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Articles Table of Contents

The Use of Singerian Litigation Psychology to
Persuade Jurors During Eminent Domain Cases

By Amy Singer, Ph.D.

Property condemnation cases - far more than nearly any other type of litigation dispute - can evoke truly scorching visceral responses among jurors. Whether such outsize emotional reactions are directed against the government or the property owner depends upon the perspective (read: bias) of the individual jurors. Like iron filings snapping to magnets, jurors often quickly line up emotionally on one side or the other of the typical property condemnation valuation dispute. This is hardly surprising: issues in play in eminent domain cases can represent stunning and stark contrasts:

Property owner - government seizure of private property strikes at one of Americans' most sacred and inviolable rights - i.e., people should not be arbitrarily deprived of life, liberty, and/or property. Such elementary protection for a free citizenry represents a venerable tradition of law dating back to the Magna Carta. In our society even the most humble property owner is the proud king/queen of his/her castle. The sudden taking of such property by the government can represent an ominous and chilling departure from American norms of autonomy and freedom.

Condemning authority - The government, be it federal, state, regional, or local,[1] symbolizes the collective wisdom, authority, and power of the people. Its actions - including the taking of private property in extraordinary circumstances - promote the public good. Property owners who attempt through expensive litigation to wrench excessive compensation from governmental agencies in such cases are extorting the public will for their own greedy and selfish purposes.

Eminent domain cases require extensive jury profiling

Due to such weighty emotional issues, comprehensive jury profiling often proves critical to attain a successful verdict in property condemnation disputes. Indeed, I have found this to be more true for eminent domain cases than for almost any other type of litigation dispute.[2]

Jury profiling enables the attorney to determine what type of jurors to seat for a particular trial. This litigation intelligence 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 condemnation 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 most disastrous (and the most ideal) juror types for a particular case. Such surveys are conducted among a large number of people to get the most reliable readings.

After litigation research is concluded, comprehensive profiles of disastrous jurors (for de-selection purposes) can then be developed, along with specific questions that can be used to target and effectively eliminate such jurors during voir dire. This information is invaluable - it enables the attorney to decipher the case according to the psyches of jurors he/she prefers to decide (or more accurately, not decide) the case.[3]

Typical juror personality types in eminent domain disputes

Some common juror personality characteristics/types that often surface during property condemnation cases include: [4]

Psychocentrics[5] - 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 property owner in a condemnation cases because, "I lost my home once too, but I didn't make a federal case about it." The psychocentric juror is the type of person who believes that the world revolves around him/her. Consequently, it is very difficult for such an individual to be able to identify with anyone else. If the psychocentric juror was ever in a situation even

remotely similar to the property owner but received little or no compensation, you can bet that he/she will crawl naked over rusty nails before coming to the aid of the property owner.

Aggressives - These individuals will bust through brick walls to achieve personal and/or professional goals or to protect what they believe is theirs. Unwilling to recognize or accept limitations themselves, they often lose patience with extended valuation arguments. Additionally, they may chose to protect the territory or identify with the aggressor (condemning authority) in an eminent domain dispute. Careful research must be done to project jury behavior regarding aggressives since the responses of such individuals can be highly unpredictable.

Authoritarians - Firm obedience and unquestioning allegiance to authority symbols such as governments are common characteristics of these type of individuals. They almost always come down strongly on the side of condemning authorities in eminent domain disputes.

Iconoclasts - These personality types like to bust things up just to see them crumble. They are categorically opposed to established institutions, beliefs, customs, and ideals. They make highly dangerous jurors for condemning authorities in eminent domain cases.

Creatives - Intelligent and insightful, creatives can quickly grasp and appreciate complex "highest and best use" arguments; as such, they can be a property owner's best friends in eminent domain cases.

Progressives - Liberal and well-meaning, such personality types seldom "stand in the way of progress."[6] Indeed, progressives, by their very name, are the ultimate champions of progress. Regarding property condemnation cases, progressives will support the condemning authority or the property owner, depending on which party is best able to demonstrate that their particular litigation position represents optimum "progress."

