the attorney’s goal during voir dire to create a climate in which the jurors can speak as expansively as possible regarding how they feel about the basic issues they will be asked to judge later. Jurors are no different than the rest of us, they will be very willing to speak about themselves, and their attitudes and opinions, if given a chance.

Remember: when impaneling a jury, try to avoid norm conformity. This means that if you encourage and/or reward individual opinions during voir dire, you’ll also spark individual opinions during deliberations.

The Key to Voir Dire: Open-Ended Questions

As discussed, most close-ended questions have no place in voir dire; the opposite is true, however, for open-ended questions. Such questions focus on the jurors’ values and beliefs, and how these highly personal principles relate to the case issues at hand. Open-ended questions generally begin with such phrases as, What are your feelings about...or Please share your opinions concerning... or How would you characterize your beliefs regarding...Such questions usually end with references to specific case issues, e.g., product liability lawsuits, medical malpractice cases, and so on.

I have found the following open-ended questions and related comments to be very effective in getting jurors to open up and honestly state their feelings:

?         What you have to say is very important. Can you elaborate?

?         This is a tough issue to speak about, isn’t it?

?         Please tell me more about...

?         That’s a good point. Does anyone agree (disagree) with what has just been said? (If so, why, or why not?)

?         I can see that you’re thinking carefully about...

?         Please tell me what you’re thinking (feeling).

?         Do you believe its OK that...

Remember that asking the right questions during voir dire is only part of the puzzle. It’s also essential to listen carefully to the jurors’ responses. Pay particular attention when jurors respond with answers that include such words and phrases as should, must, could have and ought to. These words and phrases are often used by jurors when they are discussing their core values in relation to the case issues: Product manufacturers should...or The doctor could have...

Summary

Psychologists and psychiatrists know that people will never open up and reveal their true feelings unless they feel confident that their responses will be fully accepted. It is your task during voir dire to build rapport with the jurors; to let them know that you are truly interested in learning about them, along with their values and beliefs; to reinforce among the jurors that you want to listen to them; and to let them know that you will not react judgmentally to what they have to say.

Therefore: Let the jurors speak, reinforce honesty, and never try to stifle bad comments. This is the most effective approach to use during voir dire. Through it, you can learn who the jurors truly are, and how they will, in all likelihood, consider your case.

II. Ohio Law of Jury Selection by Jeffrey D. Boyd, Esq.

Ohio has one Revised Code, one set of Civil Rules, and one set of Rules of Evidence. However, it has 88 counties. Each of the counties has at least one, and as many as 30 or more, judges that preside over jury trials. Most of these counties have their own local rules. And most of the judges within a county have their own rules about how to pick a jury, many of which:

?         Are not written down;

?         Are not very flexible;

?         May be based on precedent,[43] but not always on the law;

?         Are based on the fact that they don’t like voir dire, or lawyers conducting voir dire;

?         Reflect that they don’t want to spend a lot of time in voir dire;

?         Are frequently designed to prevent lawyers from contaminating or indoctrinating jurors.

All too often voir dire becomes a battle between a lawyer that wants to do voir dire one way and a judge who is determined to do it a different way.

The Basis of Voir Dire

The right to jury trial is preserved to the parties inviolate.Civ. R. 38 (A). But trial by a jury composed of whom? Once those eligible[44] are called to service, who shall decide who sits on the panel? How should the right jury be selected?

Civ. R. 47 (A) states:

Any person called as a juror for the trial of any cause shall be examined under oath...as to his qualifications. The court may permit the parties or their attorneys to conduct the examination of the prospective jurors or may itself[45] conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by further inquiry.

Challenges for Cause

The bases for challenges for cause are stated in the Code: # 2313.42 Causes for challenge of persons called as jurors; examination under oath

The following are good causes for challenge to any person called as a juror:

(A) That he has been convicted of a crime which by law renders him disqualified to serve on a jury;

(B) That he has an interest in the cause;

(C) That he has an action pending between him and either party;

(D) That he formerly was a juror in the same cause;

(E) That he is the employer, the employee, or the spouse, parent, son, or daughter of the employer or employee, counselor, agent, steward, or attorney of either party;

(F) That he is subpoenaed in good faith as a witness in the cause;

(G) That he is akin by consanguinity or affinity within the fourth degree, to either party, or to the attorney of either party;

(H) That he or his spouse, parent, son, or daughter is a party to another action then pending in any court in which an attorney in the cause then on trial is an attorney, either for or against him;

(I) That he, not being a regular juror of the term, has already served as a talisman in the trial of any cause, in any court of record in the county within the preceding twelve months;

(J) That he discloses by his answers that he cannot be a fair and impartial juror or will not follow the law as given to him by the court.

Each challenge listed in this section shall be considered as a principal challenge, and its validity tried by the court. R.C. # 2313.42, emphasis added.

Most fights concern subpart (J). It is usually clear-cut as to whether other sections apply, such as if a prospective juror is a client of either attorney. It is much more difficult to know when a judge will decide whether a juror can or cannot be fair. For some judges, the mere assertion by the juror that they can be fair is enough. For example:

Prospective Juror #4:	My mother was killed in a wreck caused by a drunk driver.
The Court:	Can you put that aside and judge this case on these facts?
Juror:	Yes.

Some judges will let this juror stay on the panel. Other judges look to whether, given the statements of the juror, it can be objectively stated that he or she can be impartial.[46] Berk v. Matthews (1990), 53 Ohio St. 3d 161, involved a jogger who was hit by a car. A juror was brought to the panel after the plaintiff had used all of her peremptory challenges. During the voir dire, the juror on several occasions stated she would be prejudiced against the plaintiff. The juror also stated, however, that she could listen to all the evidence, and the law, and make a fair decision. The juror was then challenged for cause, but the court refused to excuse her, despite the following dialogue:

The Court:	Mrs. Logerwell, is there anything, ma’am, that you want to discuss that might affect your jury service in this case?
Mrs. Logerwell:	Well, frankly, I don’t think joggers - don’t think joggers belong in the street.
The Court:	If I told you that the law permits a party to jog in the street under certain conditions, would you follow the law if that comes to pass, if I give you a (sic) instruction concerning that?
Mrs. Logerwell:	Well, I have almost hit joggers, so I think I would be prejudiced. Id, at 161.

The court of appeals agreed with the plaintiff that the trial court erred in failing to excuse this juror for cause. The Supreme Court, however, reversed:

The trial court had the opportunity to observe the demeanor of the prospective juror and evaluate firsthand the sincerity of her responses to questions. On nine separate occasions the juror assured the court and counsel for the parties that she could be fair and impartial and would follow the law as it was given to her by the judge.

In reversing the decision below rejecting the challenge for cause, the appellate court disregarded the assurances given by the juror and, in essence, substituted its judgment for that of the trial judge. By so doing, the court of appeals failed to apply the appropriate standard of review. Berk, supra, at 169.

Constitutional Limits on the Use of Peremptory Challenges

Peremptory challenges were traditionally challenges the parties could use to strike anybody they want to[47] without explanation. Today, however, the right to strike is subject to some constitutional restrictions. The U.S. Supreme Court has held that neither race,[48] nor gender[49] may, without more, be the basis for excusing a juror. Jury selection procedures must be fair and non-discriminatory.[50] The Court correctly held:

Competence to serve as a juror depends on an assessment of individual qualifications and ability impartially to consider evidence presented at trial [citation omitted]....a person’s race simply is unrelated to his fitness as a juror.[51]

Automatic exclusion of jurors based on any category is probably error, see, e.g., Sowers v. Middletown Hosp. (1993), 89 Ohio App. 3d 572. ( Automatic exclusion of nurses and other medical personnel from medical malpractice juries is not within the realm of R.C. # 2313.42.)

So What May Be Asked?

The case law in Ohio tends to be a study of what may not be asked. The long-standing rule, as stated by the Ohio Supreme Court, is as follows:

The purpose of the examination of a prospective juror on his voir dire is to determine whether he has both the statutory qualifications of a juror and is free from bias or prejudice for or against either litigant. Vega v. Evans (1934), 128 Ohio St. 535, paragraph one of the syllabus.

Judges have been granted broad leeway in governing the voir dire process:

The control of voir dire questions is within the discretion of the court, [and so] a reviewing court will not interfere absent an abuse of that discretion, even though some of the inquiry is questionable. Dellenbach v. Robinson (1993), 95 Ohio App.3d 358,37210.[52]

Litigants, too, are given latitude in asking questions, but:

All questions in the voir dire examination must be propounded in good faith. The character and scope of such questions cannot become standardized, but must be controlled by the court in the exercise of its sound discretion, the court having for its purpose securing to every litigant an unbiased jury. Krupp v. Poor (1970), 24 Ohio St.2d 123, paragraph one of the syllabus, approving Dowd-Feder, Inc. v. Truesdell (1936), 130 Ohio St. 530, paragraph three of the syllabus.

The Insurance Question

Ohio R. Evid. 411 states in part:

Evidence that a person was or was not insured against liability is not admissible upon the issue of whether he acted negligently or otherwise wrongfully.

Since insurance is irrelevant, and mention of it deemed to be prejudicial, does this mean that it can’t be mentioned in voir dire? It does not. The interests of guarding against jury speculation on issues of ability or inability to pay as dictated by a party’s insurance coverage[53] collide with the interests of trial by fair and impartial jurors. Just how insurance can be mentioned is an issue frequently addressed by the courts.

In the benchmark case Dowd-Feder, Inc. v. Truesdell (1936), 130 Ohio St. 530, the Supreme Court held:

In the examination of a juror upon his voir dire in cases involving property damage, personal injury or both, he may be asked the general question whether he has or has had any connection with or interest in a casualty insurance company. If the answer be in the affirmative, the juror may then be asked the name of such company and the nature of his connection with our interest therein. The plaintiff has the right to interrogate prospective jurors on voir dire as to (1) whether they are connected with an insurance company; and (2) the extent of their connection, as long as these questions are propounded in good faith. Id., syllabus paragraph two.[54]

Even this limited right of plaintiff’s counsel to inquire on voir dire as to a prospective juror’s connection with an insurance company has been held to be subject to the sound discretion of the trial judge. Krupp v. Poor (1970), 24 Ohio St. 2d 123. In granting plaintiff’s counsel a limited right to mention insurance on voir dire, the Supreme Court of Ohio has tried to strike a delicate balance between plaintiff’s right to ...reasonable safeguards against obtaining a jury composed of men and women having insurance connection...,and defendant’s right to a trial free from ...possible prejudice which interrogation concerning the jury’s interests may tend to provoke. Dowd-Feder, Inc., supra, at 535.

The insurance question may be asked using non-standard (non-Dow-Feder) language. In Kovach v. Wren, Unreported Case No. CA-6418 (5th Dist., 1984), the Court of Appeals upheld the asking of the question - "Is there anyone here that is employed by an insurance company? holding that the trial court did not abuse its discretion in overruling appellants objection and motion for mistrial.

Of course, the insurance question cuts both ways: the plaintiff may not attempt to lead the jury to believe there is insurance, and the defendant may not lead the jury to believe there is not insurance.

In DuPriest v. Spatz (1971), 26 Ohio St. 2d 264, defense counsel, in voir dire stated, There is no insurance company involved in this case. The court held that, absent admonishments and instructions to the jury, the statement was clearly prejudicial because the statement would lead the jury to conclude that any judgment rendered for the [plaintiffs] would wrest from [defendant] and his family whatever funds or property were necessary for the total payment thereof. Id , at 266.

The court in Stehura v. Short (1974), 39 Ohio App. 2d 68, succinctly posed the problem:

When defense counsel propounds a question on voir dire examination falsely implying that his client is uninsured, the potentially prejudicial effect on the prospective jurors is of such magnitude that instructions, three days later, by the trial court in its general charge to the jury, not directed to the specific improper remarks, are insufficient to cure the manifest prejudice occasioned by the jurors’ exposure to the deceptive, and potentially prejudicial extrinsic statements. Such action constitutes reversible error. Id., syllabus. See also Shell v. Rolins, Unreported Case No. 3-82-21 (3rd Dist., 1983).[55]

A current hot topic today is whether the panel may be questioned regarding tort reform. While leading Ohio courts have not yet specifically addressed the issue, in Barrett v. Peterson, 868 P.2d 96 (Utah Ct. App., 1993), the Utah Court of Appeals held that the plaintiff is entitled to know which potential jurors have been exposed to or influenced by tort reform information, and that the trial court’s refusal to allow voir dire questioning on tort reform prevented the plaintiff from intelligently using peremptory challenges.

Conclusion

It is no news to experienced trial counsel that our Ohio judges have a great deal of control over how voir dire is conducted in their courtrooms. However, the Constitution, the Revised Code, and current case law, along with principles of fundamental fairness, can be invoked to ensure that clients get the best possible jury.

AS TRIALS BECOME MORE COMPLEX AND TECHNICAL, new legal specialties emerge to assist attorneys in the litigation process. One such new field is that of legal nurse consulting, comprised of professionals who advise attorneys on medical malpractice cases and similar disputes, and who serve as expert witnesses. Some legal nurse consultants are now branching out into the litigation research/trial consulting field. Dr. Singer’s article fully details the various areas of expertise that legal nurse consultants must master to be able to provide professional trial consulting & litigation research services. This article is scheduled for publication in an upcoming edition of THE JOURNAL OF LEGAL NURSE CONSULTING.

Trial Consulting:

A Much in Demand, Highly Effective, and Nicely Profitable Professional Sub-Specialty for Legal Nurse Consultants

Though a relatively new profession, legal nurse consulting has already achieved a highly positive impact vis-a-vis our nation’s justice system, helping, both in court and out, to illuminate and clarify vital issues in medical malpractice, personal injury, and similar cases. Another relatively new profession also has had an equally positive impact on the justice system, trial consulting. This new legal discipline is comprised of professionals who assist attorneys in developing the most intelligent and effective trial strategies to win their cases. Trial consultants are jury experts, and a significant portion of what they do concerns advising attorneys on how best to determine, then eliminate, biased jurors during voir dire, thus promoting fairer trials for all.

Legal nurse consulting and trial consulting: numerous similarities

The professions of legal nurse consulting and trial consulting are alike in many ways. For example, legal nurse consultants evaluate and analyze medical and related data and information, then render informed opinions on the delivery of health care and the subsequent outcomes, usually in the context of legal disputes which often are settled in court. Similarly, trial consultants evaluate, analyze, and interpret jurors’ value beliefs, i.e., their internal dicta and personal codes, as they relate to specific case issues, determine what the jurors think and feel about the case, then render opinions regarding how the jurors are likely to determine the outcome of trial disputes.

Many other parallels exist between the two professions. For instance, the standards of practice for legal nurse consultants are based on the following nursing fundamentals: assessment, analysis and issue identification, planning, implementation, and evaluation. Trial consultants utilize these same valuable problem-solving techniques in their own work: assessment of the case particulars (facts, evidence, witness testimony, etc.); analysis and issue identification regarding what case issues the jurors will consider most important; planning the most effective jury selection and trial presentation strategy; implementation of that strategy in court; and evaluation, often on a day-to-day basis, concerning its effect on the jurors.

Strong interviewing skills essential to both fields

One key similarity that both legal nurse consulting and trial consulting share concerns the art (and it is most definitely an art) of interviewing. Great nurses are almost always great interviewers, they know how to ask the right questions, carefully listen to the answers provided, then evaluate what is most important. It is only through such educated and intelligent probing that the nurse can adequately determine the patient’s current health. Of course legal nurse consultants regularly employ in their own practices the professional interviewing skills they originally developed as nurses. Along this line, trial consultants must also be great interviewers. Indeed, questioning jurors concerning the case’s primary issues, carefully listening to the responses given, and then professionally evaluating and interpreting what has been said is a sine qua non of professional trial consulting.

Clearly, the fields of legal nurse consulting and trial consulting share an uncommon number of professional similarities; both depend on quality evaluation, interpretation and analysis; and both require many of the same basic interpersonal skills. For these and similar reasons, I believe that legal nurse consultants would also make excellent trial consultants.

Trial consulting as an added professional diversity for legal nurse consultants

Legal nurse consultants may wish to consider trial consulting as a valuable new professional diversity they can offer attorneys and others. Due to their superior knowledge, expertise, and experience concerning medical malpractice, personal injury, and similar cases, legal nurse consultants who offer trial consulting services would be starting with some distinct advantages over already established trial consulting professionals.

Would such a step, however, be practical for most legal nurse consultants? To best answer that question, let’s first take a closer look at the field of trial consulting in general, then briefly discuss the personal characteristics and the required professional knowledge and skills that trial consultants should possess in order to perform effectively.

The profession of trial consulting

The use of trial consultants by attorneys to help them plan and win their cases has exploded in recent years. Trial consultants offer attorneys during voir dire a benefit of inestimable value: being able to de-select biased jurors with the absolute highest probable degree of certitude. (Ferreting out and eliminating biased jurors prior to trial is absolutely critical to courtroom success. Studies show that jurors are most influenced by personal biases, secondly by legally inadmissible information acquired during trial, and only third, by legally admissible evidence.) It is often stated that the case has already been won or lost by the time the last juror is impaneled. Therefore the professional capability of trial consultants to most accurately determine, and then eliminate, biased jurors offers a truly spectacular advantage to the attorney. (Such a huge advantage, according to many knowledgeable attorneys, that failure to employ a trial consultant in an important trial might almost be considered grounds for malpractice).

The profession of trial consulting has grown dramatically from the early Î70s when only a few hardy trial consulting pioneers (of which I am very proud to be included) first began to assist attorneys with their cases. From these early days it is now estimated that over 300 professionals currently practice trial consulting on a regular basis, according to the American Society of Trial Consultants. And the field is expanding rapidly every day.

Trial consultants are drawn from a wide variety of professional fields, including such disciplines as psychology (and in particular, social psychology), sociology, therapeutic counseling, communications, and public relations. (Additionally, a not insubstantial number of trial consultants first began their careers as actors, actresses, and similar artists and performers.)

Focus groups and simulations: essential tools of trial consulting

Trial consultants utilize jury focus groups and jury simulations to help determine juror attitudes concerning the primary case issues prior to trial. Jury focus groups and jury simulations enable the attorney to test-market alternative trial strategies, trial themes, and so on, in order to determine what will work best during the trial. Such pre-trial research proceedings are similar to the product testing activities that companies conduct prior to bringing their products to market, or to the polling that political groups perform, or benefit from, before deciding to sponsor a particular candidate.

Jury focus groups and jury simulations spotlight jurors’ cognitive processes. Basically they consist of shortened versions of an upcoming trial presented before a carefully selected sample of surrogate jurors. The jurors’ deliberations are carefully noted, evaluated, and interpreted to determine jury attitudes concerning all of the key aspects of the case.

Surrogate juries normally are organized and administered in the venue where the trial will take place. This aids in recruiting surrogate jurors whose values and beliefs are opposition prone. Such negative jurors are far more likely to focus on, and thus clearly identify for the attorney, the case’s basic problem areas. This is very useful because it is the case’s problem areas that create the most trouble. When the attorney learns what these problem areas are, then he or she will be in the best position to plan on how to handle them during the trial. The number of surrogate jurors generally will be the same as that of the actual jury.

In most cases, the jury simulations are repeated numerous times before different groups of surrogate juries (usually three to 10 times). As in any other scientific test, this repetition is essential to ensure the validity of the results. There are normally two different series of jury simulations conducted. The first series takes place usually about three months before trial or before discovery is complete. These simulations are set up to discover the issues of key importance for potential jurors, along with the best trial theme and case presentation strategy. The second series of jury simulations is performed directly before the trial is to commence. This second series of simulations helps determine how jurors will regard the facts and evidence of the case, as well as the arguments that have been developed, once discovery is complete.

Invaluable data for the attorney

When properly organized, administered, analyzed, and interpreted, jury focus groups and jury simulations can provide the attorney with a virtual cornucopia of highly singular and extremely valuable information. This can include how jurors will think and feel about the case; what types of jurors will regard the case facts positively and negatively; what prejudicial attitudes are likely to surface among certain jurors; what the jurors will consider the primary cases issues to be; what trial theme and presentation strategy will work best; what voir dire questions to ask to most reliably determine which jurors will be favorably or unfavorably disposed towards the case; what information jurors will be expecting to be presented during the trial (and even when that information should be presented to achieve the optimum effect); what areas of the case are likely to be misperceived by the jurors; what the case problem areas may be; what will be the assessment of damages; and what questions, if left unanswered, may fester away during deliberations and eventually end up poisoning the case.

Other trial consulting services

In addition to determining key trial issues and how specific types of jurors will relate to them, trial consultants also assist attorneys in many other valuables ways. These include, but are not limited to, planning, developing, and implementing change of venue studies (along with public opinion and attitude surveys); voir dire consultations; planning, developing, administering, and interpreting supplemental juror questionnaires; organizing witness preparations; and providing courtroom image consultations and makeovers.

Important personal characteristics

As already discussed, a trial consultant must be a good interviewer. Further, he or she should be a good judge of people so as to be able to form reliable opinions regarding whether a juror will be pro-plaintiff (prosecution) or pro-defense. Additionally, and most importantly, a trial consultant also needs to be a good psychologist. This means that he or she needs to be able to listen thoughtfully to what jurors have to say in order to determine what is truly most important to them, and what is not.

Numerous professional studies, plus my 17 years experience as a trial consultant, indicate that no other factor is as important in predicting how a juror will decide a case as are that person’s value beliefs. (As discussed, people’s value beliefs are the bedrock truths, principles, and internal codes they hold most basic to their own personalities.) In terms of court cases, value beliefs are often expressed through the use of such words and phrases as should, must, ought to, or with such terms as everyone...or anyone.... To illustrate, doctors should...,the patient could have...,anyone knows that...,and so on.

Jurors’ value beliefs shape the way they view the world and everything in it. This shaping process presents itself in the form of attitudes, i.e., the basic filters by which jurors weigh the evidence during trials. Discover the core value beliefs, and you can determine attitudes. Determine attitudes and jury verdict behavior can also be projected. The jurors’ value beliefs form the key to unlock the entire puzzle. But you need to have a good psychological sense in order to hear, evaluate, and interpret what is really being said when jurors speak.

Other personal traits that are useful in trial consulting include being able to facilitate a conversation (essential in conducting focus groups and jury simulations); being a strong and effective communicator (in order to detail to the attorney, in the most convincing and credible fashion, the results of jury research); being warm, open, and engaging (important in all aspects of trial consulting, but particularly during jury research and preparing witnesses); being able to work well with others, and so on.

Specific professional knowledge and skills required

In addition to the personal characteristics already listed, there also is a substantial body of professional knowledge, along with numerous professional skills, that the trial consultant must possess in order to be able to perform credibly. Legal nurse consultants who wish to provide professional trial consulting services to attorneys and others will need to be educated, at least to an initial degree, in a number of key areas. The following list of professional courses represents the essential trial consulting curriculum, i.e., the basic subjects legal nurse consultants will need to master to work as trial consultants. Each course is highlighted according to selected key topics:

?          Social Psychology-Understanding social phenomena and their impact on the individual and groups; identification of the social and psychological variables that give human behavior a predictable base; the social mediations of decision making; related topics.

?          Litigation Psychology-Power advocacy and jury persuasion; decision making through jury focus groups and jury simulations; case analysis through jury research; neurolinguistic programming; related topics.

?          Jury Psychology-Individual and group decision making, and factors affecting both; psychology of the minds of jurors’ and how the personality and value beliefs characteristics of jurors correlate with jury verdicts; jury attitudes and prejudices; post-verdict interviewing; related topics.

?          Jury Deliberations-History, philosophy, psychology, interpretation, etc; scientific studies regarding motivational factors affecting juror and jury decision making, etc.

?         Jury Research (Focus Groups and Simulations)-Theories, methodologies, purposes, procedures, protocols, samplings, plus the organization and management of interrogative focus groups and jury simulations research vis-a-vis surrogate jurors; facilitation and group dynamics;

?          Development of analogies, metaphors trial themes, voir dire questions, etc.; discussion of the case’s pivotal point; de-briefing jurors; strategic planning; database management; related topics.

?         Voir Dire and Jury Selection-Discussion of the jury system; examination of variations of voir dire proceedings in federal, state, and local courts; classification of voir dire questions to distinguish juror profile information; correlation of value beliefs, life experiences, and personality and decision making processes during the deliberation proceedings; advising and assisting attorneys during voir dire; determining and de-selecting biased jurors through question design, juror responses, and non-verbal cues; related topics.

?          Interviewing & Creative Problem Solving-Planning, organizing, and administering the interview for individuals and groups; evaluating and interpreting responses; the psychological dimensions of asking questions, etc.

?         Research & Experimental Design-Developing scientifically valid jury research results, including such topics as collecting, grouping, and presenting data; measures of central tendency and variation, theoretical distribution, probability, hypothesis testing, estimation of parameters, regression, and correlation relative to sampling and survey research; related topics.

?          Statistics-(In conjunction with research and experimental design) Collecting, classifying, and interpreting jury research findings and other related information; understanding, weighing, and properly characterizing jury research results, etc.

?          In-court Assessment & Simultaneous Juries-Advanced training in behavioral sciences, inclusive of deception cues, body language and demeanor, etc.; organizing and administering simultaneous (shadow) juries, the de-briefing of jurors; strategic planning; legal report writing; trial presentation critiques; planning and developing psychological recommendations for attorneys; related topics.

?          Questionnaire/Survey Design-Planning, development, implementation and interpretation of supplemental juror questionnaires and public opinion polls.

?          Database Planning, Development and Management-Planning and setting up databases in an organized, accessible, and accurate manner; organization of jury research findings for guidance and application in later trials and proceedings; development of business databases, etc.

?          Communications-Developing interpersonal communication skills; elements of persuasion, argumentation, and debate; understanding and interpreting non-verbal communication; group discussion; oral interpretation; negotiation and settlement techniques; related topics.

?          Witness preparations-Preparing lay and expert witnesses for deposition, mediation, and

?          Trial testimony; dynamics of direct and cross examination; plus, for the expert witness, forensic evidence, science, junk science, medical experts, etc.; and, for the lay witness, non-expert damage testimony and daily life reports; use of the video camera and related techniques; etc.

?          Demonstrative Evidence & Aids-Evidence presentation and support for such items as day in the life films, print and video settlement brochures, courtroom graphics, and other visual evidence, etc.; understanding the basics of production techniques for computer animation, print, audio/visual, and other media; discussion of sensual modalities; etc.

?          Administration-Basics of the business of trial consulting; marketing a professional practice; related topics.

?          Law-Basic elements of criminal, tort, and commercial law; compensatory vs. punitive damages; rules of civil and criminal procedures, including admissibility of evidence, discovery proceedings, voir dire process, proof of evidence, liability and damages issues, jury instructions, etc.; jury system and the voir dire process; courtroom dynamics; related topics.

?          Attorney & Courtroom Psychology & Critique-Role playing, demeanor, behavioral characteristics, personality, credibility, likability, etc.; dynamics of courtroom psychology; courtroom psychological strategies for civil attorneys and for criminal attorneys; communicating with attorneys on all case-related and trial consulting information and findings; trial theory selection; trial notebook development; related topics.

?          Acting-Study and development of acting skills, concentrating on transmitting oral statements, ideas, opinions, and judgments in the most convincing and commanding fashion.

As the above course list indicates, there is obviously much to know, and to know how to do, for one to be able to perform as a professional trial consultant. In most cases, therefore, it will be advisable for legal nurse consultants to first consider specializing in a specific trial consulting area to start. These can be categorized as follows: Jury Selection, Facilitation (organizing and leading jury focus groups and jury simulations), Witness preparations, and Simultaneous Jury Research-In-Court Assessment & Strategy. Each specialty area is in current strong demand.

Trial consulting: in demand and profitable

Legal nurse consultants who decide to expand their practice areas by providing trial consulting services can be assured that there is a very strong market nationwide for their services among attorneys and others. Trial consultants almost always are now used on the larger cases ($750,000 or more); additionally, trial consultants now offer a wide variety of highly effective yet economical professional services, making trial consulting feasible for almost all trials.

In terms of profit potential, legal nurse consultants offering trial consulting services should be able to realize an attractive monetary return for their efforts. Trial consultants starting out generally charge from $250 - $1,000 per day for their professional services, with the top practitioners currently earning as much as $30,000 daily, or more.

Regarding the marketing of trial consulting services, the tried and true standards of developing a professional practice continue to apply, i.e., the importance of networking; writing articles and giving speeches; the power of word of mouth advertising; placing tombstone notices in targeted legal and trade journals; organizing direct mail efforts to clients and prospects, creating and sending out newsletters; and so on.

Additionally, legal nurse consultants are in the ideal position of being able to offer their newly developed trial consulting services to their current and past clients. And it is important to note that trial consulting services are in extremely high demand at present, a situation that can only be expected to continue to get even better as more attorneys turn to trial consulting to help them win their cases in court.

Recommending trial consultants to attorneys and others

Regardless of its attractive profit potential or similar inducements, many legal nurse consultants may nevertheless have no desire to perform as trial consultants themselves, or to otherwise offer, even in a very limited fashion, professional trial consulting services to attorneys and others. But legal nurse consultants who wish to provide the maximum degree of service to their firm and/or clients should, however, know when to recommend that the attorney or firm consider retaining a professional trial consultant, or alternatively, to request discrete trial consulting services. To perform this task most effectively, legal nurse consultants need to have some understanding of the fees associated with trial consulting.

Trial consulting’s costs

Regarding the costs of specific professional trial consulting services, legal nurse consultants must keep in mind that each case is different and that the required level of services will vary accordingly, thus affecting overall costs. With this thought in mind, the following pricing benchmarks, while broadly gauged, are provided to assist the legal nurse consultant who wants to intelligently recommend trial consulting services to attorneys and others: focus groups, $750 - $4,500; jury simulations, $2,500 - $4,500; witness preparations, $400 - $2,000 (daily); voir dire counseling, $500 - $2,500; simultaneous juries and in-court assessments, $2,000 (daily); and supplemental jury questionnaires, $500 - $750. Such negative jurors are far more likely to focus on, and thus clearly identify for the attorney, the case’s basic problem areas. This is very useful because it is the case’s problem areas that create the most trouble. When the attorney learns what these problem areas are, then he or she will be in the best position to plan on how to handle them during the trial. Additionally, various mini-case analyses, consisting of shortened focus groups, along with similar abbreviated trial consulting services, are available for $500 to $1,000 for smaller cases. And other effective yet economical professional trial consulting services also are available.

Immense benefits provided

Considering the high stakes, financial and otherwise, that are often associated with most litigation, it would seem prudent to retain a trial consultant for nearly all cases regardless of size. Trial consultants offer attorneys highly singular and extremely reliable intelligence concerning what jurors think and feel about the case, and how their deliberations are likely to unfold. Armed with such invaluable information, the attorney can strategically plan the case most effectively. And, also most cost-efficiently. Indeed, trial consulting often significantly reduces the overall cost of conducting a trial, eliminating the need for much otherwise expensive case preparation time. The fact is that trial consulting is applicable for all but the very smallest of cases. Indeed, it is quite difficult to place a price on the following type of valuable information that trial consulting provides: being able to know precisely what jurors will consider to be most important about a particular case, what trial presentation strategy jurors will find most appealing, and how jurors will be most likely to weigh the case during deliberations.

It all comes down to the jury

For the attorney, the jury is everything. Trial consulting offers the attorney the most reliable information available regarding what the jury will think and feel about his or her case, uniquely valuable data available from no other source. The legal nurse consultant who is professionally equipped to offer trial consulting services, or is knowledgeable regarding the strategic recommendation and use of such services, will find himself or herself in constant positive demand by attorneys.

THE WITNESS CAN MAKE OR BREAK THE CASE. In the article that follows, Dr. Singer discusses the steps that should be taken to properly prepare a witness for deposition and trial. The article is now being considered for publication in a prominent legal monthly.

Professionally Prepared for Witness Preparations?

You can’t adequately prepare a witness unless you first treat his or her psyche

In a symphony, one false note, the drum roll that shouldn’t have been, the flat trumpet call at precisely the wrong moment, can ruin an otherwise lovely performance. It’s the one musical element the audience all will remember.

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. 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. One bad witness, one false note, and suddenly, everything is upside down. 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.

Masterful lawyering is essential to courtroom success. But in an era so heavily biased against lawyers, skeptical jurors often distrust lawyers, and tend to disregard attorney oratory - they want to hear what the witnesses have to say. Indeed, witness testimony and demeanor are usually the primary factors upon which jurors base their decisions. Powerful opening statements and dramatic closing arguments are of little account if the witnesses are weak and/or unappealing, and their testimony flawed, contradictory, and damaging.

Attorneys often fail to focus on witnesses

When tightly contested cases don’t settle and instead go to trial, witness testimony often proves to be the deciding factor regarding who wins and who loses. Despite this well-known fact, attorneys seldom provide witnesses with the attention they deserve.

A major complaint by plaintiffs today, according to the Florida Bar Association, is, My lawyer never has enough time for me. This is odd. In most cases, the client will be the attorney’s key witness, and no one knows the case better than the client. (The case is often the single most important factor in the client’s life. Research indicates that many clients dream about their cases!) The client many times will intuitively understand the problems of the case, along with its solutions. And although he or she is anxious to reveal these special insights and knowledge, the attorney often times is too busy to listen.

The truth is that attorneys would try cases without witnesses if they could. When it comes to their cases, attorneys want (indeed, need) to be in control; but witnesses, being human, are not always subject to control and direction. Attorneys find this situation very frustrating, because it means that witnesses are liable to say anything in court. For the attorney, the average witness can often seem as a dangerous grenade with the pin pulled out, ready to explode.

Additionally, it is the attorney who plans, builds, and presents the case, a complex, difficult, and laborious construction. Often, he or she doesn’t want the pesky little client/witness interfering with the grand design.

This fear of, lack of respect for, and inattention to, the client as witness manifests itself most clearly when it comes to witness preparations. By their actions, many attorneys seem to regard this critical activity as almost a relatively minor sideline to the main trial preparation effort.

In many cases, for example, junior associates, even paralegals, are assigned primary responsibility for witness fact-gathering, along with witness preparations for deposition and courtroom testimony. Why is it a surprise that the delegation of these key tasks to assistants often leads to trouble at trial time?

The film A Few Good Men dramatically illustrates this point. Tom Cruise plays a Navy attorney defending two Marines accused of murder. In one scene, he flies into a manic rage because the inexperienced lawyer assisting him with witness fact-gathering failed to secure vital information from the defendant about his whereabouts at a critical time, information which came out in the most damaging manner earlier during cross-examination. Worried that the case has just blown up in his face, a drunken Cruise rants and raves uncontrollably at the shocked assistant for failing to draw out all the key facts during the fact-gathering session with the witness. But who is more seriously at fault in this situation, the assisting attorney, or the lead attorney, as played by Cruise, for his own failure to invest more importance in, and focus to, the witness fact-gathering/preparations aspects of the case?

If witness preparations are not handled adroitly, numerous problems can develop during deposition or trial, skeletons in the closet that no one learns about during witness preparations, but surface like stink bombs during deposition, or in the courtroom; extreme 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.

Indeed, there are 1,001 different ways the witness can shoot himself or herself in the foot while testifying. If not adequately prepared, far too many witnesses need to be helped off the stand after testifying…the poor witnesses don’t have any feet left, and most of their legs are gone, too!

Witness preparations-vital to courtroom success

Since witnesses play such a critical role in the courtroom, attorneys must elevate witness preparations to a far more pivotal element of their overall trial planning and preparation activities. But in order to do this effectively, attorneys should first consider the underlying dynamics of witness preparations.

