Motivating the Modern Juror: Video and Taped Testimony2018-07-10T17:11:49+00:00

Motivating the Modern Juror with Video Taped Testimony

By MICHAEL MAGGIANO, ESQ.

Chapter I: Our Jurors

What follows are questions that I have presented to myself to try to work out an approach to motivating modern jurors and the answers that I have come to thus far. Following this analysis are recommendations for persuasive video depositions and trial testimony. As I learn more about our new generation of jurors, I am sure this paper will be changed, as I change by my continued work with jury researchers, focus groups and as I learn from my continuing trial experiences with our Generation X’ers.

Please take the following as only one trial lawyer learning experience.

Q. Who are the Modern Jurors?

A. Presently 30% of all jurors were born between 1966 and 1976. In the next 5 years, 50% of your jurors will be Generation X’ers.

Q. What are the basic characteristics of this group?

A. 45% are children of divorce. They are individualistic, diverse, accepting of all lifestyles, cultures and ethnic groups. They are cautious and self reliant. They do ask “What is in it for me?” They do not buy hype and flash but look for value.

One very interesting point is that Generation X’ers are perhaps closer to their parents than any recent generation because they live at home longer. They postpone independent living into their mid to late-20’s. As they stay at home longer, their relationships become redefined. Many receive financial support from their parents even when not at home.

A 1993 study found that 51% ADMIRED THEIR PARENTS MORE THAN ANYONE ELSE. This is why sociologists predict that Generation – X’ers will reciprocate by taking full responsibility for their aging parents. Consider how this attitude impacts on value of a child to a parent in Wrongful Death cases.

Q. How do they receive information?

A. They are the Computer Generation. They grew up on Pac Man, Atari and Game Boy. They surf the web for everything and anything. They devour cable television, movies, CD-ROMs and magazines. They are visual learners. More than ever, seeing is believing.

Q. Are they an easier audience then to speak to?

A. Only if you have the right message. They are tough jurors, often seeming callous and indifferent. Sociologists say that this is a perception based actually on their independence learned at an early age to take care of themselves while both parents or the only parent was at work.

The Generation x’ers came of age during the Reagan-Busch era of severe cutbacks in social welfare programs. Thus they were taught to look out for Number One because no one else will. They do not believe that Medicare or Social Security will be there when they will need it and therefore are trying to structure their finances so that they will not need such benefits to get by. They are better educated, better informed, and more literate than previous generations.

Q. What is the down side to such an audience?

A. From a message standpoint they are skeptics especially toward liberalism and anti-corporate mentality. They are rather intolerant of the Baby Boomer philosophy of rooting for the underdog and against the evils of corporate America. They find this all too idealistic and simply not practical. They have returned to a more cautious and conservative mentality.

From a communication standpoint, they have little patience, they are used to rapid movement and are easily bored. They are adept at multi-tasking. Generation x’ers are used to jumping from one station to another, from one program to another.

They are also doubters. They demand concrete information. They want to know the meaning of things, to understand what you are getting at.

Q. What are the attitude problems we must be prepared for?

A. They are cynical. They are used to being pandered to and do not like it. They have been sold to from morning to night on TV and the Computer. They are used to broken promises from the President on down and are tired of them. Saying it does not make it so. They demand concrete proofs. Pain and suffering in and of itself does not move them. “Stuff happens”; “Life is a bitch and then you die” are some of the cynical slogans that they have grown up with.

Q. What impact has the media had on the Modern Jurors?

A. Jurors today are accustomed more than ever to receive information visually. TV anchor people today not only tell us the news but take us right there – suddenly we are at the scene of a hurricane, witnessing pounding surfs, demolishing homes or we are taken to a 5 alarm fire downtown or a bombing in the middle east. Not only do we get it all in one half of an hour but we see it all. All that is happening in the world is delivered in an audio-visual format in one half an hour each night. This is the standard that they have come to expect and now demand. Their attention span per witness now seems to be no more than one half an hour. In short, they want instant everything.

Q. What do they like?

A. They like you to get to the point. They like presentations that are crisp and vivid. They like clear, colorful exhibits and charts. Time Lines and Decision Trees are charts that they are comfortable with when done well. Such Demonstratives help them stay focused. The spoken word alone is boring to them. They like visual moral stories. They learn best through multimedia such as television, blowups, graphics and computers. Their childhood has enabled them to easily manage more than one stimulus at a time.

Even though they are tougher jurors they tend to believe what they read in the newspapers. So the visual word becomes far more important than the spoken word.