Environmentalists - A political type rather than a psychological type, environmentalists nevertheless bear mentioning in this section because of the tremendous influence they exert in land use disputes. Their responses as jurors in property condemnation disputes are highly predictable. They will always come down strongly for whichever side appears "greenest."

Risk-takers - Living life on the edge is the psychological hallmark of such bold individuals. Like business entrepreneurs, they are willing to gamble everything on their own personal abilities and talents - but they expect (indeed, demand) a fair opportunity to succeed. Due to this mental framework, risk-takers often appreciate property owners who take risks with real estate and/or capital investments.

Libertarians - "Don't tread on me" represents the psychological rallying cry of such individuals. Like iconoclasts, they viscerally resent authority of all political stripes and colors. Libertarians almost always quickly line up emotionally with the interest of property owners in property condemnation cases.

Psychologically disenfranchised - Loners , misfits, and similar psychological types who feel spiritually and/or emotionally alienated from the society around them are often unlikely to empathize with governmental agencies in eminent domain cases. For such individuals the condemning authority represents a tangible manifestation of the unjust society that has been slapping them around for so long; now in their role as jurors in property condemnation cases they finally get the chance to slap back. Expect them do so.

Tolerance for ambiguity - These personality types find it psychologically impossible to see things in a stark black and white context; this means they can readily acquiesce to nearly any point of view. Often they are willing to halve the difference between disputants in legal cases. Jurors with such psychological predispositions can be desirable for parties in property valuation disputes with weak or difficult to prove cases.

Internal and external locus of control

A significant attribute of certain personality types concerns what psychologists refer to external vs. internal locus of control. The mindset of personalities operating from an internal locus of control perspective is characterized by an attitude that the individual can positively make things happen due to skill, ability, talent, and hard work. Conversely, people who operate from an external locus of control perspective are psychologically predisposed to believe that fate, luck and chance - not talent or effort - ultimately determines what happens to them.

Along this line, the "internal locus of control"-type juror often proves to be a strong advocate for the rights of property owners in property condemnation cases. This type of juror recognizes that it takes a great deal of talent and energy, along with expert wheeling and dealing, to buy and develop real estate; consequently such a juror often believes the property owner should be able to fully benefit financially if his/her property is appropriated by the condemning authority.

Supplemental Juror Questionnaires

Clearly, personality profiling of jurors can provide a reliable guide in determining what type of panelists not to seat in property condemnation cases. As discussed, the attorney employs such valuable litigation research findings to make an intelligent de-selection decision concerning jurors. This can best be handled by using a series of open-ended questions during voir dire - "What are your thoughts regarding [insert case "problem area(s)" here] that will permit the panelists to reveal their true psychological predispositions.

Unfortunately, judges may not provide the full time and/or latitude the attorney needs to adequately learn about jurors and their attitudes, biases, and personality characteristics. This becomes even more of a problem in Federal Court where normally the judges - and not the attorneys - pose voir dire questions to the panelists. How can the attorney therefore secure the key knowledge necessary regarding the jurors' psychological profiles if the judge severely restricts questioning during voir dire?

This can best be accomplished through the use of supplemental juror questionnaires (SJQs). 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. SJQs furnish comprehensive and definitive portraits of the jurors - who they are; what are their personality characteristics; what their backgrounds and their life experiences may be; and what they think and feel regarding the key condemnation case issues.

Litigation Research

Supplemental juror questionnaires, juror profiling, litigation intelligence surveys, jury simulations and jury focus groups represent extremely valuable tools attorneys can employ to gain the vital intelligence necessary to achieve courtroom success for property condemnation cases. Such activities fall within the domain of litigation research.[7] Litigation research employs actuarial methods based on experimental design.[8] Its product is the statistical analysis and interpretation of systematically collected scientific data concerning probable jury responses to selected stimuli during trial. Nothing is intuited.

Litigation research is concerned with juror predispositions, beliefs, opinions, and attitudes.[9] The findings that derive from this branch of psychology are not foolproof. However, they do significantly increase the probability of de-selecting the worst jurors in a particular venue; and for planning a case presentation that will prove most persuasive with jurors.