Witness preparations is about people, who they are, what they feel (and fear), what makes them tick. Most importantly, witness preparations is about how people perform in stressful, difficult, and demanding situations. If the witness has psychological hang-ups, these definitely will come out during depositions and courtroom testimony, usually to confound the witness, and to damage his or her testimony.

During witness preparations, it is therefore incumbent for the attorney to first understand the psychology of the witness. Once the attorney has gained this vital knowledge, he or she can then better deal with the witness’s psyche, i.e., address the witness’s psychological strengths in regards to depositions and courtroom testimony, and also try to minimize the witness’s psychological weaknesses.

The psychological edge

More and more, attorneys are turning to trial consultants formally trained in psychology to help them prepare witnesses for deposition and trial. (When dealing with witnesses in a professional capacity, licensed psychologists can claim and are granted a privilege regarding confidential information revealed to them.) Such witness preparations assistance by a trained psychologist/trial consultant can be invaluable in discovering witnesses’ personality types, along with developing successful techniques to deal with each.

The trial consultant trained in psychology will also know how to get those ever-present skeletons out of the closet during witness preparations, so as to minimize the damage they can do later. Plus, he or she will be armed with an entire repertoire of techniques to help the witness overcome stage fright in order to deliver the most effective possible testimony during deposition, or on the stand.

The psychologist/trial consultant also will be professionally able to help the witness project his or her personality in the most positive possible light. This is absolutely essential with juries. Numerous studies, plus my firm’s own 17 years of jury research, indicate that witness likability is of even more critical importance to jurors than witness credibility. If jurors don’t like the witness, they have a tendency to tune out what he or she has to say. If, on the other hand, jurors like the witness, they will often disregard credible and highly incriminating testimony against him or her. The William Kennedy Smith and 0.J.Simpson trials provide clear evidence of this bedrock propensity on the part of jurors. (Although the charismatic Simpson never took the stand, it is clear that many of the jurors, just as many Americans, felt very favorably toward him.)

To sum up, the psychologist/trial consultant can help the witness overcome the customary fears associated with testifying in court by employing various professional techniques to essentially bolster and buttress, and thus to free up, his or her psyche. As a result, the witness will be far more receptive, psychologically, to advice, suggestions, and recommended techniques that he or she should employ to effect the most convincing possible testimony during deposition and while in court.

Assisting the witness along these lines can be a complex professional task. Indeed, it involves nothing less than helping the witness successfully address and overcome his or her own internal doubts, guilt, and fears. Such emotional catharsis can only be achieved by a licensed therapist utilizing sophisticated psychological counseling treatments and techniques. It is extremely difficult for the witness to testify to maximum advantage without such professional assistance.

Trial-tested witness preparation techniques

Witness preparations should be designed to help the witness: maximize his or her likability with the jurors; 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; mentally organize and have readily available all necessary information and/or knowledge; and, in the case of expert witnesses, illustrate depth of learning and expertise.

Another key goal of witness preparations 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 depositions, and while they are on the stand. They should realize that much of the deposition process, and of cross-examination, is a mind game (and a word game); and that the way the opposing attorney wins is by tripping up the witness to make him or her look bad.

This means that, among other things, witnesses must learn not to volunteer information, and to be as brief as possible in their answers. Witnesses need to practice their testimony so it becomes second nature for them to answer questions with tightly circumscribed responses: Yes, No, I don’t know, I don’t understand the question, and I don’t remember. In the courtroom, brevity is best.

Also, witnesses should understand that when they take the chair, they have every right to insist that opposing counsel carefully parses his or her questions so the witness’s answers cannot be intentionally misinterpreted. For example:

Attorney:	Ms. Smith, do you consider yourself a hard-working employee?
Witness:	That depends on what you mean by hard-working
Attorney:	Come on, Ms. Smith. Everyone knows what hard-working means in that context.
Witness:	I don’t agree. People often use the same terms to express different concepts.
Attorney:	Ms. Smith, professional employees at the XYZ Company normally work 50-60 hours weekly. Did you?
Witness:	I generally worked 40 hours or so each week at XYZ.
Attorney:	Ah-hah! So by the standards at XYZ, you were not a hard-working employee.
Witness:	Let me repeat. I generally worked 40 or so hours each week at XYZ.
Attorney:	You are evading my question, Ms. Smith.
Witness:	No, I am being fully responsive. I am informing you precisely how many hours I would normally work each week.
Attorney:	I give up. No further questions, your honor.

As the above example illustrates, the attorney clearly hoped to trip the witness up by forcing her to respond to the highly judgmental question regarding the issue of hard-working with a lose-lose answer. If the witness states that she is a hard-working employee, the attorney can attempt to cast her as a liar on the stand. If, on the other hand, the witness answers that she is not a hard-working employee, she will have presented herself to the jurors in a negative and potentially damaging way. By refusing to answer according to such arbitrary (indeed, loaded) semantics, the witness avoids this dilemma.

What about expert witnesses?

In terms of expert witnesses, witness preparations need to focus on techniques to help the expert become a good teacher regarding the interpretation of the data he or she must relate in court. (Jurors pay attention to and remember what they learn). Another important goal is to find some light-footed way the expert can introduce his or her professional credentials without seeming boastful. (Information concerning how this can best be accomplished is presented later in this article.) The preparation session(s) also should focus on ensuring that the expert does not stray from limiting testimony to his or her particular area of expertise.

Use metaphors and analogies

Expert witnesses should learn to use metaphors and analogies to explain key points to the jurors. Such powerful mental imagery taps right into the subconscious minds of jurors. The following example illustrates this point.

During a dry condemnation case in which I participated, an appraiser was testifying in court as an expert witness for the landowner. He was able to quickly capture the interest, attention, and imagination of the jurors, and more important, seal the outcome of the trial, through the use of an astute analogy.

The expert witness stated that, for the plaintiff, the threat of condemnation was just like waiting for the other shoe to drop. Shortly after his testimony was concluded, the jurors quickly awarded the landowner the full amount that they had requested as fair market value. The jurors later indicated that, due in large part to the expert witness’s clever analogy, they all could personally empathize with the plaintiff, and the worry and sadness they felt about the condemnation of their property.

In short, the witness’s crystal-clear image simply knocked the jurors’ socks off. Great metaphors and analogies have that special power. They are linguistic branding irons that sear directly into the subconscious so the ideas they represent cannot be removed or replaced.

Experts should avoid long narratives

Expert witnesses should avoid long, rambling answers, Such answers defeat their own purpose, i.e., to educate the jurors. People will tune out a long-winded and boring person after a while and cease to pay attention. Jurors are no different. (This is especially true when it comes to expert witness testimony in court, which often can be highly abstruse, technical, and difficult to follow.)

The way around this problem is for the attorney to break up the witness’s testimony through a series of well planned questions, each requiring a focused and concise answer. The effect achieved needs to be as a tennis match, question, answer, question, answer, question, answer. This brisk back-and-forth exchange between the expert and the attorney will help lock the jurors’ attention to each separate bit of information being provided.

Indeed, each question by the attorney basically spotlights the expert witness’s response to follow as new (and thus important) information. This spotlighting effect is very difficult to achieve by the witness alone through a long, rambling narrative.

Attorneys are familiar with the concept of primacy, i.e., 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.

Nervous witnesses are not strong witnesses

One of the biggest problems lay witnesses face is overcoming stage fright and nerves, not only while testifying on the stand, but also during deposition. Witness nervousness on the stand is a major problem because it undermines witness likability (it is almost impossible for the witness to project a positive image with the jurors if he or she is a bundle of nerves); and credibility (jurors immediately begin to ask themselves the same question: What does the witness have to be so nervous about?).

Furthermore, a highly nervous witness can easily become confused during deposition, or while on the stand, and thus fall into the trap of offering up damaging testimony. For these and similar reasons, witness preparations should provide witnesses with worthwhile stratagems and techniques they can readily employ to reduce their nervousness to manageable levels while being questioned.

There are numerous mental exercises psychologists have developed over the years that can help witnesses in this area. While somewhat time-intensive to master, these cognitive rehearsal exercises have proven extremely successful in helping witnesses overcome nervousness when testifying. They are always conducted prior to physically putting the witness in a simulated dress rehearsal testimony situation.

Systematic desensitization

Some witnesses become virtually paralyzed by the fear of having to testify in deposition. or in court. Unless the attorney can find a way to help such a witness overcome this all-encompassing internal panic, the witness will likely prove to be 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 just 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 classic relaxation techniques, along with hypnotic and similar suggestions, to help the witness selectively and successfully deal with the anxiety-inducing stimuli that he or she associates with testifying during deposition, or in the courtroom.

The least anxiety-producing scenarios are dealt with first, then, progressively, the more difficult ones. This is handled through the employment of imaginative mental exercises relating to the real courtroom scenarios to follow. For example, the witness may be encouraged to visualize sitting by the shore in the late afternoon on a bright, beautiful day; 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 will then be taught how to instantaneously tap into this (or a similar) calming image during the most stressful situations, while testifying in deposition; while taking the stand; while facing the judge, the jury and the lawyers; while answering questions in direct examination; and, finally, while answering questions during cross-examination, and possible rebuttal. Each anxiety-producing scenario will be acted out, over and over, with the witness being encouraged each time to summon up the serene imagery before responding to a specific question.

This type of mental relaxation training parallels especially designed therapeutic techniques psychologists and psychiatrists have successfully used for years to help their patients overcome their fears of flying, of driving, of acting or entertaining on stage, of public speaking, and so on. When professionally administered, such training can work equally well to help witnesses overcome their fears of testifying in court.

Positive imagery

As the witness answers questions concerning the facts of the case, the psychologist/trial consultant continually prompts him or her to envision a series of highly positive responses to each answer provided - Imagine the jurors applauding as you give them your answer, Imagine the jurors smiling kindly as you speak, Imagine the jurors nodding their heads in agreement with what you have to say.

Often these mental training exercises concentrate on responses that may prove to be potentially embarrassing to the witness, e.g., Imagine the jurors cheering your honesty as you reveal some of your personal faults and peccadilloes.

Over and over, through this carefully structured session (or sessions) of positive reinforcement, the psychologist/trial consultant helps the witness learn to feel at ease while testifying. At the same time, the psychologist/trial consultant is providing the witness with a proven cognitive methodology he or she can quickly call up and draw on for strength when being questioned for real later.

Psyching-up strategy

Witnesses who are greatly intimidated by the particular fear of being questioned by the opposing counsel need to find some way to overcome this emasculating concern. One proven way to accomplish this is for the psychologist/trial consultant to help the witness learn how to visualize the opposing counsel as a burlesque character.

While the psychologist/trial consultant asks a series of tough questions that are likely to come up during cross-examination, he or she may first prompt the witness to visualize the opposing counsel asking the same questions in any one (or more) of a number of ludicrous and personally embarrassing scenarios, while the opposing attorney is sitting on the toilet, while trying to juggle blobs of Jell--O, while being chased around the room by a quacking duck, or something equally comical.

The witness is not permitted to respond to any questions until the goofy goose image of the opposing counsel is firmly planted in his or her mind. Similarly, the psychologist/trial consultant may ask the witness to answer the same series of questions, then imagine the attorney sobbing uncontrollably at the responses, throwing a temper tantrum and pounding the floor, or reacting in some other silly manner.

The point of these exercises is to help the witness see the opposing counsel less as some all-powerful Grand Inquisitor, and more as just another frail, fallible, and foolish human being, no Perry Mason, but one of the Three Stooges instead. When you can laugh at someone, you stop taking them so seriously. It is important, however, to point out that these mental training exercises are organized not to underestimate the adversarial purpose (and accompanying potential danger) of cross-examination, but rather to eliminate or at least substantially reduce the intimidation factor that may be associated with the opposing counsel.

Attention-focusing

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 voluble, 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 compulsions. (Clearly, this is another strong indicator why it so crucial that a psychologist/trial consultant be employed to help the witness achieve the all-important state of psychological catharsis prior to deposition and trial testimony.)

Witnesses must learn to: 1) listen carefully to the questions being asked of them, and 2) neatly limit their answers to only 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 game in which the witness earns points each time he or she answers a question squarely and succinctly.

A variant of these exercises is to instruct the witness to slowly count out loud to 10 before he or she gives an answer. Once the witness has mastered this activity, he or she will then be asked to practice counting silently to 10 before answering. This period of silence, of course, provides the witness time to carefully think about and to plan his or her answers. Plus, it permits the witness’s attorney 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.

Along these lines, the psychologist/trial consultant will want to alert the witness to be watchful for common interrogatory ploys the opposing attorney may use to try to get the witness to inadvertently (and unnecessarily) expand his or her testimony (e.g., muttering, Yes or And? or something similar after the witness has provided his or her response, then waiting, expectantly, for more information (the pregnant pause).

Emotional arousal

Some plaintiff witnesses, even though they have or are suffering tremendously due to their litigation complaint, fail to register any emotion when being questioned about their damages. Such witnesses have excessively flat affects. It often proves difficult for the jurors to empathize with them as a result.

For this type of witness, the psychologist/trial consultant often must use intensive clinical counseling techniques to help the individual tap into, and bring forth, his or her emotions (which are definitely present at a subconscious level) in a manner more appropriate to the circumstances. Of course, there is a well-known term for such highly effective professional counseling assistance; this process is known as therapy.

Although some witnesses have trouble exhibiting emotion in the courtroom, this is certainly not the case for most witnesses. Indeed, trial proceedings can be absolutely devastating emotional blockbusters for witnesses; as such, they can trigger extremely strong emotional responses. People cry uncontrollably at trials. They shout and curse at each other. Sometimes fist fights break out inside the courtroom. This is why the psychologist/trial consultant’s therapeutic approach to aid the witness during trial time can be so invaluable. For the fact is that during a trial, the witness, more so perhaps than at any other time in his or life, needs therapy.

Frame-of-reference training

As discussed, the questioning of witnesses is a mind game and a word game. If the witness is not taught the rules of the game, or how to play it successfully, he or she is likely to fail miserably during deposition, or when on the stand. In this regard, competent witness preparations should include special linguistic exercises known as frame-of-reference training.

Opposing counsel knows that if he or she can trip up the witness on the stand so the witness 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 and maneuver a goal-oriented and carefully directed conversation so as to make the person answering the questions appear not to be telling the truth. To illustrate, consider the following sample exchange:

Tony:	Has anyone ever given you a loan?
Bill:	No.
Tony:	You’re positive about that.
Bill:	Yes, absolutely.
Tony:	Didn’t your father lend you $100 so you could get an apartment when you were just out of college?
Bill:	Well, uh, yes.
Tony:	Money that you were to pay back?
Bill:	Umm, that’s right.....
Tony:	So when you said a few seconds ago that you have never taken a loan, you were lying, correct?
Bill:	Well, I wasn’t lying.....
Tony:	No? What would you call it?

While this Q and A dialogue is painted with broad brush strokes to clearly make a point, it illustrates the problem inherent in trying to speak truthfully, but being in a position to easily be tripped up so as to appear to be lying.

The witness needs to learn that, in the courtroom and during deposition, 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, i.e., 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.

In other words, witnesses need to learn to strictly confine their answers only to information and knowledge they are currently in touch with and are sure of, and nothing else. In this context, I don’t remember or I don’t have enough information to answer that question may be perfectly legitimate responses. The witness must become an expert in knowing how to frame all answers in this carefully qualified manner. So, for example:

Tony:	Has anyone ever given you a loan?
Bill:	As I sit here right now, I can’t recall any.
Tony:	Didn’t your father give you an apartment loan of $100 right out of college?
Bill:	You know, you’re right. That was over 30 years ago, but now I remember. Thank you!

By answering questions in this controlled but truthful style, the witness automatically inoculates himself or herself against being tricked into committing a faux pas regarding the particular line of questioning. In effect, the witness always leaves room to again answer a particular question, but with a different response, based on new or recalled information. Of course, the witness must learn to use such answers judiciously.

Additionally, the witness needs to answer only according to what he or she can precisely attest to, i.e., the highly concrete details he or she saw or heard. So, for example:

Attorney:	You’re saying then that the doctor killed your mother by giving her the wrong medicine?
Witness:	I saw the doctor give my mother an injection. Immediately after receiving it, my mother begin to clutch her throat and gasp for breath. She then fell to the floor and rolled around, trying to breathe. After a short while her face began to turn blue. Soon, she stopped moving and became silent. The doctor pronounced her dead a minute or so later.

The witness must never infer. this should be left to the jurors. This way, the witness will not get himself or herself into trouble during deposition, or when testifying on the stand.

Regarding this issue of inference, it was stated earlier that, when it comes to experts, one goal of witness preparations is to find a graceful way to introduce the expert’s professional credentials and accomplishments without appearing boastful. This is often best handled indirectly, through inference. The following dialogue illustrates this point:

Attorney:	Doctor, you are the author of the 1,500-page book, Neurosurgery and the Elderly Patient, are you not?
Expert Witness:	Yes.
Attorney:	And your book is required reading by surgical residents and students in most major medical centers, medical universities, and teaching hospitals in the United States and Canada?
Expert Witness:	That’s correct?
Attorney:	When was your book first published?
Expert Witness:	1978.
Attorney:	And it has been re-published many times since then?
Expert Witness:	Yes, it has.
Attorney:	How many times would that be, Doctor?
Expert Witness:	Sixteen times, as of its most current printing.
Attorney:	Thank you, Doctor.

The attorney is able to adroitly position the expert witness as a respected neurosurgical authority concerning elderly patients by referencing her book. Note that the attorney does not come out directly and tell the jurors that the expert is a leading authority on Neurosurgery in the United States and in Canada. He lets the jurors infer this knowledge from the facts presented.

When should witness preparations take place?

Normally, it is a good idea to prepare the witness shortly before deposition is to take place, 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.

For most court cases, such comprehensive witness preparations, as organized and conducted by the outside trial consulting/psychology firm, should fit well within the overall trial budget. For instance, an entire day of professional witness preparation activities can be handled for as low as $400. This represents 8-10 hours of intensive one-on-one activity between the witness and the trial consultant.

How should witness preparations be conducted?

As discussed, witness likability is critical to a successful trial outcome. Therefore, witness preparations need to be organized so the witness can learn what areas of personal style, speech, demeanor, and delivery should be worked on and improved

Often, this can best be achieved through the use of operant conditioning techniques employing mirrors and video cameras. If the witness can see how he or she comes across when giving testimony, then it will be easier for the individual to accept constructive criticism and advice regarding his or her performance and personal style.

The mirror is preferable for immediate feedback. Through its use, the most dramatic changes can occur regarding the strength and effectiveness of witness testimony. The mirror never lies.

The video camera should be used as a follow-up. It can help the psychologist/trial consultant and the witness determine and discuss the witnesses’ specific emotional states at particular points in the testimony, How did you feel when that question was asked? How did you show what you felt? Is such expression of emotion useful when testifying? If not, let’s consider some stratagems that can be employed to help achieve more emotional control.

Jury simulations can be helpful

It is also extremely worthwhile to have the witness practice giving testimony in front of surrogate jurors 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 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 e.g., 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.

Armed with this type of specific data, the attorney will know how to best plan his or her questioning of the witness, what things to stress, what areas to avoid, and what will be most relevant and important to the jurors.

Crazy Aunt Lizzie

For many attorneys, the average witness is often regarded and treated almost as a Crazy Aunt Lizzie-type character, i.e., a goofy old spinster kept squirreled away in the attic so she won’t smash up the furniture, microwave Fido and Tabby, or burn down the house. For the family, keeping Aunt Lizzie locked up and away from the matches, babies, and pets may be a workable strategy. The handsome young suitor calling on pretty sister Polly may never need to know about nutty old Lizzie up in the attic, talking to herself.

But, when it comes to court cases, out of sight, out of mind just doesn’t work. Sooner or later, the attorney must introduce his or her witness(es) into the trial mix. It is vital, therefore, that the attorney ensure that all witnesses are fully and competently prepared in advance. This means that when it is their time to take center-stage and testify, they will be able to come across in the most attractive possible fashion, and will provide the strongest and most relevant testimony.

BONDING WITH THE CHILD, involving a therapist early in the case, if necessary² to employ highly respected therapeutic methodologies, and preparing the child to deal successfully with complex courtroom language and practices will benefit the child, the attorney, and the case. In this article for TRIAL Magazine, Dr. Singer opens hearts and minds.

Preparing the Child to Testify in Civil Actions

With kid gloves on live, love and learn.

Litigation can be an emotionally draining procedure for all parties involved. Months of discovery and preparation by counsel culminate in one final showdown to zealously represent their client. Jurors, having been ripped from their daily lives, are carefully examined and subjected to a rigorous deselection process; those who are retained reach determination on the case. The judge sits to render impartial rulings. The litigants and their families rely upon their attorney to advocate their side to success. The process is exceedingly difficult on lawyers and their adult clients. Imagine that your client is a child who must testify in a highly upsetting case. How do you prepare a child witness without further traumatizing him? How do you prepare him to convey the evidence sufficiently to convince a jury?

In many ways, the child witness can be viewed like a vulnerable adult witness. Those who are easily led or swayed can be counseled to gain confidence to stand their ground, the nervous witness can be trained in techniques to calm himself, a soft-spoken interpreter can be hired to communicate for a non-English speaker, and the aid of experts can be enlisted to speak for the brain-damaged plaintiff. In addition, relaxation therapy, speech and presentation coaching, and similar techniques can be used to help clients improve how they come across to jurors. But how can you deal effectively with the severely injured child and the child whose defense mechanisms are so forceful that they are, as I term it, walking with walls?

A child in these circumstances already has been through a traumatic event that may necessitate his presence in the courtroom. He must be prepared as best as possible to remain calm and to provide testimony that is reliable, accurate and truthful. Oftentimes in civil trial, a child will be called upon to reenact an accident or to recollect a parent’s death or a scary event. How does the attorney get the child witness to reveal this kind of emotional testimony without further traumatizing or frightening the child?

The Human Connection

Just as the rabbi prays with his congregation and the teacher is patient and comforting with her students, so also must the attorney form a close bond with her clients to achieve the best results. To that end, the attorney first must know how to communicate effectively with all people, especially with children. Unfortunately, however, law schools teach procedures, omitting the critical human element that people, attorneys, clients, judges, witnesses, and juries, undeniably are the real keys to litigation. Few areas of study and application are more important to the attorney than witness preparation techniques. The client, the most critical component of the case, must be the attorney’s priority.

When a child is the client, one important step is for the attorney to interact more on the child’s level. I sit below children when talking to them. If the attorney doesn’t feel comfortable sitting on the floor below the child, she can sit on a chair that is slightly lower than the child’s. In this way the child won’t feel intimidated but will feel more in control. I also am careful to use small words and short sentences and to speak patiently, in an even, rhythmic tone. I try to remember what its like to be a child, how I wanted to be treated, and what I was able to understand; then, I proceed accordingly. Children are more perceptive than many adults assume them to be, and they aren’t stupid. They don’t like to be talked down to or forced to feel rushed, nervous, or otherwise uncomfortable, and they don’t trust people who make them uncomfortable. Imagine that a man is talking to you and you can understand little of what he is saying. This type of situation would be especially difficult and critical if you had to do something you had never done before, something that could be the most important step in your life, to affect you for years to come. In real life, children often are up against such odds. They need compassionate attorneys in their corners in order to guide and help them through such scenarios successfully.

It is critical for the attorney to establish trust in a relationship in order to bond with her client. Bonding with a child requires an even deeper and unselfish commitment of time, respect, sincerity, compassion, empathy, and patience. Only by applying these key human elements will the attorney bond with him, even to the point of loving him. Also, whereas the successful attorney is accustomed to spending quality preparatory time with the client immediately prior to deposition and at trial, she will have to be all the more committed and perseverant with the child witness, especially one who has undergone a traumatic event. Only in this way will she elicit the story that the child must tell, the truth that the jury wants to hear. The key to disclosing this kind of testimony is found within the child himself. The attorney must act as legal advocate and mentor to her young client and must not take liberties in areas of therapy to which she is not qualified. True success in the courtroom is allowing the child to deal with the trauma and to move forward with emotional stability, regardless of whether or not the child ever takes the stand. The attorney must be perceptive in determining what kind of emotional and physical assistance is necessary for the child.

Involve a Therapist Early in the Case

Although the attorney must always be keen to the child’s stability, when she perceives that the child may act as a witness, she must ensure that child’s optimal mental health. Some children should never be put on the stand; others need to relive the experience time and again to be able to accept their reality. The moment the attorney determines that psychological help is necessary for his client, the attorney should immediately enlist the aid of a child therapist to assist in the case.

The attorney’s role in dealing with the child witness is to connect with her client as a mentor/advocate/confidant. The child can provide valuable insight into allowing the jury to understand the case. The attorney needs to know how to draw out this information and must stay close to the child to provide the psychic comfort that is so desperately needed. What are the best approaches to get the child to reveal his experiences? The ideal scenario is when the psychologist and the attorney work hand in hand. The therapist will know when to move forward and when to back off. The mental health advocate uses different techniques in allowing the child to vocalize the events that transpired to cause the emotional trauma. There are no hard and fast rules regarding the types of techniques used in each situation. The therapist will evaluate each case and the stability and emotional maturity of the child. Following are some of the most highly respected therapeutic methodologies used in witness preparation today.

Psychodrama

Psychodrama is one of the therapist’s most valuable tools in breaking through a child’s defenses to enable him to reveal painful memories. This therapeutic role-playing necessitates the involvement of the attorney to interact with the child in a manner to recreate the event to portray the child’s grief or anxiety. Psychodrama has been used as a highly effective form of therapy since the 1920s. This process allows the creation of a therapeutic stage for the child to overcome his inhibitions and to act out his inner self in a spontaneous, creative way. The activity involves the dramatization of a personal tragedy in front of the attorney and should be organized and conducted only by a trained psychologist licensed to practice psychodrama. The trained director helps to recreate scenes, the story, that otherwise might not be possible.

Creativity and spontaneity are power-packed assets at trial. Psychodrama, in using action instead of merely words, can be more empowering than other traditional verbal therapies. It reveals an undeniably accurate past, enables understanding while promoting healing, and tells the deepest truths for our client’s greatest benefit.. This type of courtroom communication establishes clear credibility and a powerful connection between the witness and the jury, and even between the attorney and the jury.

Role Reversal

Role reversal, normally a non-clinical application, is an incredibly advantageous technique used in psychodrama. In this commonly used method, the lawyer can see and understand the situation through the eyes of her client, a potential juror, and the judge. Role reversal is exactly what the name implies. The lawyer adopts the role of her client, the child. By sincerely attempting to feel the pain and anxiety of the child, the lawyer is connecting with the child. During this form of therapy, the child freely inputs his emotion to correct the lawyer’s interpretation of the pain the child suffered. By assuming the role of the child, the attorney is better able to understand and empathize with her client. This setup also sometimes brings out important information that otherwise may not be revealed. Role reversal is an effective way to eliminate barriers of communication and to assist in developing close emotional ties between child and legal advocate that extends beyond the ordinary attorney/client relationship. In so doing, the attorney reveals her true humanity and trustworthiness, key elements that jurors seek at trial and that can produce more effective communication between attorney and judge. The impact of the attorney’s storytelling is a way of connecting with the trier of fact in an empathetic and compassionate manner.

Play Therapy

Another technique, initiated by professional therapists in the 1920s and 1930s, is play therapy. Playing is obviously a necessary part of every child’s life and growth. It offers excellent opportunities to release tension, to enhance self-expression, and to heal pain and sadness. Even two- and three-year-olds can exhibit and reveal unconscious fears through post-traumatic play. The child is asked to replay the events that transpired while the therapist evaluates the results. Children do not have the ability or the vocabulary to express themselves. How do you ask a six-year-old to tell about the loss of his father? One method of play therapy is to observe the interaction between two dolls: one doll represents the child while the other doll represents the father. The therapist observes the interaction between the two dolls and can testify at trial regarding the psychological implications inherent in those observations. The child receives the benefit of being allowed to express his feelings without being traumatized further in a courtroom setting.

In one particular case, we found that the father of the six-year-old child had sung a lullaby to him every night at bedtime. After the father’s wrongful death, the boy could not sleep alone; he wet his bed and refused to listen to music at night. He never spoke about his father but associated his dad with songs, the bed and going to sleep. How would such circumstances affect a young man when he is dating or when he is a father? Intensive play therapy, using the two dolls to represent the boy and his father, was needed to deal with the child’s grief of losing his father. Despite intensive therapy, ten years later the boy still has sleep disorders and may have them for the rest of his life. These disorders were reflected in his damages. Our intervention was crucial to allow him to begin to heal.

Walking with Walls

Psychodrama is a wonderful way to connect with persons who are walking with walls. The child experiences an unsettling event and builds defense mechanisms to cope with reality. Several years ago I was called in to assist in a wrongful death claim. The case involved a hard-headed and overtly brash seventeen-year-old girl who had lost her father to carbon monoxide poisoning. Her father, a bar-hopping sailor, was somewhat of a character himself. The girl often sought his fatherly counsel after she had fights with her mother, who had custody of her. Following his death, the girl felt that she had no one who understood her, and her behavior became increasingly volatile. Fortunately, her attorney understood that a staff of professional therapists was critical to understanding her anguish over losing her father. He knew that her harsh demeanor was not going to endear her to the jury; her perception was her reality. Using psychodrama methodologies, we were able to understand how deeply she missed her father. We utilized a technique involving an open letter to her father wherein we asked her to address what made their relationship so special and to use five words to describe him. She revealed that her father was akin to an imaginary friend who represented the healthy part of her. Through strictly controlled methods, we were able to break through her walls. Once again, she became a soft-spoken young lady, behaving as she had when her father was alive. The transformation was so incredible that the jury was able to empathize with her and to comprehend the severity of her pain. By understanding her mental crisis, her attorney was able to think not as a lawyer but as a human being and, then, to persuade the jury to do the same.

Systematic Desensitization

Systematic desensitization is a technique used to reduce the witness’s anxiety. The idea is to associate the anxiety-provoking stimuli with peaceful relaxation. To this end, we use imagination first with progressive relaxation techniques. Then, we do it in a real-life setting. The child’s anxiety can involve fear of the dark or of testifying and/or of explaining the ordeal that caused the original anxiety. Imagine how upset a child may become by having to explain something to an adult, especially to a stranger.

I once consulted in a case involving an adorable nine-year-old girl who had been hurt badly in a car accident and had lost her foot. From that child came the most compelling testimony regarding the painful surgeries that she had undergone, the fear of additional surgeries, and the fear of being made fun of by other children. Her insightful testimony stood to make her case worth millions more than originally had been envisioned. However, one roadblock stood in the way: she was afraid of the courtroom. We discovered that, for her, the key was relaxation. Using relaxation techniques in a neutral setting, we encouraged her to imagine herself entering the courtroom, walking to the witness stand in a relaxed state of mind, and confidently telling her story in her own words. We repeated these techniques in a dry run within an empty courtroom. Our hard work paid off. At trial, she won the hearts of the jurors.

Within the past decade a similar successful treatment technique, known as Traumatic Incident Reduction (TIR), has been advocated in certain severe cases to connect with child witnesses. TIR is rooted in psychoanalytic theory and desensitization methods. In this method, the child repeats the traumatic event under safely structured conditions to permanently eliminate the negative effects of a past trauma. If it is determined that he can safely and willingly testify at trial, this repeated rehearsal allows him to feel comfortable. The smell, the surroundings, and other things foreign to him are rehearsed until he is comfortable to tell his story in the courtroom setting. Again, this type of therapy must be conducted by licensed mental-health professionals in a safe, distraction-free environment, over a series of therapy sessions to effectuate desired results.

Gestalt Therapy

Yet another useful tool in connecting with the child witness is found in role-playing through Gestalt Therapy, in which the child faces his anger or fear through the use of inanimate objects. In this technique, he sits opposite an empty chair, which represents his fear or anger. He expresses his feelings to the object and learns to overcome his anxieties. In this form of directive therapy, a therapist structures and creates the play situation in an attempt to provoke the child’s unconscious behavior, challenging the child’s defense mechanisms and leading him in positive directions. In psychology, we know that experience is a compound of elements. This theory involves reconstructing a traumatic experience, identifying its elements, and working to understand how the parts are related to the whole. In so doing, we then are able to understand why each remembrance of the event or a part thereof continues to be traumatic and to work to desensitize the patient’s emotional reactions to it over time. For example, if a child were hit by a truck while riding his bike, he might develop a fearful association with certain sensory perceptions, things he saw, felt, heard, smelled, or even tasted during the accident. It could be the sound of brakes squealing or metal crunching, the feel of asphalt, or the smell of rubber burning. It isn’t just the sight of the truck or the impact of the accident that he remembers or a fear of riding his bike. It’s the underlying elements that unite to form, to relate to, and to represent the whole of the experience. These elements are then identified, understood, and worked through in order to rid him of all such associated fears and anxieties. Imagine how powerfully this child’s testimony would connect with the jurors’ own fears and emotions. Involving the jurors in this child’s story will help them to see what he saw, hear what he heard, and feel what he felt.

Child in the Courtroom

If children must testify directly at trial, attorneys must educate them regarding what to expect and to make them comfortable, even to the point of visiting an empty courtroom. Walter Peters, in Preparing Children to Testify (Trial, May 1999), explains, Even if you quiz the child or role-play many times, the child will probably still have questions or doubts. You should ask the child how he or she feels about going into court to be a helper and allay any irrational fears the child may have.

Child witnesses also can be taught to deal successfully with complex courtroom language and to resist suggestion at trial. To a child, the courtroom is filled with highbrow phraseology or even ridiculously-phrased questions. Fortunately, however, courtroom preparatory programs can serve as highly effective coping strategies. Studies performed by Walter Peters and Narina Nunez, of the University of Wyoming’s Department of Psychology, suggest that even preschool children may benefit from preparation programs known as comprehension-monitoring training (CMT)1. Through CMT, children can learn about the courtroom and how to combat incomprehensible questions. For example, such training could help children to counteract ridiculous, yet possibly tricky, situations such as the following:2

Opposing Counsel: What is your date of birth?

Answer: July fifteenth.

Opposing Counsel: What year?

Answer: Every year.

A child looks forward to celebrating his birthday every year, right? How else could the average child be expected to respond? The next example probably is less confusing but equally ludicrous.

Opposing Counsel: You say the stairs went down to the basement?

Answer: Yes.

Opposing Counsel: And these stairs, did they go up also?

What would a child make of that one? His likely response could be, What? Where? or even Duh! Such responses are reminiscent of John Travolta’s Italian teenage heartthrob character, Vinny Barbarino, in the 1970s TV show Welcome Back Kotter.

It’s clear that children may need the assistance of professionals to cope with confusing questions that may be asked of them at trial. Peters and Nunez concur that CMT may be a useful tool in enhancing children’s testimony. A comfortable, well-prepared child is likely to give favorable testimony to achieve the desired results.

Success With the Child Witness

The ordinary witness must be prepared thoroughly and extensively for optimal results at trial. Putting a child in front of a jury, or eliciting the story from the child for professional testimony, requires special preparation and the use of kid gloves. The attorney should evaluate and assess the child’s emotional well-being and work closely with a professional therapist to gain the child’s trust. By under-standing the child’s pain the attorney will be compassionate and empathetic of the child’s cause. The attorney, together with the therapist, needs to focus on therapeutic techniques to help the child overcome his fears, frustrations, and anxieties. Like the rabbi who guides his congregation to enlightenment and the teacher who strives to communicate an understanding and love of knowledge, the attorney who truly loves her client and steps into his shoes can convey his emotions more effectively to a jury. In so doing, the attorney can present her strongest and most persuasive case.

Notes

1.        Walter W. Peters and Narina Nunez, University of Wyoming, Complex Language and Comprehension Monitoring: Teaching Child Witnesses to Recognize Linguistic Confusion, in Journal of Applied Psychology, 1999, Vol. 84, No. 5, 661-669.