Q. How do they view the Courtroom?

A. Similar to the Baby Boomers, they see it as a moral arena. They will more readily do the morally right thing than the legally correct thing. However they seem to require greater structure in the message. Themes dealing with ethics and rules tend to be persuasive for many of this generation. Since they do not necessarily follow the law but what is right, for example, where a hospital followed the standard of care but was uncaring and indifferent, you may nevertheless fair well despite your technical difficulties in proofs.

Q. What is the method of Communication that works best with the Generation x’ers?

A. They learn best through interesting storylines presented through a crisp, vivid multimedia environment. A mere recitation of facts will bore them and turn them against you. Jurors need to construct a narrative to manage the unfamiliar information presented in a trial and the various pieces of it, whether it be live testimony or video. They need to see and hear a Human Story, not a technical recitation of facts. They expect and demand an interesting experience. The key document, the damages model or the expert opinion matters only if it has meaning in the jurors’ story about what happened. Your trial videos like all trial presentations must be designed to manage the meaning and not just the facts.

Q. What do they want in the story you are telling?

A. The biggest criticism of the judicial process is that it is long and boring. Recall what we learned in high school literature class – every good story has Conflict and Resolution of the conflict. There must be a compelling Theme that addresses a moral principle, that all reasonable people would have to agree with. There must be a Hero and a Heavy, an antagonist and a protagonist. Jurors look for the same basic elements in any case: the main characters and their motives, the central action, the setting, and the locus of control. Simply put the jurors want to know who did what to whom, why and what went wrong. At the end of the day jurors want to do the right thing. Your goal is to encode acceptable theme messages in each of your witness’ trial testimony that will enable your jurors to end the story in favor of your client.

Q. What do they expect of the lawyer?

A. They expect that the lawyer is going to do whatever it takes to win. They know this is a contest over a purse. They do not trust either lawyer and assume that somewhere out there is the truth but they are probably not going to hear it from the lawyers. In short their guards are up. They expect that a lawyer at some point in the trial will be less than truthful for the sake of winning. They do not expect the lawyer to be credible.

Q. What would they like in a lawyer?

A. They want her to be professional, prepared and passionate.

Professional: Generation X’ers respect success, so look good – shined shoes, good grooming and dressing well counts. This applies to your experts on video as well. This does not mean flash and slick, but taking the time to dress neat and clean means you are taking this seriously and are showing respect to your judge and jury.

Some of the basics that the jurors look for are: Do you show respect to the Judge? Do you show respect to the courtroom personnel? Do they show respect to you? Are you courteous to your client? Are you professional to your adversary or do you act like the Rambo lawyer, looking to shoot down the other side at every single chance and then grin at every success like the cat that just ate the mouse? Not to get too far off the video topic but do you crack jokes and act inappropriately with other lawyers or the opposing counsel in the hallway or coffee shop? This type of conduct as seen by jurors is as deadly as if it took place in the Courtroom because jurors perceive it as revealing the real you. Thus the professional you created in the trial video is now destroyed. You are always on stage. If they do not like you, they will not buy what you are selling. Did you ever buy anything of significance from a salesperson that you did not like or consider rude?

Being professional does not mean patronizing or kissing up to the jurors. The days of kissing up are well over. I recall twenty five years ago in a trial with some fine middle aged lawyers who were cuddling up to the female jurors with a “dear” to the older ladies and a “honey” to the younger ones. I don’t believe that would work today and I am not so sure how far that got anyone back then. If you misbehave on video, the negative impact is only magnified.

Preparation: They expect a lawyer who is well prepared. If you have gotten them to sit and listen, you better deliver or not bother them with your case. They expect an unbroken flow of witnesses and presentations. If you are going to be groping for questions or words in general and your witnesses are unprepared, then your credibility goes down the drain. If you are not ready with your exhibits, your credibility goes down as well.

Does the Judge trust and respect you? If you are shot down in front of them on lines of questioning and in offering evidence, you lose credibility. If you have the Judge going with you, then there is a greater likelihood that you have the jury going with you. The jurors want to know if they can trust what you are saying. If the Judge is trusting you then that is a good indication that they should be too.

Passionate: Ranking highest on the persuasion list is, “ Does their lawyer care?” Does she care about her client and what has happened to him? Does she believe in his cause? If she sincerely believes in her client and her cause, that matters a lot to the Generation X’ers as I believe it has always mattered.

You can be a great lawyer with a great case, but unless you are passionate in your case, showing real sincerity, you are not going to win them over. They have heard of all the lawyer tricks and are disgusted with them. They have come to the Courthouse thinking that some lawyer is going to try to win them over with puff and fluff.

