There is a popular 3M study that is often used to support the argument that attorneys should utilize more graphics in trial. The study found that audience members retained as little as 10% of the information three days later if the presentation was oral only; however, when presented the same information through both oral and visual presentation, the retention rate jumped to 65%. While this study is most often used to support the argument that presentations need a visual component, its implications can be applied to other areas of litigation. One that comes to mind is witness preparation for deposition. Many attorneys meet with witnesses a few days in advance of their depositions to review the relevant case documents and tell the witness what to do. In some instances, a jury consultant will participate to help the witness overcome barriers to effective communication.
One of the most common problems I have observed is information overload. To be more specific, many attorneys spend time in these sessions providing the witness with extensive tips on how to deal with different issues in the case, strategies that might be used by opposing counsel, and a variety of other random thoughts. This may appear reasonable since the attorney is simply trying to get the witness up-to-date and prepare him or her for all of the nuances of the case that may be addressed in the deposition. Continue reading →
One of the greatest difficulties in any trial is coping with the uncertainty of the outcome. There is a sense (or at least an illusion) of control in just about everything leading up to the moment attorneys must present the issues to the trier-of-fact. And then there is uncertainty: How will the judge perceive the issues? How will the jurors perceive the issues?
This uncertainty, based on my experience, seems particularly vexing for attorneys. Attorneys seem built to control and this makes sense. Anyone who is passionate about strategy and argument is naturally going to have a strong need for control. In this respect, this need for control is healthy and positive. It drives attorneys to work hard and prepare the best case possible. However, there is also a downside to this need for control: it often causes attorneys to look too hard for any cues from the judge or jury about how he/she/they might feel about the case. Continue reading →
Jury selection is a critical part of trial. Varying theories of attorneys’ ability to win or lose a case in voir dire run rampant among lawyers and their clients, but discussion of those theories are for another day. This post focuses on the importance of communicating with the trial judge in advance about the process of jury selection and identifies key areas of inquiries for attorneys in that process.
Unfortunately, with so much going on in the weeks leading up to trial, focus on jury selection can fall by the wayside. In some instances, the important questions about the process are simply not asked. In other instances, attorneys make assumptions about what a judge will or will not do during jury selection, sometimes “informed” by a colleague who picked a jury in front of that particular judge in the past. Continue reading →