Is Anyone Listening? The Psychology of Juror Persuasion 2017-12-22T15:32:55+00:00

Is Anyone Listening?

The Psychology of Juror Persuasion

By Michael Maggiano

  • Fellow, American College of Trial Lawyers
  • Certified Civil Trial Attorney
  • Supreme Court of New Jersey
  • National Board of Trial Certification

“Anyone Listening”
Far below beneath a burning hot sun, our civility’s waking up,
hate your neighbor cause he’s not your kind, fell out of favor,
now he’s out of luck, get in your car, fuel up and get a job,
you got no worries, you don’t care that much,
pass the beggars as they lie out on the street,
just look away and roll your windows up, you don’t have to worry,
he’s not one of us, yeah, is there anyone listening to this beautiful tragedy,
is there anyone watching this wonderful nightmare,
LYRICS FROM ANYONE LISTENING BY PENNYWISE

I used to wonder what can I say to really make the jurors listen. If I could just get them to listen to my Opening then I got them.

There is a myth that jurors have made up their minds after Opening Statement. Opening Statement is a very important opportunity to persuade of course. And therefore it must be carefully structured. I have since learned that It may cause jurors to move to one side or another but I do not think any studies show most jurors have made up their mind at the end of Openings.

Then there were those times that I thought what else is there to say when the jurors think they have it all? I know that there are those who say there is no need for a closing argument. “The jurors have heard enough. Let them deliberate.” I am sure even the jurors frequently feel that way.

More frequently the jurors want to hear the whole case from Open to Close. And yes, I now believe strongly, they wait for closing argument. They know this is the grand finale of the case.

What do the jurors want to hear and who are they waiting to hear it from?

The Jury is waiting to be lead to a place of acceptance of a verdict that is meaningful to them. The purpose of this article is to discuss how jurors make up their minds and what we can do to show them that a verdict in favor of your client is a verdict meaningful to each of them.

Therefore, step number one is to develop strategies that will make the jury want to listen to what you have to say. That means you will have had to earn their trust. There are many preconceived mind sets that form barriers that you must overcome as a “trial lawyer” before the public (your jurors) receives you as a messenger of truth. If you have earned their trust and thus have become a Truth Speaker and Guide, they will listen. All groups look for a leader to guide them to a right decision, a decision that satisfies not their sense of justice but their sense of self- preservation which forms the basis of what they perceive as justice.

Before we begin to talk about what makes jurors listen. Let’s talk first about who jurors listen to. Jurors know there is a “fight” going on, and somehow they ended up in the middle of it. They feel that they should take a step back, remain objective, las they know there is always two sides to every story. They are suspicious about the motives of each party and are particularly sensitive to attempts to manipulate or woo them. So they look to what makes sense. Who is talking within their “Norm.”

Like most of us, jurors consciously or unconsciously “pick sides” and tend to do it early. They will go with who is talking about a story that makes sense to them based on their life experience. What is “right.” What is “normal.”

Before we get to the psychology let’s think about who we look to as a Truth Speaker because before you ever talk they are sizing up you and your client. Can they be trusted is what is on their mind. Does that lawyer really care?

The Key to becoming the Jury’s Guide: Trustworthiness

They have heard the stories. They read the joke book on lawyers, “Skid Marks.” They do not want to be part of a MacDonald’s Coffee Case (do not spend voir dire defending that verdict no matter how right it was) They are guarded with a capital G. They will not be deceived or at the least not mislead by a trial lawyer.

Have you ever tested for Trustworthiness. Where do you think you come out on the scale? The jurors have their radar detectors out for who can be trusted or from their view, who will tell the bigger lie.

From the beginning of your case you must work on bonds of trustworthiness. By your conduct, your position with the judge, your manner of communication with judge, jury, court attendants, and, of course, the jurors themselves, you can become their Guide in the Courtroom. You become a Truth Speaker.

Many trial consultants today say that in this world of ever constant internet web searching we must add our Website to the list of what jurors look to in evaluating our Trustworthiness. Are we hawking for cases on our websites or is it a source of Consumer Advice and helpful information on our legal system. As a Plaintiff Lawyer are you giving helpful public safety information and a link to many informative sources on consumer and public needs both in access to the law that helps and access to information that will provide safety and protection for the visitor to your site. Do you provide helpful tips to business on how to provide a safe workplace or a nurturing work environment. In other words the jurors want to know are you really about what you say or are you just there for one third of what you are trying to get for your client.

So what does a Trusted Guide that jurors are looking for act like? Does he make jokes at the expense of his adversary or witnesses, does he disregard his client in the halls and cafeteria and talk loudly with his colleagues. Is the lawyer disheveled, looking like he slept in his suit or overdressed adorned in flashy clothes and expensive jewelry.

Overreaching: Stay within the bounds of the evidence. Less is more.

Even if you have the right story to tell, please keep it in bounds. A corollary is If you open and conclude with asking for what the jurors perceive your client is not entitled to, at the end of the day your client will not get what she was otherwise entitled to. On the other hand, If the defense overreaches or cheats and is caught, or knit picks every point, ticks off the judge ( A recognized Truth Speaker and Guide) belittles your client and your witnesses, then your client’s verdict will probably be far more than the fair range of a just recovery. This “rough justice” as I call it has to do with the jury perception of who is playing fair and square with them and who is not.

So the Truth Speaker is respectful and concerned. He cares about his client and doing the right thing. He also cares about safety for all and is here because basic rules of public safety, patient safety, auto safety, child safety (name it) was breached; rules were broken and a citizen harmed is a theme that resonates with even the most conservative of jurors.

