Wednesday, October 8, 2014

Bring Clarity, Not Confusion, to the Courtroom

Contusions.  Are they hair?  Bones?  Perhaps another name for wisdom teeth?

The Onion posted an amusing article Monday about a juror who spent an entire trial confused about the meaning of the word “contusion” because he was too embarrassed to ask – and no one bothered to explain it.  Unfortunately, it’s funnier because it’s true.  Far too often, attorneys and witnesses throw around jargon in the courtroom without bothering to explain basic terms.  It goes along with knowing your case, or your line of work, far too well and assuming others have the same base of knowledge that you do. 

These assumptions can prove problematic, and could potentially derail your entire case.  There’s the minor issues, such as the length of a full-term pregnancy, and the major ones, like clearly defining that a doctor is an independent contractor rather than a hospital employee.

It sometimes shocks clients at our focus groups that laypeople don’t know these things, and these participants’ opinions then get jettisoned because they’re uninformed.  But it’s not about whether a juror is smart or dumb; IQ and education level don’t have any impact on whether a juror automatically knows a contusion is just a fancy word for bruise.

Defining terms isn’t about “dumbing down” your case (and believe us, jurors can sense when they’re being condescended to and will not be happy).  It’s about making sure you’re in control of educating the jury about key terms and issues.  Evaluating your case with a representative group of jurors, either in person or online, can help you figure out potential areas of confusion.  Every report we produce includes a section on jurors’ verbatim questions, and making sure your trial team proactively answers those questions will give your side the courtroom advantage.

To learn more about educating your jury, contact Senior Vice President Claire Luna at or 714.754.1010.


Wednesday, October 1, 2014

A Focused Jury is a Better Jury

It goes without saying that putting life on hold for weeks to serve as a trial juror is less than convenient for most people.  Whether it’s work, family or both, almost everyone has something they should be doing – or at least would rather be doing – instead of sitting in a courthouse for several hours a day hearing about emotionally draining issues.

That’s the position in which our court system places jurors, yet oftentimes we do nothing except pay lip service to their inconvenience and sacrifice.  Too often, the result is preoccupied trial jurors with multiple other demands for their time and attention.  Obviously, distracted jurors are not in an ideal place to pay attention and come to a rational, logical conclusion.

So what can be done, short of limiting juries to retirees?  Although there is no ideal solution, several states and jurisdictions are starting to address the problem.  Their solutions range from a Wisconsin juror pamphlet recommending yoga, meditation and exercise to hotlines that connect stressed-out jurors with mental-health professionals.

That’s all well and good, but in our experience there are things you can do – with the cooperation of the judge and opposing counsel – to help make the burden of jury service more manageable – and help your jury remain engaged and pay attention to your case.
  • Flexible scheduling – We’ve found from interviewing jurors post-trial that it is enormously helpful for them to have some time away from court during the week.  Whether it’s one day off per week or having shorter breaks and stopping every day in the early afternoon, this allows jurors to pick up the kids from school, squeeze in a shift at work or at least keep on top of what’s happening at the office. 
  • Time limits on witnesses – In our experience there are few witnesses who require a full day of testimony, and most witnesses who take that long do so because of plodding, repetitive examinations by counsel.  Jurors hate having their time wasted, and lawyers aren’t doing themselves any favors with overly long witnesses because jurors will simply get bored and tune out.  We’d suggest discussing time limits with the judge and opposing counsel – it’ll keep the trial moving and keep the jurors engaged.
  • Bring doughnuts – Jurors are people, too, and people love doughnuts.  Pitching in with opposing counsel to bring an occasional treat can provide jurors some relief from the drudgery of jury duty.
  • Ask what works for them – The judge can structure the trial any way he or she wants, so it might be worth asking the judge to poll jurors about what would make their lives easier.  Would they prefer one day off per week, or would they rather plow through?  Would it be helpful to start later in the mornings or finish earlier in the afternoons?  Would they prefer a longer lunch break or a shorter trial day with minimal breaks?  After all, it’s their lives you’re interrupting.
Jury service will never be without its inconveniences, but we believe it is within the power of the judge and attorneys to minimize these hassles and be as accommodating as possible.  You’ll be rewarded with a more attentive and focused jury.

To hear more about our thoughts on keeping jurors engaged, contact Senior Vice President Claire Luna at 714.754.1010 or

Wednesday, September 24, 2014

Avoiding Mistrial by Facebook

Social media audits of prospective jurors are now (or at least should be) the standard before voir dire.  But too often, once the trial team has learned of jurors' “likes” for Mitt Romney or the Kardashians or chemtrails and jury selection is over, their social media profiles are ignored.

From our perspective, monitoring of jurors’ public social networking should continue through trial and through deliberations.  The potential for misconduct is too high to ignore, since many jurors active on social networking may be unimpressed by the flood of admonitions judges provide at the start of trial and before every break. 

Judges around the country have been forced in growing numbers to confront willfully disobedient jurors who post on Twitter, Facebook or their personal blogs about ongoing trials.  By 2010, according to Reuters Legal, juror social media postings have called into question at least 90 verdicts and prompted nearly 30 new trials.  We’re sure those numbers have jumped since then.

