“Voter turnout was not as high as I had wanted” – Sanders
“Trump takes Upstate as voter turnout exceeds expectations.”
“Cruz has a real shot of winning…but only if turnout doesn’t exceed the record in 2012…”
You can’t turn on the TV without hearing some kind of statement about voter turnout – some candidates want it, while others hope it stays low. You’re either a candidate who is hoping you can motivate those who are not regular participants in the political process to come out and vote or you are hoping that apathy reigns and only the established base shows up. While it might be politically advantageous for a few candidates to try to suppress the vote, generally, the best strategy is to not only engage your base, but to also do everything possible to motivate the wider voting public to get out and act.
The same is true of your jury. While you can hope that there might be a few on the panel you consider your “base” (i.e. those who have experiences and attitudes that favor your view of the case), more likely you have a group of “undecideds” and you are going to have to do whatever you can to engage and motivate them to not only support your position, but to actively and persuasively participate in deliberations. Think of it this way: there might be people who believe, “Hmmm, that Bernie Sanders seems like he’d be a great president.” Or “Never thought Trump could be President, but that makes sense!” However, if they sit at home and do not act on their belief, then these candidates cannot win. If you have a juror who was swayed to your point of view during the trial, but during deliberations sits back and lets opposing jurors who are more passionate lead the charge, then your efforts are all for naught. Continue reading →
Reptile has become a popular topic of discussion for attorneys across the country, perhaps because folks like myself continue to write about it. Most of us have witnessed the fall-out, whether it be panicked pleas for feedback on defense forums or pre-trial motions to preclude “Reptilian” tactics. I’ve written extensively on defense strategies to counteract Reptile, but the more important question is whether or not defense attorneys should even worry about it in the first place.
If we focus on the science alone, this discussion quickly ends. Keenan and Ball claim to have derived their theory from the work of Paul MacLean, a neuroscientist who did most of his work in the 1950s, 1960s, and 1970s. MacLean proposed the triune theory of the brain, a three-component theory of the brain. One of those components, under MacLean’s theory, is the reptilian complex, which houses our survival instincts. Unfortunately for MacLean, contemporary research has shown that many of his assumptions and conclusions associated with the triune brain theory are wrong. Continue reading →
In episode 3, I discuss the common psychological processes at play as jurors attempt to make sense of all of the information presented at trial, with particular focus on what this means for the development of an effective defense strategy.
A few weeks ago I was listening to a judge give his rulings on a number of pre-trial motions. With each ruling, he began by saying, “I’m inclined to find …” The first time, I didn’t really think anything of it, but a few hours and dozens of motions later, it was clear that this judge could not make a simple and strong declarative statement. While I typically do not look for opportunities to “take on” a judge, this particular example of a powerless speaking style deserves some attention namely because of the position and also because the judge was a man.
For years, I’ve studied, lectured, and written on gender communication. The “powerful – powerless” communication continuum is part of that work and is used to describe the difference between stereotypical male vs. female communication styles. The “female” end of the continuum is often associated with “powerless” speech – speech that includes hedges and qualifiers: “perhaps,” “maybe,” “I think,” “kind of,” or “I guess”; speech that includes intensifiers: “so,” “really,” and “very”; speech that includes hesitations: “um” and “uh”; and speech that includes disclaimers: “I’m not sure, but…” or “I’m not an expert, but…” Reading these, it should be obvious that the use of these types of phrases or words weaken the statements being made. Continue reading →
If you’re a woman, there’s probably been at least one time in your life when someone (my money says it was a man) has told you that you “need to relax.” I’ve been told this a few times and, each time, the person pretty quickly realized it wasn’t the smartest move. Recalling these events, two thoughts come to mind: 1) I can honestly report that I wasn’t out of control, yelling, or being irrational. Instead, I was simply strongly asserting an argument about an issue – usually something political. And, 2) I’ve never witnessed or participated in a “heated” discussion and heard someone tell a man who is aggressively arguing his point that he should “relax.”
I was reminded of all of this as I read “One Angry Woman: Anger Expression Increases Influence for Men, but Decreases Influence for Women, During Group Deliberation.” The research, conducted at Arizona State University and the University of Illinois at Chicago, is a fascinating look into how a man’s versus a woman’s “anger” is perceived and then utilized by others when making decisions. While years of research (and real life experiences) show that women are often subjected to harsh criticism for being “too emotional” and are often labeled as “Bitches” (and worse) when behaving in similar ways to men (i.e., being aggressive or dominant in work situations), this particular study goes one step further and explores how aggressively advancing one’s position is undermined by simply being a woman. Continue reading →
It is a scary proposition to hand a case that you have worked on for months or years over to a jury for final adjudication. With all that’s on the line, it’s actually quite preposterous when you think about it. It took you months or years to learn enough about the case to bring it to trial and present it. Now you’ll hand the fate of all that work over to a small group of random people, who probably knew nothing about the issues in the case before they showed up for jury duty. You have no clue what they will do. All you can do is wait and hope.
It doesn’t necessarily have to be this way. As I’ve discussed in previous blog posts, attorneys focus too much on strategies for persuasion at the expense of strategies for controlling deliberations. A persuaded juror is not necessarily an influential juror and this is important because the safest bet for any attorney is to assume there will be some division amongst the jurors when they enter that deliberation room. Strategies for persuasion do very little for the attorney in this scenario. Either they were persuaded or they were not. Now, the jurors need to figure out how to resolve the division and render a verdict. Continue reading →
Most attorneys understand the obvious and immediate downside to using big words at trial. A key component of effective persuasion is comprehension. Audiences need to understand what you are saying. This drives action. People act on things that are easy to understand and re-articulate. Consider the results of one study where researchers found that consumers are more likely to buy products that describe features with simple language than they are products that describe features using complex language.
In another study, researchers found that the fluency (ease with which it is pronounced) of a company name impacts whether or not people are willing to buy stock in that company. The authors note “fluently named stocks robustly outperformed stocks with disfluent names.” Continue reading →
Let me first say I’m thrilled to be joining my former colleague, Tom, at Sound Jury Consulting. Tom and I worked together for over eight years. We share the same fundamental beliefs about our profession and how we can work with attorneys and their clients in bringing their cases to the most favorable conclusions possible. I look forward to meeting those already working with Tom, and to working with many others who are looking for a trial consulting team and firm.
Since this is could be your introduction to me, I thought I’d use my first blog to summarize a critical takeaway and some observations I’ve garnered from being a trial consultant for over a decade and a communication professor for nearly the same amount of time. What I’ve learned is that this is not rocket science; I firmly believe many of the tried and true effective communication principles that have been with us for thousands of years still apply. People might want a new fancy name or brain research to prove it’s true, but all of that doesn’t diminish the fact that people pay attention to, process, understand, remember, and apply messages that: 1) Fit with their understanding of the way the world works (i.e., their world view), and 2) Hang together (they simply make sense when taken as a whole). Continue reading →
If you follow my blogs and publications, you know that one of my common phrases is, “a verdict is the product of what jurors choose to talk about during deliberations.” This is a critical point to consider during your case strategy development process. However, we can simplify this statement even more within the context of jury selection to something along the lines of, “a verdict is the product of who does the talking in deliberations.” Continue reading →
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 →