2.       Louis Kahn. (1992-1995). Order in the Court - Wacky and Zany Courtroom Hijinks. Available at sirlou@best.com.

MANY ATTORNEYS MAKE VOIR DIRE OVERLY COMPLICATED, but it does not have to be so. Indeed, if handled correctly, voir dire can be a very 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 details how this can best be accomplished. It will soon be published in The Advocate.

Don’t Make Voir Dire So Difficult

Adopt a Conversational Approach Instead of a "20 Questions/Job Interview Approach

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?

To illustrate, let’s imagine that the case concerns medical malpractice. A typical voir dire might go as follows:

Attorney (to Juror No 1):	Mr. O’Care, what are your feelings concerning the standards physicians should be held to?
Juror No. 1:	I think doctors should be held to the strictest standards possible. They are responsible for human lives.
Attorney:	How many agree? Please raise your hands. (notes responses) How many disagree? (notes responses)
Attorney (to Juror No. 5):	Miss Takes, I noticed that you hesitated to raise your hand. Can you please share with us your thoughts on the subject?
Juror No. 5:	It’s true that doctors are responsible for human lives. But they are human also, and should be allowed to make mistakes like everyone else.
Attorney:	Thank you, ma’am, for that honest response. I’m sure others feel the way you do. So you’re saying, if I understand you correctly, that it’s only human if a doctor errs in the treatment of his or her patient, prescribing the wrong medication, for example, and therefore should not be held accountable?
Juror No. 5:	That’s what I’m saying.
Attorney to Juror No. 2:	I see you shaking your head, Mr. Entrust. What do you think?
Juror No. 2:	I completely disagree. You entrust yourself to your doctor. If he or she is not responsible, who is?
Juror No. 4 (inadvertently):	That’s right!
Attorney:	Thank you, Mr. Entrust. That’s an interesting point. (then back to Juror No. 5) Miss Takes, your feelings concerning physician accountability are not likely to change in the next few days, are they?
Juror No. 5:	Nope. I believe in live and let live.
Juror No. 4 (in an aside to Juror No. 2):	Good thing she’s not a doctor.
Attorney (to Juror No. 5):	Again, thank you, ma’am, for your truthful answer.

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. In the example above the attorney has successfully employed this technique to set up Juror No. 5 for cause.

Group dynamics

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. Voir dire is more psychological than legal because it concerns peoples’ attitudes and opinions. Attorneys who approach voir dire with this in mind will be more successful in targeting and deselecting biased jurors.

Trial elements balance

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 ____________? 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 __________.

What about contamination?

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 biased juror when he or she speaks to avoid contaminating the other jurors. 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.

The possibility of other jurors becoming contaminated due to the brief expression of bias by a particular juror is remote in the extreme. People do not suddenly alter their lifelong opinions and attitudes due to the chance remarks of others. The reality is that by the time the jurors enter the courtroom they are either contaminated, or they are not. Voir dire exists to provide a venue in which the attorney can discover and eliminate those jurors who are already contaminated; and thus will be unable to judge the case fairly. This cannot be accomplished by guesswork or through stereotypes and other generalizations, but only by letting the jurors speak freely.

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.

Along this line the attorney must not be intimidated by tort reform jurors. The chance of receiving uncomfortable answers on such topics as large jury awards is far outweighed by the danger of unknowingly impaneling a bad juror who may poison the case during deliberations.

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.

This style of voir dire stands in stark contrast to the "20 Questions/Job Interview approach adopted by many attorneys. Consider the effect of these alternative voir dire styles on jurors. One attorney is open and relaxed, permitting the jurors to speak their minds, then complimenting and thanking them when they do. The other attorney treats the jurors as job applicants, lectures them, manipulates them to feel obligated to vote a certain way, barrages them with a salvo of obscure and seemingly pointless questions, demographical and otherwise, then quickly attempts to shut them up when they say something he or she does not like.

Of these two attorneys, whom do you think will create the most favorable impression on the jurors?

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.

Let’s say for instance that the case concerns two young teenagers, a brother and sister, who have lost their parents in a wrongful death case. The attorney has employed litigation research to discover the main reasons some jurors may be reluctant to provide the children with a large damages award: 1) Such an award may spoil the children, 2) The children may use the money impractically, and 3) The money may lull the children into a false sense of security so they will not prepare for the future. Additionally, one negative surrogate juror objected emphatically to the children receiving a large award because, I lost my father when I was a child and didn’t get any money, so why should they?

These negative surrogate juror concerns provide the framework for questions the attorney can use to target members of the venire who may feel in a similar fashion. Consider this voir dire dialogue:

Attorney (to all jurors):	How many of you believe it would be a bad idea to make a substantial award amount to two children who have lost their parents? (notes show of hands, then addresses Juror No. 3) I see that you raised your hand, Mr. Skeptical. Why do you feel the way you do?
Juror No. 3:	I think children who have lost their parents should get some money. But I don’t think they should get a lot of money, because they wouldn’t know what to do with it.
Attorney:	Can you share what you mean by wouldn’t know what to do with it?
Juror No. 3:	Well, kids are kids. They probably would take the money and go buy something stupid, like a new Mercedes-Benz.
Attorney:	So you’re saying they would simply waste the money, is that it?
Juror No. 3:	That’s precisely what I’m saying.

Bingo! Armed with the special insights that only litigation research can provide, the attorney in the example above has been able to smoke out this prejudiced juror in such a way that he can be challenged for cause.

As the example illustrates, 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.

Numerous advantages

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.

Jury consulting sometimes is the target of attack, it manipulates juries and our judicial system; it is only for the rich who can afford it. More often than not, such complaints are raised by those who don’t understand how our judicial system works, or are misinformed regarding what jury consultants actually do. Dr. Singer squarely addresses these topics in the article that follows.

In Defense of Jury Consulting

I am a professional jury consultant. I employ psychological principles, scientific methodology, and opinion research testing tools and analytical techniques, focus groups, simulations, surveys, statistics, psychometrics, to predict jury behavior for my clients.

These activities function like a Rorschach test, illuminating jurors’ attitudes and beliefs, even their cognitive processes. They are extremely accurate in determining what jurors will think and feel about particular cases.

I am seldom called in on the slam dunk cases. More often I am asked to assist on the most troubling trial disputes, where favorable verdicts are anything but certain; case issues are disquieting; the media have already tried the case and prejudiced the jury pool; and the client has everything to lose if the litigation is not won.

Attorneys with such cases cannot afford to leave anything to chance. The intelligence I provide helps them determine which detrimental jurors to exclude during voir dire, along with the trial presentation guaranteed to achieve the widest level of acceptance with the seated jury. Such information often means the difference between courtroom victory and defeat.

Jury consulting makes a substantial contribution to more effective trial planning and presentation. Yet it is sometimes the target of contumely, it is manipulative and brainwashes jurors; it provides justice only for those can afford it. Such charges often are brought by those who do not understand our adversarial system of justice; or who are misinformed about the professional services jury consultants provide. Let me set the record straight.

In American courts the jury decides all. Attorneys must therefore focus with laser intensity on juror selection and persuasion. Before trial consultants, attorneys relied on intuition to accomplish this feat. While a useful forecasting technique for sports handicapping and professional gambling, intuition leaves much to be desired in the courtroom, where a defendant’s freedom, even his or her life, or financial well-being, may hang in the balance.

Utilizing litigation research, jury consultants substitute hard data for hunches regarding how the attorney should plan his or her case, and which jurors should not be seated. 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.

Does this process manipulate the system or brainwash jurors? It has been said that a good lawyer does not present facts; he or she manipulates facts. In this sense jury consulting is manipulative. But all persuasion involves manipulation; indeed, depends on it.

Courtroom persuasion requires that the attorney truly understand the jurors, who they are, what motivates them, and what turns them off. The jury consultant employs a more reliable methodology than instinct to provide such essential information. Stephen Gillers, professor of legal ethics at New York University Law School, puts it this way: Scientific jury selection is only intuition made manifest.

What about the charge that jury consulting is available only to those who can afford it? This is not true. Litigation research can be employed on a cost-effective basis for even the smallest of trials or case budgets. Voir dire counseling, supplemental juror questionnaires, and small-scale focus groups often can be made available for as low as $500 - $1,000, depending on the case.

In America everyone is entitled to a fair trial. However the impartial juror is a myth. Attorneys understand that prospective jurors seldom admit their biases and often are unaware of them. It is the job of jury consultants to help attorneys ferret out and de-select the most biased jurors during voir dire. Jury consultants make the voir dire process more scientific, and thus more reliable.

Consider the second O.J. Simpson trial now underway. As this is written many panelists comprising the venire appear to have strong opinions about the defendant’s guilt or innocence, including one woman who stated Mr. Simpson was probably guilty. Clearly jury selection is the pivotal phase of the trial. It is essential therefore to utilize trial consultants who know how to sort through the various preconceptions and biases to determine the better jurors to seat.

The American system of justice lets each side fully and fairly present its best case to a jury that both carefully hand-pick. Jury consultants rationalize this process, enabling attorneys to operate more intelligently than ever before.

If in the process jury consulting tilts the scales for one side or another, so be it. This is what our adversarial system of justice is all about. As Clarence Darrow put it, The lawyer’s idea of justice is a verdict for his client, and really this is the sole end for which he aims.

And so too the jury consultant.

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 criteria should attorneys 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 17+ 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, a 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.

People’s 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 jurors’ 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....

Some attorneys will be concerned that jurors who respond with expansive answers during voir dire may contaminate the other panelists. This is largely a needless worry. Jurors are unlikely to suddenly switch their long-held bedrock beliefs due simply to the comments other jurors make during voir dire.

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.

KNOWING HOW TO ADDRESS AN INDIVIDUAL’S SUBCONSCIOUS MENTAL PROCESSES can be extremely effective in all types of communications, including persuasion. How can the attorney putt such knowledge to use when arguing his or her case before a jury? Dr. Singer discusses a tried and true method whereby attorneys can influence jurors by tapping into their subconscious minds.

Classically-Conditioning Jurors

Winning trials means influencing jurors to see things your client’s way. To accomplish this task, attorneys are trained to target jurors’ conscious thought processes by providing compelling evidence, convincing argument, and other information that will persuade the jurors to logically conclude the only just verdict can be for the client.

But psychologists know that influencing a person’s subconscious mental processes is always far more powerful than influencing his or her conscious level of thought. It’s the difference between a speech contestant dryly scoring points during a debate, and a revival preacher sparking the congregation through fire and brimstone oratory to scream, shout, babble in tongues, even roll around on the floor, during the sermon. One addresses the audience’s conscious perceptions; the other, their subconscious mental processes.

The knowledgeable attorney can harness this powerful capacity and put it to highly effective use with jurors by classically-conditioning them at a subconscious level during the trial.

Classic-conditioning jurors should not be confused with the wrongheaded but widely employed technique of conditioning jurors during voir dire. This practice involves the structuring of voir dire questions to force jurors to pre-commit to a desired point of view - If I can prove ______________, you understand you will then be required to decide in favor of my client, don’t you?

This type of conditioning is resented by jurors, who see right through such a ham-handed approach. (Judges don’t care for it either.) Furthermore, it doesn’t work, jurors don’t like, and will not be forced, to agree prior to the trial to one-sided conditions regarding how they must decide the case.

Classic-conditioning jurors is far different and infinitely more effective.

Straight out of Psychology 101, classic-conditioning refers to conditioned (Pavlovian) responses. In Pavlov’s famous experiments, a bell would ring at the same time test animals (dogs) were fed. Eventually, the mere ringing of the bell would cause the dogs to salivate. Through classic-conditioning, jurors also can quickly be taught to unconsciously react on cue to an unspoken message that flashes laser-like directly to their subconscious minds.

The classic-conditioning process is simple to accomplish yet guaranteed to positively impact jurors if handled correctly. Here’s how it works: The attorney employs a highly specific and easily discernible action or gesture (known as a positive behavioral anchor) every time he or she mentions the case’s most compelling fact (pivotal point). Let’s say the case’s pivotal point is that the defendant, accused of armed robbery, can present credible witnesses who will testify he was with them at the time the robbery took place. Every time the attorney mentions this key defense fact, he or she makes sure to simultaneously employ the same specific gesture or action.

The gesture might be tapping a watch, straightening the eyeglasses, grasping a chin, or knotting a tie. It should appear natural and unrehearsed, and it must be done in a clear and obvious fashion so it can be easily picked up within the jurors’ peripheral vision.

As a result of regular repetition, the gesture or action will become firmly associated in the subconscious minds of the jurors with the pivotal point, that is, the defendant was with others at the time the robbery occurred. Eventually the gesture stimulus alone will retrieve this key defense point in the juror’s minds. This means that the attorney can put the jurors instantaneously in touch with this important defense point throughout the trial by simply repeating the gesture stimulus, the autonomic nervous system response among jurors is guaranteed!

Attorneys need to understand that the stimulus-response mechanism will stop working if it is extinguished (the pivotal point is mentioned without the accompanying gesture); or if it is over-generalized (used to excess, over and over, throughout the trial).

In this latter regard, the attorney should employ the stimulus-response mechanism on a carefully planned and highly selective basis, for example, at those key moments in the trial when retrieval of the case’s pivotal point in the minds of the jurors will accomplish the most benefit. (One excellent time to retrieve this memory is at the most dramatic point during the opposing counsel’s summation.)

When the attorney utilizes the gesture stimulus, he or she is, in effect, creating an altered state of consciousness in the minds of the jurors that is not unlike hypnosis. A salutary benefit: This altered state of consciousness among jurors reduces, and to some extent even replaces, the customary feelings of anxiety that will be eating away at them as they try to sort out differing trial arguments, evidence, and witness statements.

Clearly, eliminating such anxiety and confusion in the minds of the jurors through substitution of the case’s pivotal point will be of immense benefit to the attorney, and the successful disposition of his or her case.

UNDERSTANDING THE PSYCHE OF A WITNESS is critical to being able to properly prepare such an individual for trial. Dr. Singer discusses the fine art of witness preparations, and the importance of addressing the witness’s psychological strengths and weaknesses.

Witness Preparations Needs More Attention, Plus a Psychological Dimension

In baseball no one plays as important a role as the manager. He must make the trades, plan the roster, develop strategy, and motivate the players. He is a king if his team wins and a chump if they lose. But the fans don’t come to the ballpark to see the manager perform. They are there to watch the players, the stars of the game.

In the courtroom the attorney plays an equivalent role to the manager in baseball. the responsibility and weight of the entire case rests on his or her shoulders. But as fans in baseball don’t worry about the manager, jurors don’t care about the lawyers, during a trial they are focused on, and want to hear, what the witnesses have to say. It is the witnesses, not the lawyers, who truly are the stars of the courtroom. (The term star witness is not excessive but precise).

In baseball, a player can win or lose the game in a single play. During a trial a single witness can make or break the case. The attorney may perform like Rumpole of the Bailey for days, weeks, even months. Then one rash, improvident, or just plain bonehead statement by a witness, and the case explodes like a cheap cigar!

Despite the key importance of witness testimony, many attorneys fail to provide witnesses with adequate attention prior to trial. (The most common complaint of the typical client/witness is my lawyer never has enough time for me.) Attorneys become so wrapped up in planning and organizing their presentation of the case they sometimes forget their witnesses also need to be comprehensively prepared for trial.

As a result many attorneys leave witness preparations to the last minute, then assign a junior associate, sometimes even a paralegal, with the primary responsibility of preparing the witness(es). This often results in poorly prepared witnesses who come apart in the dock, along with the case.

Attorneys need to spend more time preparing their witnesses for the courtroom. This will benefit not only in terms of better-prepared witnesses, but also in better-prepared attorneys. After all, who knows the case better than a witness/client? The fact is that witnesses are a vastly underutilized yet highly valuable resource when it comes to trials. Often the trial is the single most important element in the witness’s life. (Research shows that many witnesses dream about their cases!) Almost always a witness/client will possess a unique intuitive grasp concerning the case and its primary problems, along with potential solutions to these problems.

The witness normally is dying to share these special insights and this singular knowledge...if he or she can just get the attorney’s attention. Too often this fails to happen.

Clearly there is much to be gained by elevating the role of witness preparations in the overall case planning/preparation schema. How can this best be accomplished? First, attorneys need to adopt a more comprehensive viewpoint concerning witness preparations, understanding that it represents far more than simply helping the witness rehearse his or her testimony.

Professional witness preparations is about successfully dealing with people’s psyches, their psychological strengths and weaknesses, their emotional wants and needs, and most importantly, how they perform in difficult, often confrontational situations. This is a key consideration because the stress of providing testimony can negatively impact the manner in which witnesses come across in court.

Along this line, jury research indicates that witness likability is an even more important factor with jurors than witness credibility. It is important therefore that witnesses be able to project themselves in a positive manner while testifying. This is often a problem however because many witnesses feel uncomfortable and nervous on the stand. Such tension generally results in a poor performance while testifying that can raise doubts in the minds of jurors and possibly damage the case.

Which leads to the sixty-four thousand dollar question: How does the attorney prepare an excessively nervous witness for trial? Or the witness who is terrified of being questioned by opposing counsel? The witness emotionally unable to exhibit his or her true feelings regarding a catastrophic loss? The witness so shattered by loss that he or she cannot think straight on the stand?

These common witness types lend credence to the growing point of view that expert witness preparations is not adequately addressed solely in the legal dimension. Witnesses are people, often people in shock; people suffering great emotional pain and/or loss; people undergoing severe emotional pressure regarding the trial and their upcoming testimony; people uncertain, nervous, and afraid. To help them cope, witness preparations should include a psychological/therapeutic dimension in addition to the standard legal one.

Successful witness preparations depends on a professional understanding of, and attention to, the psychology of the witness. Various classic therapeutic/counseling techniques, along with specific mental conditioning exercises, may need to be employed to help the witness achieve emotional catharsis, and thus be able to provide strong and compelling testimony.

Without such an approach, it is virtually impossible to minimize in any significant way the witness’s potential psychological weaknesses, hang-ups, doubts and fears (which, if present, almost always surface during the stress of a trial). These negative factors are likely to detract, perhaps grievously, from the witness’s testimony while on the stand.

WINNING YOUR CASE IN COURT DEPENDS ON AN EASILY-UNDERSTOOD STORY the jurors can relate to and sympathize with. But you cannot tell a good story without a clear theme. Dr. Singer’s article discusses the ABCs of trial theme development.

It Don’t Mean a Thing If it Ain’t Got That Theme

Remember high school composition class? The instructor drilled repeatedly that strong writing and public speaking depend on a clear theme, the most basic concept for planned and structured communications. It was and it remains a valuable lesson: You can’t communicate in a sustained, meaningful, and convincing way without a theme.

This universal maxim is equally valid when it comes to trial planning, preparation, and presentation. A vivid and powerful trial theme is absolutely vital to effective courtroom communications; indeed, it’s the raison d’etre of the attorney’s case. Presenting a case to jurors means telling them a convincing story they will be able to readily accept. This is impossible without a compelling theme.

A trial theme frames the case so the jurors will see it in a specific desired way, an essential factor in winning the case. Consider, for example, the probable difference in verdicts if the jurors are led to regard a particular trial dispute as a darting child case instead of a child knock-down case. Research indicates that jurors deliberate in themes. Struggling to make sense of the confusing and conflicting facts presented to them during the trial, jurors attempt to organize this information into certain well-established paradigms. They accomplish this best through themes. It is essential therefore that you, and not the opposing counsel, supply the jurors with the key theme they will require, and will be looking for, in order to bring meaning to the trial and thus reach their verdict.

What constitutes a good trial theme? This should be a basic and memorable concept that summarizes and headlines the case in a few words, arrogance for a commercial case, murderous rage for an assault case, thou shalt not steal for an intellectual property case. (The Bible is filled with numerous valuable themes that work well in trials. In this regard, the Seven Deadly Sins often make excellent themes for commercial cases.)

An effective trial theme is the putty that holds the case together for the jurors. It helps them eliminate all of the confusion regarding the various trial conflicts and justify the desired case viewpoint.

Clearly, a workable trial theme is a key factor to be successful in court. But not just any theme will do. Indeed, the wrong theme can work against your client’s best interests. (A flawed theme can kill the case!) You must find the ideal theme, that is, one certain to achieve the widest level of acceptance among jurors. This trial theme should not be intuited nor developed through an ad hoc grouping of colleagues and friends. (What appeals to these individuals may have no relationship at all to what the jurors will consider important.)

The ideal trial theme can only be determined through rigorous testing via jury simulations and jury focus groups. Such litigation research is similar to the test-marketing that is conducted before a commercial product or service is introduced, or a political candidacy or issue is floated.

Jury focus groups and jury simulations involve surrogate jurors who are carefully recruited and organized to evaluate the case and its specific key issues. Various trial themes are rigorously and repeatedly tested with different groups of surrogate jurors to see which will be most preferred. Through such repetitive jury research the ideal trial theme will emerge. The attorney can then use this scientifically-validated trial theme to plan the case with confidence.

For the attorney who has never worked with jury focus groups or jury simulations, the results can be astounding. Such litigation research provides a unique crystal ball into the minds of jurors, uncannily and accurately revealing what they will think and feel about the attorney’s case.

Once the ideal theme has been determined, it should then be put to maximum advantage inside the courtroom. Attorneys are familiar with the concept of primacy, jurors remember (learn) best what they hear first. It is important, therefore, to strongly hammer home your theme with the jurors during the opening statement. Additionally, the theme should be referenced at key points throughout the other trial segments, direct examination, cross-examination, closing argument, and even voir dire.

In terms of voir dire, the attorney can reference, and thus introduce, his or her theme through questions to the panelists concerning it. If it has been determined, for example, that the best theme for a negligence case is prevention, the attorney could ask the panelists what their attitudes are regarding taking safety precautions to prevent injuries to others.

This process of punching up or enveloping the theme on a continual basis sends the jurors a message, the theme, they are bound to receive. Such regular repetition of the theme throughout the trial will firmly reinforce it in the minds of the jurors; and in the process, provide them with the basic schematic they will require to organize their deliberations. The attorney’s theme becomes, in effect, the all-encompassing motif by which the jurors are able to make sense of the trial, and thus determine who should win it.

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 really get the book on jurors is through SJQ’s-supplemental juror questionnaires. The article that follows explains what SJQ’s are and how the attorney can use them most effectively.

S-J-Q’s-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-Q’s). 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-Q’s 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-Q’s because they make the voir dire process more efficient and less time consuming (and because they provide the judges a feeling of greater control over voir dire). Jurors like S-J-Q’s because they provide a sense of relative anonymity in which highly personal thoughts and feelings can be detailed.

And since S-J-Q’s are court affidavits that must be signed under penalty of perjury, jurors are compelled to answer them honestly.

S-J-Q’s 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-Q’s, however, is the vast amount of valuable data they reveal concerning the jurors. S-J-Q’s 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-Q’s.)

S-J-Q’s 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 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-Q’s 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-Q’s should be made as inclusive as possible to secure the maximum available useful information about jurors. Regarding mechanics, it is normally better to have jurors fill out S-J-Q’s in the courtroom rather than mailing them to jurors’ homes. (Too often they are not sent back on time.) S-J-Q’s 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-Q’s 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’s, to be in the courtroom during voir dire to assist the attorney as follow-up questions are posed to jurors.

S-J-Q’s 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.

A knowledge of psychology is useful in all walks of life, but particularly so for trial lawyers who must influence and convince jurors - 12 strangers to reach a positive verdict for the client. The following article by Dr. Singer discusses important information attorneys should possess regarding some key psychological considerations regarding the trial by jury process. The article will be published in an upcoming edition of Trial Diplomacy Journal.

Using Psychology to Win in Court

Courtroom victory cannot always be gained through sheer legal firepower alone. In a trial, the heavy cannons of argument and evidence can prove useless if not accurately targeted - i.e., locked on the jurors and what they need to see and hear. Off target, each powerful fusillade becomes mere fireworks, blazing brilliantly in the courtroom but accomplishing nothing. Think not? The first O.J. Simpson trial dramatically proved that a vast armada of damning evidence that is not insightfully presented can sink without a trace as if it did not exist.

It is true of course that trials do sometimes resemble massive B-52 bombing raids, with one side blowing huge holes in the opposing side’s case, and blasting away all counter-arguments. Often, however, the successful trial is more guerrilla campaign, organized and conducted with perspicacity and focus to win the hearts and minds of the jurors.

To achieve these goals the attorney needs to understand the jurors, who they are, what motivates them, and how they make decisions. The answers to such questions comprise the primary subject material of psychology; and in particular, litigation psychology. The more knowledge the attorney possesses concerning psychology, and its courtroom ramifications, the better he or she can expect to do in court.

Jurors enter the courtroom with opinions already formed

Jurors bring to trial the heavy emotional baggage of pre-conceived attitudes, opinions, and prejudices. Extensive jury research indicates that these powerful (and largely subconscious) motivating factors carry tremendous weight regarding the verdict decisions jurors make.[56]

It is incumbent therefore that the attorney plan and present the case, not only on an intellectual level, but also with a special awareness regarding the case’s possible psychological effects on the jurors. This means the attorney must be perceptive regarding the jurors’ individual psyches; while also being able to anticipate, as much as possible, the jury’s group (read: psychological) dynamics as they interact and deliberate with each other to reach a verdict.

Failure by the attorney to factor the case along these lines almost always proves to be a serious mistake. He or she may serve up the strongest possible legal case to the jurors. But unless the case is also planned along this crucial psychological plane, it is likely to fall flat in court.

Many attorneys uncomfortable using psychological approach

Attorneys are rigorously educated in the most minute aspects of the law, in proper trial procedures, and in all of the other complex and demanding requirements and tasks associated with planning and presenting a case in court. But most law schools fail to adequately prepare attorneys to conduct real-world cases that also are psychologically intuitive. This is unfortunate. You cannot expect to influence a jury unless you understand them psychologically.

Psychology affects every conceivable aspect of trial case planning, preparation, and presentation, from pre-trial surveys to post-verdict interviews. Space limitations do not permit a full exploration of how a better understanding of psychology can be of immense aid to the attorney in all of the various trial planning and presentation aspects. But we can discuss some key areas that will be helpful.

For example, we’ll consider psychology’s first principle and how it can be effectively employed by the attorney to help ferret out, then de-select, problem jurors during voir dire. We’ll take a look at how jurors assign blame in court cases, and discuss how reframing the information presented to them at trial can change a probable negative outcome. We’ll discuss how jurors think and act when they deliberate together concerning damages award amounts. And we’ll consider some psychologically powerful persuasion and rhetorical techniques from the world of litigation psychology[57] and related fields that can help attorneys be more effective in court.

Psychology’s most important principle

The key rule in psychology: 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. Equally important, individuals who are questioned should not be judged harshly if they provide information that is not preferred. Positive and negative answers to questions should merit the same type of response from the questioner: Thank you, sir; it’s good that you mentioned that!

Reinforcement is the guiding principle of therapy, where it is critical that patients reveal themselves completely to the therapist. The reinforcement principle also can be put to valuable use during voir dire where attorneys need to quickly learn who the problem jurors are, so they can be de-selected.

This means the attorney should be completely non-judgmental while questioning jurors regarding their value beliefs,[58] i.e., the core attitudes and opinions they hold most dear. Otherwise, the jurors will not feel comfortable in revealing their true feelings about the case and its primary issues. So, reinforce all responses, whether good or bad.

Reinforcement, reflection, clarification

Reinforcement is just part of a sophisticated and highly effective response strategy the attorney should employ when questioning jurors during voir dire. After reinforcing answers as appropriate, the attorney should also openly reflect on, and attempt to clarify, the responses provided.

The renowned psychologist Carl Rogers was a master in using this technique to get his patients to open up and reveal themselves. He would always reinforce his patient’s statements with an approving follow-up statement, It’s helpful you brought that up! or Thanks for that honest answer! Rogers would then openly reflect on the patient’s statement- The fear you are now experiencing must be hard to handle, to clearly show he had heard what the patient had said. Finally, he would make sure to clarify the statement- So what you are saying is that.....to eliminate any confusion.

This same approach can be used by the attorney during voir dire to determine the jurors’ basic attitudes and possible biases. For example:

Attorney:	What are your feelings about jury awards?
Juror:	They’re much too high. People get millions for the slightest injury or problem these days. That’s why insurance costs are climbing so fast.
Attorney:	Thank you, ma’am, for your honest response. (Reinforcement) You believe that jury awards are making insurance rates go up, correct? (Reflection)
Juror:	Yes, I do.
Attorney:	Why is this? (Clarification)
Juror:	The insurance companies are in business to make money, so they just pass the increased costs on to their customers. This means the average person ends up paying the bill.
Attorney:	You mean someone like you? (Clarification)
Juror:	Yes.
Attorney:	So you believe that jury awards are directly taking money from you? (Clarification)
Juror:	That’s right.
Attorney:	If I understand you correctly, you believe that you would be going against your own personal financial interests to decide in favor of a meaningful damages award for my client, even if this trial proves that such compensation is warranted. (Clarification)
Juror:	Well, I have to tell the truth.
Attorney:	I appreciate your honesty. Thank you for sharing with us how you really feel. (Reinforcement)

As the example shows, the attorney has been able to clearly expose the juror’s bias concerning jury awards for all to see. This has been accomplished by encouraging the juror through reinforcement to reveal her genuine attitudes; by reflecting openly regarding these feelings; and by asking clarifying questions to spotlight the juror’s responses (and biases) so they are crystal-clear. Remember: people love to talk about themselves and their opinions and beliefs. Give jurors the opportunity to do so during voir dire and they’ll take it.

Note: By utilizing the reinforcement-reflection-clarification technique, the attorney has been able to set up this juror so she can be easily struck for cause.

Another important point: By handling voir dire in this manner, it is the jurors who are doing the speaking, not the attorney. Our firm’s extensive jury research indicates that the biggest complaint jurors make about the voir dire process is that they feel the attorneys talk too much. Dale Carnegie taught that if you do most of the speaking, then people will end up judging you. Be sure not to fall into this common trap with jurors at the beginning of the trial.

Use open-ended questions

Note that the attorney uses open-ended questions to get the juror to provide the most expansive and revealing answers. This runs counter to the close-ended questioning style many attorneys use during voir dire. Close-ended questions can only be answered with tightly-controlled “yes” or “no” responses by jurors during voir dire, e.g., Have you ever had a family member or close friend involved in a car crash? or Can you be fair in reaching your verdict?

Such questions prompt only socially-acceptable responses, or answers that reveal little worthwhile information about the jurors and their attitudes regarding the central issues of the case. (Note: Questions regarding the ability to be impartial will almost always be regarded by jurors as insulting, and may result in answers that run directly opposite to the jurors’ true feelings about the primary case issues.) Conversely, open-ended questions let jurors fully explain their basic attitudes and beliefs, and in a meaningful context to the key case issues at hand.

These type of questions usually begin with such phrases as Can you tell us your opinion about...,What do you think concerning....., or Please share your feelings regarding..... They usually end with references to actual case issues, e.g., products liability lawsuits, jury verdicts, physician negligence, and so on.

What about contamination? This is largely a needless worry. People’s bedrock beliefs and core values are almost impervious to change. Trained psychotherapists must sometimes work for years with their patients to alter such belief systems, often with negligible success. It is extremely unlikely that a juror’s basic attitudes will be changed by a brief remark made by another juror during voir dire.

Attribution and Ownership Theories

Attribution Theory concerns how people place blame. This cognitive model represents the method by which jurors reach verdicts in court cases. Blame devolves in most verdicts on a person versus a situation basis. Did the plaintiff lose his leg in the car crash because of his trial opponent’s poor driving habits (person)? Or because of bad weather and road conditions (situation)? Did the lawnmower mangle the small child’s foot because of a lack of parental supervision (person)? Or due to an unsafe mower design (situation)?

Attribution of blame by jurors often depends on specific linguistic cues to which jurors respond. These signals fall into two categories: person cues and situation cues. Blame normally devolves to person or situation, depending on the specific cue the jurors receive.

In addition to Attribution Theory, another related cognitive model termed Ownership Theory (discovered and developed by my firm during the vehicle rollover case described in the following section) describes how jurors process information. It posits that linguistic cues in legal disputes are owned either by the plaintiff or the defendant.

Planning then planting linguistic cues

By exploiting these valuable Attribution and Ownership Theory insights, the attorney can present his or her case so the desired cues are received by the jurors and then used as the primary basis for their deliberations. To illustrate, consider the following example from my own practice.

A few years ago I assisted attorney Buddy Payne[59]of Miami with a vehicle rollover case. Our firm conducted extensive jury research to determine how the jurors would deliberate regarding the matter. In the first series of simulations the surrogate jurors speculated that the rollover was due to an over-correction they presumed the driver made to his steering. Since over-correction is a linguistic cue that is owned by the driver, the surrogate jurors blamed him for the rollover.

We then changed the focus of the deliberations by introducing two new linguistic cues to the surrogate jurors, steerability and steerworthiness. These linguistic prompts are clearly owned by the vehicle manufacturer. When the deliberations centered on these terms, the majority of surrogate jurors blamed the manufacturer for the rollover. The steerability theme was subsequently highlighted at every opportunity throughout the trial, and the plaintiff won handily.

Words carry special power. For example, the word illness should not be used by an attorney representing the plaintiff in a medical malpractice case, it is owned by the client. A better word to use would be treatment, as in, We must ask ourselves why a satisfactory treatment was not afforded the plaintiff.

Jurors utilize various heuristic principles to reach consensus regarding their verdict decisions, e.g., information pooling, error correction, and conflict resolution. These terms are self-evident: Jurors pool the information they take from the courtroom; correct each other to eliminate erroneous interpretations of the case facts; and work together to resolve conflicts and reach a harmonious verdict to which all can agree.[60]

By insightfully recasting the facts of the case with the Ownership Theory in mind, the attorney is able to create a positive framework the jurors can use throughout the heuristic process described above to reach a favorable verdict decision.

Equity Theory

One of the best ways to understand how jurors determine damages award amounts is through a concept from social psychology known as Equity Theory. This theory states that people prefer even outcomes, i.e., the amount of reward one party takes out of a situation (relationship, job, education) should be equal to the amount of investment (love, work, study) put into it. According to Equity Theory, inputs should always equal outputs.

Equity Theory represents one of the most basic concepts of social exchange. The attorney can employ this principle to present his or her case to the jurors in a manner to which they will surely be able to relate. To illustrate, consider a commercial case in which the attorney is seeking damages for the plaintiff. He or she should plan the overall case so as to propose an equitable exchange of inputs and outputs for the client. One good way to illustrate this would be to create a visual aid showing the time, effort, and money the plaintiff invested next to what represents an equitable return for these investments.

In such a dispute, jurors will work hard to be fair to all parties involved. A case presentation based on the Equity Principle provides an acceptable and easily-agreed upon framework the jurors can employ to reach consensus regarding a fair damages award. A colorful courtroom graphic, clearly showing inputs and outputs, can act as a primary starting point the jurors will feel comfortable in using to arrive at an equitable judgment.

Norm of reciprocity

The idea that people should pay back in kind what others give them is the concept behind the norm of reciprocity, another important standard of social exchange since time immemorial. This concept can be effectively used for cases in which jurors may find it difficult to assess damages (e.g., often where the defendant is a doctor, hospital, or a pharmaceutical company).

The attorney should keep in mind that the Equity Principle and the norm of reciprocity also affect jurors and their own sense of obligation. For example, when de-selecting jurors in a medical malpractice case, it is critical for the plaintiff’s attorney to determine if a particular juror’s judgment may be swayed because he or she feels indebted to hospitals and doctors. Has a doctor or hospital ever been instrumental in preserving your health? or Have you ever been dependent on life-saving drugs? are useful questions to ask jurors during voir dire. The tone of responses provided may indicate whether a particular juror believes that he or she is in debt to the medical profession, according to the powerful norm of reciprocity principle. The attorney may be able to elicit bias by continuing to question the juror along this line.

