Regardless of the merit of the vast majority of literature out there on jury persuasion, most of it tends to have one critical shortcoming. It focuses on a vast array of persuasive techniques, ranging from the cliché “tell a story” advice to discussions of psychological principles such as primacy or recency, but what it fails to recognize is that persuasion is only one small part of a trial. That may sound absurd, but it’s a subtle distinction that just so happens to be an important one. Continue reading →
Every successful strategy development session I have conducted with clients culminated in an “a-ha” moment, where we collectively came to some sort of realization about the case…a moment of clarity you might say…that fundamentally changed the way we presented the case at trial. These are the moments strategists live for and they are the difference makers when it comes to strategy development. The vast majority of these moments tend to result in a perspective shift for the case theory and story. In other words, the realizations usually result in telling the story from a different perspective within the confines of the case. These sort of perspective shifts can be devastating for an opponent. Perspective shifts can undermine or eliminate the offense for the other side and narrow the case in a manner that makes it difficult for the other side to prevail.
One of my favorite examples of the perspective shift in lawsuits came from attorney Mike Lewis, who was the main architect of the lawsuits brought by the States against Big Tobacco. Lewis worked for the plaintiffs in those cases. His strategy was a brilliant example of an effective perspective shift. Lewis was frustrated with the poor success rate plaintiffs had against Big Tobacco. While there was strong evidence about what Big Tobacco knew and hid from the public, Big Tobacco had a simple and powerful theme: personal choice. In other words, Big Tobacco had prevailed in so many cases because it would simply argue that the plaintiff made the choice to become a smoker. This created a simple and powerful focal points for jurors by drawing in the element of personal responsibility. This theme resonated with jurors across the country and led to low success rates for plaintiffs. Continue reading →
Happy New Year to all of the readers out there! I hope 2015 brings everyone the best in their litigation practices. One of my New Year’s resolutions is to provide more frequent updates to the blog in an effort to continue providing reliable and practical advice for implementing strategy over the course of a lawsuit.
One critical issue that rarely receives the attention it deserves is the dynamic of jury deliberations. Consideration of the dynamic should significantly influence decisions about strategy development, yet this rarely occurs. I think sometimes the problem is that attorneys tend to focus on persuasion as their objective when it comes to the jury. While this is certainly an important part of the process, it is still only one part of the process. Persuaded jurors do not necessarily result in favorable verdicts. As ridiculous as this may sound, it is true and I have seen it happen frequently in the hundreds of mock juries I have observed over the years. While unanimous verdicts happen, they are not necessarily common. There is usually some sort of division amongst the jurors when deliberations begin (even when they ultimately reach an unanimous verdict). Continue reading →
Primacy and recency are, by far, the most popular theories of persuasion that arise in my discussions with attorneys. I have never heard an attorney mention “elaboration likelihood model,” but references to primacy and recency seem to come weekly at times. Primacy refers to the idea that what is presented most remains the most salient and, consequently, impactful for the audience. Recency is the opposite idea that an audience is most impacted by what it heard last.
Applied to a litigation setting, the primacy/recency debate translates to a popular debate about whether opening statements or closing arguments are more important. The traditional belief among lawyers (and in some respects, this author) is that opening statements are the most important part of trial. Many attorneys take primacy to an extreme, embracing a statistic that has been passed down through the ages that 70-90% of jurors make up their minds about the case after opening statements. In other words, these attorneys go as far as arguing that trial is essentially over after opening statements. Hans and Sweigart offer a rich discussion of this belief in their analysis of civil jurors’ perceptions of attorneys, suggesting that this belief originated with a 1940 study where researchers assessed liability judgments at eighteen different points in a mock trial and concluded that the vast majority of final verdicts were consistent with judgments made right after opening statements. Continue reading →
Last month, I wrote about the importance of juror note-taking and raised the question of how an attorney might exert influence over a juror’s note-taking through his or her trial presentation. The fundamental concern was that, despite numerous studies and opinions about the value of allowing jurors to take notes, little attention has been given to how the way in which jurors take notes impacts their use and value during deliberations. This concern stemmed from a recent shadow jury experience I had where I was able to watch the various ways in which the jurors took notes during trial. Some jurors’ note-taking appeared to be completely random with no observable pattern. These jurors appeared to take notes on issues that each side might agree were completely irrelevant. Conversely, they failed to take notes on issues that we felt were extremely important. Other jurors furiously took notes, accumulating their own little transcription of the trial.
The problem is that neither of these note-taking styles are helpful. The random approach provides no structure or map for jurors to draw on during deliberations. The transcription approach buries key issues in the multitude of pages, making it difficult for the juror to locate key items when he or she needs to defend against opposing advocates in deliberations. This can create momentum for the other side and change the course of deliberations. Continue reading →
There has been a lot of discussion and research devoted to the value of juror note-taking. Not too long ago, the concept of allowing jurors to take notes during trial was considered cutting edge. Some trial venues still do not allow it, although most do. No attention appears to have been given to strategies for influencing juror note-taking, which is shocking since so much of the research speaks to the influence that note taking plays in deliberations. According to one study, 75% of all jurors given the opportunity to take notes believed it assisted them in recalling the evidence, understanding the law and reaching a decision. Given the influence that jurors’ notes play in their decision-making, the jury consulting field needs to venture into an examination of how presentation strategies can influence the process of note-taking.
I am absolutely convinced there is a significant strategic advantage to be gained when an attorney can structure a presentation in a manner that exerts influence on juror note-taking. But it is not enough that jurors just take notes. This is the problem of the current research. It focuses on the value of taking notes versus not taking notes. But the issue is not that simple. The real strategy development lies in the next level of examining how jurors take and use their notes and how an attorney’s presentation at trial can influence the way in which jurors take and use their notes. Continue reading →