“A verdict is a product of what jurors choose to focus on.” This mantra has been drilled into my head since my early days of working on my doctorate in Legal Communication and Psychology. The extraordinary simplicity of the statement causes it to teeter on the brink of cliché, but as my favorite author David Foster Wallace once said, “the most obvious, important realities are often the ones that are hardest to see and talk about.” Clichés are clichés for a reason: they speak to simple truths. Sometimes, however, these simple truths are so simple that they are easy to ignore, but to steal another line from Wallace, I’d ask you to “bracket for just a few minutes your skepticism about the value of the totally obvious.”
Jurors’ focus is zero-sum. If jurors are focused on one thing, they are not focused on something else. This is critical once you consider the research that suggest jurors remember as little as 10% of what they heard over the course of trial by the time they reach deliberations. Any given case has hundreds or thousands of pieces of information associated with it. This is true of even the simplest cases. It may not feel that way to the attorneys, but that is because the attorneys have already determined what he or she believes is important about the case (i.e. he or she has already established a focus). Consequently, many facts and a lot of testimony will be forgotten or ultimately have no impact on deliberations. Focus serves as the gatekeeper for what is considered important and unimportant, which plays a critical role in what is remembered and discussed during deliberations. 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 →
Libraries have shelves and shelves of books and articles full of clever tricks and tips for developing effective case theories and themes. Some are gimmicks. Some do not come close to accomplishing what they promise. I recall hearing one story about placing a bunch of case-related words in a jar and randomly picking them out. I have seen exercises that reminded me of the old Mad Libs books from my childhood years. One of the dangers in our profession is that the givers of advice can get a little too cute or “gimmicky” in their attempts to set themselves apart from others.
In my experience, the most important exercise for effective theme development is also one of the most simple, elementary, and non-gimmicky exercises out there: systematically listing out the case weaknesses and strengths. In case strategy sessions with my clients, we post those large 3M sheets up on the wall with one or two sheets a piece devoted to the weaknesses and strengths. We start with the depressing part and focus solely on the case weaknesses and vulnerabilities. Once we have listed off every weakness or vulnerability we can think of, we change gears and do the same for the case strengths. Having the list within visual reference is extremely helpful as we move into the theme development portion of the section.
I have been very fortunate to have had the opportunity to watch several longs trials from start to finish over the course of my career. Most of these have been in the context of conducting shadow juries, where four to six jury-eligible participants watch trial and provide feedback about each day’s proceedings. It is incredibly rare to receive this kind of data, uninhibited by the limitations of mock presentations and post-trial juror interviews. Every jury consultant should have the opportunity to have this experience because it forces the industry to reconcile its theories of jury-decision making with the practical limitations of courtroom proceedings. In other words, it is one thing to sit in a meeting months out from trial and feel good about the great “story” the attorney is going to tell at trial, but it is quite another thing to be able to help that attorney understand how to practically go about telling that story effectively at trial within the framework of courtroom procedures and all of the inherent limitations of the fragmented, nonlinear means of presenting evidence and testimony.
I just recently finished a shadow jury for a four-week trial and had an “aha” about one of the most prevalent, yet under-appreciated limitations that attorneys face at trial in their attempts to get “the story” out: Nothing brings “story-telling” to a grinding halt like having to lay foundation. Foundation slows down “story-telling” by essentially creating large gaps between the key pieces of evidence and testimony. Continue reading →