The product of litigation research involves scientific results and findings which often are presented as a series of "if-then" statements - "if this trial theme is used, then jury response 'X' will occur"; "if the evidence is presented in this sequence, then 'Y' will occur." Such information can be invaluable in planning courtroom strategy. Much of this litigation intelligence derives from jury simulations/focus groups. How are these research projects organized and what can they achieve?

Jury simulations/focus groups

Jury simulations/focus groups function like a Rorschach test, illuminating jurors' cognitive processes. They consist of abbreviated versions of an upcoming trial presented before a carefully selected sample of surrogate jurors. The deliberations of these jurors are professionally evaluated and interpreted to determine jury attitudes concerning the property condemnation case and all of its key aspects. This includes the basic theme of the case and its presentation.

Formats for surrogate juries vary considerably. The choice of format depends on such factors as the experimental design to be used, the specific issues to be determined, the type and complexity of the case, and so on. Surrogate juries usually are conducted in the venue where the trial will take place. This aids in recruiting surrogate jurors whose values and beliefs will match the jury pool's. The number of surrogate jurors generally will be the same as that of the actual jury.

Investigate what the owner loses

In terms of jury focus group research for eminent domain cases, it is beneficial to investigate not what the government gets in the condemnation action, but instead what the owner loses. Focus groups permit a careful analysis of precisely how jurors will relate to this key issue in all of its possible shadings.

Regarding jury simulations for property condemnation cases: two separate series are generally conducted. (A typical series involves a presentation that is repeated with different groups of surrogate jurors at least three to 10 times. As in any other scientific test, this repetition is essential to ensure the validity of the results.)

The first series of jury focus groups/simulations begins before discovery, i.e., while planning strategy. These research sessions are organized to determine the issues of importance for potential jurors, along with the ideal trial theme and strategy. Jury simulations/focus groups also are useful in determining the order trial information should be presented - a key factor for eminent domain cases.

A second series of jury simulations is performed again 90 days before the trial is to take place. This series helps determine how jurors will perceive the facts, evidence, and arguments once discovery is completed.

Jury simulations/focus groups can reliably indicate what jurors will think and feel about the property condemnation case; what personality types will perceive the case facts favorably (and unfavorably); what are the relevant attitudes that may predispose jurors to be less than neutral; what issues jurors will consider most important; what is the persuasiveness of the attorney's various arguments; which aspects of the case to emphasize along with those to avoid; what trial theme and case strategy will have the most appeal; what voir dire questions will work best;[10] what information jurors will need to hear and when they want that information presented; what areas of the case are subject to faulty perceptions by the jurors; what are the problem areas of the case; what case issues and facts are likely to be misunderstood; and of course, what is the most likely valuation of the case.

Once armed with this data, the attorney can determine a winning trial theme and persuasion strategy for his/her eminent domain case. He/she learns how to answer every question and address every issue that the jury simulations show are critical to a favorable verdict. It's like a poker player knowing in advance what his hand will be - and exactly what cards each other player will be dealt!

Key value of surrogate jury research

Jury simulations/focus groups reliably demonstrate what potential jurors expect to see and hear during a particular property condemnation case, thus enabling the attorney to plan his/her trial persuasion strategy accordingly. Remember: it serves no purpose to stage an opera if people think they will be attending a rock 'n roll concert. You can't persuade jurors in property condemnation cases if your presentation and rhetoric does not address their concerns.

Direct your case like Alfred Hitchcock

One of the most helpful aspects of jury simulations/focus groups is that such research enables the attorney to determine the order in which trial information should be presented. I cannot stress too highly the value of such superior intelligence for eminent domain cases. Jurors can easily get lost trying to assimilate all of the complex information associated with the typical condemnation case. It is critical therefore that all trial information be presented to jurors in a sequence that promotes the most efficient processing. Alfred Hitchcock was a master at building interest and suspense in his movies by introducing events and action in a carefully orchestrated and sequenced fashion.[11] The litigator must do likewise regarding his/her eminent domain case. Litigation research enables him/her to learn precisely how to accomplish this goal most effectively.

