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A version of this article first appeared in TRIAL magazine.
The Ten Most Common Mistakes Attorneys Make
While Trying to Persuade Jurors During Court
by Amy Singer, Ph.D.
Are you persuasive in court? Like Talmudic scholars, trial lawyers will rigorously research, study, memorize, and practice all available techniques, systems, methodologies, and approaches to help them communicate important concepts to jurors during trial: "how to be persuasive during opening statement and closing argument"; "using stories to persuade jurors"; "primacy and/or recency as persuasive rhetorical tools"; "employing theatrical training to help get jurors on your side"; "positively influencing jurors through non-verbal communications"; "organizing multimedia presentations that are guaranteed to sway jurors"; and the list goes on and on.
Being persuasive in court is an attorney's bread and butter. Therefore he or she better know what to do when it comes to persuading jurors. But how many attorneys also know what not to do regarding this vital topic? Following are the ten most common mistakes attorneys make when trying to persuade jurors during trial. Information presented is based on observations gained during thousands of cases I have directly assisted during the past 20 year years.
Mistake No 1 - Underestimating juror intelligence
When it comes to persuading jurors, the most common courtroom mistake attorneys make is to underestimate the intelligence of jury members they hope to influence during trial. This common error by litigators outdistances all other courtroom blunders by a country mile. As evidence, consider this common reaction on the part of many attorneys who monitor focus groups set up by my firm concerning their cases: "real" jurors are simply not as smart as the surrogate jurors who participate in litigation research sessions. This is a major fallacy. Surrogate jurors are drawn from the same pool of citizens as jurors. Their intelligence mirrors that of the millions of jurors who participate in trials annually throughout the US.
If surrogate jurors often impress during litigation research sessions it is because they - like most Americans - are actually smarter than earlier generations. Think about it: literacy levels in our new high-tech age are higher than anytime in the past. Children now learn in third grade what their parents did in sixth. Millions of Americans are bombarded daily with complex information from more sources - TV, film, radio, print, Internet, CD-ROMs, A/V, multimedia - than ever before. And they soak it all up! As a result, US citizens have become highly efficient information seekers and adroit contextual thinkers - qualities necessary to stay on top of all the incoming, and often conflicting, data.
So why is it a problem when many attorneys underestimate jurors' intelligence in court? This negative attitude by litigators clearly manifests itself in numerous ways that jury members find infuriating. For example, attorneys often employ insulting "baby talk" when addressing jurors: "Today, we will prove this; then we will show you that; later we will demonstrate this other thing; and then we will _______ ." Normally the attorney has put the jurors to sleep after the first minute or two of such a sing-song soliloquy.
Post-verdict interview comments by jurors often reflect their marked frustration, resentment, and anger regarding being talked down to by attorneys during trial. Other common complaints made by jurors during PVIs concern attorneys who clearly are not prepared for court and try to throw everything up on the wall, hoping something will stick; and attorneys who simply were unable "to connect the dots," often despite jurors' strong motivations to find in their favor.
It is telling that many attorneys consider jurors smart when they find in the attorneys' favor; but stupid when they find for the other side. The fact is that jurors are smarter than ever; attorneys need to be correspondingly sharp to positively influence and persuade them during trial.
Mistake No 2 - Correspondence bias
One blind man grabs the elephant by the trunk and thinks it a snake; the other clutches a tusk and imagines it a walrus. Which person made the more accurate interpretation? I say "toe-may-toe"; you say "tah-mah-toe." Who employs the proper pronunciation? When someone says "dog," one person sees a trembling Chihuahua, another pictures a snarling Rottweiler. Which is correct? Of course there are no "right" answers for these examples. They simply show that we all perceive the world differently. Along this line many attorneys often 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 potpourri of highly potent word "symbols" - "negligence," "responsibility," "read-end collision," "arrogance." 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 or her own case.
We are all familiar with the problem of "attorney perspective" vs. "jury perspective" - i.e., what turns out to be important to the jurors when deciding the case may not even show up on the attorney's radar screen. Correspondence bias accounts for this risky oversight. How many times have we heard a losing attorney state after trial that, "We didn't anticipate the importance jurors would place regarding _______ ." It is difficult to feel empathy for attorneys who continue to come up short in this regard. Indeed, litigators who fail to investigate how jurors assign meaning to the case's key hypothetical constructs and symbols will always face a difficult, if not impossible, battle in court.