Jurors feel a strong sense of commitment to restore fairness where fairness is missing. For this reason, the attorney who use the Equity Principle and the norm of reciprocity as the bases for a damages award is operating on very solid ground.

Jurors learn best through colorful visual evidence[61]

A trial is a learning process requiring good memorization by the jurors. Substantial evidence exists that people retain more information when it is presented to them with visual support. In this regard, jurors remember and retain about 10 - 15 percent of what they hear in court. Their retention rates increase dramatically however when the information they hear is supported with information they see charts, pictures, diagrams, and other visuals and graphics.

Along this line, research indicates that jurors have roughly a 17-minute attention span; and that the first four minutes the attorney speaks will determine whether the jurors pay attention for the remaining 13 minutes.[62] Colorful and compelling visual aids can help engage the jurors for these all-important first four minutes.

Visual aids are important for another reason. Research indicates that the first step jurors take when forming opinions involves a memory process known as encoding. During this encoding process, mental information is classified according to specific criteria, and then forwarded on for additional logging and processing in the brain. Visuals and other graphics greatly facilitate this encoding/classification process.

When designing visual support aids, the attorney should be sure and put the power of color to work. Understanding the psychological effects of colors can help in the preparation of more compelling demonstrative evidence.

Red-A primal, exciting, energetic color. It is often used by color therapists to help raise blood pressure and to stimulate the nervous system. Red is employed widely and very effectively for courtroom graphics because it commands attention. One downside to the use of red for demonstrative evidence is that, along with green, it may not be picked up correctly by color-blind members of the jury.[63]

Black-The absence of color, black has a dense, heavy energy and is freighted with numerous negative associations. Consequently, it is best to use it sparingly in all visuals and graphics associated with the client.

Blue-Chosen by people as their favorite color more often than any other. Blue is a non-threatening and calming color that promotes trust. It has many positive associations, including serenity and spirituality.

Orange-Sometimes employed in medical settings to promote stronger heartbeats in patients. Orange is not a good color to use, however, for people who suffer from stress. Since the jury experience can be extremely stressful, orange is not recommended for use as a predominant color in most courtroom graphics.

Green-Relieves tension and can lower blood pressure. A highly restful color to the eye, green works well in trial graphics that combine with pink.

Yellow-An attention-getter, yellow is the color most quickly perceived by the eye. As such, it is often used to strong effect in trial displays.

Colors compliment one another, e.g., red and turquoise. When two complimentary colors are used in the same graphic or visual, they combine to present a balanced energy; as such, they promote a pleasing sense of completion for the viewer.

A final advisory: all graphics incorporating color should be thoroughly tested prior to trial to determine their overall acceptance with, and their effects on, jurors; along with their ability to communicate.

Psychologically powerful persuasion techniques

Theme development-A strong trial theme is critical to a successful case. The theme provides essential meaning and focus to all the case particulars. Studies indicate that: 1) jurors deliberate in themes; 2) the trial theme is the key mental organizer the jurors use to remember the facts; and 3) jurors look for evidence that correlates with the theme and ignore evidence that does not. Additionally, the trial theme enables the jurors to quickly relate to the case and its primary issues, while at the same time forming favorable case impressions. And favorable impressions win trials. Some good themes: Prevention[64] for injury cases, or David versus Goliath for commercial cases.

Rhetorical questions-Throughout history great orators have always used rhetorical questions to persuade audiences. Modern research indicates that rhetorical questions produce a stronger impact on the listener than mere statements of opinion or fact. This is because rhetorical questions lead to a far more intensive processing of message content by the listener.

Rhetorical questions can be extremely powerful persuasive tools when used during a trial, e.g., Would we be in court today if the surgical staff had followed normal procedures during my client’s operation? or Did the ABC Company fail to prevent this injury because they were negligent.....or because they were arrogant and simply didn’t care about preventing injuries to their workers? [65]

Analogies & metaphors-In most trials jurors must understand and evaluate a tremendous amount of information to reach their verdicts. Analogies and metaphors help juror’s process and understand information more quickly by supplying easily-grasped word pictures. They make rhetoric and language totally memorable, e.g., She got the gold mine, I got the shaft[66] or There’s frost on my roof, but there’s fire in my furnace.[67](Analogies and metaphors also make language entertaining!)

Expectancy Statements-Psychology teaches that gaining the selective attention of subjects is a powerful way to promote interest in what you have to say. This can be achieved in the courtroom with jurors through the use of Expectancy Statements, e.g, You can expect us to show that... This type of rhetorical device causes the jurors, in effect, to pause and wait for other key trial information you will introduce later. The jurors’ tendencies will be to unconsciously latch onto trial evidence and argument that support the anticipated expectancy information, while paying minor attention to information that doesn’t.

Parallelism--Language with rhythm and rhyme evokes the most deeply-felt sensations among listeners. If it doesn’t fit, you must acquit, stated Johnnie L. Cochran, referring to the clothing and gloves evidence, in his summation at the first O.J. Simpson trial; we all know the outcome. Using parallel structure in language is an excellent method to reinforce an impression with the jurors, e.g., My client’s injury was avoidable because it was preventable. It was preventable because it was foreseeable.

Rule of Three-Communications research tells us that an idea needs to be repeated at least three times for it to be remembered. So, for example: Arrogance! Arrogance! Arrogance! If the manufacturer had not been so arrogant, so unconcerned about the danger its product might represent to others, none of us would need to be here!

Jurors employ a distinctive methodology to bring meaning and order to disparate case facts, evidence, and arguments. Repetition, key words and phrases, metaphors, voice tone, order of information (e.g., primacy and recency effects), and other non-evidentiary factors create a powerful pull on each juror’s subconscious and the way he or she processes information and reaches decisions. The attorney needs therefore to carefully plan his or her rhetoric to realize the maximum psychological impact with jurors.

What about reading jurors through nonverbal leakage?

Don’t do it! Many attorneys operate with the mistaken notion they can reliably determine juror personality characteristics through body language. This is a major fallacy. There is no question that dress, attitude, demeanor, voice tone, gestures, tics, facial expressions, body alignment, eye contact or lack of same, and similar voluntary and involuntary body signs and signals can provide important and worthwhile information about personality, attitudes, truthfulness, and emotional state. It’s true that seasoned and highly perceptive attorneys often can pick up valuable personality clues, at least in broad gauge fashion, about jurors through observation. Too often, however, body language can seriously mislead the non-clinical eye.

This is why attorneys who have no formal education and experience in advanced psychology or related fields are strongly advised against formally trying to uncover jury personality traits from body language and other nonverbal leakage. There are simply too many subtle and conflicting body language signals, signs, and clues that can be easily misinterpreted by the untrained observer to develop a truly reliable read.

Cultural, gender, ethnic, and nationality differences plus numerous other variables such as current health, employment, and emotional state can also result in mixed messages.

This is not to say that astute and worthwhile observations of nonverbal leakage cannot be made regarding a juror’s psychological make-up and potential verdict behavior. This task however should be left to an experienced psychologist, psychiatrist, or similar expert working as a consultant.

Otherwise the attorney may mistakenly seat a supposed positive body language juror who ends up maniacally bludgeoning the case to pieces back in the jury room; or de-selects a negative body language juror who might have been sympathetic but was simply having a bad hair day.

Law and psychology-a strong interface

Being psychologically aware is essential in every avenue of life, including the courtroom. Attorneys must remember that a trial is not just about the law, opinion, and precedent; it is about people, the client, the jurors, the witnesses, the other side, the judge. And you can’t understand people without understanding psychology.

But in a major trial where the stakes can be huge, a basic understanding of psychology is not enough. This is where the services of a psychologist specializing in litigation research can be helpful. Often, the attorney engages the psychologist to carefully study and predict the jurors’ perceptions of the case issues, and how these perceptions are affected by the jurors’ pre-existing attitudes, values, and beliefs.

The study of jurors’ perceptions and of juror/jury decision making and information processing requires, at a minimum, knowledge and experience regarding planning a balanced research design; organizing scientific sampling procedures; and administering and analyzing the results of controlled research studies (e.g., jury focus groups and simulations) by the psychologist.

The psychologist rejects common knowledge and identifies the true antecedents of behavior through systematic observation of cause and effect relationships, e.g., If this trial theme is used, then jury response X will occur, plus, application of appropriate data collection techniques, and the repetition of research results to ensure generalizability. Such results are then expertly analyzed and interpreted to determine, among other findings, the ideal juror de-selection and case presentation strategies.

Through this systematic approach, the attorney can operate in court with confidence that his or her case will be one the jurors will be most receptive to psychologically, an essential requirement for courtroom success.

Pre-trial (litigation intelligence) surveys of the jurisdiction in which a trial is to take place can supply highly reliable information regarding how jurors will judge the case and its primary issues. A litigation intelligence survey can also be an extremely valuable tool to help the attorney successfully settle the case. The article by Dr. Singer which follows will be published in an upcoming edition of TRIAL Magazine.

Successfully Settling the Case Through Surveys

Get what you ask for by proving in advance the jury’s on your side

Cases settle when both sides are in basic agreement regarding what a jury will do. In this regard it’s much easier to successfully settle a case if you can present reliable data projecting that if the case goes to trial: 1) the jury will be with you and your client and 2) your settlement offer will be less onerous to the opposition than the probable judgment the jury will make.

Imagine, if you will, a magic case settlement tool that can accurately develop such compelling data, i.e., one that enables the attorney to test the case prior to entering the courtroom to determine, within an acceptable scientific standard, what the potential jurors will think and feel about the key facts, issues, and disputes of the case, and what their primary psychological (prejudicial) inclinations to the case will be.

Such a marvelous settlement aid should also illustrate what potential jurors expect to see and hear during a particular case, thus enabling the attorney to plan his or her case accordingly. (It serves no purpose to stage an opera if people think they will be attending a rock and roll concert.) It should be able to correctly measure the persuasiveness of the arguments and show which aspects of the case to emphasize along with those to avoid. Plus, it should be able to correctly pinpoint the value of the case.

The litigation intelligence survey

Many trial attorneys may not be aware of it, but such a versatile case planning and settlement tool does exist. It is being used in major trials with great success and also (and even more widely) to successfully settle cases prior to trial. This special tool is the litigation intelligence survey,[68] a precise and highly-focused polling of the jurisdiction in which the case will be tried. Such a scientifically-conducted poll can determine within plus or minus 5 percent, i.e., with a 95 percent confidence interval, precisely how the potential jurors in a particular venue will regard the facts and issues of the case, along with the arguments made concerning it. Such findings carry substantial weight with all parties at settlement time.

Precision litigation research

The litigation intelligence survey represents a carefully planned, rigorously controlled, and professionally evaluated scientific study of the jurisdiction’s population. Data derived scrupulously delineate the facts, issues, disputes, and arguments germane to a potential or actual legal dispute, and how the jurisdiction will relate to them. Litigation intelligence surveys are similar to market research surveys and public opinion and political polls, but with important differences detailed later. They are normally conducted by professional firms expert in litigation research.

Valid results

To achieve scientific validity, a litigation intelligence survey must, among other factors, be based on a statistically accurate sample of the jurisdiction, i.e., at least 400 individuals, who are selected on a random, not a demographic, basis. The polling normally is conducted over the phone, during personal interviews, through written questionnaires, or by a combination of these methods. Results achieved can be extremely comprehensive, detailing how the respondents rate every minute aspect of the case or issue at hand.

Separate surveys, separate goals

Different litigation intelligence surveys are available to the attorney, depending on the particular research objective. These include the community attitude/opinion survey, which measures what people in the jurisdiction will think and feel about the issues concerning a general type of situation and/or dispute, legal or otherwise, that is currently affecting them or could do so in the future; the case-specific survey, which shows how the jurisdiction will relate to the issues, facts, and arguments regarding a particular or potential case; the change of venue survey, used to determine whether an impartial jury can be seated in the jurisdiction; the media impact survey, used widely for settlement purposes, which can predict the potential economic and/or other after-effects that a negative verdict can hold for one side or another if a particular dispute is not settled; or a combination of these versions.

Numerous benefits

Litigation intelligence surveys deliver highly specific information that can be of immeasurable aid to the attorney regarding a particular case. Benefits of these versatile surveys are summarized as follows:

?         Provide targeted and highly compelling polling results, i.e., a scientifically-accurate report, that can be used in support of a particular settlement position, thus enabling the attorney to negotiate from a position of power;

?         Detail how the jurors are likely to perceive the case facts and issues; what their psychological propensities to the case will be; and which courtroom presentation strategy and arguments they will find most persuasive;

?         Examine the case in the most comprehensive possible fashion, showing in exact detail how jurors will relate to each of the case’s many aspects, including its all-important pivotal point, i.e., the central fact or issue on which the case turns;

?        Spotlight the facts and issues of the case most pertinent to the jurors, including those which the attorney may overlook (many times to his or her dismay at trial time); while also categorizing facts and issues the jurors consider non-essential;

?        Help uncover answers to the case’s most vital questions, including determining the best approach, strategy, and tactics for the case;

?        Rate the case facts and issues on a psychometric basis[69] as helpful or harmful to one side or another;

?        Provide an appropriate de-selection map by juror profile for a particular type of case, along with the optimum de-selection strategy;

?        Efficiently streamline discovery by directing the attorney away from non-productive areas; [70] and

?        Help to eliminate psychological error, i.e., understanding and exploiting or compensating for jurors’ emotional proclivities concerning the case.

Change of venue

To succeed with a motion for change of venue, the attorney must present competent proof that jurors; attitudes, opinions, feelings, and beliefs will be so fixed that a fair verdict is unlikely. The litigation intelligence survey can help establish these facts by determining exposure in the jurisdiction to specific sources of inflammatory pretrial characterization of the client, along with the degree of prejudgment and predisposition of potential jurors. It can assess the impact of the jury verdict on the community. It can also establish whether it will be possible to seat a fair jury in another venue.

Invaluable settlement aid

A primary benefit of litigation intelligence surveys is their value at settlement time. Consider the impact a statistically accurate and positive polling of the trial venue can have on the opposition, or a professional arbitrator or mediation panel. Conversely, an adverse poll can be influential with the recalcitrant and/or difficult client who, against counsel, is unwilling or unable to accept the probable likelihood of a negative verdict.

The litigation intelligence survey is the ideal settlement planning aid. It graphically illustrates the risks or benefits of going to trial in an objective and unbiased manner; determines the monetary value of the case; establishes the economic effects that a losing verdict will have on the opposition; and outlines juror perceptions and analyzes probabilities in the event the case goes to trial.

Unnerves the opposition during negotiations

Positive litigation intelligence survey results, representative of the jurisdiction in which the dispute will be settled if it goes to trial, can have a decidedly unnerving (indeed, chilling) effect on the opposition during negotiations. It is difficult, for example, to offer a viable rejoinder to the presentation of scientifically-valid survey results demonstrating with a 95 percent confidence interval, i.e., within a 5 percent plus or minus error rate, that 87 percent of potential jurors in the jurisdiction will award $5 million for a particular case. In such a situation, evaluating a settlement offer of, say, $3.5 million, becomes a simple exercise in cost/benefit analysis.

Media Impact Surveys

Media impact surveys are also valuable for settlements. In this type of research, simulated headlines are created to explore the results of a high-profile trial as they would probably be reported by the media. These headlines are then used to gauge reactions, along with pre-existing attitudes, among survey respondents. Survey results can predict the possible economic after-effects that a negative verdict holds for the opposition. Assessed in the initial stages of a case, these surveys supply critical ammunition that is instrumental in designing negotiation and settlement strategies. The McDonald’s case comes to mind to illustrate the power of this type of research tool.

Perceptions, propensities, persuasiveness

As with all litigation research, litigation intelligence surveys focus on jurors’ perceptions of the case and their emotional propensities to it, along with the capabilities of different arguments to persuade them. Survey findings can correctly identify and evaluate these key factors:

?         Perceptions-Juror misperceptions are common in the courtroom where the testimony, evidence, and arguments are often complex, contradictory, and confusing. Understanding in advance how jurors are likely to misperceive key case facts, issues, and arguments permits the attorney to present the information in a different perspective, and thus avoid any perceptual problems.

?         Propensities-Most jurors enter the courtroom with preconceived notions and psychological propensities that will influence them to automatically side one way or the other regarding the case. It is very important that the attorney be knowledgeable concerning these prejudices, and plan his or her courtroom presentation accordingly.

?         Persuasion-Pre-testing arguments prior to trial is essential to determine their effectiveness. Litigation intelligence surveys enable the attorney to determine precisely which arguments will achieve the widest possible level of acceptance with jurors.

Used in tandem with focus groups and surrogate juries

Litigation intelligence surveys are not meant to replace jury focus groups, jury simulations, and similar research; they are used in conjunction with these activities. Jury focus groups and simulations function like a Rorschach test, illuminating jurors’ cognitive and emotional processes. They are excellent for showing how jurors, as a group, will deliberate about the case issues and facts. And they provide the maximum in-depth information concerning how jurors will relate to the case emotionally and intellectually.

Unlike surveys, focus groups are able to uncover how the witness will be evaluated. As such, focus groups are very useful tools for deposition and trial preparations. Obviously, litigation intelligence surveys cannot tell how witnesses will be perceived; they can, however, be used to test the witness’s message.

Litigation intelligence surveys provide the widest possible breadth of information regarding how jurors will perceive the case. Most important, the litigation intelligence survey legitimates a particular settlement offer in a far more convincing fashion than a jury focus group or jury simulation possibly can.

It is best to conduct jury focus group and jury simulations first, and then follow up with the litigation intelligence survey.[71] By handling in this manner, special insights and other important information uncovered during jury focus group/simulation research can be used to develop the most intelligent survey questions and the best survey possible. This proactive approach to survey design is far superior to developing the survey from an ivory tower. Such a poorly-planned method often results in surveys of limited practical value or surveys that even mislead.

Survey planning: both art and science

Planning, conducting, analyzing, and interpreting a scientific survey represents much more than simply asking respondents questions, noting their answers, then correlating the results. Indeed, a survey’s results can be worse than useless, i.e., point in the wrong direction, unless each step of the survey process is handled professionally by a trained and experienced survey expert.

These steps include collection (including setting up the proper procedures for selecting a relatively small but nevertheless statistically valid number of respondents), questionnaire construction (planning the choice of topics and the wording and order of questions), interviewing (methodology of submitting questions to those to be interviewed); and analysis (tabulation, treatment, interpretation, and reporting of data derived from the survey). Mishandling any single aspect in this complex mix can result in a fatally flawed survey. [72]

Not a marketing survey or public opinion poll

The survey process becomes even more challenging when it comes to litigation research surveys where the typical market researcher=’s tools are inadequate, and must be supplemented by professional experience and knowledge concerning the judiciary system, litigation disputes, juror and jury psychology, change of venue issues, settlement strategy, voir dire planning, and so on.

Many market research firms, with their strong backgrounds in demographic analysis,[73] often must work against their own professional instincts when it comes to litigation intelligence surveys. In this regard, they attempt to superimpose their expertise in determining lipstick, beer, and similar preferences among different demographic groups, a practice largely inappropriate for litigation intelligence survey research.

Value beliefs

Litigation research is concerned not with demographics but rather with jurors’ value beliefs, i.e., the bedrock attitudes jurors use to filter the case’s key facts, issues, and arguments in order to reach a verdict. Jury research indicates that it is value beliefs, not demographics, that correlate with how individual jurors will actually behave when deciding a case.[74]

Law firms are strongly advised against attempting to conduct their own surveys, or turning the survey project over to a market research firm without specialized training and experience in litigation research.[75]

Use and timing

Litigation intelligence surveys are excellent for use in major cases of tremendous complexity, for atypical cases where the outcome is unpredictable, in cases where strategic planning is crucial or where a starting point is not clear, and for any large case in which the plan is to settle. In terms of timing, attorneys should plan on initiating their litigation research, i.e., jury focus groups, jury simulations, and litigation intelligence surveys, at the earliest possible opportunity in the case preparation process, and certainly prior to planning discovery.[76] The valuable findings that derive from a survey that is conducted early can help direct the attorney away from wasteful areas during discovery, thus saving time and money.

Expenses

The cost of litigation intelligence surveys range from $5,000 to $50,000, with $15,000 representing the typical expense. When you consider that litigation intelligence surveys can mean the difference in millions of dollars during settlements; play a critical factor in perspicuous case planning for major trials; and greatly reduce the heavy costs associated with discovery, the survey expenses described above are cost-efficient, particularly when measured against the scope of the entire case budget.

Singularly invaluable intelligence

Planning, preparing, conducting, or settling a major case can be like playing three-dimensional chess against the clock. In such a pressured and high-stakes contest it is critical that the attorney be armed with the best available intelligence regarding how the jury will think and act. The litigation intelligence survey helps provide such worthwhile information.

The attorney who fails to benefit from this insightful data, either to conduct or to settle the case, is flying in a fog without compass and map. And that’s no way to reach the proper destination, whether it be a successful settlement or a favorable trial verdict.

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 preparations. This often proves to be a gross error at trial time. The following article by Dr. Singer discusses witness preparations from the defense attorney’s perspective. It is now under review for publication in one of the nation’s leading defense bar publications.

Witness Preparations 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 preparations. Let’s take a look at the dynamics of witness preparations from these three vital perspectives.

Juror/jury psychology

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 preparations

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 witnesses’ 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 preparations get short shrift

A lack of adequate witness preparations 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 preparations: 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 preparations.

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 preparations process. Because of this negative dynamic, some CEOs and other high level executives have a tendency to shut down psychologically during witness preparations, 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.

Lawyer psychology

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 preparations until the last minute, despite the potential dangerous consequences of such evasion?

The problem with down-playing witness preparations

When it comes to witness preparations, 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 preparations are not handled adroitly, numerous problems can develop during deposition or trial, skeletons in the closet that no one learns about during witness preparations, 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 preparations. 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 preparations 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 preparations 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 probably 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.

Witness likability

Effective witness preparations 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 preparations 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 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; such training works well with witnesses who must provide legal testimony.

Systematic desensitization

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.

Positive imagery

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.

Attention-focusing

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 obvious anticipation, for additional information (the pregnant pause).

Frame-of-reference responses

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:

Lawyer:	Have you ever received a loan?
Witness:	No.
Lawyer:	You’re sure about that?
Witness:	I certainly am.
Lawyer:	Didn’t your family lend you $300 right after college so you could take a trip?
Witness:	Oh, that’s right.
Lawyer:	Money you were to repay in full?
Witness:	Yes, I suppose....
Lawyer:	So when you claimed you never took a loan, you were not telling the truth, isn’t that so?
Witness:	I wouldn’t say that.
Lawyer:	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:

Lawyer:	Did you ever take a loan?
Witness:	As I think about it right now, I don’t recall doing so.
Lawyer:	Didn’t you receive $300 from your family to take a trip after you graduated from college?
Witness:	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.

Additionally, the witness must learn to answer questions strictly according to what he or she can accurately attest .to and nothing more. The following example demonstrates what I mean:

Lawyer:	You believe Dr. Jones killed your grandfather by applying the wrong medicine?
Witness:	I watched while Dr. Jones administered an injection to my grandfather. My grandfather began to sputter for breath and his face started to turn blue. He fell out of his chair and thrashed about on the floor for a few minutes, then stopped moving entirely. Dr. Jones tried to take my grandfather’s pulse. He then informed us that our grandfather was dead.

The lay-witness cannot infer, this must be left to the jurors. In this manner the witness will not get himself or herself into trouble during deposition, or when testifying on the stand.

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 preparations 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 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 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 preparations 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 preparations not only from a legal but also from a psychological perspective. Witness preparations 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.

THOUGH A RELATIVELY NEW PROFESSIONAL DISCIPLINE, litigation psychology research nevertheless involves a richly varied and highly comprehensive skillset-jury focus groups, jury simulations, litigation intelligence surveys, juror electronic monitoring & measurement, witness preparations, post-verdict interviews, and more. The following article by Dr. Singer provides a useful overview of litigation psychology research and trial consulting. An edited version of this article will be developed into a chapter of a new expert legal techniques book, to be published by Wiley Law Publications.

An Overview of Litigation Psychology Research

You cannot plan and win trials without precise litigation psychology research. The attorney who fails to conduct such research is like a truck driver racing down the highway blindfolded and bound to crash. Litigation psychology research consists of the formal study of jurors and jury decision-making, and how this will relate to the case and its primary issues. The most comprehensively legally researched case often falls flat if it does not also include a strong litigation psychology research component. The two O.J. Simpson trials provide dramatic testimony concerning the unsurpassed value of litigation psychology research.

Many attorneys know they need to conduct litigation psychology research but often are unsure exactly what this involves or how it can be handled most effectively. This can become a major problem for the rushed attorney hurriedly preparing for a trial. He or she may pass on specialized litigation psychology research ideally suited to the particular case; wait until the last minute to conduct jury focus groups and simulations, thus missing the opportunity to substantially reduce discovery; test incorrectly; or otherwise fail to benefit fully from the singular advantages litigation psychology research offers when properly planned and conducted.

When professionally organized, litigation psychology research can also be an extremely worthwhile settlement tool, providing scientifically valid and precise polling data detailing exactly what a case is worth, along with what land mines are involved. But if the attorney does not know how and when to specify and/or conduct such research, he or she will be unable to benefit from this valuable data, available from no other source.

Chapter overview

This chapter will hopefully eliminate much of the confusion that currently exists regarding litigation psychology research. It will discuss how litigation psychology research began, explain what it is, and spotlight its many advantages for attorneys. It will detail litigation psychology research’s main components, including litigation intelligence surveys, jury focus groups, jury simulations, simultaneous (in-courtroom) juries, and post-verdict interviews.

The newest advances in litigation psychology research will also be discussed, including electronic monitoring and measurement techniques that enable attorneys to determine precisely how jurors will react to each discrete portion of the trial presentation, even accurately tracking the positive or negative impact on jurors of specific words and phrases!

Additionally, this chapter will explain precisely how, when, and in what order litigation psychology research components should be employed, and what each can accomplish. It will touch on key juror/jury psychological aspects the attorney should be knowledgeable concerning, including juror metaprograms, juror perceptions/misperceptions, and similar important topics. It will explain why jurors’ value beliefs and not jurors’ demographics should be the essential factor in determining how they will think and feel about a particular case.

This chapter will discuss the most effective techniques to use during voir dire, along with what to avoid. It will detail the importance of employing open-ended questions, instead of the close-ended questions many attorneys mistakenly use. It will explain why voir dire should be treated as a collective social conversation, and how this can be promoted. It will provide a tested six-step approach attorneys can utilize to successfully challenge jurors for cause. Other voir dire topics will include supplemental juror questionnaires, along with some thoughts on the supposed contamination bugaboo.

The importance of trial theme development also will be discussed, along with an explanation regarding how the attorney should envelope the theme during all trial segments. The attorney will learn how to cue positive memory recall with jurors at the most propitious moments in the trial regarding his or her case’s pivotal point. Worthwhile rhetorical devices such as analogies, metaphors, and expectancy statements that can be of immense help in bringing the case to life for jurors will be detailed. Information will also be provided concerning the use of visual aids and other graphical items to support the trial presentation.

Finally, this chapter will discuss witness preparations from the psychologist’s perspective, and will provide some trial-tested techniques regarding how witness testimony and demeanor can be optimized for deposition and trial.

By providing reliable scientific data regarding how jurors will relate to the case, litigation psychology research takes the guesswork out of trial planning and preparation. As such, it is an unmatched resource to achieve courtroom and settlement success. Let’s take a look at litigation psychology research, how it works and what it can accomplish when properly planned and conducted.

Origins of litigation psychology research

Litigation psychology research had its beginnings in the late 1960s and early 1970s when certain left-leaning sociologists, psychologists, and similar professionals decided to lend their professional support to attorneys defending anti-war activists in numerous political trials. The famous Harrisburg 7 trial involving Philip Berrigan and six codefendants provides one of the earliest examples of the tremendous value litigation psychology research can have in reaching a favorable verdict decision.

Berrigan and the other defendants were accused of plotting anti-war-related acts, including conspiring to kidnap then Secretary of State Henry Kissinger. Comprehensive litigation intelligence surveys conducted by the defense in conservative Harrisburg, Pa., where the trial was to be held were used to determine the ideal juror profiles. These survey findings were closely followed by the defense attorneys in selecting jurors.

The attorneys were so confident they had dealt themselves a winning hand during voir dire that they decided to present no evidence in the trial, choosing instead to immediately rest their case. They were convinced the prosecution had failed to prove its case and that the jurors whom they had so carefully selected would agree. This decision proved correct. The jurors deadlocked, with a 10-2 vote to acquit. Prosecutors did not retry the case.

Litigation psychology research had arrived, and it wasn’t long before a flock of fledgling new professionals, trial consultants as they were called, were assisting both plaintiff and defense counsel with major cases across the country. This included a large antitrust case in 1977 against International Business Machines in which the first simultaneous (shadow) jury was utilized by defense counsel. (IBM won the case.) Trial consulting had gone blue chip.

The profession of trial consulting

The profession of trial consulting has grown tremendously from its early days when only a few hardy pioneers (of which I am proud to be included) first began to assist attorneys with their cases. From these simple beginnings it is now estimated that over 300 professionals currently practice trial consulting on a regular basis, according to the American Society of Trial Consultants. And the field is expanding rapidly each year.

Trial consultants come from a wide variety of professional fields, psychology (and in particular, social psychology), sociology, therapeutic counseling, communications, and public relations, among others. Additionally, numerous trial consultants first began their careers as actors, actresses, and similar artists and performers.

Trial consultants almost always are used on the larger cases and are now being included more and more on the medium- and smaller-size cases as well. Many knowledgeable attorneys have come to regard trial consulting as an essential litigation tool. Also, they know the other side will likely use a trial consultant, and they don’t want to be (or appear to be) outgunned. The professional capabilities of trial consultants, through surveys, jury focus groups, jury simulations, and similar litigation psychology research activities, to accurately determine what jurors will think and feel about particular cases offers a truly spectacular advantage to the attorney. Such a huge advantage, according to some astute observers, that failure to employ a trial consultant in an important trial might almost be considered grounds for malpractice.

Scientific basis of litigation psychology research

The primary reason litigation psychology research has become so popular with attorneys is that it largely eliminates the guesswork from trial planning, what type of jurors to deselect, how the jurors will perceive the issues of the case, how to present the case most effectively, and so on. The product of litigation psychology research represents the statistical analysis and interpretation of systematically collected scientific data concerning probable jury responses to selected stimuli. Nothing is intuited or left to chance.

Litigation psychology research findings are normally presented as a series of if then statements; if this opening statement is used, then jury response (X) will occur; if this witness testimony is presented, then (Y) will occur. Such information can be invaluable in planning courtroom strategy. The majority of this information derives from jury surveys, jury focus groups, and jury simulations.

Before litigation psychology research, attorneys relied largely on intuition to plan and present their cases. While a useful forecasting technique for sports handicapping and professional gambling, intuition leaves much to be desired in the courtroom, where a defendant’s freedom, even his or her life, or financial well-being, may hang in the balance.

Litigation psychology research is concerned with juror attitudes, opinions, and beliefs. The findings that derive from this branch of psychology are not foolproof. But through litigation psychology research, trial consultants are able to substitute hard data for hunches regarding how the attorney should plan his or her case, and which jurors should, or should not, be seated. Litigation psychology research significantly increases the probability of developing a true jury-validated trial presentation strategy, and of impaneling the best possible jury for a particular case. In short, litigation psychology research offers the attorney the best available evidence regarding how the jurors will react to the case he or she plans to present. Short of joining the jurors during deliberations, you can’t get more reliable information than that.

Courtroom persuasion requires that the attorney truly understand the jurors, who they are, what motivates them, and what turns them off. The trial consultant employs a more reliable methodology than instinct to provide such essential information. Stephen Gillers, professor of legal ethics at New York University Law School, puts it this way: Scientific jury selection is only intuition made manifest.

It is an unfortunate fact that in America the impartial juror is a myth. Attorneys know that prospective jurors almost always fail to admit their biases. (Most are unaware of them.) Trial consultants help attorneys spot and de-select the most biased jurors during voir dire. They make the voir dire process more scientific, and thus more reliable. The American system of justice lets each side fully and fairly present its best case to a jury that both carefully hand-pick. Trial consultants rationalize this process, enabling attorneys to operate more intelligently than ever before.

Test-marketing the case

Litigation psychology research parallels the test-marketing of products so universal in the commercial sector and of individuals and issues in the political sector. Political parties use opinion polls and primaries to test a candidate’s appeal with the voters before they sponsor any individual for public office. On the commercial side, no responsible company will introduce a product into the marketplace today without first doing comprehensive product research, often conducted through focus groups and consumer panels. Such research can determine whether the members of the sample groups interviewed will purchase the product(s). Testing as described above is done over and over until a consensus emerges: Yes, we would purchase the product if it is prepared and packaged thusly; or No, we would not purchase the product under any circumstances.

Litigation psychology research involves similar testing. But instead of focusing on how customers will respond to a particular commercial offering, litigation psychology research determines how jurors will respond to, and be persuaded by, a particular trial presentation strategy.

Trial consultants utilize jury focus groups, jury simulations, and similar activities to accurately determine how and why jurors will react to a particular trial theme, to an opening statement and closing argument, to witness testimony, to demonstrative evidence, and to other key case elements. Such litigation psychology research can also clearly delineate what the jurors will consider to be the most vital aspects of the case (thus showing the attorney what evidence to stress), along with those case aspects the jurors will consider unimportant.

Just as valuable, jury research can reliably determine what type of jurors should be seated for a particular case (often, with surprising results for demographic-dependent attorneys). And it can even determine the specific voir dire questions attorneys should use to determine who these ideal jurors are within the venire panel.

