By Thomas M. O’Toole, Ph.D.
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.
There is no way around it. Attorneys have to lay a foundation for a witness’s testimony. The problem is that jurors often fail to understand this necessity. The result is that they get bored and lose focus, making it extraordinarily difficult for the attorney to “tell a story.” In some situations, they may even fault the attorney for asking questions they believe are irrelevant, unnecessary, or the product of disorganization. On top of that, the excess that laying foundation adds to all of the other information jurors are receiving from the witness increases the chances that the important testimony will get drowned out. In other words, jurors get so overwhelmed by the sheer number of questions for a given witness that they fail to appreciate the key points the attorney is trying to make with the witness. Consequently, they do not see the “story” even when it is being told.
I was discussing this issue recently with a good friend who is an attorney and he suggested this situation is further compounded by the fact that there is no universal rule for laying foundation. As he argued, every judge handles it differently, and sometimes judges do not actually know the rules of evidence (sad, but true). As a result, the rules are “blurry,” and even good lawyers can get “dinged” when, in fact, they properly handled the foundational issues. I have personally seen a situation at trial where an attorney seemed to handle foundation appropriately, but the judge disagreed. This can be a problem with jurors because, in addition to perceptions that the attorney is wasting their time with unnecessary questions, there is now the element of the judge appearing to be critical of the attorney at a time when the jurors are already experiencing frustration due to ignorance of the process.
There are a few ways to deal with this hurdle. First, this highlights one of the many reasons it is important to maintain a good relationship with opposing counsel. If you can get stipulations, it bypasses the need for foundation on the related issues. Obviously, this is not going to eliminate the problem, but it can at least reduce the overall amount of time spent at trial laying foundation.
Second, draft your foundation questions in advance. This may seem like an unnecessary level of preparation, but I’ve seen very competent attorneys stumble over the wording of their foundation questions, which draws the process out even longer and may lead to sustained objections by the other side. Spending a few minutes the night before figuring out the quickest and most efficient way to lay the foundation rather than relying on an impromptu approach during the testimony, can make a big difference.
Third, all attorneys could do a better job with sign-posting during their examinations of witnesses. One area of improvement is with foundation. In other words, tell the jurors what you are doing. Every attorney knows some questions are not really questions, but rather moments where the attorney is essentially talking to the jurors. This happens on substantive issues, but it should also happen on process issues, which will help jurors sort through and understand the substantive issues.
In my recent shadow juror project, one issue we ran into was the shadow jurors were failing to understand all of the elements of the claim and were specifically losing sight of some key elements we needed them to be thinking about. One way we resolved this was through constant sign-posting during cross examination of the plaintiffs. For example, our attorney would say something along the lines of, “Mr. Smith, you’ve brought X claim, and one of the elements of this claim that jurors must consider is X, so I want to take a few moments to talk to you about this.” After a few minutes of questions about that element, the attorney would sign-post again: “Mr. Smith, those are all of the questions I have about X element of your claim, so I want to move onto the next element the jurors will need to consider, which is X.” At trial, we found this simple, repetitive act of sign-posting brought some key elements jurors were losing sight of back to the forefront. The same can be done with foundation. An attorney could have sign-posting along the lines of “Mr. Smith, one of the things that the court requires with any witness is that the attorney lays a foundation. In other words, I need to ask you some questions to show you are qualified to testify on these issues, so that’s what I want to take a few minutes to do.” There are a variety of phrasings an attorney could use to make this same point, which may help jurors appreciate why the attorney is asking the seemingly irrelevant or boring questions he or she is asking. For example, once this sign-post has been used, the attorney can switch to something like, “Mr. Smith, I know this seems like a silly question, but I want to make sure I have laid the foundation the court requires, so (insert question).
This simple act of sign-posting can help jurors understand what is going on and why it is important. It reduces the chances of frustration towards the attorney that has to lay the foundation.
Finally, attorneys should consider how the organization of their witness examination impacts the flow of the testimony for jurors. Try to avoid putting issues that require lots of foundation back-to-back. In other words, break them up with issues that require less foundation. Consider alternatives to taking things in chronological order. For example, if all of the fascinating stuff happens at the end of the timeline, start there rather than at the beginning and building up to it.
These are just a few of the strategies available to attorneys to limit the negative impact foundation has on telling a story at trial. The bottom line is that jurors appreciate efforts at efficiency and these efforts help achieve greater flow in the story-telling process at trial.
