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 →
Sound Jury Consulting recently conducted a nationwide online survey in which we asked the following: If you were sitting as juror in a trial where your personal beliefs about the case were in conflict with the laws the judge told you to follow, how difficult do you believe it would be to set your personal beliefs aside and not let them influence your decision? 62% said it would be very or somewhat difficult. While the results highlight the importance of a sound jury de-selection strategy, they also speak to what many might call jury nullification. Continue reading →
I’m sure you’ve written dozens perhaps hundreds. For each, you’ve painstakingly chosen every word, and gone over it with a fine-tooth comb. It’s a work of art. Therefore, come time to perform this masterpiece you’re shocked when it doesn’t go off as planned. What happened? Your witness happened.
Witness scripts or outlines are a staple of any litigator’s trial playbook, as they should be for a variety of reasons. However, there are several critical mistakes or shortcuts that are often made that invite disaster on the witness stand, the biggest of which is that the attorney did not consider the witness’s particularities. Simply talking with your witness is not sufficient to uncover those particularities; instead, the best way to assess them is through a mock direct examination. Here are three critical aspects of communication that you can glean from the mock examination and then address through the construction and editing of your witness examination script. 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 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.
As I sit here preparing myself for tomorrow’s Seahawk game (e.g., lighting the candles, saying the prayers, finding my lucky shirt), I find myself still in shock that we (I’m #12, so yes “we”) won that game. I would imagine there are some Minnesota fans that wouldn’t say we won, but rather they lost – lost because Walsh’s 27-yard field goal with seconds left in the game sailed left. While it’s easy to blame the last thing that happened for the loss (our win), that’s too simplistic and short-sighted. After all, there was Russell Wilson’s spectacular scramble and pass to Tyler Lockett after a botched snap that led to Seattle’s touchdown (the ONLY touchdown of the game). There was also Adrian Peterson’s fumble due to Kam Chancellor’s deft strip. Truth is Seattle won for a lot of reasons and, yes, luck was probably one of them.
Placing blame got me thinking about what we blame for litigation losses. Here’s just a few we’ve heard over the years: “Jury was confused/dumb/in over their heads/not interested (take your pick),” “Judge made bad rulings,” “Didn’t get the jury instruction we wanted,” “Their expert was better,” “Plaintiff was really likable,” “We ran out of time in closing.” But again, the truth is, cases are lost for a variety of reasons. Rarely, if ever, can it be blamed on one thing – and especially the last thing (closing, jury instructions, jurors in deliberation). While a “Keys to success in litigation” is really more of a book subject than a blog subject, we’ve narrowed it down to a few keys that are over-looked and/or undervalued (from a jury standpoint, not a legal standpoint) that all contribute to litigation losses. It is not just one of these things; it is all of these things (among many others) that should be considered while creating your game plan. 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 →
The current NFL scandal surrounding Ray Rice and his wife, and the numerous subsequent incidents with other players (i.e. Greg Hardy, Adrian Peterson, etc.), offers a perfect example of the problem with the “storytelling” advice that pervades the jury consulting industry these days. In many respects, the story for the NFL was strong. It had all the components of apology that scholars recommend for corporate scandals. It indicated that change was imminent. In short, it was a good story and everyone probably (understandably) felt good about themselves when the team developed the story in some conference room somewhere.
The NFL is a lot like many corporate defendants. As Gregg Easterbrook argued in a piece for ESPN, the public has been waiting for an opportunity to criticize the NFL due to its arrogance in recent years, and the NFL had no reserve of goodwill to help it through the situation. Corporate defendants are similarly situated. Large portions of the American public have strong, negative opinions of corporations and their actions. When a corporation is named as a defendant in a lawsuit, there is rarely a reserve of goodwill at trial that softens the critical orientation of jurors. This poses a significant burden on the corporation as we have seen with the NFL. Continue reading →
It finally happened this past week. I was called for jury duty. I have spent my entire adult life studying jury behavior and decision-making. I spent years in graduate school and wrote a dissertation on juror sense-making to receive my Ph.D. in legal communication and psychology. I’ve read thousands of studies on juries. I’ve worked in the field for over a decade. I’ve watched hundreds of mock juries deliberate. Yet, I had never been called for jury duty.
There were many surprising things about the experience, but most surprising were the distractions and the boredom. I know jury duty can make life difficult for jurors. I know jurors sit around and wait a lot. I know the process can be quite boring. Yet, before this experience, I had not appreciated the reality of it. 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 →