The quintessential Truth Speaker of the courtroom brings forth the wholesome image of Atticus Finch, that solid soul pure and good. Much like the oath of the First Class Scout: I am the First Class. I was a Tenderfoot and laid my course by the stars of truth and knowledge, and girded myself with the righteousness of justice and freedom. I added a smile that I might be a friend to all and bound myself together with the knot of duty to others.

Hoakie? Ask the Soccer Moms. Better yet ask Grandma what she thinks. Yes, everyone talks about bulldogs and such if they need a lawyer, but as jurors who do they trust? Who will they rise for?

“Miss Jean Louise. Miss Jean Louise, stand up, your father’s passin.”

Why did the Gallery all wait and stand as Atticus passed after losing a case to the prejudice of a 1930’s southern white jury trying a black man for rape? It was his subtle bravery guided by his conscience. The way he carried himself, tried a case against all odds, made his choices based on right not might, that is what makes Atticus Finch memorable as a lawyer and all the more real, all the more potent. He was also the model father. Who he was in his home and in his Church was who he was in the Courtroom. His legal prowess was not displayed in great showy acts but in quiet, consistent strength, in supreme self-possession. Atticus understood that a man’s integrity was his most important quality-the foundation upon which his honor and the trust of others was built.

Stripped of integrity, a lawyer becomes weak and impotent, no longer a force for good in his family or community and certainly not the courtroom. To me as I re-read “To Kill a Mocking Bird,” the power of Atticus Finch does not leap off the page; instead, it burrows its way inside of the reader, causing her to say, “Now that is the kind of lawyer we must be.” What is the model you have made of yourself? Is it purely an economic based model or is it one that the Gallery would rise for as you walk out of the courtroom at the conclusion of the trial.

When you are trying a case often as I am required to do from two weeks and sometimes two months, the jurors come to know who you are. Their eyes are on you all day. By the closing of your case, you will have not fooled anybody if that is why you are there; but you will have fooled yourself and cheated your client. Should, by some stroke of misguidedness, you succeed, then you have only succeeded in cheating the system and thus depreciating it and your oath.

Eventually, if this is your stock and trade it will be seen by the judges, your peers, the court attendants, and eventually, no matter what your talent, it will get to the jurors. Overall your career will be checkered at best, indeed marred by your lack of integrity.

The Manner of the Truth Speaker

A couple of years ago I was asked to write an article on communication strategies in the courtroom. Without repeating what I wrote then, I invite you to read it as I think it will add more dimension to what I share with you here. You can find on my firm’s website entitled, COMMUNICATION IN THE COURTROOM: FROM BODY LANGUAGE TO COMPUTER SIMULATION.

The manner of the Truth Speaker is that of the good Story Teller. She is direct, clear, and to the point. She keeps good eye contact, avoids the audible pause, stands tall and avoids excessive movement. Voice tone, inflection, audibility and tempo is in accordance with the story being told and has to be worked on as if writing music. Movements made add meaning to what is being said as the body and voice are used in junction as in telling and showing the story. The Truth Speaker is respectful, courteous and pleasant to all. She respects the space of the Judge, Jurors and witnesses. She does not raise her voice or enter a space unless she has earned that right.

What Makes Jurors Listen – The Norm Bias: Indeed, we know that a juror tends to listen to and believe information that is consistent with what they see and feel as normal based on his or her life experiences, and to discount information that does not match with that experience. Research shows that information that is consistent with one’s beliefs is processed quickly and remembered better than inconsistent information.

Jurors believe that rules are made to make our lives with each other safe, sound and sensible. From our standpoint we had better be in the courtroom because we can prove that the person we are suing owed a recognized duty to our client, breached that duty and caused foreseeable and identifiable injury to her.

Opening the Opening:

The Jurors want you to get right to it. Who have you sued and why. The jurors want this all spelled out clearly. Before the jurors get to dealing with Poor Johnny they want to know how did this happen to Johnny and why did it happen. The “why” you sued must be consistent with the Jurors life experience. Jurors’ life experiences influence their perceptions of the events and issues in your case. We all tend to listen to and believe information that is consistent with our life experiences. We discount information that does not match with that experience.

Litigation research shows that information that is consistent with one’s beliefs is processed quickly and remembered better than inconsistent information. Ambiguous information is perceived as inconsistent with those beliefs, and information that is inconsistent is scrutinized and more likely to be rejected.

Focus on the Rules and the Defendant’s Conduct:

To become a Truth Guide you have to speak and act credibly at all phases of the process. A Truth Guide does not get a ahead of the story jurors’ want to know and instead tell them what to think. If you start out by telling them that this case is about Poor Johnny; he got hurt, the defendant did it, therefore he must receive your verdict, you will lose. You can not tell people what to think. You have no right. If you think the jury will at the outset accept a conclusion because it is uttered by a Trial lawyer, you should consider another line of work. Your job is to present a fact based story that will allow the jurors to exercise their Norm Bias and instinct of self preservation which can be satisfied only by a verdict for your client.

The Truth Speaker begins with focusing on safety rules that protect people or children, or workers or families and their homes, (Duty Owed); that is the rule we are here concerned with – one that protects us. Who made it a rule – we did through our Legislators, Federal, State, or our hospitals, doctors, engineers. Why does the rule exist—to protect members of our community – namely us. How does the rule help us. How does violating the rule hurt us. Thus the Rule is about protecting life (Self-Preservation). Following the Rule preserves life. Breaking the Rule endangers self-preservation. Now each juror has a stake in this case. These are the norm based fact questions that you must provide answers in an unbiased way enabling the conclusion you are seeking to first appear in the minds of the jurors before it is heard from your mouth on Closing.