Correspondence bias can kill the case. The way to overcome this common problem is to conduct litigation research - e.g., jury focus groups - to determine precisely how jurors will interpret the case's key information, constructs, and symbols; then plan the case presentation/persuasion strategy accordingly.
Mistake No 3 - Stereotyping jurors
Recently I participated in a products liability trial held in a rural community in the Midwest. The defendant was a well-known farm equipment manufacturer with a popular line of products. Equipment displaying the company founder's famous signature could be found plowing, irrigating, harvesting, and bailing away in nearly every field in the county.
Once the trial commenced it quickly became clear the defense had stereotyped the jurors as rustics and rubes who would automatically be sympathetic to the well-known manufacturer due to their bucolic roots. The defense attorney would address the jurors in a highly complicit fashion along these lines: "Most of us in this room have first-hand knowledge regarding (manufacturer's) dedication to quality" and "Everyone here knows of (manufacturer's) outstanding safety record."
Additionally, defense counsel made sure to accompany these remarks with outsize winks, wide grins, and other well-flagged facial gestures to indicate 4H-fellowship and Grange Society-camaraderie with the jurors. At the end of trial the jury was out less than an hour. It came back with a sizable judgement against the defendant.
When will trial lawyers begin to understand that lumping jurors together on the basis of woolly stereotypes is a recipe for disaster, not only in terms of voir dire, but also when planning the presentation/persuasion aspects of the case? It's hard to fathom in our modern high-tech age, but many attorneys continue to rely on archaic juror stereotypes concerning race, age, gender, occupation, and so on; this despite overwhelming scientific evidence that such variables fail to correlate in any meaningful way with jury verdicts.
Research psychologists established long ago that stereotypes concerning demographic groupings are almost always misleading. People's attitudes do not just pop out, pre-formed, from the supposed cookie - cutter molds of race, color, sex, and so on. Not all blacks are progressive nor all women gentle and sweet. Some landlords have hearts of gold; some church leaders do not. In short, it is not a juror's demographics that determine his or her attitudes concerning the case and its primary issues, but instead that person's value beliefs, i.e., the core values he or she holds most dear. These are the key factors, along with life experiences, that correlate with how individual jurors will actually behave when deciding a case.
The attorney should therefore be sure to calibrate his or her persuasion rhetoric according to the value beliefs of jurors, not outmoded stereotypes that may have little or nothing to do with the jurors' true attitudes.
Mistake No 4 - Courtroom cads and curmudgeons
Law schools rigorously educate budding attorneys in the most minute aspects of the law, in proper trial procedures, in rhetoric and courtroom oratory, and in all the other complex and demanding requirements and tasks associated with researching, planning, organizing, and presenting a case effectively in court. But law schools fail to adequately prepare young attorneys regarding a key aspect of courtroom decorum that, if not handled successfully, can immediately poison jurors against them during trial. I refer to how trial attorneys conduct themselves in court regarding proper manners and etiquette.
When "on" in the courtroom - i.e., directly or indirectly addressing jurors - attorneys work hard to positively impress the jury through their well-planned rhetoric and carefully cultivated persuasive skills. But many litigators often shoot themselves in the foot when they assume the spotlight is not shining on them. They will be openly rude to the bailiff and/or clerk. They will violate subdued trial decorum by cracking jokes and laughing inappropriately with colleagues, even opposing counsel, not only in the hallway but also in the courtroom. They will be impolite with junior functionaries, pitching minor (and sometimes not so minor) temper tantrums at the drop of a hat. Attorneys assume no one is watching this boorish behavior but they are wrong. Jurors see how they are acting and make judgements accordingly.
Attorney "likability" is an important subconscious factor with jurors when evaluating the case. If jurors like an attorney they will often bend themselves into pretzels in order to find in his or her favor. Conversely, the attorney who come across as mean or disagreeable better have a perfect case in order to win in court. Remember: in a trial the attorney is the salesperson and the jurors are the interested buyers. But few people are willing to buy a product from a salesperson they consider nasty and rude. Trying to persuade jurors concerning the merits of your case will always be an uphill struggle if they dislike you. It is critical therefore that the attorney be sure to show his or her good side at all times when jurors are present or nearby.