Benefits of litigation psychology research/trial consulting

The benefits of litigation psychology research/trial consulting can be summarized as follows:

?         Provides jury-validated case strategic planning through litigation intelligence surveys, mock trials, issue analyses, jury simulations, jury focus/mini-focus groups, simultaneous juries, juror/jury evaluations and analyses, and similar activities

?         Efficiently streamlines discovery by directing the attorney away from non-productive areas

?         Examines the case in the most comprehensive possible fashion, showing in exact detail how jurors will relate to each of the case’s many aspects, including its all-important pivotal point, i.e., the central fact or issue the case turns on, and proves the case

?         Spotlights the facts and issues of the case most pertinent to the jurors, including those which the attorney may overlook, while also categorizing facts and issues the jurors consider non-essential

?         Rates the case facts and issues on a psychometric basis (the method for measuring mental data) as helpful or harmful to one side or another

?         Helps to eliminate psychological error, i.e., understanding and exploiting (or compensating for) jurors’ emotional proclivities concerning the case

?         Determines the key case issues and how best to frame them to achieve the maximum positive reception with jurors

?         Determines the optimum case presentation strategies and tactics

?         Provides invaluable settlement intelligence, including an assessment of possible damages; and illustrates the risks/benefits of going to trial

?         Establishes deposition strategies and provide deposition questions that can lead to the impeachment of witnesses

?         Establishes the ideal trial theme that will achieve the widest level of acceptance with jurors

?         Establishes what information jurors will be expecting to be presented during the trial; and even when that information should be presented to achieve the optimum effect

?         Assesses numerous vital trial factors, including the effectiveness of the evidence, lawyer and witness believability, and potential damages amounts

?         Establishes the ideal emotional and psychological valences for the most effective opening and closing statements

?         Assists with the development of courtroom psychological strategies for civil and criminal attorneys

?         Spotlights personality and value beliefs of jurors, and how these factors will correlate with jury verdicts; determine the key relevant attitudes that will pre-dispose some jurors to be less than neutral

?         Provides a reasonable preview of juror deliberations

?        Gauges the jurors’ probable responses to technical evidence

?        Provides settlement intelligence through litigation intelligence surveys, e.g., change of venue studies, along with public opinion, attitude, and media impact surveys that can be used in support of a particular settlement position, thus enabling the attorney to negotiate from a position of power

?         Provides the optimum voir dire strategy; and determines the ideal juror de-selection strategy through question design, juror responses, non-verbal cues, and similar factors

?         Establishes the voir dire questions to ask to most reliably determine which jurors will be favorably or unfavorably disposed towards the case

?         Set ups biased jurors for cause

?         Utilizes supplemental juror questionnaires to get the best read on jurors, especially when traditional voir dire is limited

?       Utilizes the newest monitoring and measurement devices, e.g., galvanic skin response analysis to minutely determine probable juror attitudes to discrete portions of the trial presentation

?        Provides targeted polling results, i.e., a scientifically-accurate report, that can be used in support of a particular settlement position, thus enabling the attorney to negotiate from a position of power

?         Details how the jurors are likely to perceive the case facts and issues; what their psychological propensities to the case will be; and which courtroom presentation strategy and arguments they will find most persuasive

?        Provides an appropriate de-selection map by juror profile for a particular type of case, along with the optimum de-selection strategy

?         Shows what areas of the case are likely to be misperceived by the jurors and what the case problem areas may be (and how to deal with them)

?        Determines what questions, if left unanswered during the trial, may fester away during deliberations and eventually end up poisoning the case

?         Provides a critical psychological edge regarding witness preparations for deposition, mediation, and trial testimony

?         Provides and analyzes the reports of simultaneous juries to establish case progress on a day-to-day basis

?         Provides courtroom image consultations and make-overs

?         Develops pre-tested demonstrative evidence and other graphical aids and visual supports

?         Provides advocacy skills coaching

?         Establish through post-verdict interviews why jurors voted as they did

As this comprehensive list demonstrates, trial consulting and litigation psychology research can assist the trial attorney in numerous valuable ways. Depending on case complexity and size, the attorney may not require all of the above-mentioned benefits and services. When trial consulting is employed there are however some basic litigation psychology research goals to be achieved that are common to all cases, large and small.

Eliminate the guesswork from trial planning and preparation

The attorney has a professional responsibility to determine with as much certitude as possible, not only how the jury will judge the merits of the case as presented; but also how to plan and present the case so that it has the best prospects for success. This can be difficult because there are so many jury imponderables for the typical case, how will the jurors regard the case, the witnesses, and the evidence; what will be most important to them and what will be inconsequential; what hidden agendas may the jurors bring to the case; how can biased jurors be targeted and eliminated during voir dire most effectively; which jurors will assume leadership positions during deliberations; how will the deliberations most likely proceed, and so on.

The primary value of litigation psychology research/trial consulting is that it provides the attorney with a reliable methodology whereby he or she can forecast probable juror/jury reactions to the case; and through this process, shed light on the various imponderables mentioned above. Litigation psychology research functions like a Rorschach test, illuminating jurors’ attitudes and beliefs, even their cognitive processes. It is extremely accurate in determining what jurors will think and feel about particular cases, and what they will consider a case’s primary issues to be.

In short, litigation psychology research provides singular and irreplaceable intelligence to the attorney concerning the jurors’ reliable information unavailable from any other source. The attorney who is able to benefit from such invaluable data is like the poker player who knows in advance what his or her hand will be and exactly what cards the other players will be dealt!

Jury-validating the case

Once the attorney knows how the jurors will regard the problem areas and accompanying solutions to the case, he or she can plan the optimum case presentation strategy. This means that the attorney’s case can be truly jury-validated, i.e., organized and presented so it will achieve the widest possible level of acceptance with the jurors. Attorneys cannot afford to leave anything to chance when it comes to their cases. Knowing how to structure the trial presentation so it is guaranteed to achieve the widest level of acceptance with the seated jury is critically important. Such information can mean the difference between courtroom victory and defeat.

Planning a case without the benefit of the invaluable data that only litigation psychology research can provide is a major gamble. No one is able to safely predict anything about the jurors or their proclivities, attitudes, and beliefs, not, that is, until the verdict is read. But through litigation psychology research the attorney learns in advance how to answer every question and address every issue that will be critical to a favorable verdict.

Optimum strategic and tactical case planning

Since litigation psychology research is able to reliably quantify the case and all of its key aspects, the attorney is provided with a singular template he or she can use to map out the ideal jury-validated case with true precision. For example, findings from litigation psychology research can show the attorney which juror de-selection strategy should be employed, along with exactly which questions should be used to elucidate the most revealing information from jurors; what is the best trial theme to use and how it should be presented at various points during the case for maximum effect; what opening statements and closing arguments work best; how and what evidence should be presented, and at what stage of the trial such evidence needs to be brought forth; how and what witness testimony should be introduced, along with that which should be avoided; what effect visual evidence and courtroom graphics will have on jurors, and so on. Litigation psychology research has been compared to a crystal ball that can be used to magically peer into the minds of jurors. The attorney who is able to enter the courtroom with such singular data enjoys a powerful advantage over his or her trial opponent.

Case issue analysis

What are the primary issues, i.e., the basic disputes, and arguments of the case? This does not mean the case’s specific legal issues but rather the basic people issues that will be most meaningful to jurors. It is these issues that the jurors will largely focus on as they deliberate and decide the case.

One of the key advantages litigation psychology research offers attorneys is the ability to target what the surrogate jurors determine to be the basic issues of the case. During jury focus groups and jury simulations the surrogate jurors are always encouraged to simplify the case, i.e., to break it down into its most fundamental components and issues. Additionally, they are further encouraged to arrive at answers for some basic questions: What is the significance of the case? What is it all about? What is its underlying message? What word or phrase best describes the case and brings it all together? What is its theme? What is the controversy and how can it be framed or presented to arrive at a positive jury response? What needs to be resolved by the jury? Why are we here?

Individual responses from the various surrogate jurors are evaluated psychometrically. These metrics provide the attorney with a reliable picture regarding what issues will be most important to jurors, along with those that will be unimportant. Armed with this data the attorney can far more efficiently plan the case, and thus avoid wasting time on case presentation areas that will mean little or nothing to the jurors.

Establishing the case’s pivotal point

In addition to spotlighting the primary case issues, litigation psychology research can also determine the case’s pivotal point, i.e., the primary element of the case upon which a jury’s decision is likely to turn. Jury focus groups provide the ideal platform to discover a case’s pivotal point.

Once the pivotal point has been identified, the attorney must ensure that it is fully exploited during the trial. When this is successfully handled, the jurors’ tendencies will be to hold on firmly to this key trial element, while ignoring other confusing or even contradictory information presented to them. Winning the pivotal point with jurors can remove all their doubts and answer all their questions about the case. When the pivotal point of the case becomes clear to the jurors, the effect is very much like the light bulb that suddenly appears above a cartoon character’s head when he or she has stumbled on some brilliant piece of knowledge. The average juror’s mental response might go something like this: By golly, that’s all I need to know about products liability in this case!

Targeting the cases problem areas

It is the case’s problem areas that cause the most trouble. And it is these problem areas that will yield the most valuable information regarding what type of questions to use to spot, disarm, uncover, then de-select biased jurors during voir dire. It is critical therefore that the attorney learn what the case problem areas are so he or she will be able to handle them during the trial. Litigation psychology research is the best methodology available to develop this information.

Understanding jurors’ psychological propensities & metaprograms

Jurors’ predispositions, beliefs, opinions, and attitudes carry tremendous weight regarding how they perceive the evidence; frame the issues; and are persuaded by the arguments; in short, how they arrive at their verdict decisions. Studies show that jurors are most influenced by personal biases (value beliefs) that filter the evidence.

It is essential that the attorney understand the jurors, who they are, what motivates them, what they want to know and why, the order in which they want information, and how they make decisions. The more insight the attorney possesses concerning the jurors’ psychological traits, the more success he or she can expect to achieve during trial. This means the attorney should try to understand the jurors’ individual psyches; while also developing some sense of the jurors’ group psychological dynamics as they interact and deliberate with each other to reach a verdict. (This can be accomplished by treating voir dire as a collective social conversation among the jurors, a valuable voir dire technique that will be detailed later in this chapter.)

The attorney will regret it if the case is not planned along these lines. He or she may present the strongest possible legal case to the jurors. But unless the case is also programmed along this vital psychological plane, it probably will not succeed in court. Of course it is litigation psychology research that provides the critical data necessary to understand the jurors, who they are, what their biases may be, and how these attitudes will affect their verdicts.

Another important aspect of litigation psychology research has to do with spotting and interpreting the jurors’ possible metaprograms; and what affect these programs have on how jurors will judge the case. The word metaprogram derives from the Latin word meta, meaning end or goal, and the word program, meaning a system under which action may be taken to achieve a desired goal. A metaprogram refers to the unconscious psychological propensities by which people (jurors) often make decisions on the basis of meaningful goals they want to achieve or avoid.

Metaprograms are closely tied to value beliefs, the essential principles by which people operate. A metaprogram can be described thusly: people are motivated to feel, think and respond in a certain manner, i.e., to provide satisfaction and/or pleasure (towards metaprogram), or to avoid unhappiness or pain (an away metaprogram). To illustrate, a juror may be motivated to limit the money a plaintiff can receive for pain and suffering (an away metaprogram); or the juror may want to ensure that a pharmaceuticals company continues to make a life-saving medicine in the event he or she may possibly need it in the future (towards metaprogram). These metaprograms may have little or nothing to do with the case facts, but can nevertheless exert enormous influence on how particular jurors will decide the case.

It is extremely difficult for the attorney to develop an intelligent trial presentation strategy, or to deselect unfavorable jurors, if he or she cannot forecast how the jurors’ possible metaprograms may affect the manner in which they evaluate the case, i.e., which of their psychological buttons will be pushed. This intelligence can best be achieved through jury focus groups and jury simulations.

Additionally, specialized voir dire techniques developed through litigation psychology research can help forecast how the jurors will relate to each other, i.e., whether a particular type of decision-making personality will be a leader in a particular case, and can influence other members of the jury; or if another juror will be a follower who will adopt the latest opinion expressed.

Juror perceptions/misperceptions

Peoples’ perceptions are strongly influenced by accompanying unconscious associations. When the word cat is mentioned, for example, one person immediately thinks of a tame little tabby; another of an allergic reaction. Individuals often illogically carry such associations over to facts, situations, and events for which they clearly are not warranted, resulting in misperceptions.

This misperception problem is very likely to occur during a trial where the testimony, evidence, and arguments are often complex, contradictory, and confusing. It is vital during case planning that the attorney have some reliable methodology to predict how jurors may automatically misperceive the various facts; their propensities toward the disputes; and the persuasion index of the arguments.

Litigation psychology research and in particular, jury focus groups and jury simulations testing is able to readily uncover such information. Armed with these valuable insights, the attorney can then plan to present the information in a different perspective, and thus avoid any perceptual problems among the jurors.

Developing ideal juror profiles

Litigation psychology research enables the attorney to know what type of jurors to seat for a particular trial. This information is often developed through jury focus groups and jury simulations where alternate juror psychological types can be evaluated to see how they react to the case’s various facts, issues, and arguments. Litigation intelligence surveys (i.e., pre-trial polling of the venue where the trial will be held) also can be used to help determine the disastrous juror types for a particular case. Such surveys are conducted among a large number of people to get the most reliable readings. After litigation psychology research is concluded, comprehensive profiles of the disastrous juror can then be developed, along with specific questions that can be used to target and effectively eliminate such jurors during voir dire.

Planning the optimum juror de-selection strategy

Voir dire concerns securing valuable information from the jurors about themselves, and using this information to select (de-select) from the panel. The attorney can use litigation psychology research, litigation intelligence surveys, plus jury focus groups and jury simulations to develop an effective strategy for targeting and eliminating biased or otherwise negative jurors during voir dire. Comments raised by surrogate jurors during focus groups and simulations can be reframed into questions that can be employed by attorneys to target positive and/or negative jurors during voir dire.

Many attorneys are unable to accomplish the first objective of voir dire, i.e., arriving at useful information about the jurors and their key attitudes and opinions. This makes the most important objective, the de-selection process, no more reliable than a roll of the dice. The problem is that few attorneys understand what voir dire is truly all about. Attorneys don’t know or don’t think about the fact that voir dire is primarily a psychological process, rather than a legal one. The key information attorneys must uncover about jurors during voir dire concerns their beliefs, attitudes, opinions, and prejudices, all psychological entities.

It is litigation psychology research that can uncover these all-important juror/jury psychological factors regarding particular cases. Armed with this invaluable data, the attorney can then forecast how the jurors’ internal biases and beliefs will translate into attitudes and opinions that they will likely hold regarding the primary case issues. As a result the attorney will have much better knowledge concerning what type of biased and negative jurors to watch for during voir dire, and to subsequently de-select.

There is balance to a trial. The opening statement mirrors the closing argument. Direct examination of the plaintiff’s key expert and cross-examination of the defense’s key expert cover the same ground, but from differing perspectives. There is also a balance between voir dire and deliberations. Therefore, what comes out during deliberations should also come out during voir dire. For this to happen, the attorney should orchestrate voir dire as an open and frank discussion regarding the case issues that will be most important to, and most revealing about, the jurors insights that can only be gained through pre-trial litigation psychology research.

But if the attorney has failed to conduct such research, he or she will be, in effect, operating with a blindfold during voir dire, throwing out questions and hoping with fingers crossed to be on target regarding the jurors’ true attitudes about the case. Is it any wonder that jurors seated in this hit-and-miss fashion often end up surprising the attorney by killing the case during deliberations? Litigation psychology research can greatly minimize the uncertainty regarding how to most effectively question jurors so they will reveal their true feelings and attitudes during voir dire.

Settlement intelligence

Case settlement is reached when both sides agree regarding how the jury will decide the case. A successful settlement can be arrived at far easier when the attorney is able to present reliable data projecting that if the case goes to trial: 1) the jury will be on his or her side, and 2) the settlement offer he or she proposes will be less burdensome to the opposition than the probable jury verdict.

Litigation psychology research provides a credible scientific analysis and findings report that reliably shows what the jurors will think and feel about the case. Such findings carry substantial weight with all parties at settlement time. This information can have a strong influence on opposing counsel regarding a settlement, or with a client who may be reluctant to settle but has a weak case. Litigation psychology research findings go directly to the most essential factor at settlement time, i.e., What will a jury think? Litigation psychology research provides a reliable answer to this vital question. Litigation psychology research results are scientifically valid data regarding how jurors will decide the case. As a result, they enable the attorney to negotiate from the most advantageous possible position during settlement.

The litigation intelligence survey is an excellent tool that can be used to demonstrate the precise value of the case and how it will be decided. For example, if survey results show with a 95 percent confidence interval that 88 percent of a statistically accurate polling sample of potential jurors in the venue believe a particular case is worth $3.5 million, this finding will have far more credibility with an arbitrator than the unscientific estimates of opposing counsel.

It is difficult to offer a viable rejoinder to the presentation of such scientifically-valid survey results. In this type of situation, considering a settlement offer of, say, $2 million, becomes a simple exercise in cost/benefit analysis. The litigation intelligence survey is the ideal settlement planning aid because it demonstrates the risks/ benefits of going to trial in an objective manner; reliably establishes the value of the case; graphically illustrates the economic effects a losing verdict will have on the opposition; and projects jury probabilities if the case goes to trial.

The tools and techniques of litigation psychology research

The trial consultant has a wide variety of tools and techniques he or she can use to develop useful trial and settlement intelligence on behalf of the attorney. These include the litigation intelligence survey, jury focus groups, jury simulations, supplemental jury questionnaires, and simultaneous (shadow) juries.

Trial consultants can also develop useful information after the trial through post-verdict interviews; such intelligence can be worthwhile if a case that has been lost will be appealed, and for similar purposes. Additionally, trial consultants employ various sophisticated electronic monitoring and measurement devices that can track surrogate juror responses on a moment-to-moment basis regarding witness testimony, opening statements, closing arguments, and other case presentation elements.

This chapter will include some handy thumbnail sketches that describe these various tools and techniques, how they are used, and what they can accomplish. Also presented will be information regarding when and in what sequence these litigation psychology research components should be employed by the attorney most effectively. But before these various litigation psychology research tools and techniques are detailed, we must first discuss an almost universal attorney misconception regarding how to evaluate and select (de-select) jurors. We will then examine the personal juror characteristics that are most vital to target.

Attorneys’ demographic dependencies

Many attorneys operate with a serious misconception regarding what to look for in jurors. This has to do with the heavy emphasis many attorneys place on juror demographics, age, gender, religion, ethnic origin, and so on. Such emphasis is almost always the wrong way to proceed during voir dire. Numerous jury research studies indicate that demographic variables are often the least predictive of jury behavior and verdicts. Further, jurors are sure to resent it as demeaning and/or discriminatory if they sense they are being classified according to such stereotypical factors as race, religion, and so on.

Psychologists and psychiatrists know that stereotypes concerning demographic groupings are almost always misleading. People’s attitudes and beliefs are not merely a function of race, age, gender, and so on. Yet many attorneys continue to rely on demographics as their basic Rosetta Stone when picking jurors. For example, a criminal defense counsel should be sure to seat an Irishman on the jury because he will be kind and sympathetic. You would be guilty of malpractice if you got rid of him, the famous trial attorney Clarence Darrow once counseled.

Here are some other common assumptions attorneys often make about jurors: Defense counsel should never seat a rich man on a jury, he will convict unless the defendant is charged with bank fraud or something similar. Plaintiffs attorneys should seat grandmother-types as jurors in wrongful death cases regarding children. The ideal prosecution juror overall is the little old Lutheran lady in pearls, quick to judge and slow to forgive. Women are more compassionate than men in criminal cases. Attorneys should realize these examples are stereotypical thinking of the very worst sort, the great Mr. Darrow not withstanding.

Considering the above, it should come as no surprise that many trial lawyers often perform poorly when picking jurors. Jury expert Martin F. Kaplan, a psychology professor at Northern Illinois University, conducted a jury selection study to determine who would do better in picking jurors, lawyers or lay persons. The lay persons picked jurors correctly more than half of the time (i.e., they selected jurors who voted for the desired verdict). The lawyers did not do as well. Indeed, the study results showed that attorneys would have done better picking the names of jurors blindfolded out of a hat!

Attorneys nevertheless find it hard to break free of the hoary notions and old wives tales that continue to exist concerning jurors. They often select jurors who end up unexpectedly blowing their cases apart as a result. Why is it that, despite overwhelming scientific evidence that such variables as race, age, gender, and so on fail to correlate in any meaningful way with jury verdicts, attorneys continue to rely on demographics so strongly?

The attorney has an immense responsibility during trial. Millions of dollars in damages, even the freedom or very life of a defendant, may depend on how jurors will decide the case. It is understandable therefore that attorneys will try to use any available guides to select jurors who hopefully will be favorably disposed towards their clients. Objective variables such as age, gender, race, religion, and so on can be compelling. And without other information to go on, these variables may seem to offer better guidance than none. The attorney who reasons this way, however, often is making a common mental error.

To illustrate, let’s say you conduct a case in which a retired policeman is a jury member. You lose the case, and say to yourself, That’s the last time I’ll seat a retired policeman; they’re too conservative. After that, every time you have a case in which a retired policeman or policewoman is included in the venire, you de-select him or her. This is where the cognitive distortion takes place: by always de-selecting retired policemen and policewomen, you are never able to prove or disprove your hypothesis that they prove conservative as jurors and should not be seated for trials. In effect, you are operating with data that can never be verified.

Jurors’ value beliefs

Instead of worrying so much about demographics, attorneys should concentrate on learning what the jurors’ value beliefs are. Numerous jury research studies indicate that it is value beliefs, along with life experiences, that correlate most closely with how individual jurors will actually reach their verdict decisions. Value beliefs are the key indicators regarding how jurors are likely to evaluate, and thus decide, the case.

Our value beliefs provide us with the basic framework by which we view the world and all that takes place in it. This framework translates into attitudes, the basic filters jurors use to weigh the evidence during trials. Uncover the core value beliefs and you can determine attitudes. Predict attitudes and jury verdict behavior can also be projected.

So it is jurors’ value beliefs that comprise the primary subject of litigation psychology research. Trial consultants assist attorneys by evaluating, analyzing, and interpreting jurors’ value beliefs as they relate to specific case issues, determine what the jurors think and feel about the case based on these value beliefs, then render opinions regarding how the jurors are likely to determine the outcome of trial disputes.

Now that we have established which personal characteristics are most important to target among jurors, let’s take a look at the actual litigation psychology research tools and techniques trial consultants use to professionally evaluate jurors and how they deliberate about cases.

Litigation intelligence surveys

The litigation intelligence survey enables the attorney to test the case prior to entering the courtroom so as to accurately and reliably determine what the potential jurors will think and feel about it, and what their primary psychological (prejudicial) inclinations to the case will be. It can correctly measure the power of individual arguments and demonstrate which aspects of the case to accentuate along with those to shun. And it can correctly establish the value of the case.

A scientifically-conducted polling of the jurisdiction in which the case will be tried, the litigation intelligence survey can determine within plus or minus five percent, i.e., with a five percent error rate, exactly how potential jurors in a particular venue will consider a particular case, its primary issues, and other key aspects. Data derived from a litigation intelligence survey carefully delineate the facts, issues, disputes, and arguments germane to a potential or actual legal dispute, and how the jurisdiction will relate to them.

Litigation intelligence surveys normally are conducted by professional firms expert in litigation psychology research. Costs range from $5,000 to $50,000, with the normal survey costing around $15,000. From start to finish a survey can take 14 to 40 days to plan and complete, including the tabulation, evaluation, and interpretation of data, and the presentation of results.

A litigation intelligence survey must, among other factors, be based on a statistically accurate sample of the jurisdiction, i.e., at least 400 individuals, who are selected on a random juror availability quota; and not on a demographic basis. For example, if the trial will probably take 12 weeks, you must survey people who could/would sit as jurors for a 12-week period. Polling normally is conducted over the phone, during personal interviews, through written questionnaires, or by a combination of these methods. Results achieved can be extremely comprehensive, detailing how the respondents rate every minute aspect of the case.

Different litigation intelligence surveys are available to the attorney, depending on the particular research objective. These include the community attitude/opinion survey, which measures what people in the jurisdiction will think and feel about the issues concerning a general type of situation and/or dispute, legal or otherwise, that is currently affecting them, or could do so in the future; the case-specific survey, which shows how the jurisdiction will relate to the issues, facts, and arguments regarding a particular or potential case; the change of venue survey, used to determine whether an impartial jury can truly be seated in a particular jurisdiction; the media impact survey, which can show the economic affects a negative verdict can have for the opposition, and which is widely used for settlement purposes, or a combination of these versions.

Invaluable Settlement Aid

A primary benefit of litigation intelligence surveys is their value at settlement time. Consider the impact a statistically accurate and positive polling of the trial venue can have on the opposition, or a professional arbitrator or mediation panel. Conversely, an adverse poll can be influential with the recalcitrant and/or difficult client who, against counsel, is unwilling or unable to accept the probable likelihood of a negative verdict.

The litigation intelligence survey graphically illustrates the risks or benefits of going to trial in an objective and unbiased manner; establishes the economic effects that a losing verdict will have on the opposition; and outlines juror perceptions and analyzes probabilities in the event the case goes to trial.

Litigation intelligence surveys do not replace jury focus groups, jury simulations, and similar research, but are used along with these activities. Jury focus groups (along with jury simulations) show how people, as a group, will deliberate about the case issues and facts. Jury simulations show how people will react to the evidence and arguments. Jury focus groups and jury simulations provide the maximum in-depth information concerning how people will relate to the case emotionally and intellectually.

Litigation intelligence surveys on the other hand provide the widest possible breadth of information regarding how jurors will perceive the disputes of the case. Most important, the litigation intelligence survey legitimates a particular settlement offer in a far more convincing fashion than a jury focus group or jury simulation possibly can.

Normally jury focus groups are conducted first and are then followed by the litigation intelligence survey. After this, additional jury focus groups/simulations are conducted, based in part on the survey results. By handling in this order, the attorney can develop the most intelligent survey questions and the best survey possible; along with the most meaningful follow-up jury focus groups/simulations. This proactive approach to survey design is far superior to developing the survey from an ivory tower. Such a poorly-planned method often results in surveys of limited practical value or surveys that even mislead.

Survey planning: both art and science

Planning, conducting, analyzing, and interpreting a scientific survey represents much more than simply asking respondents questions, noting their answers, then correlating the results. Indeed, a survey’s results can be worse than useless, i.e., point in the wrong direction, unless each step of the survey process is handled professionally by a trained and experienced survey expert.

These steps include collection (including setting up the proper procedures for selecting a statistically valid number of respondents), questionnaire construction (planning the choice of topics and the wording and order of questions), interviewing (methodology of submitting questions to those to be interviewed); and analysis (tabulation, treatment, interpretation, and reporting of data derived from the survey). Incorrectly handling any single aspect in this complex mix can result in a survey that may provide erroneous results.

The value of litigation intelligence surveys and their recommendations depend, more than any other single factor, on the experience, expertise, and professional savvy of the research director who plans and conducts the survey. He or she is like a master chef, using sophisticated cooking techniques, a hardware of pots and pans, a wide variety of food ingredients, and D-Day timing to produce a 4-star feast. But if the chef mishandles even one small aspect of this elaborate food preparation and cooking process, the meal falls flat. In this regard, the litigation intelligence survey is even more complex and demanding in its planning and preparation than a great banquet, and with far more at stake. Like the chef with his or her feast, the research director can make or break the survey.

Use and timing

Litigation intelligence surveys are excellent for use in major cases of tremendous complexity, for atypical cases where the outcome is unpredictable, in cases where strategic planning is crucial or where a starting point is not clear, and for any large case in which the plan is to settle. In terms of timing, attorneys should plan on initiating their litigation psychology research, i.e., jury focus groups, jury simulations, and litigation intelligence surveys, at the earliest possible opportunity in the case preparation process, and certainly prior to planning discovery. The valuable findings that derive from a survey conducted early can help direct the attorney away from wasteful areas during discovery, thus saving time and money.

Jury focus groups & jury simulations

Jury focus groups and jury simulations are litigation psychology research studies in which six to 12 surrogate jurors jointly assess the case and its key facts, issues, and problem areas. They help the attorney understand the case from the perspective of the jurors and to see the case the way the jurors will. Jury focus groups/simulations are carefully conducted social science experiments in which the surrogate jury response groups receives various stimuli (e.g., alternate case presentations) in order to gauge their reactions to these stimuli.

Jury focus groups almost always are done first, followed by jury simulations. Often a focus group will be conducted to address and analyze specific case components, e.g, the key issues of the case from the jurors’ perspective, the right trial theme, and so on. The most common areas of investigation for focus groups are:

?         What are the problem areas and/or primary issues of the case, as perceived by lay persons?

?         What facts and/or issues of the case are most commonly misunderstood?

?         What information do the jurors want?

? What order do the jurors want to see/hear the information to maximize optimal processing?

?         What are the jurors’ reactions to the case facts?

Jury focus groups help analyze the primary issues of the case. As such, they provide a basic temperature reading of the main case issues and the jurors’ reactions to them. Focus groups provide comprehensive in-depth information concerning the way jurors will relate to the case and its primary issues. They measure the extent of prejudice towards trial issues. And they can help the attorney discover how to plan discovery most efficiently. Additionally, focus groups provide the best methodology to determine a true jury validated trial theme, i.e., one guaranteed to develop the widest possible appeal with the jury.

Jury simulations are more elaborate research studies in which a shortened version of the trial is presented to surrogate jurors who then deliberate just as an actual jury would. Jury simulations are excellent research tools to determine how to frame the evidence; to discover the optimal arguments to improve the case liability and damage positions; and to maximize case strategies. The case problem areas that were identified during the initial focus groups can be addressed during a series of strategic jury simulations. The attorney can also argue the case issues in the most relevant possible format, based on the focus group research conducted earlier. The primary goals of jury simulations are to:

?         Incorporate the research of the issue analysis (focus group) phase

?         Draw out juror perceptions, attitudes, and core beliefs as they relate to an application of the law to the evidence

?         Discover the relevant attitudes that will predispose potential jurors to be less than neutral

?         Learn which areas of the case are subject to faulty perceptions and erratic memory by the jurors

?         Find a case strategy with the widest level of acceptance

?         Evaluate the liability position and value of the case

?         Refine themes, strategies, and tactics

?         Establish the most effective techniques to persuade jurors

?         Create winning opening statements and closing arguments

?         Provide a workable image analysis forum for attorney and witness presentations

?         Test the effectiveness of all demonstrative evidence, visual aids and graphics, and all other case presentation exhibits

During jury simulations surrogate jurors see and hear the evidence; listen to both sides arguments; then actually deliberate. This process is repeated with different groups of surrogate jurors at least three to 10 times depending upon the experimental design employed by the psychologist. This is done to test both the internal and external validity of the experiment.

As the series of simulations are conducted and additional data is developed, results are thoroughly analyzed to provide the attorney with a wealth of information and successful ideas for presentation. Through this process the optimum case presentation approach and trial tactics begin to emerge. The most effective voir dire questions are also normally developed during this stage of litigation psychology research.

In short, the litigation psychologist employs jury focus groups and jury simulations to develop educated recommendations the attorney can use in his or her trial planning, e.g., mapping out discovery; discovering the type of evidence to present and how to present it; planning the questioning of the venire members during voir dire; structuring the opening statement and closing argument for maximum impact; handling direct and cross-examinations; determining the effect of expert witness testimony; organizing lay witness testimony most effectively, and so on.

Jury focus groups/simulations demonstrate what will be the jurors’ expectations concerning the case, and how to plan the case according to these expectations. Through such intelligence, the attorney can discover the best methods to strengthen and clarify arguments and evidence in such a way that will parallel the jurors’ concerns. Jury focus groups/simulations permit the attorney to test-market alternative case tactics and strategies to find what works best. These options can be examined without endangering the case before the actual jury.

Formats for jury focus groups and jury simulations vary considerably. The choice of format depends on such factors as the experimental design to be used, the specific issues to be determined, the type and complexity of the case, and so on. Jury focus groups/simulations conducted are always case specific.

Demographics should not be a factor when it comes to organizing jury focus groups/simulations. The most productive research findings normally result when the most vexatious individuals that can possibly be found are recruited as surrogate jurors. These individuals should possess value beliefs and opinions that run 180 degrees counter to the desired point of view. Such negative jurors almost always quickly determine the primary case problem areas, which should be the main subject of concern for the attorney.

Litigation psychology research’s main goal is to discover the case presentation strategy, trial theme, arguments and evidence that will go furthest in convincing a jury. It is crucial therefore to test the case and all of its key particulars before the toughest possible audience, in this case six to twelve highly negative surrogate jurors. Any case presentation that can stand up before such a group will have the best chance for success during the actual trial.

Jury focus groups/simulations should be organized on a relaxed and informal basis to encourage the surrogate jurors’ open participation and interaction. This is normally handled best in a non-office-type environment such as a hotel suite. Note taking by the focus group leader, along with other group monitoring, e.g., video cameras, tape recorders, etc. is handled as unobtrusively as possible so as not to inhibit responses in any way.

The jury focus group/simulation leader normally is a behavioral scientist specializing in litigation psychology research. His or her primary goal is to make sure the participants stay focused on the central issues of the case.

Juror responses are evaluated psychometrically vis-a-vis the various research goals, e.g., what is the best theme? what is the best evidence? who are the best witnesses? what are the primary case issues? which opening statement and closing argument work best? Through this process, reliable data is developed concerning the case and how it can be presented to jurors most effectively. The focus group/simulations testing is then conducted again and again with different sets of surrogate jurors to ensure the validity of the results as established.

Jury focus groups/simulations should be conducted very early in the trial planning process, and certainly well before discovery is completed. When litigation psychology research is conducted early enough, discovery often can be greatly reduced, at a substantial savings to the overall case budget. A second series of focus groups/simulations should be conducted immediately before trial to help determine how jurors will perceive the facts, evidence, and arguments once discovery is completed.

In most cases the venue in which jury focus groups/simulations are to be conducted is not a key concern. The most important factor is to secure focus group participants who are outspoken individuals that possess value beliefs which run counter to the desired point of view.

Presentation

A universal misconception concerning jury focus groups/simulations is that it is essential to present the strongest possible case to the surrogate jurors. Some attorneys try to organize litigation psychology research so that it is weighted heavily in their favor. They play up their case’s strong points and de-emphasize any problem areas. They avoid presenting incriminating evidence. They provide a dubious event timeline summary that is biased towards the client. They attempt to obfuscate the facts of the case and editorialize to influence the surrogate jurors’ perceptions.

This is exactly how litigation psychology research should not be conducted. Surrogate jurors must be permitted to react honestly to the true facts, issues, and arguments of the case, not to the attorney’s lopsided perception of these elements. Otherwise any litigation psychology research results will probably be worthless.

The most effective litigation psychology research is achieved when the other side’s strongest points are stressed, along with the worse points of your own case. Surrogate jurors should be allowed to focus on the depositions and other evidence that runs counter to your trial position. All close calls and other case areas open to interpretation should always be presented in favor of the opposition.

When it comes to litigation psychology research, and in particular, to jury focus groups and jury simulations, you can’t find (and fix) problems if prevented to investigate for them. By handling jury focus groups and jury simulations in the manner described above, the attorney will be able to discover the major problem areas of the case, along with the best ways to deal with them.

Simultaneous juries (e.g., SimulJury)

Simultaneous juries (e.g., SimulJury) represent a carefully selected group of jurors similar to the actual jury in attitudes and beliefs. The panel sits in the courtroom during the trial and receives the same information as the actual jury. The purpose of the simultaneous jury is to provide the attorney with reliable answers to these key questions:

?         How is the trial going?

?         How am I being perceived?

?         How is the opposition being perceived?

 ?       How are my witnesses plus witnesses for the opposition being perceived?

?         What do the jurors understand/misunderstand about the evidence and the testimony presented during the actual trial?

The simultaneous jury provides valuable daily feedback on all aspects of the trial, including juror reactions to the testimony and physical evidence. These insights provide the attorney with the opportunity to alter case strategy if need be before a verdict is reached.

A simultaneous jury is useful for complex or high risk litigation, especially where it is not possible to simulate a specific part of a case. For example, a simultaneous jury can be an excellent research tool to observe and analyze an opposing witness’s testimony or appearance, or the opposing counsel’s style.

In-court assessment is an alternative to a simultaneous jury. Instead of surrogate jury members, a trained jury expert, e.g., a trial consultant/litigation psychology research specialist, sits in the courtroom on the daily basis to provide a regular assessment of jury reactions, including their non-verbal responses; and to interpret the trial proceedings from the perspectives of the jurors.

Post-verdict interviews/analyses

It is often useful to interview jurors after the trial is concluded to determine why they reached the judgments they did. This can be valuable for numerous reasons, e.g., if the attorney was surprised at some particular aspect of the verdict, if the verdict is going to be appealed, if there will be multi-district litigation, and so on. As a seasoned jury expert, the trial consultant will know how to quickly secure the necessary information from jurors during post-verdict interviews that will prove most instructive for the attorney during the appellate process, or for other purposes.

Electronic juror measurement and monitoring

Numerous technological advances in the field of litigation psychology research enable the attorney to reliably determine how jurors will react to the most discrete portions of his or her trial presentation.