They are cynical and have a right to be. But they do want very much to believe that good wins over evil and that right must prevail. When a lawyer comes before them and shows her professionalism, her preparedness and her passion they are even more impressed because you have now, to some extent, restored their belief in a system they have perceived as failing.

They will believe if you show them in concrete ways there is a reason to believe.

Q. What is the manner of communication that motivates modern jurors?

A. They are bombarded with sales pitches from day to night. They do not need one from you. You might have structured a great opening but if you are coming at them like gangbusters, like the salesmen who won’t get his foot out of the door, they are really going to shut you out.

What everyone cherishes most are his and her own opinions. Every juror comes into the courtroom pre-loaded on an issue. Your role is to present evidence consistent with their prior experience. If they believe that seatbelts are safe and prevent injuries but your client did not wear his safety restraint, you had better be ready with a lot of information on seatbelt failures before you proceed to dump on the defendant as the sole cause of your client’s frontal head, face and knee injuries.

Jurors are insulted by lawyers who tell them this and tell them that. If we are going to tell them what to think as opposed to telling a story that takes them to a place of acceptance in their own minds, we are just kidding ourselves.

Nobody wants to be told what they have to find and who are you (a person that they just met, a lawyer, and a personal injury lawyer at that) to think that you can. What Americans value most are their personal beliefs and opinions (and you are not going to change them – the more you try, the more trouble you are going to get yourself into.)

Rather than give an editorial about what happened to your client, tell a descriptive story in the active voice from your client’s standpoint.

Remember the Generation X’ers are cautious and practical, cynical and skeptics. For example, in the products liability and workplace arena, concepts of entitlement have now been replaced by a more cautious conservative mentality of look out for yourself.

Q. How then do you keep them focused?

Answer

  1. Tell an interesting visual story which would make anyone listening say, that is not right what happened to him and we have to do something about it.
  2. Start with the Defendant and end with the Defendant. Focus on what the Defendant did wrong.
  3. Give them a standard to follow. In developing cases I start out by trying to think in terms of Contract Law, as opposed to the vague reasonable man standard. What did the Defendant contract to do begins the question.

Let me give you an example of how I would use this in a truck wreck case. After analyzing what the Defendant driver did and did not do, get the State Driver’s Manual that he was required to study and took his test on. Get a copy of his test or a duplicate of the test he took. What you are saying he did wrong does not matter. But if he violated what the manual and driver’s test says he is supposed to do then you have a rule that he broke. In receiving his license he contracted to follow the driver’s manual and the rules of the road.

Note that there are many rules of trucking safety that is set forth in the manual that are not specifically stated in statute form but are encompassed in the omnibus careless driving statute. Since Generation X’ers require more structure than simply the reasonable man standard, establish the manual as evidence of the “Standard” he contracted to follow. In failing that standard he broke the law. Recall our social philosophy class where we learned that laws are a contract amongst people in a society, which they agree to follow in order to be part of that society.

Develop a driving report card setting forth what he failed to do that the manual and the vehicle and traffic law required him to do. Now, it is not you talking but the law that binds us all, the law of man designed to protect all people on our roadways. You are no longer dealing with the amorphous reasonable man standard but a very tangible set of standards that he studied and was tested on to get his driver’s license yet failed to follow in your case.

In a Medical Negligence case, think in terms of the contract that the doctor entered into with the patient. What did he contract to do in return for payment? His contract first called for no harm to the patient. That contract is the First Rule and the oldest rule that is built into every doctor – patient relationship. He broke that rule and here is how he did it.

There was a time when talking about a promise broken was strong enough, but sadly we live in a world where everyone we would like to believe in breaks that word routinely and shame on us for not getting it in writing. It was our personal responsibility to look out for ourselves because it is an unsafe world. But when you have industry standards or governmental standards violated, that is the contract the Defendant was to follow and broke.

In a slip and fall case today finding a code violation is critically important because Generation x’ers believe that: 1. we live in an unsafe world; and, 2. we are personally responsible to look out for ourselves.

Q. What are the basic themes on liability and damages that appeal to the Modern Juror?

A. On liability, we have to take the Defense banner of “Personal Responsibility” and “Accountability” and make it work in our case against the Defendant.

Look for themes dealing with ethics, rules, and morality.

Begin to think out your cases in terms of a Contract broken. Show in concrete terms up front why the Defendant is wrong and how that wrong caused harm to your client.

In an automobile case or a fall down case some basic themes are:

  • Safety first;
  • Accountability;
  • Prevention; and
  • People should be responsible for their actions.