Mistake No 5 - Attorneys try to control everything in and out of the courtroom
When it comes to trial matters, attorneys are the ultimate control freaks. They believe that if they don't exercise absolute control over every minute aspect of the case, they and their clients will go down in flames. For example, before signing on to a case they will insist on ironclad terms: "I refuse to take this case unless the client agrees to do 'A,' 'B,' and 'C'." During depositions they try to control witnesses for the other side through intimidating tactics that would have made Joseph Stalin proud. They work hard to carefully control jurors' responses during voir dire: e.g., structuring questions to force jurors to pre-commit to a particular point of view, and asking close-ended and highly restrictive questions - "Are you familiar with the accident scene?" - to keep jurors' responses closely reined. They attempt to tightly control the evidence during courtroom presentations. And they try to control the judge and the other side through excessive motions and/or objections.
The problem with this D-Day effort to exert excessive control on every minute segment of the case is that it violates one of the primary rules of psychotherapy: people who are so busy trying to control all aspects of the world around them are often out of control themselves. Yes, effective trial work concerns itself with winning cases, and not with self-healing. But jurors can sense it when an attorney goes over the edge in his or her attempt to tightly control and thus win the case - and they resent it.
It is the jurors, after all, who are the ultimate targets of all this control on the part of attorneys. And like most people, jurors take offense when someone tries to tightly control them. They almost always dig in their heels in natural rebellion at such a confining prospect. Indeed, jurors will often go the other way during deliberations - i.e., away from the tightly controlling attorney and his or her case - as a subconscious demonstration of their independence.
In short, attorneys need to relax their hold on the reins during court. They should employ engaging story-telling, strong theme development, and potent rhetoric to win over jurors - and not the whip and chains of dictatorial control.
Mistake No 6 - Repetition, repetition, repetition - sometimes too much of a good thing
One of the cardinal tenets of effective courtroom oratory is that the litigator should regularly repeat throughout the trial the case's pivotal point - i.e., the positive case evidence upon which the verdict will likely turn. Through this repetition the pivotal point becomes indelibly seared into the consciousness of the jurors so that it acts as their essential leitmotif to competently understand - and thus decide - the case.
Along this line the "Rule of Three" also represents a powerful rhetorical tool for trial attorneys: studies in communications research show that an idea must be repeated at least three times for it to be remembered. "Prevention! Prevention! Prevention! If only the defendant had given some thought to this basic concept, none of us would need to be here today."
This emphasis on repetition is sometimes carried overboard, however, by attorneys who continue to restate their key case evidence in mantra fashion throughout the trial, to the point of inducing nausea among jurors, the judges, and everyone else unfortunate enough to be within earshot.
Yes, it's smart to repeat positive case facts and/or evidence three times to ensure that the jurors remember this information; but it's dumb to restate the same information three hundred times - i.e., smacking the jurors over and over with the same numbing facts and/or evidence until their skulls crack open.
Such endless repetition is sure to annoy and anger the jurors and the judge, along with everyone else in the courtroom. The great Jewish-American novelist Stanley Elkin once wisecracked that "hope springs eternal, but not eternally." In other words, sometimes even the most lofty and noble concept can be run into the ground through undue repetition. Avoid making this irritating blunder in the courtroom.
Mistake No 7 - The deadly B-O-R-I-N-G factor
Why do so many courtroom disputes have to be so interminably (read: mindlessly) boring? If America's trials could somehow be magically converted into a new line of sleep medicines, insomniacs would surely never miss another moment of shut-eye. Let's face it: most courtroom disputes are B-O-R-I-N-G! IRS tax guidelines are a breezy summer read in comparison to the average trial transcript.
Trials are boring because many attorneys - undisputed rulers of the caveat emptor kingdom known as "Legal-fine-print-land" - bring their tradition of dotting every "I" and crossing every "T" with them to court. One by one, they will summon up every minute and/or tendentious detail of the case, then parse this information for the jurors in every way humanly possible before moving on to the next item; at which point they will continue on in the same tedious vein. Through their witnesses attorneys will present jurors with maddeningly intricate engineering visual exhibits, then proceed to pedantically spell out the function of every minor technical component. They will categorically detail for the jurors reams of statistical or financial information that would drive the head of the American Accounting Association to drink. And just in case some jurors may have missed or not fully considered a minor detail in these elaborate presentations of complex technical evidence, they will re-introduce such information, again and again, throughout the trial.