For example, our firm employs an advanced juror electronic monitoring device we term the Opinionator that immediately analyzes surrogate juror responses to specific trial segments being simulated, the opening statement, particular witness testimony, special demonstrative evidence, the closing arguments, and so on.

The device is connected to a computer that organizes and analyzes the data (i.e., the moment-to-moment juror responses), and then displays it as an electronic overlay directly over the videotape of the trial presentation segment. The attorney can see precisely how the most minute aspects of his or her case are coming across with jurors, and then make the necessary adjustments.

The most sophisticated trial consulting/litigation psychology research firms also utilize electrogalvanic skin-response juror monitoring devices (similar to polygraph testing) to measure the potential emotional impact on jurors of specific portions of the trial, opening statement, closing argument, and so on.

Putting it all together

Each litigation psychology research component makes its own contribution to provide the attorney with the most comprehensive data available regarding how jurors will react to the facts, issues, evidence, and arguments of a particular case. These include the litigation intelligence survey, jury focus groups, jury simulations (and related electronic testing), witness preparation, voir dire planning and counseling (to be discussed in the section immediately following), simultaneous juries/in-court assessment, and post-verdict interviews. Normally, litigation psychology research is handled in this sequence, and according to this timeline:

1.        Initial jury focus groups are conducted early in the discovery process to uncover the key case issues and concerns; and to develop the most efficacious polling questions to use during surveys.

2.        Pre-trial polling (litigation intelligence surveying) is conducted to determine how potential jurors in the venue will react the to the case and its primary facts and issues; such polling normally takes from 14 to 40 days to plan and complete, including the tabulation, evaluation, and interpretation of data, and the presentation of results.

3.        A second series of jury focus groups along with the first series of jury simulations are conducted immediately after polling results are analyzed and interpreted; this phase is also conducted early in the discovery process (at least 90 days before discovery is complete). Deposition preparation is also done at this time.

4.        A final series of focus groups/simulations (and possible electronic testing of jurors) is conducted immediately before the trial commences. This second series helps determine how jurors will perceive the facts, issues, evidence, and arguments once discovery is completed. Initial trial witness preparation also now begins.

5.        Voir dire planning and counseling takes place directly before voir dire, and also during the voir dire process.

6.        The simultaneous jury/in-court assessment phase is conducted during the full length of the trial. Final witness preparation is conducted.

7.        Post-verdict interviews and verdict analyses are conducted shortly after the trial is completed, if needed.

Voir dire-more psychological than legal

How can the attorney uncover jurors’ values and beliefs during voir dire most effectively? The way not do it is through asking close-ended questions, the common interrogatory technique many attorneys mistakenly use with jurors during voir dire. Close-ended questions are excellent to tightly control the responses of witnesses providing trial testimony. But they defeat the purpose of voir dire which is to get jurors to open up through expansive answers to questions posed, and thus to reveal themselves and their true feelings.

Have you lost a parent? is a typical close-ended question. Jurors can only answer with tight “yes” or “no” answers that reveals virtually nothing about them or their attitudes concerning the question. A more effective way for the attorney to question jurors on this topic is to structure his or her questions so the juror will be required to answer with I feel, I believe, or I think type responses. How do you feel about losing a parent? will elicit much more useful information than a close-ended question.

Open-ended questions normally are structured thusly: Please give us your thoughts concerning...How do you feel about... or Can you share with us your opinion regarding...Such questions usually are completed with references to specific case issues, physician negligence, jury verdicts, commercial fraud, and so on. Remember what voir dire all about letting jurors speak. Open-ended questions enable the jurors to fully air their attitudes and feelings about the primary case issues they will deliberate concerning later. And they shine a spotlight on the jurors’ values and beliefs. People cannot always express their true feelings at work, in social settings, or even at home. Give them the opportunity to do so during voir dire, where they can speak honestly without fear of recrimination and most will eagerly do so.

What if the answers the panelists provide are not the ones you want to hear? This is not a factor to be concerned with during voir dire. It is impossible to know if panelists will be positive or negative towards your case unless they can speak their minds. If it turns out that a panelist is twisted by bias towards the key issues concerning your case, you want to: 1) know about this immediately, and 2) expose the bias for all to see. This is the only way you can get a prejudiced juror off for cause.

Don’t treat voir dire as a job interview

Some attorneys don’t seem to know how to effectively handle voir dire. For example, they treat panelists almost as job applicants looking for work. They pepper panelists with inappropriate and patronizing questions the answers to which will reveal little or nothing about their true feelings and attitudes. They lecture panelists regarding narrow legal issues. They ask jurors insulting questions, e.g., Can you be fair regarding this case?, that can only result in socially acceptable answers (and peeved panelists). Or they subject the panelists to a rock-headed 20 Questions approach, Please tell us the names and dates of employment for all of your co-workers.

Dale Carnegie warned that if you’re the one doing all the speaking, your listeners end up judging you. Many attorneys should keep this useful maxim in mind when communicating with jurors during voir dire. Instead of doing all the talking during voir dire, attorneys should be doing all the listening. Because if the jurors are unable to express themselves fully during voir dire, you’ll never know who they are, or what their attitudes may be about your case and its primary issues.

Voir dire doesn’t have to be complicated or difficult. Indeed, when the attorney organizes voir dire correctly, the entire process is very straightforward and direct, asking jurors to tell you in their own words what they think and feel about the primary issues of your case, then shutting up, and letting them do so. What could be simpler? By handling in this manner, the attorney will be able to most effectively uncover and eliminate biased jurors who will automatically line up against the case.

Establish a friendly rapport with jurors

The attorney should try to establish a friendly atmosphere with voir dire panelists, many of whom may feel uneasy being questioned about in court. Get away from the podium so there are no barriers between you and the jury. Establish a comfortable distance with the jurors. Make it clear that you want to get to know the jurors and what they consider important. Show interest and concern in everything they have to say. Be sure and reinforce all juror responses, no matter what they may be. Say, It’s valuable that you mentioned what you did. You are not the only one who feels this way. Can you explain further why you hold this opinion? The number one rule of psychology is that reinforcement increases the probability of a response. Put this rule to work during voir dire so you will get the responses you need to make intelligent de-selection decisions regarding the jurors.

Voir Dire Should Parallel Deliberations

If the attorney orchestrates voir dire correctly, he or she can get the jurors to deliberate, almost as they would at the end of the trial. How can this be accomplished? The attorney must treat voir dire as a collective social conversation in which the panelists are encouraged to participate. This cannot be handled through a dry question and answer session between the panelists and the attorney; instead, the attorney must be, as Yankee slugger Reggie Jackson once described himself, the straw that stirs the drink, i.e., the catalyst to get the conversation started and then bouncing from one panelist to the next. The point is to get the jurors speaking as much as possible, so that soon they are speaking, deliberating with each other. To illustrate, consider the following dialogue:

Attorney (to the first juror):	Do you have an opinion regarding lawsuits?
First Juror:	Everyone has a right to settle their problems in court. But lawyers’ contingency fees are driving people crazy.
Attorney:	I appreciate that honest remark. You are not the only person who feels this way. (Then, to the second juror:) Ma’am, what do you think about what was just said?
Second Juror:	Because I sell insurance I must work on commission. Many times I spend a great deal of time and expenses working on an order that never pans out. Lawyers are in the same boat, so I feel their contingency fees are justified.

The attorney then polled the remaining panelists who all volunteered their opinions regarding the topic. The majority agreed that everyone, even lawyers, should be entitled to make a living.

Notice that the attorney in the example above did not react defensively to the negative remarks of the first juror questioned, or in a fearful manner regarding what the other panelists might say. Rather, the attorney let the conversation develop freely. By handling in this manner, he or she will be able to secure the necessary information regarding how the panelists feel about attorneys’ fees, damage awards, and associated issues. If the attorney tries to stifle the conversation, the same opinions will surely be expressed later during deliberations, but without any attorney guidance, as is possible during voir dire.

Eliminating biased jurors-a six step approach

The attorney can target and eliminate biased jurors during voir dire through this surefire six-step plan. Here’s how it works.

Step one-submit a memo of law

The attorney must first submit a Memo of Law to the judge which fully details all recent law regarding challenges for cause. Such a memo that is acted upon means both attorneys will be required to operate according to the same strictures concerning challenging jurors for cause. This memo should be submitted before jury selection. This save times and eliminates the nuisance of repeatedly bringing up various parts of the law concerning juror challenges during voir dire.

Step two-employ open-ended questions during voir dire

As discussed, attorneys often employ close-ended questions during voir dire that cannot elucidate the jurors’ true feelings about the case. Additionally, close-ended questions designed to condition (You’ll be fair, won’t you?) or to educate (You understand they have the burden of proof, don’t you?) anger jurors because they insult their intelligence. Open-ended questions will accurately indicate how the jurors truly feel about the key case issues. Remember: The only way to get a juror off for cause is to let them broadcast their biases and prejudices so they become obvious. Be sure, therefore, to let prospective jurors speak as fully as they feel necessary. (The bad ones are digging their own graves right there in front of you!) Do not attempt to rehabilitate the jurors as they respond.

Step three-accurately record all responses

The attorney should keep an accurate record regarding exactly how each juror feels about the important case issues. This written record will help keep all juror responses in order. Plus, such a record can be valuable for later use in the trial.

Step four-poll the other jurors

Step four is handled in conjunction with step two. It involves polling the other jurors to determine whether they may also share prejudicial attitudes as expressed by jurors already questioned. To illustrate, consider this example of a products liability case from the defense attorney’s point-of-view:

The attorney asks a prospective juror what his or her attitudes may be concerning corporations that manufacture consumer products. The juror responds that, Manufacturers are only interested in their bottom lines, and don’t really care that much about product safety. The attorney immediately thanks the juror for his or her honest response, then asks ask how many jurors agree with the sentiments expressed, and notes those jurors who respond positively. This tactic is then repeated with any other problem responses that come up.

Does this process polarize the jurors? Yes, and in this particular instance, for the defense attorney, polarizing the jurors is clearly beneficial. If half the panel believes without evidence that your company is probably just another business entity without ethics, willing to sell anything to boost profits, then half the panel won’t be returning after lunch, they will be off for cause.

Step five-clearly confirm juror bias

It is important during voir dire to spotlight juror bias so the judge and others in the courtroom will be able to clearly perceive it. For example:

Attorney:	What are your feelings about the safety attitudes of companies that manufacture consumer products?
Juror:	Most of them only care about product safety when they get sued.
Attorney:	Thank you (reinforcement). That’s precisely the kind of sincere answer we are looking for. (To the other jurors:) How many agree? How many of you believe most manufacturers don’t really care about product safety?
Various Jurors:	Yes, we agree.
Attorney:	(Repeats some variation of the necessary reinforcement, then ask the jurors to expand on their attitudes about manufacturers.)
Attorney:	(To the appropriate juror:) How long have you had these feelings?
Juror:	All my life.
Attorney:	So your feelings won’t change abruptly, do they?
Juror:	No.
Attorney:	Not about to change your opinion concerning manufacturers in the next few weeks, are you?
Juror:	Certainly not.
Attorney:	Thank you for your honesty.

Step six-strike biased jurors immediately

The final step is to strike biased jurors for cause as soon as you can. Jury research indicates that problem jurors do more damage during breaks and lunch time than they do inside the courtroom. Such jurors often engage other jurors in negative conversations about case-related matters. It’s best to get them out of the picture as soon as possible.

What about contamination?

Many attorneys believe that negative responses expressed during voir dire are likely to contaminate the other jurors. This is largely a needless worry. Voir dire is primarily a psychological process, the jurors are being cued by the attorney to react at a subconscious level according to their deeply felt individual beliefs and prejudices. The point to keep in mind is that you can’t really change beliefs, you either have them, or you don’t. Beliefs are not contagious nor easy to change. The mere statement of a particular belief by one juror during voir dire is highly unlikely to suddenly change the minds of the other jurors.

To relate this concept to our products liability case, some jurors may believe that consumer safety is of far less importance to most manufacturers than are their sales year-to-date. Other jurors however may feel much differently about the issue. The attorney’s job during voir dire is to find out exactly who among the jurors feels each way, make sure these feelings are clearly expressed, then challenge for cause accordingly.

Think about it: If negative opinions are voiced during voir dire, they will probably also be expressed during deliberations. Clearly the attorney should try to get any and all negative feelings aired during voir dire while there is still time to do something about them. It will be too late once the jury is seated.

The value and use of supplemental juror questionnaires

Sometimes judges do not provide the attorney during voir dire with the time and/or latitude he or she requires to adequately learn about jurors and their key value beliefs. This is a particular problem in Federal Court where it is usually the judges, not the attorneys, who pose voir dire questions to the panelists. How can the attorney get the information he or she needs regarding the jurors if the judge restricts questioning during voir dire?

One good way to handle this vital requirement is through the use of supplemental juror questionnaires (S-J-Q’s), which can be used in place of, or in addition to, oral questioning during voir dire. S-J-Q’s supply extensive information about who the jurors are, what their life experiences may be, and most importantly, what are their attitudes regarding the key case issues.

S-J-Q’s are preferred by judges because they make the voir dire process go faster; and by jurors because they allow them to communicate highly personal thoughts and feelings in the relative anonymity of written, as opposed to verbal, communications. S-J-Q’s are also excellent documents to challenge jurors for cause. The jurors’ signed statements concerning their key opinions are written clearly in black and white, and thus are less likely to be misunderstood.

S-J-Q’s provide a vast amount of valuable data regarding the jurors, and their attitudes, opinions, and life experiences. The manner in which jurors pen their answers can also be revealing. A juror’s handwriting, for example, can be significant. Word choice, spelling, even choice of writing instrument, can also tell much about the jurors.

S-J-Q’s should be made as comprehensive as possible to secure the maximum available worthwhile information regarding jurors. It is normally better to have jurors fill out S-J-Q’s in the courtroom rather than sending them to the jurors’ homes. (You may not get them back.) S-J-Q’s 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. Be sure and allow the jurors ample time to fill out the S-J-Q’s (most jurors can finish a 60-question form in 20 minutes or so; along with sufficient time for the forms to be analyzed by the trial consultant. S-J-Q’s provide valuable insights regarding jurors, both in the written responses and also in terms of what exists between the lines. Use them wherever and whenever you can.

Trial theme development

Most attorneys would agree that selecting the right theme for a case is important, but many are unsure what a theme is, how to find the right theme, or how to put it to maximum use in the courtroom. Attorneys are detail-oriented professionals; as a result, many often do not have the training or inclination to think thematically.

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. Because attorneys must concentrate on and master highly complex and/or arcane legal issues, their highly focused approach sometimes makes it difficult for them to communicate with non-lawyers. It is for this reason that attorneys often are unable to develop trial themes that jurors will find compelling. This is unfortunate because theme development is the rock upon which all writing and oratory are constructed.

This is particularly true in the courtroom because trial themes personalize case issues; themes help jurors form impressions; and impressions win lawsuits. Extensive jury research indicates that jurors deliberate in themes; the case theme is the main mental organizer that helps jurors remember the facts; the right theme enables jurors to look for evidence that fits the trial story and to disregard evidence that doesn’t; and case themes facilitate evidence comprehension and enable juries to reach pre-deliberation verdict decisions.

The best trial theme sums up the case in one word, e.g., apathy or nonchalance (for medical malpractice cases), accountability (for liability cases), and greed (for commercial cases). One word themes not only make the case understandable for the jurors; they bind the entire case together. They help jurors pigeon-hole away all the case conflicts and justify the desired point of view.

The trial theme is the heart of the case. A bad theme can kill the case. The attorney should utilize litigation psychology research to develop a trial theme that will achieve the widest level of acceptance with jurors. After planning and organizing more than 5,000 jury focus groups and jury simulations during the past 18 years, our firm has determined that one specific litigation psychology research form, the interactive focus group works best to test trial themes.

This jury focus group is organized on a very informal basis to encourage the surrogate jurors’ open participation and interaction. The setting is relaxed and casual, hors d’oeuvres are served, and jurors are encouraged to accommodate themselves as they wish, i.e., stand, sit, or move around, just as at a party.

The jurors are asked to focus on the primary issues of the case and to discuss it at its most basic level. Through these discussions the right theme begins to emerge. This interactive focus group testing is then repeated over and over with other groups of surrogate jurors to guarantee the validity of the results.

The theme is a powerful persuasive tool; as such, it should be incorporated into every phase of the attorney’s trial presentation, voir dire, opening statement, direct examination, cross examination, and closing argument. By enveloping the trial theme in this manner, the attorney is sending the jurors a message (the trial theme) they are sure to receive.

Some rhetorical tips

Jurors utilize an idiosyncratic approach to deal with case information received during the trial. Analogies, metaphors, plus repetition, key phrases, tone of voice, and other non-evidentiary factors greatly affect they way jurors process information and reach decisions. The attorney should be aware of, and be sure to utilize, the following powerful rhetorical tools during his or her courtroom presentation:

Analogies & Metaphors-If the theme is your trial story, then analogies and metaphors comprise the language you must use to tell that story so jurors will comprehend it. For example, if prevention is the case theme, it can be explained thusly: The defendant’s failure to prevent this injury from occurring is like failing to erect a safety barrier around a dangerous excavation close to where children play.

Expectancy Statements-Introducing statements to the jury by saying, You can expect us to show that... gets the jurors to anticipate key trial information you will introduce later. In psychology, this is known as gaining the selective attention of the subjects. Through this process jurors will unconsciously wait for information that supports your case and disregard information that doesn’t.

Rhetorical Questions- Research indicates that utilizing a counter-attitudinal message with questions leads to a more intensive processing of a message’s content than introducing it with statements. Use of rhetorical questions - Why wasn’t the maintenance done correctly?, will actively alert jurors to their decision-making responsibilities, and add impact to the trial presentation.

Use of Double Binds-Characterizing the other side in negative either or terms helps minimize juror sympathy for the opposition. Did the property owner fail to prevent this injury because they were negligent...or because they were arrogant, and just didn’t care that much about the welfare of their guests?

Rule of Three-Communications research indicates that an idea should be repeated three times or more for it to be easily remembered. Accountability! Accountability! Accountability! If only the defendant had been concerned regarding this key concept, this trial would not be taking place today.

Parallelism-Jurors will pay closer attention to your trial presentation when it incorporates rhythmic parallel structure in language. The patient’s death was not preventable because it was unavoidable. It was unavoidable because it was unforseeable. It occurred because it was a rare complication of a rare disease in a rare circumstance.

Demonstrative evidence

Jurors retain more information when it is presented to them with visual support - diagrams, pictures, charts, and other graphics. Research indicates that jurors have about a 17-minute span of attention; and that the first four minutes during which the attorney speaks will greatly determine whether the jurors pay attention for the remaining 13 minutes. Graphical aids can help engage the jurors for these vital first four minutes.

Visual aids also greatly aid in the encoding process, i.e., the manner in which people form opinions. During encoding, an automatic classification of mental data takes place, based on specific quickly identifiable characteristics, and then is sent on for additional logging and processing in the brain. Visual demonstrative evidence, colorful computer animations, oversize graphics and exhibits, photo displays, three-dimensional models, and so on, strongly promote this encoding/classification process.

A picture is worth a thousand words. This is why most knowledge is learned visually, not in an auditory manner. Jurors will be far more likely to remember what you tell them if your presentation includes visual and graphical aids. In our highly visual age of movies and TV, jurors prefer to see, not just to hear, what the case is all about. Therefore, be sure and show them.

Classically conditioning jurors

Attorneys can use the psychological technique of anchoring to get jurors to react positively on cue to an unspoken message. The procedure involves tying a specific gesture 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 to make the strongest impression on jurors (Pivotal Point Conditioning^SM). For discussion purposes let’s assume that the case’s pivotal point is based on the fact that your client, a defendant in a murder trial, has an ironclad alibi, supported by numerous independent witnesses, that he was at a prominent social function when the murder took place. The attorney should anchor this point every time he or she mentions it with an obvious gesture, e.g., using a prominent hand movement or fixing his or her glasses that cannot be missed by the jurors. Doing this repeatedly associates the gesture with the pivotal point message until the gesture stimulus alone will recover the memory in the jurors’ minds.

Once the stimulus response mechanism is fully established, the attorney need only perform the gesture stimulus to automatically trigger subconscious positive responses among the individual jurors regarding the pivotal point.

This classical conditioning creates an altered state of consciousness similar to hypnosis among jurors. 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 reduces the anxiety feelings they often have during a trial. Since these anxiety states are caused largely by the confusion that is customary with jurors as they try to sort out differing trial arguments, evidence, and facts, the benefit of reducing such confusion is substantial.

Anchoring the case’s pivotal point from the same power spot in the courtroom, next to the flag, the judge’s bench, or to any other well-established symbol of authority, is always a good idea. The attorney can establish a positive association in the minds of the jurors regarding the pivotal point of the case and the symbol of authority.

Classical conditioning is not bogus science. It will have the desired effect on jurors if performed correctly. But it will not work if the stimulus is extinguished or over-generalized. To avoid extinction, the pivotal point message must always be paired with the gesture stimulus. 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 attitudes concerning the pivotal point. (It is useful, for example, to employ the gesture stimulus at the most critical point during opposing counsel’s closing argument.) Classically conditioning the case’s pivotal point provides the attorney with a singular and powerful advantage with the jurors during the trial.

Witness preparations

Current jury research indicates that cases today are won or lost more than any other factor on the basis of what the witnesses have to say. The attorney can plan and present a truly masterful case, but if his or her witnesses are not credible, the case will probably still be lost.

It is critical therefore that witnesses be thoroughly prepared for their testimony, both during deposition and trial. Unfortunately, many attorneys often leave witness preparations until the last minute, or assign this key trial preparation phase to a junior associate, even a paralegal, who may not have the experience and/or training to do the best job. It should come as no surprise that such delegation often leads to trouble at trial time.

The film A Few Good Men of a few years ago dramatically illustrates what I mean. Tom Cruise is a Navy attorney defending two young Marines accused of murder. In one scene, he throws a catastrophic fit because the inexperienced lawyer assisting him with witness preparations did not secure vital information from the defendant about his whereabouts at a critical time, information which came out in the most damaging manner during cross-examination.

Worried that the case has just blown up in his face, a drunken Cruise carries on uncontrollably with the horrified assistant for failing to draw out all the key facts during the fact-gathering session with the witness. But who is truly at fault, the assisting attorney, or the lead attorney, as played by Cruise, for his own failure to pay more attention in the witness fact-gathering/preparations aspects of the case?

Many attorneys don’t like witnesses because they often prove to be loose cannons in the courtroom, liable to say anything. (The truth is that more than a few attorneys would try their cases without witnesses if they could!) But if a witness goes out of control when providing testimony, it may be due to the fact that the attorney did not spend enough time working with the witness to prepare that individual for testimony.

Considering the importance of witnesses, it is odd that many attorneys often fail to invest adequate time in witness preparations. Often the trial is the single most important factor in the client’s (witness’s) life. Research indicates that many clients dream about their cases! Often the client will intuitively understand the main case problems, along with its solutions. And although he or she wants to impart these special insights and knowledge, the attorney many times is too busy to listen.

The attorney should not avoid witness preparations until the last minute. A comprehensive witness preparations program needs to be organized at the earliest possible point in trial planning, with repeat preparation sessions conducted immediately before deposition and trial. A good rule of thumb: three hours of preparation time should be spent for every hour the witness will provide testimony during deposition and trial.

Many attorneys now turn to trial consultants formally trained in psychology to help them prepare witnesses for deposition and trial. (When dealing with witnesses in a professional capacity, licensed psychologists can claim and are granted a privilege regarding confidential information revealed to them.) Such witness preparations assistance by a trained psychologist/trial consultant can be invaluable in discovering witnesses’ personality types, along with developing successful techniques to deal with each.

The trial consultant trained in psychology will also know how to get those ever-present skeletons out of the closet during witness preparations, so as to minimize the damage they can do later. Plus, he or she will be armed with an entire repertoire of techniques to help the witness overcome stage fright in order to deliver the most effective possible testimony during deposition, or on the stand.

Most important, the psychologist/trial consultant will be professionally able to help the witness project his or her personality in the most positive possible light. This is absolutely essential with juries. Numerous studies, plus my firm’s own 18 years of jury research, indicate that witness likability is more critically important to jurors than witness credibility.

If jurors don’t like the witness, they have a tendency to tune out what he or she has to say. If, on the other hand, jurors like the witness, they will often disregard credible and highly incriminating testimony against him or her. The William Kennedy Smith trial and the first 0.J. Simpson trial provide clear evidence of this bedrock propensity on the part of jurors.

To sum up, the psychologist/trial consultant can help the witness overcome the customary fears associated with testifying in court by employing various professional techniques to bolster and buttress, and thus to free up his or her psyche. As a result, the witness will be far more receptive, psychologically, to advice, suggestions, and recommended techniques that he or she should employ to effect the most convincing possible testimony during deposition and while in court.

Assisting the witness in this manner can be a difficult professional task, i.e., helping the witness successfully address and overcome his or her own internal doubts, guilt, and fears. Such emotional catharsis can only be achieved by a licensed therapist utilizing sophisticated psychological counseling treatments and techniques. It is extremely difficult for the witness to testify to maximum advantage without such professional assistance.

Nervous witnesses

A nervous witness is not an effective witness. Witnesses who exhibit excessive nervousness on the stand raise questions in the minds of jurors. (What does the witness have to be so nervous about?) A key goal of witness preparations for this type of witness is to provide worthwhile techniques they can quickly employ to reduce nervousness to manageable levels while being questioned. The psychologist/trial consultant often employs classic relaxation therapy to help such a witness successfully deal with the anxiety-inducing stimuli that he or she associates with providing legal testimony.

The testimony situations that are least feared are dealt with first, then, successively, the more worrisome ones. This is handled through the engagement of inventive mental training exercises relating to the testimony scenarios that will come. For example, the witness may be encouraged to imagine sitting in a lovely garden on a beautiful spring day; birds chattering happily away, butterflies floating gracefully through air; and all restful and placid. The witness will then be shown how to quickly tap into these (or similar) tranquil images during stressful testimony situations. The witness will practice, over and over, so that he or she will be able to automatically summon up the calming imagery before responding to specific questions during testimony.

Mental relaxation training of this type has been used for decades by psychiatrists and psychologists to help nervous patients effectively deal with their fears concerning public speaking, driving, flying, and so on. It can also work well with witnesses who must testify in court.

Along these lines the psychologist/trial consultant often will employ another therapeutic technique to help witnesses overcome their nervousness about testifying in court. As the witness responds to questions regarding the case, the psychologist/trial consultant continually asks him or her to imagine a series of positive responses to each answer provided, Think of the jurors cheering as you give your answer, Picture the people in the courtroom standing up and applauding when you speak, Imagine the judge smiling in approval as you provide information. Through these and similar exercises of positive reinforcement, the witness begins to feel at ease when providing legal testimony.

Psyching-up strategy

Witnesses who are afraid of being questioned by the opposing counsel must be helped to deal with this emasculating concern. This often can be accomplished if the witness can be taught to imagine the opposing counsel as a burlesque character.

While the psychologist/trial consultant asks a series of tough questions that are likely to come up during cross-examination, he or she may first prompt the witness to visualize the opposing counsel asking the same questions in any one or more of a number of personally embarrassing situations, while the opposing attorney is wearing a funny costume; while being chased around the room by a angry rooster, or something equally comical.

The witness is not permitted to respond to any questions until the goofy goose image of the opposing counsel is firmly planted in his or her mind. Similarly, the psychologist/trial consultant may ask the witness to answer the same series of questions, then imagine the attorney sobbing uncontrollably at the responses, throwing a temper tantrum and pounding the floor, or reacting in some other silly manner.

These exercises can help the witness view the opposing counsel not as some brilliant Perry Mason-type inquisitor, but almost as one of the Three Stooges instead. When you can laugh at someone, you stop taking them so seriously. Note: These mental training exercises are organized not to underestimate the adversarial purpose (and accompanying potential danger) of cross-examination, but rather to reduce the intimidation factor regarding the opposing counsel.

Attention-focusing

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 too talkative on the stand. This is due to the fact that, subconsciously, almost all witnesses feel a strong urge to explain themselves to others, a common psychological drive. (Clearly, this is another strong indicator why it so valuable that a psychologist/trial consultant be employed to help the witness achieve the all-important state of psychological catharsis prior to deposition and trial testimony.)

Witnesses must learn to listen carefully to the questions being asked of them, and neatly limit their answers to only 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 example, a loud bell may be rung each time the witness answers a question he or she was not asked. Or a canned applause tape may be played each time the witness answers a question briefly without extraneous commentary.

A variant of these exercises is to instruct the witness to slowly count out loud to 10 before he or she gives an answer. 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 provides the witness time to carefully think about and to plan his or her answers. Plus, it permits the witness’s attorney time to raise objections if necessary to certain questions.

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.

Emotional arousal

Even though some plaintiff witnesses are feeling terrible emotional pain due to their litigation complaint, they still may be unable to show any emotion when being questioned about their damages. Such witnesses have excessively flat affects. It often proves difficult for the jurors to empathize with them as a result.

For this type of witness, the psychologist/trial consultant often must use intensive clinical counseling techniques to help the individual exhibit his or her emotions (which are certainly present at a subconscious level). Of course, there is a well-known term for such highly effective professional counseling assistance; this process is known as therapy.

Although some witnesses have trouble exhibiting appropriate emotions in the courtroom, this is certainly not the case for most witnesses. Indeed, trial proceedings can be devastating emotional blockbusters for witnesses; as such, they can trigger extremely strong emotional responses. People cry uncontrollably at trials. They glare at each other. This is why the psychologist/trial consultant’s therapeutic approach to aid the witness during trial time can be so invaluable. For the fact is that during a trial, the witness, more so perhaps than at any other point in his or her life needs therapy!

When and how should witness preparations be conducted?

Witness preparations should be conducted shortly before deposition is to take place, and again, directly before the witness is to appear in court. In terms of setting, mirrors and video cameras provide valuable feedback so the witness can see exactly how he or she is coming across when speaking. The mirror is good for immediate feedback. The video camera should be used as a follow-up. Jury simulations can also be helpful in grading a witness according to likability, sense of personal honesty, and so on. Simulations can also help determine what information jurors most want to hear about.

Witness preparations-more important today than ever

Post-verdict interviews with jurors indicate that for today’s trials, witness testimony and demeanor are the most important factors regarding jurors’ verdict decisions (followed up by individual attorney affect). Good witnesses make the case; bad witnesses break the case. It is vital therefore that attorneys begin to devote more attention to witness preparations. The attorney cannot afford to gamble that his or her witnesses will come across in an appealing manner with jurors. He or she must guarantee that they will be seen in the most strong and positive manner as possible while testifying during deposition and trial. This can best be achieved through comprehensive witness preparations.

Don’t enter the courtroom without the jury intelligence you need

Planning, preparing, conducting, or settling a major case can be like playing three-dimensional chess against the clock. In such a pressured and high-stakes contest it is critical that the attorney be armed with the best available intelligence regarding how the jury will think and act. Litigation psychology research provide this type of information more effectively than any other available source.

The attorney who fails to benefit from this insightful data, either to conduct or to settle the case, is flying in a fog without compass and map. And that’s no way to reach the proper destination, whether it be a successful settlement or a favorable trial verdict.

IT HAS BEEN CHARGED that women attorneys operate at a severe psychological and emotional disadvantage in the courtroom, a supposedly testosterone-charged environment where winning is the only acceptable outcome for macho litigators. But women attorneys bring some special innate traits to lawyering that can be extremely worthwhile in planning, preparing, presenting (and winning) their cases in court. In this article, now under review by a well-known ABA publication, Dr. Singer demonstrates that when it comes to trial work, women attorneys never should feel that because of their feminine natures, they must take a back seat to men.

Women Attorneys at a Disadvantage in Combative Courtrooms? Think Again.

Intuitive, Nurturing & Similar Valuable Innate Psychological Traits Give Female Attorneys the Edge in Key Trial/Case Preparation Areas

Trial is ritualized combat, a fiercely fought intellectual, emotional, and psychological battle with the highest, sometimes even life-and-death, stakes; it offers clear-cut winners and often pitiable losers. If trial is the ultimate mano y mano contest, where does this leave women lawyers? Some would contend that women, who almost always are not socialized to be aggressive, are operating out of their league in the courtroom. However a recent study of women law school students, published in the University of Pennsylvania Law Review,[77] indicates this perception may not be as accurate as some individuals believe.

The Penn study reports that women law school students who are successful in their studies "train" themselves to be more aggressive in order to compete effectively with the men in all areas of their legal education, including the mock courtroom. But this capability of aspiring professional women to transform their inner natures according to the exigencies (and opportunities) of modern life should come as no surprise. It is in keeping with the strong movement by women in recent years to enthusiastically engage in formerly all-male pursuits, e.g., women in combat; women as athletes, including professional boxers; women as fighter pilots; women as police officers, and numerous similar examples throughout society and around the world. It truly is no longer a man’s world.

Women’s psychological/cultural traits well suited for witness depositions and witness preparations

While most women trial lawyers have successfully taught themselves, of necessity, to become more aggressive in the courtroom, certain aspects of women’s feminine natures offer distinct advantages over male lawyers regarding two key areas of the trial planning process, i.e., witness depositions and witness preparations. Indeed, when it comes to these vital components of trial preparations, most women lawyers are more naturally suited and better psychologically inclined to do a superior job than their male peers.

This is due largely to two key traits that are strongly associated with women, i.e., their innate ability to be perceptive, sensitive, and intuitive (women’s famous intuition), along with their basic nurturing, caring, and empathetic sensibilities. Other factors, including women’s marked verbal strengths as communicators (including their second-nature abilities as easy conversationalists) also provide them with a powerful edge over most male lawyers regarding witness depositions/preparations, where clear and forthright communication is all. Finally effective witness preparations involves a certain degree of subtle manipulation, and many women, socialized from their earliest days not to be competitive, have learned of necessity to manipulate others to attain desired goals.

And how do men measure up according to these criteria? While women are by nature nurturing and empathetic, traits that are useful in helping witnesses feel at ease during depositions and witness preparations, men are instead competitive and attempt to dominate conversations. This primal tendency by male lawyers can quickly turn an uneasy witness off. Further, men emphasize talking during conversations and tend to interrupt more, while women emphasize active listening, essential to effective deposition-taking. The tendency of many men is to use the communications process to impel, debate, and/or control,[78] while most women communicate to support and share. Which approach do you think witnesses will consider more receptive, and thus will prove more effective during witness depositions and preparations? Clearly, the latter approach works best.

This article will address these and similar issues with the following key proviso clearly stated and understood: there are countless male attorneys who are highly intuitive, sensitive, and empathetic; just as there are many female attorneys who are oblivious to the people and situations around them, and who are emotionally cold and distant. The information that follows concerns psychological and cultural tendencies as they broadly relate to, and differentiate between, women and men; and how these tendencies affect attorneys, both men and women, in terms of taking witness depositions and preparing witnesses for trial.

Women’s intuition

While it is true that intuition is a shared quality of both men and women, this valuable attribute is often more finely developed in women than men. This may be due, in part, to the fact that women, brought up to be more retiring and acquiescent than men, have had to learn to pick up clues and read tell-tale signs in social and other situations in order to survive. And of course, women, in their biological roles as mothers, are provided with a high degree of sensitivity, awareness, and intuitive insight, crucial to the safety and well-being of their helpless and needy offspring.[79]

To more fully understand these and similar contrasts between men and women, let’s take a brief look at how most women are socialized and acculturated as young girls, and compare this with what most men experienced when they were growing up. We’ll also discuss some other common female vs. male psychological/emotional tendencies, along with related socialization factors. We will then consider how these varying factors apply to such important trial planning activities as witness preparations and witness depositions.