Analyzing jurors' "metaprograms"

A key aspect of litigation research regarding property condemnation cases concerns understanding, analyzing, and interpreting the surrogate jurors' "metaprograms"; and how such programs relate to the primary case trial issues, and the manner in which the case will be evaluated by the jurors.

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

It may be helpful to think of a metaprogram in this way: people are motivated and energized to think, feel, and react in a certain way, i.e., to provide pleasure and/or happiness (a "towards" metaprogram), or to avoid negative feelings (an "away" metaprogram). For example, a juror may resent the owner's good fortune in seeing his/her undeveloped parcel dramatically skyrocket in value due to the taking, and thus try to limit the amount of money the owner receives as compensation (an "away" metaprogram); or the juror may want to make sure that nothing stands in the way of the condemning authority quickly appropriating the parcel in question in order to improve it for the benefit of the general public (a "towards" metaprogram).

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

Metaprograms and value beliefs

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

Juror metaprograms can be elicited by asking the following type of questions during focus group research: "What is important about.....?" "Why do we need/want.....?" "What do you expect when.....?" "How do you know when.....?" or "How can you decide if.....?"[12]

Uncovering the jurors' various metaprograms should be a key element in any litigation research regarding property condemnation cases; this information can provide a strong foundation for presentation/persuasion planning that has the best opportunity to achieve courtroom success.

Juror perceptions/misperceptions

Peoples' perceptions are strongly influenced by accompanying unconscious associations. When the word "dog" is mentioned, for example, one person immediately sees a lovable Cocker Spaniel; another pictures a vicious Pit Bull. Who is correct? Of course there is no "right" answer for this example. It simply shows that we all perceive the world differently. Along this line many attorneys fall victim to a common cognitive error known as correspondence bias, by which they assume that jurors will automatically perceive the case precisely the way they do.

This can be a dangerous mistake to make in the courtroom. A trial represents a medley of powerful word "symbols" - "highest and best use," "responsibility," "goodwill," "arrogance," "good faith," "excessive (or inadequate) compensation," and "public good." The task of the attorney is to decode these symbols according to how the jurors will specifically perceive them; then tie the other side to as many negative symbols as possible, while claiming the positive symbols for his/her own case.[13]

Everyone is familiar with the issue of "attorney perspective" vs. "jury perspective" - i.e., what turns out to be important to the jurors when deciding the case may not be important to the attorney. This oversight is due to correspondence bias. Attorneys on the losing end of cases often state after trial that, "We didn't anticipate the importance jurors would place regarding_________." This is unfortunate. Litigators who do not investigate how jurors assign meaning to the eminent domain case's key hypothetical constructs and symbols will always face an uphill battle in court.

The way to overcome the common problem of correspondence bias is to conduct litigation research to determine precisely how jurors will interpret the case's key information, constructs, and symbols; and to examine which arguments, rhetoric, and demonstrative evidence/exhibits jurors will find most persuasive. Armed with these invaluable insights the attorney can then plan the optimum case persuasion strategy.

Information gatherers - information seekers

I teach a course on the psychology of jury selection at Nova Law School in Davie, Florida, near Ft. Lauderdale. While lecturing students I have noticed an interesting phenomenon: few students take notes today. This runs directly counter to my own experience in graduate school in the '70s when students would feverishly attempt to transcribe every word from the instructor. People my age are, in effect, information gatherers, i.e., we gather and hoard information like a squirrel with its nuts. Younger people on the other hand are information seekers. This means they exhibit a "point and click" Internet mentality, i.e., they expect to quickly receive the information they want now, immediately, right away, followed by additional information transmitted just as briskly and efficiently. And woe to the communicator (or persuader) unable to deliver information at this heady pace! For the litigator, this means that he or she must be prepared to go into trial with a full grasp of the information jurors want and the order in which they want it.