When monitoring a trial, we check jurors’ social media postings on a daily basis.  Most of the time we find nothing – really, most jurors do follow instructions.  But there are a significant few who do not, including the young man from Florida we found posting key trial details, and his take on the presentation of evidence, on his Facebook wall.  The posts were overall rather innocuous, but it was clear he was ignoring the judge’s admonitions.  And if he had no qualms about ignoring one key instruction, we were concerned he might flagrantly disregard others throughout trial and deliberations.

We notified our clients, who told the judge, and the juror was off the case.

Monitoring seated jurors’ social media is a time commitment that’s easy to push down the priority list during the hectic days of trial.  But staying abreast of your panel’s continued Internet usage really needs to be just as standard as the initial searches.  Even making sure to ask for their Twitter names during voir dire (or asking the judge to do so to avoid looking stalker-ish) can be a strong deterrent to their disregard of Internet use admonitions.  For more advice on monitoring jurors’ Internet presence during trial, contact Senior Vice President Claire Luna at 714.754.1010 or

Wednesday, September 17, 2014

Mitigating the CSI Effect

There have been many studies on the “CSI Effect,” the effect of criminal dramas (such as CSI, Law and Order, etc.) on jurors’ decision-making process during trial. Television brainwashes jurors to believe there should be hoards of physical evidence, documentation, video footage, photos or some other “smoking gun” when it comes to proving cases.  As we all know, however, this is rarely the case.

The popularity of the fictional shows can elevate expectations to an unrealistic level that is detrimental at trial.  Our national research has shown 82 percent of jurors watch criminal dramas at least occasionally and 36 percent watch weekly.  However, there are several ways to mitigate jurors’ concerns regarding evidence in your case, and we have a few suggestions that will help jurors understand your case and the evidence presentation process.

Having a fresh set of eyes take a look at your case could divulge some of the weaker points susceptible to the “CSI Effect.”  Our focus groups provide an excellent platform to see what jurors want to know more about.  These questions can highlight the necessary education points that you may not see based on your familiarity with the case or at least the subject matter.

When considering expert testimony in a case where you might lack concrete evidence, consider a witness who will testify how uncommon it is to have every minute charted or every move photographed.  In an information-hungry society, we often forget that not everything is recorded – especially if the incident took place years ago.

It is also important to request jury instructions that are clear and do not confuse the jurors into misinterpreting the law.  This is particularly is necessary when explaining the preponderance of evidence standard since jurors – especially avid crime drama-watchers – are more likely to be family with “beyond a reasonable doubt.”  Clearly explaining the plaintiff’s burden will be effective in mitigating those who demand more evidence and proof.

Most importantly, you must adapt to match the demand of the “CSI Effect” rather than fight it.  With so many people watching shows and interpreting them as a likely representation of the courtroom, the expectations are there.  Providing jurors with adequate explanations and anticipating the information they will require will help to squash doubt about lacking CSI-like evidence in reality.

If you need assistance in discovering what parts of your case could fall victim to the CSI Effect, contact Senior Vice Preside Claire Luna at or (714) 754-1010.

Wednesday, September 10, 2014

De-Stressing the Courtroom

You’re driving through an intersection with a green light and suddenly a car rushes in front of you running the red.  Most people would immediately judge this person as reckless with no regard for others, or someone who believes the rules don’t apply to them.  However, if you were in their shoes, it's possible they were rushing a child to the hospital or had some other emergency situation and they believed they could make the light.

At some point, we’re all guilty of this situational bias, also known as fundamental attribution error or FAE.  Described another way, it’s a person’s tendency to place undue emphasis on a person’s internal characteristics – or personality – in a given situation rather than considering alternate external factors.

National Geographic recently wrote about a study by authors from University of Chicago and New York University that found stress exacerbated FAE, making subjects more likely to judge harshly.  National Geographic noted this could come into play in the courtroom where jurors are under stress and forced to make judgments in a new and uncomfortable situation.

We believe that as a result of this stress-induced FAE, jurors could judge your client with a negative bias before all the evidence is even presented.  In order to combat FAE in your case, we suggest mitigating the amount of stress placed upon jurors in a few simple ways.
  • Clear, concise explanations – When discussing the details of your case, be as clear as possible so jurors don’t have to spend extra time processing what you mean in order to keep up.
  • Simple, organized visuals – As we have discussed in previous Things… articles, featuring clear visuals and simple fonts helps jurors understand what you mean and eliminate potential confusion.
  • Respect their time – Part of the stress of jury duty is the time taken away from their other responsibilities.  By explaining things clearly and efficiently, you show the jury their time is valuable. 
We believe humanizing your client and explaining situational factors at play can also mitigate FAE.  Asking a doctor or nurse why they went into the field can help a jury understand their personality better and begin to realize there could be more factors at play rather than judging them on a fundamental level.

If you need assistance creating a clear and concise case message, please contact Senior Vice President Claire Luna at 714-754-1010 or

Wednesday, August 27, 2014

Female vs. Male Experts: Who Has the Head Start With the Jury?