Women are socialized to communicate, not to compete

Remember playground games when you were a child? For boys, there were king-of-the-hill, kill-the-man, cowboys and Indians, war, and other similar loud, raucous, and always highly competitive sports and contests. The games varied but the goal was always the same: physical dominance, in one form or another, by one boy, or a group of boys, over the others. Often the least powerful boys would end up at the bottom of the pile, their clothes torn, their faces bloody, and their feelings humiliated. Boys too meek or otherwise unwilling or unable to participate in such games were taunted as sissies and advised to go play with the girls.

And what were the girls doing while the boys were running around, screaming and yelling, and beating each other up? Often, they could be found in a quiet corner of the playground, doing little more than sitting in intimate circles of two and three, speaking calmly with each other.[80]

Communications process plays a more vital role for women than men

For girls (and women), the communications process (most always through intimate conversations) is of the highest consequence. Conversations between and among females, according to author Deborah Tannen,[81] are, negotiations for closeness in which women attempt to seek and give confirmation and support and to reach consensus. Dr. Tannen points out, and most sociologists and psychologists agree, that a primary focus most women share concerns intimacy, i.e., we are close and the same. Most men care less for intimacy, however, than they do for independence, i.e., we are separate and different. It is for this and similar reasons that women often gravitate to the professions of therapist and counselor, where their basic instincts of empathy and understanding are in perfect harmony with their day-to-day professional responsibilities. And women’s natural gifts of empathy and understanding are extremely valuable when dealing with witnesses, who often are highly nervous and uncomfortable regarding their upcoming court appearance, along with being emotionally stressed out as a result of the litigation matter(s) at hand.

Empathy is vital to putting the witness at ease and promoting open and honest communication.[82] Once this vital communication line is established between attorney and witness, both can begin to work towards constructing the most credible possible narrative, the basic key to courtroom success.

Intuition often needed to understand and draw witnesses out

The great psychologist and psychiatrist Carl Jung said this of intuition: Intuition as I see it is one of the basic functions of the psyche, namely perception of the possibilities inherent in a situation.83] Often such perception is essential to effective witness deposition and preparation. I recall a witness who was driving his attorneys (all male) crazy because he simply could not take the witness preparation process seriously, even though he was the defendant in a high profile and potentially hugely expensive civil rights defamation case. Many hours of time were lost while the attorneys tried unsuccessfully to get the witness to focus on his testimony. Instead he would crack jokes, make faces, get up and roam around the room, and otherwise act inappropriately. The attorneys were furious at his behavior, privately labeling him a weird duck and different bird. They had absolutely no idea regarding how to deal with him.

Finally, one of my assistants, a woman psychologist, asked to meet with the attorneys outside of the witness’s hearing. She perceived that the witness had, what she termed, a Larry Flynt[84] personality, i.e., the mind-set of an individual who had been able to successfully play the game according to his own rules, even though it sometimes got him in trouble; while disregarding everyone else’s rules because he didn’t think they applied to him.

She explained that perhaps the best way to get the witness to stop wasting time and begin to take the witness preparations process seriously would be to help him better understand his own personality; acknowledge that the highly individualistic rules he had applied to his own successful life were far different from the rules and procedures of the staid and somber courtroom; and, most importantly, to realize that unless he quickly learned to play by these other rules, he would surely lose his case.

The attorneys agreed and my assistant proceeded to candidly speak with the witness along these lines. Once she finished, the attorneys went back to work with the witness, who seemed to have suddenly undergone a magical transformation, now presenting himself as almost a textbook model of mature, intelligent, credible testimony. The witness responded in a similar polished fashion during the actual trial and easily won the case. The outcome would have been far different, however, if my female assistant had not intuitively grasped the peculiar personality issue at stake, along with a tactful way to deal with it successfully.

In another case, an elderly woman was suing a chemical manufacturer for the wrongful death of her husband. An American Indian, the woman was very stoic and seemed unable to show any emotion during her testimony. The attorneys, again all male, were frustrated because they felt her flat affect would negatively affect the jury towards her. I was asked to assist. I sensed that the women’s emotions were deeply felt but well protected and would need to be released. I asked the woman to pretend that her husband was in the room with us, and also to pretend that she would be speaking to him when answering the attorney’s questions. This technique made all the difference. The woman, her eyes streaming tears, first began to sob, than cry heavily, over the loss of her beloved husband, exhibiting heartfelt emotions that had been pent-up since his death. Once the emotional dam burst, there was no stopping it, and the woman testified in a similar moving fashion on the witness stand. She won her case handily.

There is no question that intuition is deeply tied to the emotions. Women, who normally are in closer touch with their emotional side than are men, are perforce often more intuitive as well.[85] This intuitive grasp can make all the difference with reluctant, nervous, and frightened witnesses during witness depositions/preparations.

Reading witnesses who lie

Another value regarding intuition during the witness depositions/preparations phase has to do with smoking out witnesses who plan to perjure themselves in court. Becoming more of a problem in courts throughout America daily,[86] lying witnesses strike at the very heart of our judicial system. Further, attorneys have a professional responsibility to ensure that their clients provide candid testimony, and indeed are strictly required by numerous jurisdictions to rectify the consequences of a client’s perjury. Lying testimony by a key witness, once uncovered, can drive a stake through the heart of the best case. The attorney who is unable to sense a lying witness may see his or her case blow up at any time, without ever knowing there was a problem. Further, an attorney who is able to sense a lying opposing witness during deposition is operating with a major advantage. Here surely is a situation where women’s intuition, on the part of perceptive female attorneys being able to accurately read witnesses, can pay off in spades![87]

Male attorneys often to competitive with witnesses

Another serious problem male attorneys often face during witness preparations has to do with their primal competitive natures. When it comes to basic conversational styles (read: communication between attorney and witness), most men want to win, while most women want to share.

Sometimes the attempt by some male attorneys to dominate during their interactions with witnesses is overt and obvious; and sometimes it is subtle, and can only be discerned through gestures, tone of voice, eye contact (or, more often, lack thereof), facial expressions, body language, and similar signs. But this desire to emerge the winner in any and all interactions with their witnesses is a prevailing factor with some male attorneys; and as such, is highly counter-productive during witness depositions/preparations. This negative dynamic creates a tension with both male and female witnesses; and it works strongly against the witness and attorney moving together towards the same vital communication goal, i.e., developing the most credible and compelling trial story for court.[88]

I recall a client/witness, a well-known industrialist with a strong Napoleonic complex, who was constantly butting heads with his male attorneys during witness preparations regarding a tax evasion case in which he was involved. Since witness preparations was an activity the attorneys were responsible to plan and control, they felt compelled to try to win these encounters with the witness. But the witness’s basic drive was to always be, or to emerge, on top. Consequently little of value was accomplished during the witness sessions.

I was called in to assist. I quickly realized that the witness, a small man, was compensating by acting big with those around him, and had a overriding compulsion to clearly dominate any interpersonal situation. As a woman, I had a major advantage over the male attorneys because it was likely that the witness would not feel threatened by me. This proved to be the case. Nevertheless, I made sure to let the witness win on various conversational issues, e.g., allowing him to establish the pace and tone of the conversation, immediately assuming a respectful silence during his regular (and rude) interruptions, nodding agreeably in response to his command-type language, and so on. Once the witness felt secure that he was the clear winner of our social interaction, however, he relaxed and began to open up to, and to accept, the witness preparations process.[89]

The importance of witness testimony

Today, in our cynical anti-lawyer era, witness testimony and demeanor are the crucial factors for courtroom success.[90] The tendency of skeptical jurors is to automatically tune out lawyer oratory, they want to hear what the witnesses have to say.This is why the witness who is poorly prepared to speak in court is a dangerous time bomb, able to single-handedly blow up the case with one ill-considered remark or unnecessary response. It is critical therefore that witnesses be properly prepared before taking the stand.

Attorneys, both men and women, must begin to place a far stronger emphasis on witness preparations than is the current standard. For many lawyers, witness preparations seems to be regarded as the Black Hole of trial work, i.e., a dreaded eventuality to be avoided until the last minute, and then skirted around as much as possible. This attitude of avoidance can only lead to poorly-prepared witnesses and potentially serious problems in the courtroom. Witness preparations should be made a much more important priority by attorneys for today’s court cases.

The goals of witness preparations

Witness preparations should help the witness: improve likability with the jurors (jury research shows that witness likability is a more important factor than witness credibility); offer clear, convincing and relevant testimony; improve speaking style and physical poise and presence; mentally organize and have easily available all necessary information; and help reduce nervousness. It should prepare the witness to be ready for, and understand how to deal with, opposing counsel’s efforts to trip him or her up on the stand. Additionally, in the case of expert witnesses, witness preparations should help demonstrate the expert’s superior knowledge and expertise. Let’s take a brief look at one key area of witness preparations, helping the witness reduce his or her nervousness so as to be able to be convincing and compelling on the stand.

A nervous witness is a questionable witness

Providing testimony during a trial is truly one of life’s most stressful experiences. The witness may be emotionally and/or physically distraught due to the cause of the litigation complaint; uncomfortable in the unfamiliar and foreboding courtroom environment; anxious regarding all aspects of providing testimony, but in particular, of cross-examination; and deeply worried that he or she will not prevail in court. Under these circumstances, it is natural that many witnesses will exhibit a certain amount of nervous behavior while testifying.

Sometimes however this nervousness can be so dehabilitating that the witness may not appear credible to jurors. One of the primary rules of juror/jury psychology is that fears and doubts in the jurors’ minds turn into indictments. If the jurors have reason to doubt a witness’s testimony (What does the witness have to be so nervous about?), they will often go the other way with their verdict. It is critical therefore that steps be taken during the witness preparations phase to help nervous witnesses come to grips with their fears; and to find a way to testify in a strong and convincing fashion.

Value of therapeutic approach to witness preparations

Numerous techniques exist to help witnesses overcome their fear of testifying in court. They are based on the all-important therapeutic approach to witness preparations. Attorneys often fail to realize it, but providing testimony in court regarding a loss can be a deeply charged cathartic experience for many witnesses, and should be treated as such. This means that for clients who have suffered the loss of a loved one, of health, of physical capability, or something equally serious, a professional therapeutic approach should always be included as part of the overall witness preparation effort. This also can be useful in many other ways, including helping get those ever-present skeletons out of the closet during witness preparations so as to minimize the damage they can do later. Normally a trained psychologist or similar therapeutic specialist with experience in trial consulting will be asked to assist the witness along these lines, supplying an invaluable psychological edge to the case.

Systematic desensitization- Some witnesses turn into bundles of nerves at the prospect of testifying in court. They find it impossible to organize their thoughts; they stammer, stutter, and sigh through their testimony; they sweat and shake on the stand, and otherwise come across as emotional basket-cases while providing testimony. Classic relaxation techniques used to help people overcome their fears of flying, public speaking, and so on, can help highly nervous witnesses find a way to deal with their anxieties. The witness first learns to deal with the least anxiety-producing scenarios, e.g., entering the courtroom or facing the judge and jury; and then the more difficult situations such as providing testimony during cross-examination.

Positive imagery-The witness is encouraged to picture highly positive responses as he or she will be speaking in court, Imagine the jurors smiling and clapping in approval as you respond to all questions asked; Envision the judge cheering as you speak. The witness is shown how to immediately summon up this supportive cognitive methodology whenever he or she must take the stand.

Psyching-up strategy- Witnesses who suffer from an excessive fear of cross-examination are encouraged to imagine opposing counsel asking his or her questions while being pursued around the room by a flock of angry, snapping ducks; while sitting on the toilet; while wearing a clown costume; and equally goofy scenarios. It is impossible to fear someone if you can laugh at them. The witness learns to imagine opposing counsel not as a Grand Inquisitor but as a frail fallible and even foolish human being.[91] This imaginative mental exercise can help the witness free himself or herself of the emasculating intimidation factor associated with opposing counsel.

Emotional arousal- Many witnesses, such as the elderly female American Indian witness referred to earlier, are unable to show emotion when testifying in court, despite suffering a significant loss of a loved one, of good health, or something similar. It is important jurors be able to empathize with a client’s loss, but this can be difficult to achieve if the client has an excessively flat affect. Intensive clinical counseling techniques often are the only answer to help such witnesses achieve emotional catharsis and thus to be able to exhibit their true feelings.

How and when should witness preparations be conducted?

Witness preparations should be conducted shortly before the deposition is to take place, and then again immediately before trial. Various operant conditioning techniques employing mirrors and video cameras should be used to help the witness see how he or she is coming across while testifying. It is always extremely useful to have the witness practice his or her testimony in a room viewed by surrogate jurors involved in jury simulations of the case. One-way mirrors can be used to accomplish this best.

The witness will be graded by the jurors according to specific criteria (credibility, likability relevance of testimony, and so on). The witness will thus receive highly directed and valuable feedback regarding weak aspects of his or her testimony, along with a chance to improve these areas prior to court. Another valuable benefit: surrogate jurors can help the attorney and the witness determine what information actual jurors will most want to hear about, what seems least important, what areas of testimony are most confusing, and so on.

Women psychologically disposed to excel in numerous trial areas

It has been said that an easily-understood, workable falsehood is often more useful than an uncomfortable, complex truth. One such example: women attorneys are at a gender disadvantage in court. The fact is that female attorneys who have been able to find the gumption and grit to successfully weather the rigors of law school have almost surely taught themselves to compete just as effectively as the men, and very likely more so.[92] We have discussed how women’s natural gifts of empathy, understanding, sensitivity, and intuition can be so invaluable when it comes to the essential trial preparation activities of witness depositions and witness preparations. But also consider how women’s superior organizational skills, essential to juggling responsibilities concerning their mates, children, homes, jobs, shopping, and so on, can be helpful in organizing complex commercial and similar cases; how women’s sensitivity and intuitive skills can be used to successfully spot and de-select problem jurors during voir dire; how women’s strong verbal and communicative abilities can be employed to craft and deliver powerful opening statements and closing arguments; how women’s natural social skills can aid in creating strong bonds with witnesses, so useful during direct examination; and finally, how women’s newly learned capabilities to be aggressive when necessary to achieve desired goals can aid in the cross-examination of witnesses. Women attorneys at a disadvantage in the court room? As our English sisters across the Atlantic might put it: Not bloody likely!

The following article by Dr. Singer, published in the October 1997 edition of Leader’s Product Liability Law and Strategy, details the most successful strategy 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 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’ opinions?

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? Most attorneys attempt instead to immediately kill any conversation developing among the panelists for fear of contamination. Attorneys should understand that contamination is largely a needless worry, attitudes and opinions are not contagious. 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: Please tell us your feelings about products liability lawsuits? Open-ended questions usually start with such phrases as what are your feelings about.... or tell us your opinion concerning....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 problems 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.

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. An edited version of this article is scheduled to be published in an upcoming edition of Leader’s Product Liability Law & Strategy.

Litigation Intelligence Surveys: Essential for Large Products Liability Trials

What is the one tool available to litigators 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 litigation 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 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. The litigator can feel confident that a scientifically valid polling of the jurisdiction exhibiting clearly positive results regarding his or her case will weigh heavily with the opposition and with a professional arbitrator or mediation panel. For example, let’s assume polling results by the plaintiff 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 $4 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 impressive and 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 (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 take 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 Madam 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.

WHAT IS THE BEST WAY for the attorney to connect with a severely traumatized client; and to communicate that client’s anguish and loss to a jury? Dr. Singer discusses various successful techniques, including the use of psychodrama, to help the attorney help the client open up. An edited version of this article was published in the June 1998 edition of TRIAL Magazine.

Connecting and Communicating with the Catastrophically Injured, Emotionally Devastated, And/or Otherwise Severely Challenged Plaintiff in Preparation for Court

Litigation is never easy for any plaintiff. The stakes are huge, the courtroom setting disconcerting, the atmosphere charged, and the opposing sides often bitterly, even ferociously, engaged against each other. If the typical plaintiff (or as I refer to as the wrongfully injured) feels anxious, uneasy, put upon, and angry as a result of this pressure cooker situation, what about the plaintiff who enters the courtroom already overwhelmingly burdened, either physically and/or emotionally, as a result of his or her litigation?

This includes quadriplegics who are unable to control even their most basic bodily functions; burn victims grossly disfigured and condemned to live in a hell of never-ending pain; amputees who must get by with stumps for arms and legs; severely brain-damaged individuals unsure of what they may think or feel or do from one minute to the next; child abuse victims who no longer know whom to trust; the emotionally devastated who have lost all they have ever lived for and loved; and similarly tragically treated and/or severely challenged plaintiffs.

Already tested so harshly in life, how do the wrongfully injured deal psychologically with the intense additional pressure the courtroom brings? What are their special needs, and how can these best be met by the attorney?

Even more fundamental, how can the attorney plan to reach, and to communicate with, such plaintiffs in an open and meaningful manner? How can he or she hope to even remotely understand the extent of their immense physical and/or psychic pain? And how can this dreadful damage be communicated in a competent, compelling, and dignified fashion to the often hostile jurors,[93] so they, too, will understand and empathize?

Finally, how can such often guarded individuals be successfully encouraged to open themselves up in court? That is, how can they be encouraged to put their best foot forward.....especially if they don’t have any?

Important questions to ask

While questions such as these do not always provide easy answers, it is nevertheless incumbent upon the attorney to pose them. More than anything, such questions indicate at least that the attorney is placing emphasis squarely where it needs to be placed, i.e., on the needs of his or her catastrophically injured, emotionally devastated, and/or otherwise severely challenged client. Unfortunately, however, this emphasis is often misplaced; indeed, the tendency of many attorneys is not to focus on, or even to truly concern themselves about the psychological needs of the client, regardless of the extent of his or her physical and/or emotional problems; but to devote all of their attention to the needs of the case instead. (It is ironic that when the psychological needs of the wrongfully injured are met, the end result is a likable, sympathetic, credible witness, i.e., the best predictor of a positive verdict decision.)

Plaintiffs’ number one complaint

According to the Florida Bar, the primary complaint of most litigation clients is my lawyer never has enough time for me. This is because many attorneys prefer to avoid dealing with their clients as much as possible, while focusing almost entirely on the purely legal and strategy aspects of the case. Clients are meddlesome and annoying, many attorneys feel, and have little to contribute in terms of case planning. As a result many attorneys attempt to dodge their clients whenever they can. The truth is many attorneys would try their cases without clients if they could!

But attorneys who attempt to distance themselves from their clients are making a major error, and for numerous reasons. If unable to contact the attorney despite repeated attempts, the client and/or his or her family members often will turn to a respected chief of the tribe for advice, i.e., the rabbi, the priest, even Uncle Sid. This is a recipe for disaster, because now someone other than the attorney begins calling the shots. I think we should be doing things differently, Uncle Sid says, or even, I know another lawyer who can do a much better job.

Attorneys should also stay close to their clients in order to provide the vital psychic comfort that is so essential during highly charged litigation, particularly for catastrophically injured, emotionally devastated, and/or otherwise severely challenged clients. The more injured the client is, either emotionally or physically, the more he or she will be in strong need of a reliable counsel, mentor, and confidant during the entire time the file is open.

Equally important, the attorney needs to remain close to the client because he or she can be an extraordinary useful resource. No one knows the case better than the client, who almost always regards it as the single most important event in his or her life.[94] Most clients have an intuitive grasp of the problems of the case, along with an understanding regarding their inherent solutions.

Clients can provide singularly valuable insights to the attorney at trial time, as long as he or she knows how to effectively draw out such information. This is not always easy, but can prove particularly difficult when it comes to catastrophically injured, emotionally devastated, and/or otherwise severely challenged clients who often have become intensely wary and circumspect as a result of their pain and suffering.

So what are the best approaches the attorney can use to get such guarded plaintiffs to open up and reveal themselves to the attorney for fact-finding and related purposes, and later to the jurors during trial?

Catastrophically injured and similar plaintiffs need to tell their stories

Everyone has a story to tell, but the wrongfully injured often feels a far stronger psychological need to get his or her own story out than does the average person. This is understandable: without warning life sneaked up and dropped a ton of weights, metaphorically speaking, right on the client’s head. How can he or she be expected to make sense of such an inexplicable and ruinous turn of events? One proven way is to speak about what happened with someone who cares (hopefully an accurate description of the attorney responsible for presenting the client’s case in court).

Psychodrama

The wrongfully injured want to tell their stories to others, but often don’t know how to do so. Furthermore, it is far from easy for the client to discuss such a painful topic as what laid him or her low. The revisiting of this tragedy can be a source of intense additional pain for the client. One excellent solution to this problem is through the use of psychodrama, i.e., therapeutic role-playing in which the client interacts with the attorney in a non-traditional yet innovative and revealing manner to more completely get in touch with, and portray, his or her affliction and grief.

A highly effective form of therapy employed by psychologists since the 1920s, psychodrama allows for the externalization of the inner self through dramatic role-playing. It is a process whereby a person’s internal thoughts, feelings, reflections, and perceptions (including those of sight, sound, and kinesis) can be demonstrated in front of others. Psychodrama provides a therapeutic stage on which many individuals, e.g., wrongfully injured and attorney like are able to readily overcome their inhibitions and act out their inner lives in a spontaneous manner, creatively interacting with each other.

Psychodrama is one of the psychologist’s most powerful tools to quickly penetrate an individual’s defenses, while at the same time enabling that person to break through denial and reveal highly personal truths. It is an ideal technique to aid the catastrophically injured, emotionally devastated, and/or otherwise severely challenged client get in touch with painful thoughts and feelings regarding his or her own particular tragedy, and reveal these feelings to others (i.e., the attorney, and later, the jurors).[95]

The activity involves the client, under the watchful direction and encouragement of a trained psychologist,[96] spontaneously dramatizing his or her personal tragedy in front of the attorney, who ideally will also participate in the role-playing.[97]

For example, the client, a horribly disfigured burn victim, may describe and act out being trapped in a room on fire with no way out; the flames roaring all around; the dreadful pain of being burned; breathing in fire and flame; and the horror of having one’s charred skin hanging like an ugly drape from the body. Then the client may represent what life is like now; the months of painful recuperation in the hospital; the ordeal of being operated on dozens of times; the embarrassment of always needing to wear an elasticized cloth mask over the face to reduce scarring; the discomfort of too tightly healed skin; the pain medicines that never seem to help; the shame of looking in a mirror, and similar details.

Role reversal

One of the primary advantages of psychodrama is that it helps the attorney more accurately get in touch with the pain and discomfort of the client through role reversal, i.e., the attorney adopts the role of the client and attempts to accurately demonstrate the pain and discomfort he or she imagines the client may be feeling. The client then evaluates the attorney’s performance, correcting it as appropriate so that his or her interpretation of the client’s pain and suffering is made as realistic as possible.

Psychodrama enables the attorney to become far more psychologically aware regarding precisely what the client is thinking and feeling; as such, it promotes a more mature level of empathy and understanding regarding the client’s problems.[98]

Along this line, psychodrama offers the attorney a truly singular advantage: he or she can, in effect, become the client, at least for a brief while during the role reversal session -in order to better understand the client, and thus best represent the client later in court.

Magic occurs when human beings interact

The spontaneous and creative interaction that takes place between attorney and client during psychodrama can go a long way to help remove the psychological barriers that exist in the typical attorney-client relationship. As a result, attorney and client can interact with each other freely and openly as human beings, instead of in the often rigid and stultifying roles of counsel and plaintiff. This interaction helps the attorney establish the closest possible emotional tie with the client, no small matter when it comes to legal representation in court.[99]

Must love the client

Too many times I have had various attorneys tell me the same thing: I really dislike my client. This is a major problem. The attorney can be sure that jurors will sense it if he or she does not like the client and judge the client accordingly. It has been said that war would be impossible if soldiers were able to spend holidays at each other homes. So too, it is almost impossible to dislike someone with whom you have participated in a creative interaction session such as psychodrama.

Psychodrama helps the attorney learn not only to like the client but to go one important step further, i.e., to love the client. This emotion is extremely valuable when it comes to presenting the most heartfelt and compelling case before jurors. My 18 years experience as a litigation psychologist indicates that loving the client is one of the most critical factors required for effective trial representation. It should come as no surprise that this ability to truly love the client is a defining characteristic shared by many of America’s best known and most successful plaintiffs’ attorneys.

Attorneys put psychodrama to effective use

Numerous successful attorneys rely on psychodrama to aid them with their trial work.[100] Psychodrama is the most effective and most probing means of quickly getting at the truth regarding how a person feels about a tragic event that occurred in his or her life, says James E. Fitzgerald (The Fitzgerald Law Firm, Cheyenne, Wyoming). In having a client re-live an event, as opposed to telling a story about it, you obtain far more detailed and accurate factual material, says Bill Trine (Williams & Trine P.C., Boulder, Colorado). Psychodrama does a better job of refreshing the client’s memory, Mr. Trine continued, so he or she can give a more accurate version in the courtroom or during deposition of what transpired, and do it in a more believable way.

Through psychodrama the client can actually re-live in the courtroom the event which led to his or her injury or loss. This technique allows the jurors to bond with the client, says Mr. Trine. The procedure works as follows: the client is asked to step down from the box and act out the pertinent events by describing them to the jurors in the first-person, with the attorney assisting through questioning. For example:

Attorney:	Where are you right now?
Juror:	I’m on the highway driving my car at night. My two small children are asleep in the back seat.
Attorney:	What about the other traffic on the road?
Juror:	A large truck is speeding towards me, weaving back and forth in and out of traffic.
Attorney:	How do you feel?
Juror:	I’m terrified! The truck driver is now completely out of his lane and racing towards me head-on. What is he doing? He must be crazy! I can’t get out of his way.
Attorney:	Now what is happening?
Juror:	The truck lights are blinding me! I’m screaming and my children have woken up and are crying. All I can see are two enormous headlights barreling towards me. My god, my babies and I are all going to die!

This type of courtroom presentation can be incredibly powerful in assisting even the most hostile jurors understand how a particular chain of events took place that led to the litigation. Opposing counsel may object to such testimony, but as Mr. Trine points out, It’s demonstrative evidence....the client’s version of what happened.

Helping the client move beyond bitterness and anger

It is understandable that many catastrophically injured, emotionally devastated, and/or otherwise severely challenged plaintiffs are intensely bitter and angry as a result of their pain and suffering. (Note: bitterness and anger represent depression turned inward, and thus are natural responses for someone who is wrongfully injured.) Losing full or partial use of the body and/or its faculties, as is the case with quadriplegics, paraplegics, the severely brain-injured, and similar plaintiffs tears an immense hole in a person’s vital sense of well-being, and one that is extremely difficult to repair. This is also the case for plaintiffs who have suffered the ultimate injury, i.e., losing a loved one or loved ones due to the event(s) leading to the litigation.

But negative emotions such as bitterness and anger can turn off jurors who find it difficult to empathize with sullen and sour plaintiffs. In this regard, psychodrama can have a tremendous cathartic effect in helping the client express his or her bitterness and anger through role-playing prior to trial and thus get beyond these negative emotions. Further, psychodrama, when professionally organized and directed by the psychologist, can help the client learn to positively channel his or her anger in such a way as to deliver the most powerful and moving courtroom testimony.

Helps jurors too

Psychodrama helps to adroitly reframe the client/witness’s testimony so that jurors can better understand and empathize with him or her, and in so doing experience their own needed sense of emotional catharsis regarding the conflicting testimony presented. Ah-hah, is the typical juror response to such powerful witness testimony. Now I finally understand what this case is all about.

Today, more than ever before, cases are settled on witness testimony. Jurors are more cynical towards attorneys and have a tendency to tune them out, they want to hear what the witnesses have to say. That is why in most cases it is client/witness testimony which becomes the pivotal point of the case. Consequently the client’s demeanor on the stand is of the utmost importance.

For proof, consider the following: during focus group research we normally put the client on, i.e., in front of the surrogate jurors, after they have decided certain key case issues. Sixty percent of the time jurors change their minds regarding these key issues (usually in a negative direction) after they have met the client. Clearly client style and demeanor means everything to a positive verdict. Remember: jurors do not bond with bitter and/or vexatious plaintiffs, but will do so readily with plaintiffs who have discovered the courage to come to grips with and to appropriately direct their angry feelings and emotions. Therapeutic techniques such as psychodrama[101] can help plaintiffs learn to do so in the strongest possible fashion.

Comprehensive witness preparation is essential

Attorneys do not devote enough time and attention to witness preparation, often leaving this vital case component until the last minute. This is a mistake, one slip in court by the witness and the case can blow up in the attorney’s face. Cases may be won by the framing of issues and arguments, but they are also lost by witness testimony.

The attorney should comprehensively prepare the witness immediately before deposition and also again directly before trial. He or she should plan to spend at least three hours of preparation time with the witness for every hour of testimony in court or during deposition.

Numerous valuable techniques from the world of psychological counseling are available that can help the witness feel less nervous about testifying in court and also deliver the strongest possible testimony. These include classic relaxation therapy; the use of positive imagery (the witness learns to envision a highly positive response to each statement he or she makes in court); psyching-up strategy that lets the witness get a handle on his or her fear of being questioned by opposing counsel; emotional arousal to assist witnesses with excessively flat affects register appropriate emotion during testimony regarding their pain and suffering, and similar creative approaches.

The attorney should always include operant conditioning techniques employing mirrors and video cameras for each witness preparation session. These let the witness immediately see how he or she is coming across so necessary adjustments can be made to improve the overall presentation style.[102]

Living a Day-in-the-Life

Plaintiffs’ attorneys appreciate the value of Day-in-the-Life videos in vividly demonstrating to the jurors the full extent of a client’s daily pain and suffering. These videos movingly and credibly portray the immense difficulties a catastrophically injured plaintiff may experience in simply trying to get out of bed, brushing his or her teeth, buttoning a shirt or blouse, using the bathroom, eating, or turning off the light. Day-in-the-Life videography is cinema variety in its starkest and most powerful form.

But in addition to commissioning a Day-in-the-Life video, the attorney who wants to truly understand the extent of his or her catastrophically injured client’s pain and suffering and effectively communicate this information to the jury should plan to actually spend a full day-in-the-life with the client, i.e., from the time the client is maneuvered out of bed, washed, dressed, fed, and otherwise attended, to the time he or she is eventually put back into bed again.

This practice is one that Chris Searcy (Searcy, Denney Scarola, Barnhart & Shipley, P.A.-West Palm Beach) uses to better understand the full extent of the many physical and emotional challenges his catastrophically injured clients must meet and overcome during the course of a normal day. As a result of his investment of time and effort, Mr. Searcy is an expert in helping jurors fully understand and empathize with the pain and suffering of the clients he represents.

Holistic litigation

The attorney’s trial plan should address the total needs of the client, not just in terms of preparing the client for deposition and testimony in court but for the entire often painful and unsettling experience of litigation. Along this line, the last thing catastrophically injured, emotionally devastated, and/or otherwise severely challenged clients need is more pain and suffering. This means, among other things, that the attorney should: 1) always prepare the client intellectually and emotionally for the possibility, however unlikely, of an unfavorable jury decision; and 2) have some plan in place to provide immediate psychological support and comfort to the client, if necessary, after the verdict is read.[103]

Look for the silver lining

It is a paradox that many catastrophically injured clients often benefit in one way or another from their individual pain and suffering. For example, one quadriplegic client with whom I worked stated that his injury had taught him patience, and related that many times he might have to bear a fly walking up and down on his face for two to three minutes or more before his attendant came over to brush it off. Another client who had been horribly disfigured from a fire explained that she had developed a far greater appreciation regarding the sanctity of life after nearly dying.

It is important during direct testimony to let catastrophically injured clients relate these types of stories to the jurors. Such testimony greatly honors the client who provides it, while uplifting the jurors and all others in court who are privileged to hear it.

Must travel a mile in the client’s wheelchair

An old Indian proverb says you should not judge a person until you have walked a mile in his or her moccasins. And the attorney cannot hope to fully understand the catastrophically injured, emotionally devastated, and/or otherwise severely challenged client or expect the jurors to be able to empathize with the client’s pain and suffering if he or she is not prepared to, in effect, travel a mile in the client’s wheelchair.

This cannot be accomplished unless the attorney invests the time and energy necessary to truly get to know the client, and to fully understand the client’s feelings regarding his or her pain and suffering. Psychodrama, living a day-in-the-life, comprehensive and creative witness preparations, and similar professional, therapeutic, and empathetic techniques can help the attorney accomplish these vital goals.

THE TECHNIQUES FOR VOIR DIRE FOR EMPLOYMENT LAW CASES are substantially the same as for other common forms of litigation. Dr. Singer discusses planning and organizing voir dire for employees rights litigation. An edited version of this article was published in INSIDE EMPLOYEE RIGHTS LITIGATION.

Voir Dire in Employment Law Cases

The economy is booming, unemployment is falling, and there is a greater degree of national sensitivity to workers rights than ever before. Feeling their strength, more employees are standing up in court for their employment rights, suing companies they work for, right and left, on charges of unlawful employment discrimination, wrongful termination, sexual harassment, and a multitude of other workplace conditions they deem unfair. As a result employee rights is quickly becoming one of the fastest growing areas of litigation activity for plaintiffs attorneys.

But not everything is coming up roses in this post-Reagan, tort reform, anti-labor, era, many jurors enter the courtroom automatically biased in favor of businesses and against plaintiffs. The Wall Street Journal reported this phenomenon in an April 1992 story: Jurors generally were predisposed in favor of business defendants before trial and rarely subjected them to the same level of scrutiny faced by plaintiffs.

Employment law attorneys who represent plaintiffs are presented therefore with a vexing conundrum: an opportunity to bring more cases to trial, but also possibly to lose more of these cases to pro-defense, anti-plaintiff jurors. It is vital for plaintiffs’ attorneys therefore to determine, prior to oral argument, which jurors will be unable to objectively evaluate their cases, and to de-select such jurors accordingly. As a result voir dire planning has become, for many employment lawyers, an increasingly critical component for any trial.

What makes for a successful voir dire in an employee rights case? The techniques for planning and conducting voir dire in such cases are basically no different than for other typical forms of litigation. Let’s take a look.

Some misconceptions

It is odd but many seasoned trial attorneys approach voir dire as if they don’t know what it is about. Voir dire is the attorney’s precious and sole opportunity to intelligently determine who the prospective jurors are, what their attitudes and opinions may be, and how they feel about the key case issues. Yet many attorneys mistakenly organize voir dire not so much to learn about the jurors but rather to indoctrinate them to accept a particular version of the case; to lecture them on abstruse points of law and courtroom procedures; to grill them with close-ended questions that permit only rigid “yes” or “no” responses revealing little; to treat them almost as job applicants; to routinely question their ability to be “fair” and “unbiased” and to blindly categorize them according to an ever-changing set of largely meaningless demographic criteria; age, sex, religion, ethnicity, along with other often misleading factors such as body type, mode of dress, even style of expression. It should come as no surprise that voir dire conducted along these lines seldom provides much reliable information or valuable insights about the prospective jurors.

Value beliefs

Attorneys need to quit worrying so much about demographics. Objective, observable variables are actually the least predictive of jury behavior and verdicts. Instead, attorneys should concern themselves with jurors’ value beliefs for it is these factors by which the jurors will ultimately judge the case. Value beliefs are the bedrock principles and codes that people hold most dear, i.e., the internal standards that all of use to determine what is proper behavior from what is not. They are often expressed through the use of such words and phrases as should, must, ought to, or with such terms as everyone and anyone. For example, anyone who objects to sexy pin-ups in a locker room is just being way too sensitive. The key in voir dire is to get panelists to clearly identify their primary value beliefs, then de-select those members whose value beliefs run counter to your case.