Plan on a richly textured multimedia presentation

This striking dichotomy regarding the information receiving and processing styles of older and younger people has major significance for attorneys in eminent domain cases. If a jury is primarily comprised of people in their twenties and thirties, it is essential that the attorney plan a fast-paced multimedia trial presentation that will capture and hold the jurors' interest and attention. This means the attorney may wish to incorporate the following in his/her presentation:

While eminent domain cases may deal with primal issues that churn jurors' emotions, the actual specifics of such cases - i.e., the appraisers' valuation reports, highest and best use arguments, etc. - often have little sex appeal with jurors. You can't persuade jurors if your presentation has put them to sleep. It is essential therefore to incorporate a strong visual component to your overall presentation.[15] Another important point: don't use your presentation to show jurors; teach them instead. Only in this manner can you be assured of maintaining the jurors' interest in what you have to say in court.

Utilize litigation research for all trial graphics planning and development

Attorneys who specialize in eminent domain cases are astute and insightful professionals. Yet along with litigators in other practice areas, such attorneys may be throwing away large sums of money on comprehensive trial graphical aids, elaborate animations and modeling, and other expensive courtroom exhibition materials that do not accomplish their key goal: to communicate in a persuasive manner with jurors.

This is a major problem in the legal professional today. Funds spent on such materials - which can run into the tens, even hundreds, of thousands of dollars for a single large trial - often represent monies totally wasted. How did this situation develop? The answer is simple: litigators plan and produce trial graphics for themselves, not the jurors. Trial graphics are often developed to serve as props to support obscure legal theories the majority of jurors could care less about; they should be designed instead to satisfy jurors' vital information needs. But trial attorneys become so immersed in the minutiae concerning the case they often lose sight of the fact that trial graphics must convey compelling case information that jurors can clearly understand and relate to in a positive manner.

Trial graphics should perform as invaluable case "roadmaps," providing the vital intelligence jurors require to successfully navigate their way through all the conflicting trial information[16] to reach the desired destination - i.e., a positive verdict for the client. To achieve this goal an effective graphical communication strategy for trial must be based on how jurors - and not the attorney - frame the trial issues.

These key insights can be most accurately developed through jury simulations and focus groups. Such litigation research enables the attorney to plan and produce true jury-validated trial graphics that can best guarantee jurors will deliberate and decide the case according to the desired perspective. Graphics planning should take place at the very earliest stages of trial preparations and should be developed with the full benefit of litigation research. By handling in this manner the attorney enjoys the best opportunity to develop trial graphics that will successfully influence and persuade jurors during trial.[17]

The litigation research professional

Clearly, litigation research supplies the attorney with a true cornucopia of valuable trial intelligence. (Please see addendum for a full list of benefits supplied by litigation research.) Litigation intelligence is delivered to the attorney by the trial consultant, generally a litigation psychologist or social scientist specializing in jury research. This individual is professionally trained to analyze and interpret the deliberations of subjects in controlled psychological studies involving small groups. These include jury focus groups and jury simulations.

The primary vehicles available to decipher the case according to the individual jurors' mindsets are jury simulations and jury focus groups.[18]The litigation psychologist plays a pivotal role organizing, administering, monitoring, and interpreting these activities. Generally he/she is present to stimulate but in no way lead these deliberations. His/her primary goal is to keep the discussion focused on what the surrogate jurors determine to be the basic issues of the case.

The surrogate jurors are subtly encouraged to simplify the case - i.e., to break it down into its fundamental components and issues. They are further encouraged to develop answers for some essential questions: What is the significance of the case? What is it all about? What is its underlying message? What word of phrase best describes the case and brings it all together? What is its theme?

In addition to a professional analysis of the group's deliberations, each surrogate juror is interviewed privately by the litigation psychologist to determine his/her attitudes concerning the basic issues of the case. These individual responses are evaluated psychometrically.[19] In this manner the litigation psychologist is able to provide the attorney with the most reliable litigation intelligence available.

The position of the litigation psychologist parallels that of the market research expert in the business world. This specialist test-markets advertising/marketing campaigns to determine what will prove most popular with consumers; the litigation psychologist test-markets alternative case tactics and strategies to find what works best. Both professionals provide expert services that are absolutely essential in persuading targeted publics - be they consumers or jurors.