Old stereotypes die hard.  No one knows that more than a woman in a male-dominated field – including the law, although that is slowly changing.

We’re sure we’re not the only ones who have noticed male expert witnesses in litigation vastly outnumber female ones.  But is there any real reason for this?  Are there times when juries might receive men better and other times they might prefer women?

That’s the question two researchers – both women, we’d like to note – set out to answer in a recent study published by The Jury Expert, an American Society of Trial Consultants publication.

For better or worse, they found gender stereotypes are alive and well when it comes to how juries see expert witnesses – a conclusion you might want to consider when both selecting and presenting your experts.

For example, these researchers reviewed a previous study that found jurors viewed male experts as better witnesses when the case involved traditionally “masculine” fields such as construction or finance, whereas women were perceived as better witnesses in cases involving “feminine” areas such as children or sexual assault. 

Perhaps not surprisingly, jurors were harshest on witnesses – particularly women – who violated societal expectations of gender-based behavior.  One study found “unlikeable” female witnesses were judged more harshly than “unlikeable” men. 

From our perspective, it is worth considering these findings as you work up and prepare cases for trial.  We’d recommend ensuring male witnesses will come across as authoritative and direct rather than meek, and suggest to female witnesses they should avoid appearing unnecessarily combative (frankly, we believe male witnesses should also strive to be pleasant rather than confrontational).  

It is also worth considering the field in which your expert will be testifying – finding the most-qualified and personable expert available is always the goal, but there may be a disconnect for some jurors if you bring in a man to talk about a topic more associated with women, or vice versa.

Of course, the jurisdiction and make-up of your jury also matter.  A jury in a liberal area or with several younger, well-educated members may appreciate an assertive female witness, whereas it might not fly in a conservative area with a jury comprising older white men.  We’ve monitored trials in the past where the defense successfully appealed to young female jurors by having older female witnesses talk about the challenges they’ve overcome to get where they are.  As with all things in trial, context matters.

We’d like to think society is moving past gender-based stereotypes, but your client is paying you to win a case, not make the world a fairer place.  As long as those stereotypes exist and affect how jurors see witnesses, you’d do well to pay attention to them.

If you’d like our help in preparing a witness appeal to your jury, we’d love the opportunity.  Please contact Senior Vice President Claire Luna at or 714.754.1010 to find out more about our witness preparation process and how we can help you evaluate how your expert will come across to jurors.

Wednesday, August 20, 2014

Selling Experts in a Skeptical World

It’s no secret the American public is more skeptical now than ever.  Distrust of institutions – the federal government, media and medical authorities, to name a few – is at an all-time high.

With the public so skeptical of traditional authorities, Internet resources have become a frequent first stop when people are looking for answers – whether the question is something as routine as “Can I ignore my check engine light?” or as potentially life changing as “Do I have cancer?”

Just last week, we were fascinated to read about a new website called CrowdMed that outsources your medical diagnosis to the public.  You submit a description of what’s ailing you, and the site’s “medical detectives” will do the sleuthing to figure out your condition.  The surprising part is CrowdMed’s detectives don’t need to be doctors or nurses, and it brags that it doesn’t care about their formal credentials – all that matters is whether they can figure out the patient’s problem.

In the courtroom, we believe the public’s widespread skepticism has important implications for expert testimony.  In a world where, thanks to the Internet, everyone’s an expert and the influence of traditional authorities is eroding, why should a jury simply accept the word of your highly paid expert?  Why is your Harvard professor’s opinion more valid than that of any schlub who can navigate over to WebMD? 

Perhaps it’s time to rethink what makes a good expert witness.  Although affiliation with a prestigious institution and winning awards are always nice qualities in a witness, they matter less in a world where the public is skeptical of those institutions.  In fact, a nationwide survey we conducted last year revealed that only 6 percent said having a famous employer (such as Harvard or Stanford) was one of their most important factors in how credible they find an expert witness – the same number who chose how many awards the expert has received.

Instead of just trusting the authorities, today’s skeptical jurors want to be convinced that an expert is credible – and nothing speaks to these jurors like experience and clear communication.  In our survey, the number one factor survey respondents said they look for in an expert testimony is years of experience (75 percent), followed closely the ability to explain things in simple terms (71 percent).

From our perspective, these findings should play into both how you choose your experts and how you present them at trial.  In medical cases, it might be better to choose a local doctor who’s been practicing in the community for 30 years and excels at talking to regular people than a big-name university hotshot with no bedside manner.  When presenting your witness at trial, don’t gloss over that person’s experience in favor of chairmanships and accolades – let that witness talk about the thousands of patients he or she has treated and the reasons why he or she enjoys that particular specialty.  And it may even be necessary to “re-train” experienced witnesses on the important of explaining things clearly with a minimum of jargon.

If you’d like our help evaluating your witnesses and helping them appeal to today’s juries, we’d be happy to lend our perspective.  Contact Senior Vice President Claire Luna at or 714-754-1010 to find out more about our witness evaluation and witness preparation services.