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Articles Table of Contents

 

Reading The Jury (continued)

Employing Litigation Research

To Understand and Shape the Decisions Jurors Make

Copyright © Amy Singer 2000. All rights reserved.

Table of Contents

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," "life is unfair," "everyone cheats on his or her taxes, so that makes it OK." (Note: In addition to value beliefs, life experiences also are highly predictive of jury behavior.)

It makes good sense that it is value beliefs, not demographics, which determine how jurors will decide cases. What do you think the odds are that 12 women, or 12 Jews, or 12 Black businessmen will all think alike about a particular trial dispute? I sure wouldn't want to make a bet on that basis.

Along these lines, when did you ever hear a juror state during a post-verdict interview that she decided the case as she did because she is a "middle-age Lutheran female college graduate and mother of two from the Midwest?" Instead, she probably would have commented in some manner about her "feelings" or "beliefs" (read: value beliefs) concerning the verdict she reached.

Peoples' value beliefs are the primary prisms through which they view the world. From value beliefs come attitudes - the jurors' predilections and biases concerning how they will weigh the evidence during trials. Discover jurors' value beliefs, and you will be able to determine their attitudes about the case issues. Once attitudes have been established, you can then successfully predict jury behavior.

So how exactly can an individual juror's value beliefs be determined during voir dire?

This can best be accomplished by questioning jurors so they are able to respond with open and revealing answers that spotlight their true feelings. Attorneys need to use open-ended questions during voir dire - "What do you think about...?" or "Please share with us your feelings concerning..." - that will allow the jurors to expound on their central beliefs and attitudes concerning the primary case issues.

This style of questioning stands in marked contrast to the restrictive, close-ended questioning many attorneys employ during voir dire. "Have you ever been involved in an automobile crash?" permits only a rigid "yes" or "no" response, significant of little useful information about the juror and his or her opinions.

"What are your feelings about people who become injured in automobile crashes?" will elicit far more valuable insights concerning the basic attitudes, beliefs, and biases of the juror being questioned.

In this regard, attorneys should avoid asking loaded (and insulting) questions - "Can you be fair?" or "Do you understand that you must be willing to sort through all the evidence before making your decision?" Such questions will result in only socially acceptable answers that may run directly counter to a juror's true feelings about the case.

The attorney should listen carefully to jurors' word choices as they respond to his or her questions during voir dire. This is essential to spot key value beliefs. Jurors discuss their central beliefs and attitudes when they use such words and phrases as "I feel...," "I think...," or "I believe that...." Other dead giveaways are phrases such as "a person should...." or "everyone knows that...." or "the policeman could have...."

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 În 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 jurors' 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'Žtre 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 SJQs 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 law suits," "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 - "steer-ability" and "steer-worthiness." 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 an tremendous amount of information to reach their verdicts. Analogies and metaphors help jurors 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 'n 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:

á         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;

á         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;

á         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;

á         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;

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

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

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

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

á         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:

á         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.

á         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.

á         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 witness's own disagreeable personality. Whatever it is, this one false note often ends up to be the primary negative factor upon which the jurors decide the case - the key trial element they all remember.

Witness 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 - 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 ÎX' will occur"; "if this witness testimony is presented, then ÎY' 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:

á         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

á         Efficiently streamlines discovery by directing the attorney away from non-productive areas

á         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

á         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

á         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

á         Helps to eliminate psychological error, i.e., understanding and exploiting (or compensating for) jurors' emotional proclivities concerning the case

á         Determines the key case issues and how best to frame them to achieve the maximum positive reception with jurors

á         Determines the optimum case presentation strategies and tactics

á         Provides invaluable settlement intelligence, including an assessment of possible damages; and illustrates the risks/benefits of going to trial

á         Establishes deposition strategies and provide deposition questions that can lead to the impeachment of witnesses

á         Establishes the ideal trial theme that will achieve the widest level of acceptance with jurors

á         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

á         Assesses numerous vital trial factors, including the effectiveness of the evidence, lawyer and witness believability, and potential damages amounts

á         Establishes the ideal emotional and psychological valences for the most effective opening and closing statements

á         Assists with the development of courtroom psychological strategies for civil and criminal attorneys

á         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

á         Provides a reasonable preview of juror deliberations

á         Gauges the jurors' probable responses to technical evidence

á         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

á         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

á         Establishes the voir dire questions to ask to most reliably determine which jurors will be favorably or unfavorably disposed towards the case

á         Set ups biased jurors for cause

á         Utilizes supplemental juror questionnaires to get the best "read" on jurors, especially when traditional voir dire is limited

á         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

á         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

á         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

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

á         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)

á         Determines what questions, if left unanswered during the trial, may fester away during deliberations and eventually end up poisoning the case

á         Provides a critical psychological edge regarding witness preparations for deposition, mediation, and trial testimony

á         Provides and analyzes the reports of simultaneous juries to establish case progress on a day-to-day basis

á         Provides courtroom image consultations and make-overs

á         Develops pre-tested demonstrative evidence and other graphical aids and visual supports

á         Provides advocacy skills coaching

á         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 case's 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 (a "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 (a "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:

á         What are the problem areas and/or primary issues of the case, as perceived by lay persons?

á         What facts and/or issues of the case are most commonly misunderstood?

á         What information do the jurors want?

á         What order do the jurors want to see/hear the information to maximize optimal processing?

á         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:

á         Incorporate the research of the issue analysis (focus group) phase

á         Draw out juror perceptions, attitudes, and core beliefs as they relate to an application of the law to the evidence

á         Discover the relevant attitudes that will predispose potential jurors to be less than neutral

á         Learn which areas of the case are subject to faulty perceptions and erratic memory by the jurors

á         Find a case strategy with the widest level of acceptance

á         Evaluate the liability position and value of the case

á         Refine themes, strategies, and tactics

á         Establish the most effective techniques to persuade jurors

á         Create winning opening statements and closing arguments

á         Provide a workable "image analysis" forum for attorney and witness presentations

á         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-ˆ-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., SimulJuryú)

Simultaneous juries (e.g., SimulJuryú) 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:

á         How is the trial going?

á         How am I being perceived?

á         How is the opposition being perceived?

á         How are my witnesses plus witnesses for the opposition being perceived?

á         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's 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 format - 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 ConditioningSM). 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 testetosterone-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, then 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 too 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 avoids 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 "Madama Butterfly" don't expect or want to hear a Guns În 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 alike - 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 truckdriver 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 cinŽma vŽritŽ 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 vŽritŽ 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.



[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 Michaela 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.