Here your role is to be like the good reporter, stating the facts clearly. Avoid accusation. You have not earned that right. Just like Joe Friday of Dragnet, “We are here to get the facts of how and why this happened.” If you start your focus with Johnny and what happened to him then the focus is on Johnny rather than the Defendant’s conduct. Jurors invariably begin to write their own story then and it is usually about Johnny and what he should have done.

The one who gives the jurors the story of how this happened and why it happened because of rules broken, then the focus first is on Defendant’s conduct. At the outset and at the end that is the exclusive focus. You have the first opportunity to give it to them straight and become their Trusted One; the lawyer who will help the jurors do their job, and; in doing their job, they vote consistent with the norm and self-preservation- and that is a vote in favor of Plaintiff.

At the end of the day a juror wants to come away with a sense that they were able to do their job and will follow the one they feel enables them to do just that. Simply to state what happened is to state the obvious. I have seen it time and time again; If you start with what happened is that Poor Johnny was hurt, you are going to get hurt.

Your Jury wants to know the “how” did this happened and the “why.” Not just who dropped the ball but how and why was the ball dropped. They have to understand the safety rule and why it exists. They want to know what motivated the defendant to do what he did in not following the rule. That is the Why. Then the jurors want to know what choices or decisions the defendant made that violated the rule or allowed it to be broken or caused a course of events that any right thinking person knew would lead to another person getting hurt. That is the How. But the conscience raiser really is the “why” the defendant did what he did – to save time, to take a short cut – to get ahead – to save money, to cut costs, to make easy money. As a result, the defendant set in motion a course of events that would predictably cause harm to another. If you can establish through the How and Why of the story, a selfish motivation, then you have powerful ingredients toward a significant Plaintiff’s verdict.

The Story of the Defendant and his choices: Contracts Broken

Once you as Truth Speaker have taught the rule and why it is dangerous when the rule is broken, then it is time to move from teacher to story teller. Now focus on the defendant and the offending conduct. Who is the defendant — product manufacturer, doctor, contractor, or trucking company. What did he promise or agree to do. Why did he make that promise or agreement? Who was relying on his promise, contract and conduct?

The Social Contract:
Think of all conduct as as controlled by contract with fellow man. Whether it be driving a car or putting a drug out on the market. Whether it is the sale of a toy or a movie ticket or a vacation stay, the parties entered into a dual contract with each other and the State by agreeing to conduct themselves within society. The defendant made specific representations by advertising, by its product description, product manual. The hotel likewise by its marketing and by common law expressly and impliedly made representations. At that heart of all representation is that our product, our property our movie theater or our hospital is reasonably safe for your reception and care and for you to do or receive with safety what we are in the business of providing. Likewise in the very day ordinary car wreck or truck wreck, the conduct of the parties is controlled by statutory law, state and federal, whether it be the local motor vehicle and traffic code or the Federal Motor Carrier Safety Act, there is a bible that applies with rules of good conduct contained with in it.

The respective drivers are permitted to be behind the wheel only by virtue of the “license” issued by the Government. By that license the driver agrees to follow the law. And when the law is broken and a person is injured, one must be answerable for the harm caused. That concept is as old as religion itself. When our case is presented in this context it resonates far more in the minds of those jurors may otherwise not be with us, such as, the conservatives, the establishment types and the religious right.

From voir dire to the jury charge that “Bible” containing the applicable rules should be at the very corner of your side of counsel table to be picked up strategically addressed at all stages of the trial. This case is not controlled by what the lawyer says but what the “Bible” says of the conduct that was required.

I was fascinated by the Reverend Billy Graham’s ability to deliver the Word. At strategic points he would grasp the Bible in his left hand and in a sweeping motion with his right as he would place it atop the Bible as he made his point. It was amazing how each time my attention was reinforced as was that of his audience. It was a reminder that these were not the words of the speaker, here Reverend Graham but the words of a higher order.

I am told that when Billy Graham delivered his final sermon, amongst the first to hear it were Sarah Palin, Donald Trump and North Carolina governor Pat Mc Crory.

In a Construction Accident case for example that Bible is the book of OSHA regulations covering the construction industry. It is also the Safety Program that the Developer, General Contractor and or Construction Manager all agreed to be bound by.

When a contract is made it is made with considerable thought, hammered out by consulting lawyers, colleagues, partners, shareholders, board members and contracting parties until it is fit for print and signature. They thought long and hard on what they were promising before they signed off on it. They promised and warranted certain conditions all of which touch upon safety. Jurors consider very seriously that in society when you engage in conduct you agree to follow the rules. These documents, whether it be even a a construction safety or store safety program, or, a hospital’s rules and regulations for medical staff, can be powerful evidence of a rules violation. For that very reason the defense undertakes all efforts not to answer the Request for Production and provides evasive responses when such documents are called for.

From opening to closing that document whether it be a safety program or the Uniform Driver’s Manual becomes an anchor for the juror’s as they follow your case so that they do not drift from your story and theme. Describe the contract/conduct agreed to(Duty). Describe its purpose, importance and what happens when it is not followed (Proximate Cause). Then tell the story of how it was violated (Breach of Duty). Finally and the most powerful is to show the evidence of why the defendant chose to violate the rule or regulation and how that selfish disregard caused harm and losses to your client (Damages).

Through this Moral Story you satisfy the prima facie requirements in a most compelling way. Describe how everyone counted on the contract being followed so that all could proceed with a feeling that the safety of the consumer, user, worker, business invitee was considered thoroughly for their protection and the protection of the public generally. Present the rules (duty) – rules to protect (Breach of Duty) that caused harm (damages), that puts each of us in danger (Need for Self-Preservation). Discuss why that conduct was allowed to take place. Explain just how a set of facts was placed in motion by the defendant that resulted in harm. In this way the story becomes now a moral story that has meaning to the listener (your jurors).