Litigation research

The attorney who begins voir dire without first conducting litigation research is like the pilot who tries to fly his plane blindfolded through a storm: neither is likely to successfully end up where they want to go. Litigation research, i.e., jury focus groups and jury simulations, along with litigation intelligence surveys (pre-trial polling) - enable the attorney to use hard data instead of hunches regarding how he or she should plan voir dire (and the entire case), the specific questions to ask the venire, and which jurors should be de-selected.

The way litigation research works in terms of voir dire is straightforward: the attorney may employ litigation intelligence surveys, plus jury focus groups and jury simulations to discover the particular negative and/or biased beliefs and attitudes that are likely to affect his or her case, and then designs his or her voir dire questions to provoke the same type of negative responses during voir dire. It’s just like flushing ducks out of the marshes with a duck call.

Litigation research is particularly useful to help set up biased jurors for cause. Let’s say your research has established that some jurors may feel obligated to support the company regardless because it operates a large local plant that is a primary employer in the area, and an unfavorable verdict could negatively impact its overall operations. Armed with this valuable insight, the attorney can then plan his or her voir dire questions to specifically spotlight jurors who think this way, and who thus will find it difficult to weigh the plaintiff’s case objectively.

Converse with the jurors

Voir dire is your one and only opportunity to speak with the jurors, and at the same time let them speak with you. Let’s say the case concerns sex discrimination. Using open-ended questions, ask a particular juror how he or she feels about this general issue, i.e., please tell us your thoughts and feelings about the issue of discrimination against women. Once you have received your answer, quickly ask another juror if he or she agrees with what was said and why. See if anyone else wants to volunteer an opinion. Then poll the remaining panelists to determine how each feels about the topic. Be sure and thank each juror for his or her response, whatever it may be.

The idea is to promote a free-wheeling and open discussion among the jurors in which they can weigh in with their opinions, pro or con, regarding the key case issues. If the attorney can forecast the conversation because he or she has already simulated the case through litigation research, then a similar conversation can be conducted with the panel members during voir dire.

Listen carefully to the conversation that develops as the jurors take up the issues you have raised with them, and they are raising with each other. Understand that this conversation is your best clue regarding how the jurors will eventually deliberate with each other later to reach their verdict. When voir dire is handled thusly, it doesn’t take an Einstein to determine who is most likely to support your case, and who will be against it. De-select accordingly.

Avoid the psychocentric juror

Psychocentric jurors are the type of people who personalize all issues and negatively judge differences in consequences of equivalent actions. For example, a psychocentric juror may not be inclined to support a plaintiff who is suing for wrongful termination because, I lost a job once before too, but I didn’t make a federal case about it. Since the psychocentric juror believes that the world revolves around him or her, it is very difficult for such a person to be able to identify with anyone else. If the psychocentric juror was ever in a situation even remotely similar to the litigation complaint of the plaintiff but received little or no recompense, you can bet that he or she will crawl naked over broken glass before coming to the aid of the plaintiff.

Don’t forget about supplemental juror questionnaires

Supplemental juror questionnaires (S-J-Q’s) help increase the likelihood of self disclosure and can provide a strong foundation to challenge 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. They are particularly useful in federal cases where the judge often handles all of the voir dire questioning of jurors.

S-J-Q’s furnish comprehensive 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 primary case issues. And since S-J-Q’s are court affidavits that must be signed under penalty of perjury, jurors are compelled to answer them honestly.

The bottom line on voir dire

Many attorneys approach voir dire with a sense of depredation. They are not in control of the proceedings and this fact makes them uneasy. They worry about a negative juror contaminating the others with his or her biased thinking. They’re not sure if they have made the right choice about the jurors they are de-selecting, or the ones that remain.

For the attorney who truly understand voir dire however, these worries are largely needless. No, you can’t control voir dire...but that’s OK. You want the panelists to speak openly and freely, so you can learn who they are and what their attitudes and opinions may be. Indeed, the ideal is to promote a no-holds-barred conversation among the panel members, so you can see how each truly thinks and feels about the key case issues.

And don’t worry about contamination; the chance of this occurring is very slim. The mere statement of a particular belief by one juror during voir dire is highly unlikely to suddenly change the minds of the other jurors.

The key to voir dire is to keep it simple. Remember: most people love it when they get a chance to speak their minds, to voice their attitudes and opinions. Many however seldom get that chance, due to work, societal, and similar pressures. Capitalize on this sociological phenomenon. Plan voir dire so the panelists clearly understand you want to hear exactly what they have to say about the primary case issues. Then be quiet, let them speak, and judge each panelist accordingly. That’s all there is to it.

[1] The Republican-led Congress has lined up strongly in support of the anti-plaintiff/anti-jury forces. Both the Senate and the House passed legislation in 1995 - S. 565 and H. 956, respectively that would negatively impact plaintiffs’ rights. The House bill includes comprehensive new rules that would, among other things, cap punitive damages in all civil actions to $250,000, or three times economic damages, whichever is greater; and replace joint liability with proportional liability for non-economic damages. (The Senate bill is more moderate.) The two bills must now be reconciled and approved by the joint Congress.

[2] It wasn’t so many years ago that Americans largely sympathized with plaintiffs as underdogs fighting valiantly for their rights against powerful corporate and similar interests.

[3] Matthew 7:20.

[4] When it comes to voir dire, the attorney must keep in mind that he or she is not selecting individual jurors, but rather picking a jury. This is why watching jurors pre-deliberate during voir dire can be so invaluable. Such observation can provide much useful information: How will a particular juror influence other members of the jury? Is he or she a leader who can convince the other jurors to a particular point of view? Are other panelists followers who will easily give in to his or her personality? Is this a juror who will adopt the latest opinion expressed or is he or she the type who will hold out on principle?

[5] An optional but often valuable early action to take when planning voir dire is to petition the judge to ensure that the voir dire process will be as expansive as possible. (Remember: In most cases, the judge wants to minimize bias regarding jurors, but the attorney wants to spotlight it.) Some worthwhile suggestions concerning how to successfully petition to expand voir dire are contained in Jurywork: Systematic Techniques, published by the National Jury Project (Elissa Krauss et al, eds., 1983). Of course voir dire will often be more constricted in federal courts since judges normally handle the actual questioning of jurors. Under these circumstances, supplemental juror questionnaires are almost a necessity. SJQ’s can be extremely effective when properly planned and prepared. (Since jurors must sign their names attesting to the truthfulness of their responses in SJQ’s, they take them very seriously.)

[6] Pre-trial research is also invaluable in helping to develop the best theme for the case, i.e., one that will achieve the widest level of acceptance with jurors. Successful litigators know that to win in court, they must be able to tell the jurors a compelling story to which they will be able to positively relate. The theme is a one-or two-word summary of the case story, e.g., accountability in a products liability case, prejudice in a wrongful termination case, or passing the buck in a medical malpractice case. Research indicates that jurors deliberate in themes. By utilizing the right theme during the trial, the attorney provides an important peg upon which the jurors can hang their deliberations. This means that the case will be discussed in terms favorable to the client. Along this line, it is always worthwhile to envelope the theme during all of the trial’s key segments. This means to continually reference the theme throughout the trial, including voir dire. In a slip-and-fall case, for example, a workable theme might be precaution. Therefore, it will be useful for the attorney to employ the word precaution when framing his or her questions to the jurors, e.g., Can you share your feelings with us regarding whether property owners should take elementary precautions to ensure that people are not hurt on their premises? Do you try to take precautions to prevent injuries on your own property? By highlighting the word precaution repeatedly in this manner, the attorney can gain the selective attention of the jurors. This means the jurors will begin to believe that the primary focus of the case is about precautions, and will thus be on the alert for additional information during the trial concerning any lack of necessary precautions taken by the defense.

[7] Attorneys’ assumptions about how jurors will regard the information they are presented in court often are turned upside down as a result of pre-trial research. A recent case in which I participated concerned a plaintiff who had suffered massive injuries in an auto crash. It had been established prior to trial that the defendant had several hundred feet to make a correction to his driving to avoid the collision. This incontestable fact delighted my client, the plaintiff’s attorney. During pre-trial research, however, the surrogate jurors were uniform in the opinion that, given the circumstances of the case, several hundred feet was an inadequate distance for the defendant to be able to safely maneuver his car so as to avoid a crash. Now, at the same time the several hundred feet factor had been established, it had also been determined that the defendant had precisely 19 1/2 seconds to maneuver his car to avoid the collision. When this fact was presented to the jurors, their thinking completely changed and all immediately lined up against the defendant. The jurors now were in total agreement that 19 1/2 seconds was more than enough time for the defendant to make a correction to his driving to avoid a crash. In other words, pre-trial research had clearly established that when the case was presented to the jurors in terms of the distance factor, the defendant won; but when presented according to the time factor, the plaintiff won. Armed with this invaluable insight, the plaintiff’s attorney made sure to emphasize the 19 1/2 seconds factor at every possible point in the trial and won the case handily for the client!

[8] J. B. Spence of Miami taught me a terrific technique that can be used to uncover negative and/or biased jurors during voir dire. I term it the Spence Technique, and it works this way: During voir dire, the attorney should ask the juror whether there is anything about his or her attitudes and feelings concerning (the particular case issue[s]) that the attorney should be concerned about. (Alternatively: Is there anything about your feelings regarding the issues of this case that I should be worried about?) This is an extremely effective technique to get jurors to step back from their own biases and negative attitudes regarding the prime issue(s) of the case, then discuss them dispassionately with the attorney during voir dire.

[9]Alternatively, some attorneys mistakenly believe they must pick surrogate jurors so as to create a representative sample of the venire pool. This would not be practical for most cases because a minimum of 400 surrogate jurors would need to be included in pre-trial research activities for the testing to be statistically significant.

[10] These individuals can be recruited through special newspaper ads soliciting research assistance. In a products liability case, for example, the ad might read: tired of people who are unable to accept responsibility for themselves and who sue manufacturers, doctors, and others at the drop of a hat? want to get paid to participate in important research concerning this issue? Contact.......

[11] I always advise my clients to pretend they are the hosts or hostesses of a cocktail party in which the jurors are guests!

[12] The following represents an actual exchange that took place not long ago between a nationally known Florida plaintiffs’ attorney and a juror he was questioning during voir dire for an auto accident case. [Q] Attorney: What do you think of jury verdicts? [A] Juror: They drive up my insurance rates. [Q] Attorney: And why do you have insurance? [A] Juror: To pay scumbags like you. The attorney did not react emotionally or take offense when the juror spoke to him in such an insulting fashion. Instead, he thanked the juror for the honesty of his response, then had the presence of mind to ask whether the rest of the jurors felt in a similar manner. None did. In fact, by this time, the other jurors were clearly edging away from the crude juror in the jury box. The judge immediately discharged the juror from any further duty. It was as if a trapdoor had immediately opened under his seat, and he was gone!

[13] His techniques were so successful that they now constitute the highly respected and widely practiced Rogerian Approach to therapy.

[14] Phil Donahue and Oprah Winfrey have made millions of dollars on TV by expertly using this approach.

[15] When it comes to jurors, fears and doubts become indictments. If a juror is afraid that his or her insurance rates are going to go up as a result of the verdict, that juror is likely to indict the plaintiff. That’s why it is crucial to de-select such a juror during voir dire, along with any other jurors who feel the same way.

[16] Before voir dire it is useful to submit a Memo of Law to the judge discussing the current legal standards regarding challenges for cause. It is much better to get such ground rules established early, rather than trying to do so on a juror-by-juror basis during voir dire. Regarding challenges, it is important for the attorney to remember to be sure and exercise all of his or her peremptory challenges during voir dire. Ground for appeal on the basis of prejudice is predicated on a full use of all peremptory challenges.

[17] When planning for voir dire, the attorney should make sure that someone is available to fully and accurately record all juror responses. A written record will keep all juror responses in order so as to avoid any possible mix-up later. Depending on the case, it may also be worthwhile to have a designated individual available to carefully observe the jurors and their demeanor, i.e., when they are responding to questions themselves, and when they are listening to the responses of the other jurors. Attorneys need to understand, however, that jurors’ gestures, body language, and other demeanor changes are very easy to misinterpret. Reliable data can only be obtained by using a professional (normally a psychologist or psychiatrist) who is expert at observing and evaluating a series of bodily signals and patterns.

[18] Research in the field of social psychology indicates that people tend to disclose more when they are pressured psychologically (i.e., when they are feeling nervous, uneasy, and so on) than when they are not. Sometimes the primary case issues prompt such feelings of anxiety among jurors. The increased level of disclosure on the part of jurors during voir dire helps to relieve the stress that accompanies these feelings. The attorney who understands this fact can use it to his or her advantage when questioning jurors. To illustrate, the attorney might address the juror as follows: This case concerns denying equal employment due to race. You, sir, are a working man. What are your feelings regarding this topic? The juror may respond by stating that, Some people think they are entitled to the best job, whether they’ve earned it or not. Notice that by framing the question in this manner, the attorney has been able to get the juror to open up and reveal his negative feelings. The attorney will be surprised at the wealth of information that can be gained from this cathartic approach to voir dire.

[19] Dozens of valuable themes involving pain, riches, wisdom, good versus evil, and so on can be found in the Bible. Along this line, the Seven Deadly Sins make powerful themes for commercial cases.

[20] Experimental design is the plan for a scientific study in which all the variables are controlled except for the one of interest (e.g., the best trial theme). It is a scientific frame put around a piece of the physical world (e.g., the jury pool) to observe it in detail and to test the effect(s) of imposing a change (a variable) on it.

[21] The extent of trial stimuli presented to surrogate jurors depends on the type of jury simulation to be conducted. Such stimuli include: copies of the jury instructions, verdict forms (different versions of this form are evaluated to discover which will prove most advantageous for a particular case), voir dire questions; the fact pattern; any pictures, graphs, and other presentation materials that will be used in court; Day in the life videos (if applicable); relevant dispositions; plus opening statements and closing arguments.

[22] Studies show that jurors are most influenced by personal biases, secondarily by legally inadmissible information acquired during the trial, and only third by legally admissible evidence

[23] Influencing a persons 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.

[24] 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.

[25] Various courts across the U.S. have ruled that trial consulting expenses can be recoverable. To the best of my knowledge, such rulings have been confined to high-profile criminal cases to date.

[26] How much should you spend on trial consulting for a particular case? A good rule of thumb is to plan to spend approximately 1/2 of 1 percent of what you hope to recover. Therefore, for a case worth $250,000, you should plan on trial consulting expenses of around $1,250, or risk exposure.

[27] Jury focus groups and jury simulations derive from classic marketing research in which panels of consumers are presented with alternate packaging, advertising, product colors/features, and so on. Their reactions are then used to help develop the product and its advertising and promotions so as to achieve the widest possible appeal.

[28] Value beliefs are different from key beliefs. Value beliefs represent a person’s most essential internal dicta and codes (e.g., a mother should be willing to give up her life to protect her child); key beliefs are the basic assumptions about the world by which people operate (e.g., manufacturers cannot be held responsible for a product that is over 20 years old). Value beliefs often operate at a subconscious level and are extremely difficult, if not impossible, to change. Key beliefs can be changed. It is important during voir dire to seat jurors whose value beliefs correspond favorably with your case. Any negative key beliefs must be dealt with and/or eliminated. Otherwise, you may end up with one of those depressing surprise verdicts.

[29] The recruitment of focus group participants can be handled through classified newspaper ads requesting research assistance. In a medical malpractice case, for example, the ad text could read as follows: Tired of individuals who are ready to sue doctors and anyone else who presents an attractive financial target? Want to participate in valuable research concerning this issue? Contact.....

[30] Only jury focus groups and jury simulations that are organized, conducted, and evaluated on a scientific basis can reliably determine a true jury-validated theme, i.e., one that is guaranteed to develop the widest possible appeal with the jury. An ad hoc focus group comprised informally of friends and/or colleagues cannot. Maybe such a group will come up with the right theme, and maybe it won’t. The attorney won’t know for sure until the verdict is read.

[31] The attorney uses jury focus groups to determine the main trial issues, the optimum trial theme, the primary case problems, and so on; based on this information he or she then uses jury simulations to test alternative presentations to see what works best.

[32] Venue is important when one of the parties to the dispute has a high local profile, such as a politician or a company; and strong positive or negative associations already exist regarding this individual or entity.

[33] The renowned psychologist Carl Rogers was expert in getting his patients to quickly open themselves up and reveal their true feelings. His techniques were so successful they now constitute the highly respected and widely practiced Rogerian Approach to therapy.

[34] Phil Donahue and Oprah Winfrey would make excellent jury focus group facilitators!

[35] Special jury focus groups and other special jury simulations can be 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, the conclusiveness of certain evidence, and so on.

[36] Many attorneys receive poor counsel concerning the scope and limitations of jury focus groups and jury simulations. They are led to believe, for example, that these litigation research studies are strictly verdict-oriented, and thus are merely designed to get reactions, e.g., We do not believe the patient’s account of what transpired in the emergency room at 7:03 PM. Attorneys usually end there with such limited information. This is the point where litigation psychology begins.

[37] These same types of questions can be used effectively during voir dire to reveal much helpful information about the jurors and the way they think and feel.

[38] A powerful trial theme distills all of the arguments and focuses the jurors’ attentions to the desired point of view. Along these lines, nothing motivates jurors more than clever analogies, metaphors, and/or similes describing key case facts. These should be the attorney’s primary persuasion tools. Analogies, metaphors, and similes give meaning to complex arguments and facts. They simplify concepts and provide essential hooks upon which jurors can hang their deliberations. A good analogy, metaphor, or simile teaches, persuades, and relaxes jurors, all at the same time, e.g., the doctor was asleep at the wheel, he went into the operation strong as an ox, or the defendant is as rich as Croesus.

[39] Pre-trial litigation research can help design the perfect voir dire. Once the theme has been identified through jury focus groups, it can be employed to develop useful questions that will shed much light about the jurors and their basic attitudes concerning the case.

[40] Note the use of the double-bind in the attorney’s opening argument. Employing either-or terms that both are unattractive about your trial opponent is a proven way to turn the jurors’ potential positive feelings away from the opponent.

[41] In an auto torts case in which I participated, the surrogate jurors were convinced that the decedent did not look in her rear view mirror before changing lanes. Had she done so, the jurors felt, the crash would not have occurred, and she would not have lost her life. Then, one of the jurors brought up the pivotal point: I’ll bet she did look in her rear view mirror, but the car behind that wanted to pass could have been in her blind spot. (This turned out to be the pivotal point of the case.) Furthermore, the juror continued, the other driver should not have tried to pass while she was signaling a lane change with her turn signal. The other jurors immediately picked up on the idea of a blind spot, and their entire perception of the case changed completely. Later in court, my client used every opportunity to mention blind spot and turn signal to persuade the jury that the only one who could have avoided the collision was the defendant driver. She handily won the case.

[42] Litigation research firms offer a wide assortment of jury research options that can fit within the budget for even the smallest case. For instance, mini-focus groups can be conducted for $500 - $1,000. This type of research can help determine how jurors will react to the facts of the case; show whether there are any case problems; and also indicate how to plan discovery.

[43] As in: this is the way we have always done it.

[44] A person is qualified to serve as a juror if he is an elector of the county and has been certified by the board of elections pursuant to section 2313.06 of the Revised Code. A person also is qualified to serve as a juror if he is eighteen years of age or older, is a resident of the county, would be an elector if he were registered to vote, regardless of whether he actually is registered to vote, and has been certified by the registrar of motor vehicles pursuant to section 2313.06 of the Revised Code or otherwise as having a valid and current driver’s or commercial driver’s license. R.C. # 2313.42.

[45] Consider the quality of this court-conducted voir dire in a case where the plaintiff, a meter-reader, was bitten by a dog:

The Court: Good. Anybody else? Anybody hate dogs? Dogs, cats and Reagan. You either hate them or love them. Used to be Roosevelt, now it’s Reagan. Number 6, Number 6, Natasha Bell, you hate dogs?

Ms. Bell: Yes.

The Court: There you go.

Ms. Bell: Yes.

The Court: All animals or just dogs?

Ms. Bell: Dogs, cats.

The Court: Dogs, cats and Reagan, okay. Is that going to influence you in a case like this?

Ms. Bell: Yes, it will.

The Court: Okay. Then, thank you, we’ll excuse you. Anybody else a dog hater? How about the other way around, anybody such a dog lover, like my wife, who would think some poor doggy couldn’t do anything wrong?

The Court: Anybody belong to the Humane Society like my wife? Okay. Only two things she’ll kill are mosquitoes and houseflies. Okay. Anything else?

D’Andrea v. Ellison, Unreported Case No. 13622, (Ninth District, 1989). Although the court’s questioning was a disaster, the case was not overturned on appeal because counsel did not object to the questions in the trial court!

[46] The United States Supreme Court has held in a civil case that a juror’s failure to respond to a material question on voir dire entitles a party to a new trial only if the juror’s failure to disclose denied the party his right to an impartial jury. McDonough Power Equipment v. Greenwood (1984), 464 U.S. 548, 78 L. Ed. 2d 663, 104 S. Ct. 845. The motives for concealing information may vary, the court noted, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial. Id. at 556.

[47] Baston v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,1715, 90 L. Ed. 2d 69 (1986).

[48] Id.

[49] J.E.B. v. Alabama, 511 U.S. ____, 114 S.Ct. ____, 128 L. Ed. 2d 89 (1994).

[50] Id, at L. Ed. 97.

[51] Baston, supra, at S.Ct. 1718. And see Dr. Singer’s opinion, infra, that race, gender, employment and many other categories are also unrelated to any predictable point of view that will be expressed in deliberations.

[52] A more complete discussion of the standard of review can be found in Berk, supra, where the court stated: the decision to disqualify a juror for bias is a discretionary function of the trial court. . . where a trial court is vested with such authority, reversal on appeal is justified only if its exercise thereof constitutes an abuse of discretion. In State v. Adams (1980), 62 Ohio St. 2d 151, 157...the applicable standard of review was defined as follows: The term abuse of discretion connotes more than an error of law or of judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable...Consequently, when applying this standard, an appellate court is not free to substitute its judgment for that of the trial judge...Id, at 169.

[53] White v. Standard Oil Co. (1962), 116 Ohio App. 212.

[54] It is obvious that the Court intended Dowd-Feder to be a solid, if not final, pronouncement on this issue. Between 1929 to 1936, the Court appraised and reappraised the complicated and highly controversial struggle represented by the insurance question-see Pavilonis v. Valentine (1929), 120 Ohio St. 154; Vega v. Evans (1934), 128 Ohio St. 535; Dowd-Feder v. Truesdell (1936), 130 Ohio St. 530, 200 N.E. 762. Although this was a lot of judicial churning, Chief Justice Weygandt noted in his concurrence with Dowd-Feder, supra, that possibly this pronouncement of the court may mark the adoption of a rule of sufficient permanency and practicality to be of some value to the bench and bar of the state in the solution of this seemingly interminable controversy.

[55] Jury trial was held to determine liability and damages for injuries sustained by the plaintiff in a two-car collision. The court directed a verdict on the issue of liability, leaving the jury to determine damages. The jury rendered a verdict in favor of plaintiffs for a combined total of $12,700. Appellants’ assignments of error were based upon statements made by defense counsel concerning defendant’s lack of liability insurance. Held: There was misconduct of counsel for defendant, brought to the attention of the court by plaintiffs during the voir dire examination and in final argument, whereunder counsel for defendant raised to the jury the suggestion that defendant did not carry automobile liability insurance and would therefore be responsible personally for the payment of any award made to the plaintiff.

[56] Studies show that jurors are most influenced by personal biases, secondly by legally inadmissible evidence, and only third by legally admissible evidence.

[57] Practitioners in the rapidly expanding field of litigation research develop the most reliable jury-validated information and intelligence available regarding jurors for particular cases, who they are, what they believe, and what will influence them as they deliberate to reach their verdicts. The final product of litigation research involves scientific findings which often are presented as a series of if-then statements, if this argument is made, then jury response (X) will occur; if this evidence is presented, then (Y) takes place.

[58] Numerous studies indicate that it is jurors’ value beliefs and not demographics that comprise the only true factor proven to be predictive of verdict behavior.

[59] R.W. Payne Jr., Spence, Payne, Masington & Needle, Miami.

[60] A jury’s verdict will be affected by processes known as recognition of truth, rejection of error, and collective information processing. Research indicates that groups may recognize patterns and relationships better than individuals.

[61] Information in this section is drawn from my own practice; from Color Your Life, by Howard and Dorothy Sun, Ballantine Books, 1992; and from two papers by Rodney Jew, Corporate Design Strategies, Palo Alto: Decipher the Color Symbol Code: Using a Visual Strategy to Increase Your Courtroom Effectiveness and Strategic Application of Color: The Dynamics of Presenting Demonstrative Evidence.

[62] Along this line, it is important for the attorney to understand that the initial part of the opening statement plays an extremely important part in the overall trial. Every case should be summarized in the first paragraph of the opening statement. At no other point will the attorney have the jurors’ same rapt and undivided attention. If they are lost at the beginning of the trial, it may be difficult to recapture them later.

[63] At least one in ten people suffer from some form of color blindness, according to Mr. Jew.

[64] One-word themes are the best ones to use. They help jurors quickly lock on the case’s pivotal point, i.e., the fact or issue on which the entire case turns.

[65] Note the use of the double-bind. Characterizing your trial opponent in either-or terms that are both negative is an effective way to influence the jurors against the opposition.

[66] Tim Dubois, Warner House of Music, 1983 (from I’ve Got Tears in My Ears...Country Music’s Best and Funniest Lines, compiled by Paula Schwed, Andrews and McMeel, publishers, Kansas City, Missouri.

[67] Opal Jean Holmes, Acuff-Rose Music Inc. (ibid.).

[68] The litigation intelligence survey, along with jury focus groups, jury simulations, simul-juries, and similar activities comprise the basic tools of litigation research. Practitioners in this rapidly expanding field develop the most reliable jury-validated information and intelligence available regarding jurors for particular cases, who they are, what they believe, and what will influence them as they deliberate to reach their verdicts.

[69] Psychometrics involves the use of quantitative devices for assessing mental data such as psychological or emotional attitudes, normally measured on a qualitative basis.

[70] Discovery is the most expensive aspect of litigation today, according to The Wall Street Journal. See Discovering a Cure for Discovery Abuse, by Max Boot, deputy features editor, published on November 20, 1996 (page A23).

[71] Two separate series of focus groups/simulations should be conducted for major trials. The first series is performed at the beginning of case planning and discovery, followed by the litigation intelligence survey. The second series is performed immediately before trial, so as to benefit from the information uncovered during discovery.

[72] Numerous discrete yet highly critical elements go into making up a professional survey. Each must be handled professionally for the survey to be valid and achieve meaningful results. To illustrate, proper question wording is critical to a successful survey. In this regard, recent research indicates that in the case of questions involving comparative judgments, e.g., Is tennis more exciting than soccer or less exciting?, the direction of comparison elicited by the wording of the question (i.e., comparing tennis to soccer instead of soccer to tennis) can have a decided impact on the obtained results. The individual and/or firm planning, administering, evaluating, and interpreting a litigation intelligence survey must be knowledgeable concerning a wide variety of similar highly abstruse details and technical considerations. (See Asking Comparative Questions: The Impact of the Direction of Comparison, by Michael Wanke, Norbert Schwarz and Elisabeth Noelle-Neumann, Public Opinion Quarterly, Fall 1995 [v.59 p347(26)].)

[73] Determining product and other preferences according to age, sex, gender, ethnic background, and similar factors.

[74][74] Jury research indicates that demographics often prove to be least predictive of verdicts and jury behavior. No one ever heard a juror interviewed after a trial state that she reached her verdict because she was a divorced Episcopalian mother of three living in the suburbs; instead, the juror’s reasons are always couched in such phrases as I thought, or I felt, " clear indicators pointing to that person’s basic value beliefs.

[75]In addition to selecting the right firm, the attorney should also investigate the credentials of the research director who will plan, administer, and evaluate the survey. The value of litigation intelligence surveys and their consequent recommendations depend, more than any other single factor, on the experience, expertise, and professional savvy of the research director who plans and conducts the survey. He or she is like a master chef, using sophisticated cooking techniques, a hardware of pots and pans, a wide variety of food ingredients, and D-Day timing to produce a 4-star feast. But if the chef mishandles even one small aspect of this elaborate food preparation and cooking process, the meal falls flat. In this regard, the litigation intelligence survey is even more complex and demanding in its planning and preparation than a great banquet, and with far more at stake. Like the chef with his or her feast, the research director can make or break the survey.

[76] From start to finish a survey can take 14 to 40 days to plan and complete, including the tabulation, evaluation, and interpretation of data, and the presentation of results.

[77] Becoming Gentlemen: Women’s Experiences at One Ivy League Law School, University of Pennsylvania Law Review, November 1994.

[78] Some male lawyers’ burning need to control every minute aspect of their case often puts them at a disadvantage psychologically when it comes to witness preparations. Witnesses, being people, are not always subject to control and direction; they often balk if they feel coerced during the witness preparations process. As a result, witness preparations can become a highly uncomfortable spitting contest between the lawyer and the witness. The tendency under these disagreeable circumstances is for the lawyer to put off witness preparations until the very last minute, which can prove to be a disaster at trial time. This is far less of a problem, however, for women attorneys who normally do not get as hung up on control issues as do men.

[79] New scientific research indicates that women’s intuition may, in fact, be inherited from the father, not the mother. This finding is a result of a recent study of girls with Turner’s syndrome, a relatively uncommon sex-chromosome disorder among human females, which may include among its symptoms kidney and heart malformations, and also moderate to severe mental retardation. Girls with Turner’s syndrome often are inept and insensitive in social situations, manifesting an almost total lack of intuitive skills. We know that infant males get one X chromosome from their mothers, and one Y chromosome from their fathers. Normal infant females get two X chromosomes, one from each parent; but girls with Turner’s syndrome have only one complete X chromosome, received from either the father or the mother. Research shows that girls with Turner’s syndrome who received the X chromosome from the mother were often far more socially inept, insensitive, and non-intuitive, than were the girls with Turner’s syndrome who received their X chromosome from the father. (Note: The X chromosome apparently didn’t help the fathers become more intuitive because they received them from their mothers.)

[80] Is it any wonder that women almost always have far more finely developed conversational skills (so critical for effective witness depositions and witness preparations) than do men? Look at all the practice we have had!

[81] You Just Don’t Understand: Women and Men in Conversation, Deborah Tannen, Ph.D., Morrow Publishers, New York, 1990.

[82] The importance of being empathetic and sensitive to the needs of others cannot be stressed enough when it comes to witness preparations and depositions. In the latter case, I know of male attorneys who have blown otherwise perfectly good depositions because they failed to pay attention to the needs of, and were not considerate to, the court reporter taking notes. Oblivious (i.e., not empathetic) to the court reporter, they found out after depositions were concluded that testimony and objections had not been transcribed correctly. The court reporter did the best job that he or she could, but simply couldn’t keep up with hurried, poorly enunciated and/or argumentative testimony and lawyer commentary. I have never, however, heard of this problem occurring with women attorneys.

[83] Intuition is a vital psychological aspect according to Jung, who distinguished people according to four primary functions of the mind--thinking, feeling, sensation, and intuition--one or more of which he believed predominated in any given person.

[84] The notorious publisher of Hustler Magazine.

[85] Further proof that women rely more on intuition than do men was quantified in a recent (1994) study conducted by The National Foundation for Women Business Owners. Sampling 127 women and men business owners in six cities across the country, the study found that: 1) more than half (53 percent) of women business owners emphasize intuitive or right-brain thinking (i.e., relying more on sensitivity); while 2) seven out of ten (71 percent) of men business owners emphasize logical or left-brain thinking (i.e., relying more on methodical and procedural analysis).

[86] See The Lies Have It, by Mark Curridan, ABA Journal, May 1995.

[87] Putting intuition aside, some male attorneys are simply oblivious, either partially or completely, to the needs of their witnesses; and, in particular, to their female witnesses. For example, many women who must testify in court have a deep fear of the cross-examination process. Socialized to be genteel and lady-like, many women have no idea how to respond to a combative cross-examination. Many men attorneys fail to understand that female witnesses need to be provided with available tactics they can employ during cross-examination so as not be overwhelmed in the courtroom. On the other hand, women attorneys, who often have had to teach themselves to become aggressive for trial work, many times will be more sensitive to their female witnesses’ need for some reliable and ready stratagems they can use to deal with conflict during cross-examinations.

[88] The tendency by some male attorneys to try to dominate conversations during sessions with witnesses can create major problems during depositions. Since two opposing attorneys share the same need to win during the deposition, but only one can, the deposition will often revert to witness testimony which is interrupted regularly by rude commentary (and even contumely) by and between the opposing lawyers. Nothing can be gained from such a display of verbal animosity. Indeed, cases which might have settled amicably almost always never do when the lawyers are so overtly hostile to one another. My experience indicates that this scenario seldom occurs however when two women attorneys are on opposite sides during a deposition.

[89] The problem of male competition/gamesmanship can become particularly acute when it comes to a male attorney preparing a male business executive or other corporate powerhouse to provide testimony in court. CEOs and senior executives, which mostly are men, often are reluctant to take counsel from those they consider inferior in stature, position, and/or prestige. Further, they are accustomed to setting their own agendas, and almost always fail to spend the time necessary for adequate witness preparations. (A good rule of thumb: three hours of witness preparation time should be spent for every hour of actual testimony in court.) Often, younger attorney associates are assigned the task of witness depositions and preparations. Many times this results in a waste of effort: the young attorney angry and frustrated because his recommendations regarding how the witness should come across in court are not treated with due deference and respect (i.e., he is not winning); and the senior executive not willing to take advice from someone beneath him in the pecking order. Is it any wonder that the testimony of such witnesses often explodes like a rotten egg in court?

[90]This is supported by numerous jury research studies my firm has conducted over the years.

[91] Of course the witness must also be advised to always be carefully on guard while undergoing cross-examination; and to never forget that the purpose of the opposing counsel is to trip him or her up while testifying.

[92] See A Hostile Environment for Women, ABA Journal, May 1995.

[93] A hostility brought about largely by supposed tort reform.

[94] Many clients dream about their cases!

[95] Psychodrama can be a particularly valuable technique when it comes to helping small child abuse victims safely describe to others what happened to them.

[96] Psychodrama represents a complex therapeutic activity that presupposes extensive professional training and expertise in therapeutic counseling and, in particular, psychotherapy. A trained psychologist licensed to practice psychodrama is necessary to organize and direct psychodrama sessions with clients. Under no circumstances should the attorney attempt to organize a psychodrama session himself or herself, or delegate this activity to a paralegal. Psychodrama represents a highly specialized tool in the psychologist’s arsenal, and as such requires a thorough professional understanding regarding its application and use.

[97] Other carefully selected individuals may also be on hand to observe the client act out during psychodrama.

[98] It is important to note that the attorney often needs and benefits from psychodrama as much as the client! By assuming the role of the client, the attorney truly begins to understand exactly what he or she is up against, and thus is better able to empathize accordingly. Psychodrama is without a doubt one of the most effective techniques available to help the attorney and client quickly bond together.

[99]Psychodrama sessions involving role-playing require a relinquishing of egocentricity on the parts of the client and the attorney.

[100] This includes legal legend Gerry Spence.

[101] Psychodrama, relaxation therapy, speech and presentation coaching, and similar tools and techniques offer the best opportunity to help the client/witness improve how he or she comes across in front of jurors. And since witness demeanor is so absolutely critical to a successful verdict, few areas of study and application are more important to the attorney than are these valuable witness preparation techniques.

[102] These and similar effective witness preparation techniques are fully detailed in Practice Makes Perfect: The Psychology of Witness Preparation, by Amy Singer, Ph.D., TRIAL, September 1996, pages 70-74.

[103] This could include having the psychologist who organized the psychodrama sessions be available to provide emotional support to the client after the verdict if necessary.