Do attorneys really believe jurors pay close attention to this mountain of technical minutiae? The fact is that jurors quickly stop processing information and shut down mentally if the courtroom data they are presented with is excessively difficult to follow, i.e., too complex, convoluted, and/or technical. In other words attorneys often lose jurors with overly orchestrated evidence cases.
How do you know if jurors are maintaining interest in your courtroom presentation? Non-verbal cues - e.g., glassy-eyed stares, lack of eye contact, or excessive fidgeting by the jurors - can be reliable giveaways. Employing a shadow jury can also be a helpful indicator regarding whether jurors are staying with you during your presentation. The best answer, of course, is to enliven your evidence presentation with effective visual displays and other strong graphical components. And don't feel that you must throw every disparate fact and/or item of evidence into the case, including the kitchen sink. Remember: it's impossible to persuade jurors if your evidence presentation has put them all to sleep.
Mistake No 8 - Are you a good dancer?
Former Texas Governor Ann Richards (D), a feisty but beloved politician who is dearly missed for her down-home style and firecracker wit, once said of Ginger Rogers, the dancing partner of the elegant Fred Astaire, that she gracefully mastered the same intricate dance steps which made Mr. Astaire famous - only she did so backwards and in high heels. In other words, Ms. Rogers always performed with a single goal in mind - i.e., make Mr. Astaire look good when they danced together in those luscious RKO musicals of the '30s and '40s.
Trial attorneys could learn much from Ms. Rogers' unassuming but highly effective professionalism. Too many lawyers are so busy preening, primping, and prancing pompously around in front of jurors they forget a key rule of litigation: always try to make the client and jury look good. Along this line, how many times have we seen the attorney who ham-handedly steals the spotlight during trial by trying to appear even more knowledgeable regarding technical matters than the expert witness? "So tell me, Doctor," the apparently omniscient attorney asks, "What lead you to believe that coarctation of the aorta had occurred? And, by the way, was aortic stenosis also present?" This not-so-subtle self-aggrandizement on the part of the conceited attorney often backfires with jurors who resent showoffs; and it surely does nothing positive for the case.
Every daughter learns from her mother how to make the man in her life look good. Hillary Clinton is a terrific example of this deeply ingrained tendency on the part of women. How many times during the past seven years have we seen Mrs. Clinton staring blissfully up at her husband - her head tilted reverently towards him, a contented smile on her adoring face - as the President drones on regarding a minor alteration to an obscure department of some little known federal bureaucracy?
Wives like Hillary Clinton who work so hard to make their husbands look good end up looking pretty good themselves. Indeed, this reverse dynamic applies in nearly every social situation - i.e., we make ourselves look good when we make others look good. Trial attorneys should keep this precept in mind the next time they try to outshine others at trial.
Mistake No 9 - Avoiding case problems
There is no such thing as the perfect case. The pattern of events is bizarre; the time line is daffy; the client makes a crummy witness; the opposing side comes across as Mother Teresa. In short, every case has its dark side(s). It is crucial therefore that the attorney quickly inoculate the jurors to the case's most significant problem areas - i.e., bring these negative issues out in the open, acknowledge them, place them in reasonable context, then quickly move on. If case problems are not handled in this manner they will fester away inside the jurors' minds, where they will eventually turn into indictments against the client.
It's essential to affirm any case problems at the outset of trial, yet few attorneys are willing to do so. They are frightened of the possible negative effects that may develop in directing the attention of the jurors to the case's problems. But they forget that opposing counsel can't wait to sink his or her teeth into these same issues.
Isn't it better for the attorney to bring such topics out into the open instead? By doing so he or she can then frame the problem(s) in the best possible light. For example: "Sure, my client acknowledges her responsibility in not getting a second opinion concerning her medical condition. But the reason we are here today is that the other side is not willing to accept its own responsibility regarding this vital matter."
Attorneys who refuse to acknowledge case problems are operating in a sad state of denial. They are like the ostrich who sticks his head in the sand, dumbly hoping that the scary meat-eater who is quickly approaching will turn and go away. But this defensive stratagem never works. Indeed, the poor ostrich couldn't do any worse if he hung a sign on his tail that reads: "Get your free ostrich steaks here!"
As much as we may wish them to, case problems are not going to somehow miraculously vanish. Therefore, introduce them to jurors in such a way that will do the least damage. If not, your opponent will be sure to tell jurors about these problems - but in a far more sinister manner.