Now the case is no longer about your client. It is not about what you have to say. You have now told a story about rules to protect them the jurors and you have told a story of the intended bad choices of the defendant that broke those rules and hurt a citizen. It may as well be the jurors that this could have happened to. You have now told a story that brings their trial experience in your client’s case to where they reside and thus will awaken their sense of self-preservation and therefore their sense of morality against the rule breaker.

Indeed, a Most Powerful Motivator is Self Preservation. The “Inner Self” will then listen when it finds something about your case that causes it feel a danger; that has relevance to its sense of self-preservation. You are now at the place of juror acceptance. You have not told them what to think. Nobody wants to be told what to think. You have simply given them facts in a common sense real people way appealing to their sense of self-preservation. You are no longer a lawyer trying to sell them by telling them what to think by saying “this is a case about a negligent driver that was rushing to work and hurt my client.” That does not earn trust.

Unfortunately what the Juror wants to know is “What is in it for Me?” Once you have talked about the Defendant, the rules to be followed and why these are good rules that protect people then we go to the particulars of this case – What happened; Why did it happen; why did the company do what it did, what motivated it to act or not act the way it did, At the end of the day you have to answer all the questions that will finally answer the overriding question of “Why should I care about this case? How does this case affect me and my community?”

By telling such a fact based story appealing to their sense of safety and self-preservation, to then find for the plaintiff is not because you said so, but rather it becomes their opinion speaking. And that opinion is based on their communal sense of self protection. In many a social scientist’s view, the jurors are speaking through the subconscious voice of the frightened inner child wanting a safe world for its self protection. Their verdict will be based on their perceptions of Universal Truths and Rules of Good Conduct that protect them and their families, rules designed to maintain their well being and protect them from harm, pain and suffering.

What do we Human Beings all cherish most – our right to safety. Next, is our freedom of thought and our right to our opinions. So if you simply start with a story about Poor Johnny and proceed to tell the jurors they should find for Johnny because he is hurt by the bad defendant, your relationship with the jurors is over before it got started. At this point they just don’t care about Johnny and certainly not you. There was nothing in it for them but all for you and your client. So if you tell the injury story of your case first before telling the story of the rule and the defendant, you will lose every time.

Courtroom as Moral Arena:
Social/Psychological Research tells us that the majority of jurors see the courtroom as a moral arena rather than a legal forum. The moral stories always have to do with protection. The basic moral rules have to do with order and safety (for example, The Ten Commandments as given to the Children of Israel at Mount Sinai). Jurors will do what they see as morally right because it serves as enforcing order and therefore protection for them. They will do this even if it conflicts with what the judge says is legally correct. There is a selfish gene in each of us and it rationalizes “legally correct” to mean what protects the “me” in each of the “we” the jury.

The Perversion of the Moral Arena
But you ask, won’t they hear and see the truth because we are right and the defendants are wrong? Your idealism can sink your case unless you work it through some basic psychology.

You became a trial lawyer because in your heart of hearts you once believed that truth must prevail and the good guy wins. That is our ideal but we have to work through the psychology to get to a right result. Juror perceptions and reality can be very different. In the Courtroom, just as in Roman Mythology, Veritas, the Goddess of Truth is hard to find. Frequently Truth is not that beautiful virgin robed in white when you do find her. More frequently, in the courtroom, as in life, Truth is harsh and sometimes ugly. And so, jurors may not accept Truth if she puts their sense of self-preservation in jeopardy. “How can these doctors be wrong?” “Doctors are good that is why they became doctors.” Their frightened inner child who seeks self-protection is saying “My doctor is good. My doctor protects me.” The conscious rational self translates this to “The doctor exercised his judgment reasonably and did the best he could under the circumstances.” Through this rationale, the subconscious frightened “self” can say, “I am safe.”

In a products liability case the frightened inner self will cause a juror in deliberations to say, “This car manufacturer puts out a good product, I have been buying a Ford for years. My cars have always been safe.” The frightened inner child is really saying, “It must be safe because I drive my children to school in it.”

Their inner self seeks a comfort zone of safety and thus says, “Why should we believe this trial lawyer, we must believe in our doctors and our things that we use everyday in our homes and in work. That rationale gives the inner self of the juror the feeling that, “ I am safe.” The frightened inner self, above all, seeks a story outcome that provides it with a sense of self-preservation even at the cost of Truth.

Thus the jurors will take the evidence and reframe it to fit their story satisfying a need to believe that the world is a safe and predictable place. Blaming an injury victim for what happened, rather than the defendant, can allow a person to feel that they themselves are unlikely to be hurt in a similar way because they would not be so foolish or incautious in similar circumstances as the careless plaintiff was. It also reflects what social psychologists refer to as the Fundamental Attribution Error. It is a cognitive bias in people that causes them to consider their own behavior in a different light than the behavior of others. The fundamental attribution error explains why people often blame other people for things over which they usually have no control.

We are all familiar with the term, blaming the victim. The strategy is so often used by the defense because it plays upon the the attribution bias of jurors. So when you start your story about Poor Johnny or Poor Mary, the jurors focus on the plaintiff’s conduct (not the defendant’s) as that is all they have to focus on based on how you presented the story. The juror’s cognitive bias will rewrite your story to include perhaps that your client was not paying attention; should have looked where she was going; should have sought a second opinion; should have taken better care of her health; should have read the product materials more carefully; should never have got on a motor cycle; should never have gone out for football, should never have parked in that food store’s parking lot at that time of night, and so on.