In the Product Liability case some basic themes are:

  • Accepting responsibility for the product you sell;
  • Accountability for the product you place in a workplace or home;
  • Enforcing product safety;
  • Consumer protection case;
  • Safe design begins on the drawing board; and
  • Accident prevention – “I don’t want this to happen to anyone else!”

On the damages side, do not describe your client as the Victim. Generation X’ers like fighters not criers. If you portray your client as down for the count, beyond all hope while he is sitting there with two arms and legs in the Courtroom, you will have a dismal result. Jurors are impressed by people who are motivated than feel they are entitled.

Avoid the old rhetoric of Conscious Pain and Suffering and replace it with the concept of “Human Losses.” Themes dealing with loss of independence and self-reliance tend to capture the modern juror.

Remember the modern juror values greatly home and family. Consider how in your case the juror value of close relationships with parents and family apply.

Have your client explain what he did with his life and what he would like to do now to restructure it. You then must explain to the jurors what it will take to get him there. They must see in concrete ways how money will make a difference in your client’s life. Show them how they can help accomplish your client’s goals.

Q. Are there methods of presentation that work better than others?

A. The latest juror research tells us to focus from the start on the “evil” Defendant, what he did wrong and how he injured the Plaintiff. Start out strong with a direct attack on the Defendant’s conduct in your opening and whenever you can call the Defendant in your case. If you start a trial by talking about the Defendant’s wrongdoing, jurors will construct their understanding of the case in the context of the Defendant’s behavior. If you start your opening statement with the Plaintiff, then that is whose behavior the jurors will focus on when trying to fill in the blanks as to causation according to considerable research done by Greg Cusimano and David Wenner for ATLA National. This information is detailed in Overcoming Juror Bias and can be obtained through ATLA at 800-424-2725.

The phenomenon described above is called “availability bias,” which means that people attempt to understand something new, based on the information immediately available to them first and fill in any blanks with a focus on that party. The approach therefore is to place the focus on the Defendant’s conduct and keep the focus there, limiting attention to the Plaintiff’s behavior.

Another psychological phenomenon that works against the Plaintiff in putting up front pain and suffering evidence is what is called “defensive attribution.” This principle states that when people are faced with a painful situation that potentially could happen to them, they subconsciously construct reasons why it is the injured party’s fault. In this way, they can tell themselves they would not have behaved that way.

You can avoid both phenomena by sequencing the Defendant’s conduct first so that you build a story line of the Defendant’s wrongful behavior. You will then have a better chance of developing anger in the juror’s mind over that behavior. Anger is a cognitive state which mobilizes the juror’s resources. As you are able to mount layers of fault evidence on the Defendant, the jurors will have made their decision of fault well before hearing any evidence about the Plaintiff.

Research Summary

People thus expect you to be professional, prepared and passionate. They expect you to get to the point (Generation X’ers want to know “what is the bottom line,” Be ready, show and tell. Don’t ramble, don’t grope, have everything ready, show them that you are a good guide, keep good eye contact, use your voice and body as tools of communication, tell a visual story that sends a moral message that is generally accepted.

Your role, as it was always, is to present your client’s cause in light of community values through themes reflecting those values. Your case must have a meaning to the jurors greater than your case. By their verdict they will set a standard in the community. So their work as jurors is indeed a community project (Remember one of the characteristics of the Generation X juror is a “what’s in it for me” attitude.)

You can accomplish this and become their guide by talking to rather than at jurors, conferring with jurors to accomplish a jointly held task, and making sure they have the tools to accomplish the task.

Start your case out strong by attacking the Defendant, layering evidence of wrong conduct upon each other, bringing the jurors to a point of anger that they will make an early decision on liability before issues of the Plaintiff’s conduct arises.

Do not underestimate the intellect of your audience and do not disrespect them by your conduct in and out of the Courtroom. If you are going in like a rooster strutting about, rattling off why they should vote your way, shooting out all kinds of theories of liability hoping one will catch the jury’s fancy, you are dead. Don’t even try it, settle, stay home.

Chapter II: The Video Taped Deposition

There are a number of good trial lawyers from around the country who believe that you take all depositions as videotape depositions unless there is a strategic or logical reason not to do so (for example, an administrative witness, a medical records custodian, a witness who is favorable to you and whom you believe will make a “poor witness” on video.)

Some argue that you should take the videotape depositions of both favorable and unfavorable fact and other liability witnesses, as well as your damages witnesses. In addition, it is recommended that you always consider filing a “cross-notice of taking videotape deposition” with respect to witnesses whose depositions are set by the opposition.

Accurate Preservation of Testimony – The videotape deposition truly and accurately preserves the testimony of the witness. Unfortunately, testimony of a witness in a non-videotape deposition is often not “preserved” at all. The regular deposition does not indicate much of anything with respect to mannerism, tone of voice, attitude, demeanor, poise of the witness, hesitation when responding, and much, much more.