Trials are battles of hearts and minds

The most experienced trial masters know that if you can win the jurors' hearts, their minds will certainly follow. Consider these two key facts regarding jury decision-making: 1) Jurors reach their verdict decisions with their right brains, then endorse these decisions with their left brains (i.e., jurors utilize emotions to decide the case, then shuffle through the evidence to authenticate their emotional reactions on an intellectual basis); and 2) Jurors decide cases on the basis of perceptions, not reality.

The key to courtroom success is therefore to persuade jurors regarding the merits of the case at an emotional (read: unconscious) level. This can best be achieved by employing psychologically powerful persuasive techniques to mold the desired perceptions of jurors so they regard the case in the strongest possible fashion. Let's take a brief look at some useful rhetorical devices that can be artfully employed in the courtroom:

Aristotle's fourth principle - Aristotle taught that a speaker should display a proper level of emotion to persuade his or her audience. This rule has particular validity in the courtroom. But post-verdict interviews routinely indicate that lack of enthusiasm on the part of attorneys often damages their cases in the eyes of jurors. Jurors cannot believe in an attorney's case if he/she approaches it without emotion. Incorporating an appropriate level of passion when presenting the case is vital to enlist the jurors on your client's side during deliberations.[20]

Primacy/recency - Researchers have established that what people hear first they remember longer, while what people hear last they remember better. Which concept - primacy or recency - should therefore be most important to attorneys when planning the trial presentation? Why not both? Considering jurors' short attention spans, primacy should be a key consideration when presenting the case. The primacy effect can be exploited in numerous ways - by lining up your most persuasive expert witness for testimony first thing in the morning or immediately after lunch; by asking key questions to a witness first, and so on. Recency can be exploited during cross-examination by skillfully maneuvering to skewer an adverse but weak witness at the end of the day, thus giving jurors something to mull over until the trial resumes; by closing the session with your most powerful demonstrative evidence; and of course during closing argument.

Rule of three - Studies in communications research show that an idea must be repeated at least three times for it to be remembered. "Goodwill! Goodwill! Goodwill! It took the owner over 40 years at their current location to develop the solid goodwill they enjoy with their large retail customer base. But this goodwill will be blown to smithereens as soon as they are forced to move to a new location." People remember better and agree more when they hear something three times.

Expectancy statements - Framing statements to the jury by saying, "You can expect us to show that..." is a highly effective way to get the jurors to anticipate (and wait for) important case information you plan to introduce later. In psychology, this is known as gaining the "selective attention" of the subjects. This means that jurors will unconsciously wait for information that supports the case argument and disregard information that does not apply.

Rhetorical questions - Using rhetorical questions - "What is the highest and best use of the property?" - will produce more favorable results with juries than statements where only strong arguments are employed. Research indicates that introducing a counter-attitudinal message with questions leads to a more intensive processing of the message's content than introducing it with statements.

Give jurors something they can latch onto

It is hard work to think, and jurors will try to avoid thinking whenever possible.[21]But a trial is a message-rich environment, with numerous opposing facts, arguments, appraisals, testimony, and evidence flying back and forth throughout the courtroom. The way most jurors attempt to handle this data overload is to try to find a trial story line - i.e., a "theme" - that best matches up with their basic belief systems, then shut down any additional information processing.

It is vital for the attorney therefore to plan his/her own trial theme in such a way that it neatly outlines all of the case facts in a chronological, step-by-step fashion.[22] Jurors will then subconsciously use that theme to look for evidence that "fits" the carefully constructed trial story, and to disregard evidence that does not.

Analogies and metaphors

Often the trial story can be highlighted most effectively (and thus retained more successfully by jurors) through the use of metaphors and analogies.[23] Such powerful mental imagery taps right into the subconscious minds of jurors. The following example illustrates this point. During a condemnation case in which I participated, an appraiser was testifying in court as an expert witness for the landowner. He was able to quickly capture the interest, attention, and imagination of the jurors - and more important, seal the outcome of the trial - through the use of an astute analogy.