Cognitive biases are one way that the brain processes human behavior; although a cognitive bias is often wrong, it can provide quick information about a situation that will allow the person (the juror) to make a rapid decision. There is a strong school of socio-psychological thought that jurors like most of us want to pick a side or make a decision and go with that side as soon as possible because it is tension relieving. This Cognitive laziness causes jurors to go with heuristic shortcuts and rather than handle a complicated question. Thus the need to become their Guide early by being perceived as a Truth Speaker. And thus once so entrusted you must reframe Truth by a story that appeals to that sense of self-preservation and protection.

The manner and methods discussed here are to help you from being misjudged. Because not only are those eight jurors, good and true, judging the client and her case; but first off, they are judging You and your message.

Being first to speak is a double edged sword:
The first to speak is the one they look most carefully and cautiously at. If you deliver a story of rules made to keep us safe, a defendant who chose to break the rules and caused harm motivated by his own self interest and caring less for others, then your road (the burden of persuasion) becomes quite a bit easier to walk. This is the well-known Rule of Primacy. Some say what we hear first is the most persuasive. The rule should be restated to What we accept first we tend to hold on to longer and stronger. If you can add to that proof of a selfish motive behind the rule breaking, you now have the fire that will drive a verdict. By all studies what will move voters or jurors most is emotion, and, the strongest emotion is anger.

The Power of Recency:
The last to speak has a great opportunity. Use it to its fullest. You now have the power of the last voice.

No matter how great your closing, if you have not earned their trust by the examples presented such as not backing up your contentions on liability, or overselling damages or failing to give good sound reasons for voting for Plaintiff by closing, in my view no one will be listening. But if you have so prepared your case as to present it as one that makes sense to the selfish inner voice of jurors, and stated through a simple theme that comports with the juror’s experience and norm then they will perceive you as speaking true and trying your case within bounds. Within bounds, means within their frame of reference based on their life experience. Thus your Opening Statement and your Closing Argument are precious opportunities to bring your case truly to the point of juror acceptance and enable you to arm your jurors with the information and ways in which they can address any questions of other jurors and carry the day for your client in the jury room.

What I have to say about opening and closing makes a few assumptions of undertaking certain trial strategies pretrial that are more fully discussed in my article, “Communication in the Courtroom.”

The Left Brain Side of Advocacy

The Law makes facts significant and other facts insignificant to a claim.
Therefore incorporating the buzz words of the Law and the Jury Charges is essential. The earlier done the better.

Long before you start suit, as a matter of fact just when you are deciding whether or not to take the case, your first question is what is the applicable Law. The second question is what facts can I convince a jury to be true that are necessary to win the case. If those facts are true, then ask what other facts must be true as a result, and, how do those facts impact my case? The famous Melvin M. Belli said, “ A lawyer’s performance in the courtroom is responsible for about 25% of the outcome; the remaining 75% depends on the facts.” So you start your initial case analysis with a model based on the substantive law as it applies to your facts and the Rules of Evidence.

Setting up your Evidence Balance Sheet:

What are my bad facts? Put them all on the left side of the Balance Sheet. What are my good facts? Put them on the right of the balance sheet. In what form does each material bad fact exist ie. document, surveillance video, diagnostic test result, prior or subsequent inconsistent statement, eye witness. Does the fact come through the testimony of a person or the proving of a document or thing. How persuasive is he or it? What can we do to erase or limit the bad fact ie keep it from coming in or restricting its purpose by motion to bar or a motion in limine? How can we impeach or impair negative witness testimony? How can we talk about the negative evidence first in our case in a way more acceptable to the jurors. How do we make testimony or documents more persuasive or less persuasive based on where or how we place the evidence in our Trial Story?

How do I emphasize our good facts and eliminate our bad facts is the purpose of this exercise and how do we then integrate it into our Trial Story in a way favorable to our Theory of the Case and Case Themes. If I can not eliminate them then how do I soften my bad facts. Through whom shall I deliver the good facts. Who are my strong witnesses and who are the weaker. How do I place my bad facts to soften the blow before the Defense speaks.

Searching for Landmines:

The well known trial consultant Rodney Jew, of Napa California, taught me that I must master the facts and then find the landmines within them. In other words what facts, if believed, will blow up your case or materially cause damage to it. These are landmines that must be defused.

Develop a list of 20 potential land mines — short statements of fact that if believed will kill or materially impair your case.

Focus Groups: Use the power of the Focus Group to identify your land mines:

I believe you can not do focus groups early enough on any case worth trying. Once you have mastered your facts and have done your own Land mine analysis organize a focus group to learn juror views and attitudes toward your facts and toward the theory of your case. Compare what you have learned from them to what you thought about your facts. You may find that you do not have yet all the facts you need. You will be fascinated by the responses to the question, “What else do you need to know?”

If you think that all your years of trying cases makes you a good predictor, guess again. All research shows we should not count our gut feelings alone.

Lawyers have a depth of training in the issues and are intimate with the details of a case in a way the juror can never be. We have lived with our cases for many months and perhaps many years. We come to the case and are attracted to it based on our legal training. Law school changes the way that people think. The Lawyer in us focuses on the intellectual over the emotional and on analysis. Jurors come into the courtroom like Alice falling through the rabbit hole, in total wonder of where she is and what to do. Her responses are emotional and reactions are from cognitive biases. Our focus on the intellectual/analytical, coupled with the training, knowledge, and in-depth information available to a lawyer is very difficult to set aside and presents its own filter that differentiates our lawyer impressions of the case from jurors’ impressions.