Accurate Prediction of Trial Testimony – The videotape deposition gives the trial advocate a very accurate prediction as to how the witness will testify and act at trial. What you see and hear on a videotape deposition is what you will most likely see and hear at trial. On the other hand, the non-videotape deposition is not an accurate predictor at all. In fact, what we often see in a witness at a non-videotape deposition is totally the opposite of what we actually see and hear from that witness at trial. The difference is like day and night.

Vague and Obscure Answers Generally Eliminated – Videotape depositions ordinarily eliminate most of the “I don’t know’s” and the “I don’t remembers.” The reason is simple: The witness believes that he or she, is looking into the camera, is actually speaking to a judge or jury, and the witness is more inclined to give straightforward answers in a videotape deposition as opposed to fudging and hedging and doing the old “soft shoe” or the “proverbial tap dance.” When this happens in the regular deposition, the witness more often than not gives you little or nothing that can be of assistance and then is a well-prepared and problematic witness for you at trial.

Obviously, there are some witnesses whom you would just as soon have demonstrate things that they “don’t know” and “don’t remember.” This, of course, is one reason why there are certain exceptions to the taking of videotape depositions. However, we have generally found it is better to find out what the real trial testimony is likely to be with an accurate prediction via the videotape deposition.

Shenanigans Eliminated – The videotape deposition eliminates virtually all of the shenanigans and games played by some attorneys in depositions. The hand and arm signals decrease. The witness does not look to the lawyer for answers as in the regular deposition. Lawyers behave themselves in videotape depositions – and if they don’t – they’re on camera with their misbehaviors.

Judge and Juror Appreciation – Judges and jurors tend to believe that the reading of a lengthy deposition at trial is ridiculous and stupid and boring. They know that in the 1990s there simply must be a better way. And there is. This “better way” comes in the form of the videotape deposition. Judges and jurors appreciate watching a deposition on video much more than having it read to them in whole or in part. Obviously, it is up to counsel to make the videotape deposition interesting and to the point. Remember, the long and drawn-out videotape deposition can prove to be almost as bad as the reading of a regular deposition by transcript.

Impeachment Intensity Increased – All courts have the discretion or authority to allow counsel the right to impeach prior deposition testimony by actually playing certain excerpts from the videotape deposition. Most judges will allow this in civil and criminal cases. It is far more effective and it significantly increases the intensity regarding the impeachment.

Witnesses’ Activities Captured – In many depositions, witnesses are asked to point to certain areas on their bodies. Sometimes they are asked to give demonstrations. In other instances, witnesses in deposition are asked to draw sketches of scenes. The list goes on and on. All of these activities are preserved completely in the videotape deposition. Unfortunately, they are only “described” by lawyers in the regular deposition, and sometimes there is nothing in the record about these activities at all.

Demonstrative Evidence Utilization – Demonstrative evidence is very effectively utilized in the video tape deposition. This includes having witnesses describe or “demonstrate” with medical illustrations, video and computer animations and reconstructions, anatomical drawings, models, and more.

Point Made – Lawyers and witnesses tend to “get to the point” in videotape depositions far more effectively and efficiently than in regular depositions. There is less time wasted and very little use of “filler questions” in videotape depositions.

Lawyer Preparation Enhanced – Lawyers get better prepared for videotape depositions than for regular depositions. This is simply a fact. This better preparation increases the likelihood of the sides either settling the case earlier or learning at an earlier point that the case will have to be tried – which we believe is advantageous to your case.

Opposition Attention-Getter – Your opposition knows you are serious about the litigation and trial of your case when you start taking depositions by videotape. The opposition knows that you are putting in an all-out effort in terms of time and money in order to move forward with the preparation of your case. Setting depositions by videotape is a significant attention-getter for the opposition, whether it be in a civil or criminal case.

Atmosphere Change – The atmosphere within which a videotape deposition is taken is ordinarily far different from the atmosphere of a regular deposition. The atmosphere in the videotape deposition setting is generally more formal, more intense, more serious, and more like the atmosphere in an actual courtroom where a judge and jury will be present.

All of the above factors should be considered in your decision-making process regarding the setting of a deposition as a videotape deposition or a regular deposition. Obviously, some of the above considerations may well persuade you that a videotape deposition would be an incorrect strategy.

Our recommendation is that you simply never fail to consider taking a given deposition as a videotape deposition (and this holds true with the filing of a “cross-notice” of a deposition taken by another party, as you may well want it videotaped).