The expert witness stated that, for the owner, the threat of condemnation "was just like waiting for the other shoe to drop." Shortly after his testimony was concluded, the jurors quickly awarded the landowner the full amount that they had requested as fair market value. The jurors later indicated that the expert witness's clever analogy enabled them to personally empathize with the plaintiff; and the sense of loss they felt about the condemnation of their property.

In short, the witness's easily understood image hit the jurors right where they lived. Great metaphors and analogies have that singular power. They are linguistic branding irons that sear directly into the subconscious so the ideas they represent cannot easily be replaced by alternate rhetoric or arguments by the opposing attorney.

Property rights in flux

Enormous new fault lines have developed in America during the past 30 years concerning property rights. This is due in large part to the environmental movement, which has dramatically re-shaped the conception of property of America. As a result we no longer accept the ownership of property as providing unfettered property ownership rights. Attitudes regarding private property are likely to remain in a state of deep flux as we enter the new millennium.

What does this mean for the attorney handling eminent domain cases? Simply that property condemnation case issues will continue to roil jurors' emotions and biases (read: psyches) well into the future. Successful legal practitioners handling condemnation cases must therefore be amateur psychologists, expert at knowing precisely when and how to push the jurors' requisite emotional buttons to persuade them to reach the desired verdict. Litigation research enables them to do so most effectively.


[1] Or semi-public entity such as a utility.
2 Based on experience developed over 20 years directly assisting attorneys on thousands of cases of all types, at all levels of jurisdiction, and in 39 states.
[3]If the attorney de-selects jurors during voir dire on the basis of incorrect assumptions regarding such vital juror profile criteria, his/her chances of achieving the desired monetary award can be exceedingly slim.
[4] Only a partial list.
[5] I discovered and identified this personality type during the course of conducting surrogate jury research.
[6] Whatever that means.
[7] Other worthwhile litigation research activities include post-verdict interviews and shadow juries.
[8]Experimental design is the plan for a scientific study in which all the variables are controlled except for the one of interest (e.g., the ideal trial theme). It is a scientific "frame" put around a piece of the physical world (e.g., the jury pool) to observe it in detail and to test the effect(s) of imposing a change (a variable) on it.
[9] Studies show that jurors are most influenced by personal biases, secondarily by legally inadmissible information acquired during the trial, and only third by legally admissible evidence
[10] Additionally, specialized voir dire techniques can be developed to 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.
[11] The Hitchcockian style of movie directing represents a form of "tunneling," i.e., one part of the movie inevitably leads to another part, which leads to another, and so on.
[12] These same types of questions can be used effectively during voir dire to reveal much helpful information about the jurors and the way they think and feel about the property condemnation case and its primary issues.
[13] This cognitive model, which I term "Ownership Theory," posits that linguistic cues in legal disputes are "owned" either by the plaintiff or the defendant.
[14] Such high-tech graphics could, for instance, portray complex construction activity in many of its key phases, along with the effects on the surrounding environs.
[15] There are numerous software programs available to help attorneys achieve the most stunning interactive multimedia presentations. Two excellent programs that I have found work well together for this purpose are Microsoft's PowerPoint˙ (graphical slides) and DOAR Communication's ANIX˙ (high impact animations).
[16] And there often is plenty in eminent domain cases!
[17]Along this line Sam Solomon, president and CEO of DOAR Communications, Rockville Centre, New York, has developed an interesting concept with my help that he terms "reverse engineering" of the jury verdict form. This means the attorney uses litigation research findings to tie all trial exhibits and graphics to the jury verdict forms. This intelligent "reverse engineering" of the verdict form ensures that the litigator's trial graphics function as "analytic maps" to answer the jurors' key rhetorical questions concerning the case.
[18] 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 shortly before trial to help determine how jurors will perceive the facts, evidence, and arguments once discovery is completed.
[19] The methodology for quantifying mental and other subjective data.
[20] The best emotion to project is genuine empathy and concern for your client's litigation complaint or position.
[21] Like most people, jurors are "cognitive misers."
[22] The ideal trial theme can best be established through jury simulations/focus groups.
[23] Freud said that, "Analogies prove nothing but they make us feel right at home."