We, as lawyers, suffer a cognitive bias known as “The Curse of Knowledge” which simply put means that when we know something, it becomes hard for us to imagine not knowing it. As a result we become bad communicators of our own ideas and thus our cases. If we do not step back into the shoes of our jurors we will try the case 10,000 feet above the courthouse, and, guaranteed, no one will be listening as you whiz through your experts. It will cause you to confuse, bore and even alienate your jurors. You have mistakenly assumed your jurors are easily digging into what you have been eating breakfast with for years. Not happening! When conducting our direct examination unlike a normal conversation we are really directing the communication to the jurors. We do not have the benefit of immediate feedback. A terrific little book that will cause us all to pause and reflect on how we communicate is “Made to Stick: Why Some Ideas Survive and Others Die,” by Chip and Dan Heath.

After we have accepted the case, over time we look at information and new information with rose colored glasses. We, by accepting the case, become partisan and enamored with it not to mention our ability to win it. We believe we are more persuasive than we really are. It is part of our self confidence; not necessarily a bad thing, but it is not helpful when that self confidence clouds our view of our facts so that it becomes dangerous and potentially destructive to how we put our case together.

Rule #1: Don’t fall in love with your ideas
It is human nature to become more confident in a goal when expressing confidence to others is essential to what you do as a Trial Lawyer and Advocate. The more one espouses one’s beliefs, the stronger those beliefs become. We attorneys wish for a good outcome. In wishing for something, we convince ourselves that it is true. This is a strength for zealous advocacy but a weakness when it skews the attorney’s ability to predict and therefore make sound decisions. We may also exhibit overconfidence due to a failure to recognize that we are not fully in control of the outcome. Judges, mediators, and jurors have their own minds.

A Federal Judge called me into his chambers after Opening Statements to complement me and give me some advice. It was a very tough and hard fought inadequate security case against a major hotel chain and the matter was venued in Westchester County, New York. I made the mistake of not doing any focus group studies. However the judge said that I gave a very fine opening . He then said, “I want to talk to you about Rule 1.” Thinking I forgot some Federal Rule I asked what about Rule 1 did I forget. Seeing my worried look, he laughed and said Rule 1 is DO NOT FALL IN LOVE WITH YOUR CASE.

“Right now it is as good as it is going to get, why don’t you let me help you settle the case before it starts going down hill.” I took his advice. A few days later he got the case settled well. In response to my request for exit interviews, he told the jurors that I was interested in their views of the case and if they wished they could share them with me but were not obligated to. As I stood outside the courtroom a number of them came up to me and it was interesting; not good, but interesting. As to some comments, it was plain awful. They told me what was bothering them and I was most surprised as to what they were concerned about.

So what do we really know about what those soccer moms and dads are thinking? But we need to know, and, the earlier the better.

I usually do a focus group pre-suit on a significant case that although I particularly have concerns about, because of large damages, I think I can work through the lemons to make lemonade.

I will have my staff develop questionnaires based on what we are looking for.

My format is easy. I give a straight forward unemotional statement of the facts, parties and witnesses, much like Detective Joe Friday of Dragnet. Then I ask, “What do you think?” and, “What more do you want to know?” I listen. I become a facilitator and encourage others to respond and debate facts and issues. We avoid injecting ourself into the discussions, we just listen and ask more questions. Further asking why do you feel the way you do about this or that and what more would help you to this case brings forth most enlightening information. “What would you like to hear from that witness? What else? Anything more?”

Like the good team coach you are on the alert to look for what you never want to see and listen for what you would never want to hear in the locker (jury) room.

Once you have done periodic focus groups, mastered your facts, you then can retest your facts by giving them in a different sequence It is forever interesting to see how simply when and how you reveal a fact or witness changes juror reception.

Through this distillation like a microbrewer, you come to the case essence – the theory of the case.

Theory of the Case:

Your theory of the case should be stated in a paragraph or better yet a sentence that if believed requires a verdict for the plaintiff. Think of the theory of the case as your plan for convincing the jury to reach the right verdict.

A theory of the case is a persuasive affirmative statement of the core facts and reasons why your client should win. It embodies facts, law, and common sense. It is your guiding compass that drives your evidentiary presentations. Plain and simple it is the basic position on what the case is about. It needs to be comprehensive, yet easy enough for any judge or juror to understand. Your theory of the case is your explanation of what, how and why it happened and its legal significance.

You must commit your theory of the case to writing. Putting it down on paper will force you to evaluate it and revise it as necessary. Write your theory of the case in a short paragraph within which is contained a Universal Truth or Universal Standard that the Defense must agree with and the Judge must Charge couched as a statement of the essential established facts warranting a verdict in your client’s favor. In this way we attempt to satisfy the Confirmation Bias or “My Side” bias of Jurors (the tendency of people to favor information that confirms their existing beliefs.)

Benefits of Having a Theory of the Case
Having a theory of the case will help you organize each step of the trial and present a coherent case. The theory of the case will be your guide in framing:

  • Pre-trial motion practice, as it enables the identification of critical evidentiary issues.
    Opening statement, as it is your legal headline in plain everyday language that all must agree with.
  • Organization of witness selection and order of examination by topic and witness speaking to the evidential point.
  • Cross Examination as it is what you ideally want the defendant and her experts to acknowledge as a Truth.
  • Closing argument, because your theory is the decisive statement that the jurors must articulate in deliberations as the reason for a Plaintiff verdict.