Mistake No 10 - Failing to "honor thy client"
Many trial attorneys talk a good game when it comes to trying to evoke the pain and suffering felt by the catastrophically injured client. But how many truly understand what such a client must contend with simply to make it through the day? And if they don't fully comprehend the effects of this dreadful damage to the client's life, how can they hope to communicate such horrible loss to jurors?
The brilliant actor Robert De Niro has become famous for comprehensively researching the lives of the characters he portrays in film. For example, Mr. De Niro trained as a boxer for many months at a 14th Street gym in New York to prepare for his role as Jake LaMotta in the 1980 film classic Raging Bull. Similarly, attorney Chris Searcy (Searcy, Denney Scarola, Barnhart & Shipley, P.A. - West Palm Beach) will often spend an entire day, or even days, with a severely injured client so he can fully understand that person's injuries in order to communicate this information in a heartfelt manner to jurors. This dedication on Mr. Searcy's part is not representative of most attorneys. Indeed, many are often too busy to even give their clients the time of day. Along this line the number one complaint registered by legal clients with the Florida Bar is "my lawyer never has enough time for me."
Ignoring their clients is a huge mistake many trial attorneys often make. Clients live and breathe their cases - indeed, no one knows the case better than the client. Often clients intuitively understand the problems of the case - along with their solutions. It behooves the attorney to avail himself or herself of this superior knowledge.
In other words, the attorney should "honor" the client's pain and suffering by providing that person with the attention he or she so richly deserves. It is only in this manner that the attorney can effectively communicate such pain and suffering to jurors.
Putting it all together
Successfully persuading jurors in court requires more of the attorney than strong advocacy skills, spellbinding oratory, masterful orchestration of evidence, and wily courtroom strategy. It also is dependent upon less obvious, but equally important, persuasion components such as those outlined above. So be sure and adopt a proactive approach when planning your courtroom presentation/persuasion strategy; but also don't forget what not to do when trying to persuade jurors during trial.
Amy Singer, Ph.D., trial consultant, is a nationally recognized authority in the field of litigation psychology, and an expert regarding the psychology of jurors and juries and the dynamics of a jury's deliberations and decision-making processes. Dr. Singer is the founder and president of Trial Consultants Inc., headquartered in Fort Lauderdale. She is the co-author, along with Texas trial attorney Pat Maloney, of Trials and Deliberations: Inside the Jury Room, published by West Group Inc. Her articles on jury and trial matters are a regular feature of the legal and business media. Additionally, Dr. Singer is called upon on a routine basis by the national broadcast media to provide informed courtroom commentary regarding prominent trials. She frequently lectures on jury, trial, and settlement matters before numerous professional organizations across the country.
 Many jurors complain during PVIs that they are often treated like idiots in voir dire. Panelists particularly resent it when the defense attorney asks them if they "understand that the plaintiff has the burden of proof"; or when either attorney questions them "if they can be fair" when reaching their verdict decisions.When considering mental aptitude, I love Joe Nuxhall's comment regarding baseball great Pete Rose's intelligence: "I'll tell you how smart Pete is. When they had the blackout in New York, he was stranded 13 hours on an escalator."This cognitive model, which I term "Ownership Theory," posits that linguistic cues in legal disputes are "owned" either by the plaintiff or the defendant.It comes as no surprise that many trial lawyers often perform poorly when picking jurors. Martin F. Kaplan, a psychology professor at Northern Illinois University and an expert on jury research, organized a study of juror selection to determine who would perform best in picking jurors - lawyers or lay persons. Overall, the lay persons picked jurors correctly 50 percent of the time. ("Correct" was defined as selecting jurors who voted for the desired verdict.) The lawyers did far worse. Indeed, the study showed that the attorneys would have been better off picking the names of jurors blindfolded out of a hat, then sitting them in the box.As established through litigation research.Of course this is hardly surprising considering the high stakes involved in most court cases.I recently participated in a case in which our client was treated like a political criminal during deposition. Attorneys for the other side carefully positioned a large, hot lamp that shone almost directly into the eyes of the witness as she spoke. Their B&W videotape of her testimony was like a scene out of "Darkness at Noon" by Arthur Koestler.Or like the sheep in George Orwell's famous novel "Animal Farm," with their endless bleating of "Four legs good! Two legs bad!"This insightful comment is originally attributed however to a Frank. N. Earnest.World Middleweight Champion, 1949-51.Clients even dream about their cases!