An important lesson I have learned from observing jurors’ decision-making in mock trials is that jurors sometimes dislike strategies that nevertheless are quite effective. They may not like what they see, yet they are still persuaded by it. These moments can be tough to digest. Besides the gut-check, it is difficult to ignore the fact that several mock jurors are criticizing something you did. However, research has shown over and over again that persuasion does not always happen at a conscious level. In other words, what jurors verbally express about something does not necessarily reflect its actual effectiveness. Continue reading →
One of the studies that I like to cite more than just about any is the old 3M study that showed that people remember only about 10% of what they are told three days after it is told to them. Apply this to a trial setting and the implication is that jurors will forget up to 90% of what they heard over the course of a trial by the time they reach the deliberation room. To put it a different way, by the time jurors reach the deliberation room, they are overwhelmed, do not remember the majority of what they just heard, and face the difficult task of having to sort through hundreds to thousands of exhibits, their largely disorganized notes, and a stack of jury instructions that can be difficult to decipher. Continue reading →
Before you read any further, watch the above 1 minute and 41 second video, which will provide incredible insights into your trial presentation strategy as discussed below.
Did you pass or fail? As they tell you in the video, almost half of all of the people who watch this video (and have not seen it before) fail the test by not seeing the gorilla. Even more interesting, we learn that even those who have seen this kind of experiment before (and expect something odd to happen) failed to notice the second change, which was the color of the curtain in the background.
Your first reaction may have been that this is an interesting little party trick kind of experiment that you can forward along to your friends, but upon further glance, this experiment provides critical insights into what happens at trial as jurors listen to your case presentation. Describing this experiment, Nobel Prize winning psychologist Daniel Kahneman noted that “intense focusing on a task can make people effectively blind, even to stimuli that normally attract attention.” Continue reading →
In 2007, the American Bar Association (ABA) released its updated Civil Trial Practice Standards. The ABA described the standards as an attempt to “to standardize and promote the use of these innovative trial techniques.” These standards contain recommendations for what many attorneys might describe as “cutting edge” trial procedures. Most important, these recommended trial procedures potentially provide attorneys with critical presentation opportunities to exert control over the trier-of-fact’s perception of the case and the key issues in dispute.
Yet, few attorneys are aware of the standards and express surprise at the suggestion that judges might allow any of the recommended trial procedures. I am not sure whether it is a product of the ABA’s failure to bring sufficient attention to them, attorneys’ general inattentiveness to trial issues not born out of case law, or a face-value rejection of anything that seems “outlandish.” Regardless of the reason, it is time for attorneys to start paying closer attention since the use of the recommended procedures may provide their clients a strategic advantage at trial. Continue reading →
From our earliest days on earth, we learn about contrast, difference, and fit. Whether it’s simple games like “which one is not like the other” or trying to fit different-shaped blocks into different-shaped holes, difference plays a critical role in our development and connection to the world around us. As we grow older and develop connections to the social fabric around us, contrast, difference, and fit gain more prominence in defining and understanding our place in the world. For example, scholars say gossip functions as an expression of our values against another’s. So while we may actually be talking about another person when we gossip, at its heart we are saying that person is different from us. Nearly everything we do involves differentiation. It happens on the levels of basic visual perception, social interaction, and self-understanding. In other words, it is the most natural thing we do.
For this reason, contrast and difference should play central roles in the development of the case presentation and the “story” at trial. There’s an old maxim that a verdict is the product of what jurors choose to talk about. This is one of, if not the most important principle that trial attorneys should understand because it is about focus, which is zero-sum. If jurors are focused on one thing, they are not focused on another. And the more jurors focus on something, the more critical they become of it. In other words, if jurors spend two hours of deliberation time discussing something, it is going to be a critical discussion of it. Jurors simply do not spend that kind of time heaping praise on something. Consequently, the case presentation should try to control the focus, or what the jurors talk about during deliberation. There are endless filters through which any set of case facts can be viewed, with each filter leading to a different outcome. In other words, jurors can put on blue-tinted glasses and see blue, put on green-tinted glasses and see green, etc. Difference and contrast in case presentation are the most effective ways to control the filter and consequently, the focus of discussion in deliberations. Continue reading →