Characteristics of a Good Theory of the Case
A good theory of the case contains several characteristics. It should be:

  • Credible, which requires it to be consistent with common sense and human experience.
  • An appeal to emotions, by including persuasive facts eliciting sympathy for your client
  • Consistent with the law
  • Consistent with the facts that are bad for your side
  • Interesting and (if possible) entertaining
  • Stated in concrete, ordinary language
  • Not easily turned against you

Most, importantly, you must believe in your theory of the case.

How to Create Your Theory of the Case

With all these benefits and characteristics of the theory of the case, it is obviously important to come up with a good one! Do not just settle on the first description that comes to you. Spend time brainstorming a good theory of the case. To do so, consider the facts, the law, and common sense. It is a statement as to the legal rightness of your position. It must be linked to the standard of care and its violation by the defendant. The standard of care or the rule or regulation are the legal anchors for liability that will keep the jurors from drifting and stay focused on the misconduct, of, and only of, the defendant.

As to the facts, use only those that are either conclusively established or likely to be accepted by the jury, including the good facts for your side and the bad. Do not include good facts that are seriously disputed. Your theme should not depend on a fact that the jury is unlikely to believe, because your theory will lose credibility. If you do, the jury will more likely adopt your opponent’s theory of the case.

For the legal part of your theory, consider use of the jury instructions. There may also be a statute or other legal authority that you can pair down to a common sense premise that no one would disagree with. Thus to be sure, consider common biases. Your theory has to be accepted by a diverse swath of humanity, jurors who will consider your statements and your evidence in light of their own everyday experiences and biases. A theory that technically fits the law, but otherwise runs against the grain of general acceptance, will lose your jury.

THEME

Your trial theme is a much shorter version of your theory of the case but with an emotion inspiring tone to it. Your theme is your theory boiled down to a sentence, a phrase, or even a word or two.
which appeals to the juror’s sense of self-preservation.

Benefits of Having a Theme

Your theme impresses your theory of the case upon the jury. Your theme gives the jurors an easy way to understand the case. With a clear, repeated theme that makes sense, you have a much better chance of convincing the jurors to view the case your way. With a good theme, you can more easily re-orient the jurors to your side of the case when it comes time for cross-examination or closing argument. You may even throw your opponents off their game, forcing them to argue against your theme.

The best attorneys include their theme in every stage of the trial, including pre-trial motions and witness examinations. In examining witnesses, add a question or a line of questions that include your theme. You may even use your theme in making or responding to objections. If your opponent objects that a question does not ask for relevant evidence, for example, you might repeat your theme and explain how the answer will fit it.

Characteristics of a Good Theme
A theme should be:

  • Short — a sentence, phrase, or just a word
  • Simple — use basic, clear words
  • Sensible — appeal to the jurors’ common sense
  • Memorable
  • Not easily turned against you

How to Create Your Theme:

You should create your theme as soon as you have created your theory of the case. Do not put off creating your theme. The sooner you have it, the sooner you can come up with ways to include it in your opening statement, witness examination, and closing argument. Condense your theory of the case to its very essence, down to a sentence or phrase. Work with your wording until it is as short as possible and memorable. Brainstorm whether the other side could use it against you, and revise it if necessary.

For example, every medical malpractice case is a Patient Safety Case. That is an over riding essential theme.

Some basic Rule Themes are:

    • First, do no harm. (Hippocratic Oath).
    • No Surgeon should cut into what he can not see.
    • Accountability for the Choices we make.
    • Violation of Safety Rules Kills
    • The Standard of Care requires a doctor who cares.
    • A doctor must always consider the worst first.
    • The Nursing Home maximized earnings and minimized hours at bedside
    • A doctor should test rather than guess
    • A doctor should know his limits and act accordingly
    • A doctor should pay attention to what is different about this patient rather than only those

things that are similar to other patients.

  • A surgeon should not unreasonably endanger his patient

 

Themes in Breach of Contract:

  • She gave her word.
  • Her word is her bond.
  • A contract is a promise.

Insurance Bad Faith:

Theory of the Case: Insurance Companies must fully, fairly and promptly evaluate and adjust the claim.
Theme: Holly Grail Insurance is in the business of selling policies and denying claims.
Theory: The Insurance Company must treat its policyholders interest with equal regard as it does its own interests.
Theme: Their promises were as thin as the paper written on.
Quite some time ago, focus groups taught me that what jurors care about most is what impacts their own wellbeing whether it be their safety, their job, their home, their pocket books. My friend, Rodney Jew, says the favorite radio station of all jurors that you must tune into to know where they are at is WIIFM – What’s In It For Me.

If the focus is just about my client then it is just about asking for money. But if the theme is about Patient Safety, Workplace Safety, or Product Safety then it may as well be them and their loved ones you are talking about. We all need to live and work in a safe environment; enter a safe hospital or nursing home, hotel or business establishment, purchase a safe product and swallow a safe pill.

In the malpractice case for example, the story is not about the patient——but about the doctor and his breaking of patient safety rules because he was too busy seeing patients in his office (billable patients, one after the other) than to take the drive out to the hospital.

How you tell the story makes all the difference. And the story has to be about the wrongdoer, and not the client. The introduction of the plaintiff into the story comes much later. If you Opening is set it up as a story about the Plaintiff, the jurors will be focused on the Plaintiff and begin wondering or constructing a story along what the Plaintiff may have done wrong.

If you change the focus of the facts too early from Defendant Conduct to Plaintiff or just start with Plaintiff, the jurors will write their own story on liability and put the Plaintiff at the center of it – Whether she should have done more; Whether she is a thankless soul who had her life saved by the hospital and now sues. “Stuff just happens and now she wants to sue over it?” And so in a rush to get your damage facts out, the jury will come to conclusions about the Plaintiff before they have heard word one about the Defendant’s wrongdoing.

Preparing your Jurors to Carry the Day in the Jury Room

In my experience it is unusual for an attorney to persuade a juror to change his/her opinion as a result of a closing argument if the juror has reached a conclusion before closing. This especially is true in longer trials. Thus, the main purpose of your closing argument should be to get those jurors who are on your side to be more firmly committed to you, and to provide them with bullet points and ammunition to argue your case in the jury room.

While it’s likely that there are jurors who enter closing argument unsure of their final decision and who are non-committal, these individuals generally will not be firmly committed to your side even if you persuade them during closing argument. They will be the type of jurors who can be persuaded by others (especially the leaders of the jury) to compromise or change their positions. Thus, your main focus in closing argument should be to get believers in your cause so firmly committed that they will not compromise their beliefs, and will become vocal advocates and leaders for your cause.

The Concept of Primacy/ Recency

Placement of important points in the argument capitalizes on how people remember information. In general, people remember information encountered first (primacy) and last (recency) more readily than information encountered in the middle of a presentation. In addition, in longer or complex closing arguments, summary statements placed at the end of various segments of the presentation help jurors remember.

Do’s

  • Tell a Story that is meaningful to the jurors
  • Come out swinging. Get to the point and make your winning points early.
  • Repeat through direct and cross
  • Repeat your winning points again in the middle of your closing an in the end.
  • Be Clear, Powerful and Confident
  • Be well organized

Reinforce your theme:

  • Repeat your theme in the opening, direct, cross, speaking objections or responses, and the closing.
  • Theme lines properly placed are the key to your case and winning.
  • Your witnesses use these words on direct and you place them in questions that must elicit a yes, on Cross Examination.
  • On direct properly placed theme lines coming from witness testimony makes it difficult or impossible for an effective cross-examination.
  • State it at the beginning of your closing with an exhibit
  • Address your weak points placing them in the most favorable light

Address the Opponent’s Broken Promises.
When opponents overstate their cases in opening statements, alert the jury to this fact. These broken promises only hurt the opposition when jurors are made aware of them. Consider ordering important points of the Defense Opening or the contradicted or impeached testimony of opposing witnesses to play in closing.

  • State it in the middle with another exhibit
  • State your Theme in the conclusion of your closing
  • At the end of the case ask for what you want. If you have earned their trust they now want to know what you think about damages.
  • Ask for what you want: Take the jurors through the Jury Interrogatories and their duties. give them the evidence and reasons why they should vote in accordance with the Plaintiff.

The relationship between your evidence and important legal standards and the duties of jurors must now be presented and reinforced in a persuasive manner.

  • Supporting evidence (and/or the lack of support for the opposition’s claims) is tied to key legal instructions. Discussion of these instructions uses terms that jurors understand and which convey the most favorable psychological connotation.
  • Preponderance of the Evidence is an important charge for Plaintiffs that must be worked on from voir dire right through closing.

Proximate Cause and Time Lines:

Likewise Proximate Cause must be explained in a simple way using a time line starting from the before, to the incident complained of and all that flowed from it.
Reinforce the Credibility of Favorable Witnesses. Particularly in lengthy trials, remind jurors of what it was that made favorable important witnesses credible. The bond between the testimony and the credibility of the witness weakens over time. Restating the basis for high credibility strengthens the bond and reestablishes the power of the testimony. By the same token, the testimony of less credible witnesses should be stated in summary form, without reference to credibility of the witnesses.

From Opening to Closing the concepts of Preponderance of the Evidence and Proximate Cause must be creatively delivered in ways that make sense to Plain Folk.

  • Be Courteous
  • Be Respectful

Don’ts

  1. Do not give your personal opinion on any point of the case. It is also improper for a trial lawyer to state that she believes that her client was seriously injured during an accident. Further, it is forbidden to state a personal belief during closing as to whether a party acted reasonably or unreasonably in causing the accident being litigated.
  2. Do not make any ad hominem attack on any defense witness unless you have clearly established the attack is warranted. If you make the attack and the jury disagrees you have hurt your case.
  3. DON’T Try The Golden Rule Argument. You should not ask the jurors to place themselves in the shoes of a party to the case.
  4. DON’T Try The Per Diem Argument with a Dollar Amount Request. You should not ask the jury to compute damages by some mathematical formula linked to a dollar amount which would entitle the plaintiff to a certain amount money for pain and suffering by using the time and money calculation.
  5. DON’T Forget To spend at least one third to half of your closing on damages.
  6. DON’T Try The Send A Message Argument If Punitive Damages Are Not An Issue. Such an argument injects a plea for punitive damages into the case, and is not allowable unless punitive damages have been submitted to the jury.
  7. DON’T Misstate The Law. Misstatements of law are impermissible during closing argument, and a trial court has the duty, not discretion, to restrain and purge such arguments.
  8. DON’T Ignore Instructions. Jurors are very attentive to the legal instructions given to them by the judge. Spend time making those clear and letting the jury know that they fit very well with your theory of the case and that you are comfortable with the jury instructions.
  9. DON’T Sound Stiff. Jurors will appreciate a lawyer who can get up and “talk” with them rather than address them or lecture them or perform outlandishly for them. Talk with them.
  10. DON’T Make Useless Objections. Only object if you believe the matter is critical. Most objections during closing argument are overruled. It just adds to your opponent’s momentum for this to happen.
  11. DON’T Talk Too Fast Or Try To Make Too Many Points. You should try instead for a well-reasoned, comfortably paced argument that hits the high points and allows the jury to absorb them.

Wishing you the best in your next Trial.
Do Justice.