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.

Wednesday, August 6, 2014

There’s No Question: Allow Juror Questions

The Boston Globe reported recently that jurors hearing a federal public corruption trial submitted an astounding 281 questions of witnesses through the presiding judge.  Based on that news, the ABA Journal posed a “Question of the Week” to its readers about whether the practice of allowing jurors to submit questions should be permitted.

This ignited a heated and sometimes nasty debate between those in favor and those opposed to the practice.  Our two cents?  In most circumstances, we enthusiastically favor juror questions.  A few reasons why:
  • Clarity – In our experience, most juror questions are simply seeking clarity on a confusing or incomplete aspect of a witness’ testimony.  We believe allowing questions helps ensure your witness has gotten his or her point across in a way jurors understand and keeps the jury from deciding a case based on misinformation.
  • You can be too close to the case – When you’ve spent months or years working on a case, sometimes you can “lose the forest for the trees” and misjudge what will be important for jurors.  Juror questions act as a safeguard in case you and your witnesses don’t recognize what jurors will find really important and want to know more about.
  • The Googling epidemic – Our research has shown repeatedly that jurors think it’s OK to use the Internet to do research about a case they’re hearing, especially if it’s just for educational or clarification purposes.  The problem, of course, is you have no idea what they’ll find.  By answering jurors’ questions during trial, you can head off their impulse to do outside research.
  • Questions are valuable intel – You can tell a lot by jurors’ questions – what they’re skeptical about, what they don’t understand and sometimes even which way they’re leaning.  These questions are the only real-time, concrete feedback you can get during a trial, and this information can help you adjust your strategy or shore up weak aspects of your case before it’s too late.
Based on the Globe article and ABA Journal debate, it seems the most common objections to allowing juror questions are that it encourages jurors to become advocates for one side or the other before the they hear all the evidence, and it takes the control of how the case is tried away from the attorneys. 

For the first criticism, we think simple procedural safeguards can prevent inappropriate advocacy.  For example, jurors should submit individual questions only (to avoid jurors discussing the case with each other) and should write their questions down for the judge and attorneys to consider.  That way nothing inappropriate or unduly biasing gets read in front of the jury.

Regarding lawyers controlling how the case is tried, we believe the modest amount of control you will give up by allowing questions is more than compensated for by the significant advantages of knowing what jurors want to hear and supplying them with the facts they need to come to an educated decision.  Just because you came into the trial with a plan and a strategy doesn’t mean it’s written in stone.

From our perspective, one of the great advantages of conducting focus group research before trying a case is it allows you to learn ahead of time what questions a jury might have and proactively answer them before jurors even ask.  If you’d like to learn more about our focus group process, or our online research process for lower-exposure cases, contact Senior Vice President Claire Luna at or 714.754.1010.

Wednesday, July 30, 2014

Answer the Demand – Don’t Attack It

We have long noted in our focus group research that jurors’ awards often skyrocket once they learn the plaintiff’s demand, and it’s not unusual for a juror to award $100,000 in damages prior to hearing the demand and then $5 million afterward.  From our perspective, the old plaintiff lawyers’ adage that “the more you ask for, the more you get” is absolutely true.

Legal scholars call this the “anchoring effect” because it effectively anchors the award to the plaintiff’s demand, and a recent study by researchers at the University of Denver and University of Arizona law schools found the effect to be dramatic.

In the study, mock jurors were presented with identical cases – except one group was presented with a non-economic damages demand of $250,000 and the other was provided a demand of $5 million.  Alarmingly, jurors presented with the higher demand awarded amounts that were 430 to 823 percent higher than those presented with the lower demand – that’s four to eight times higher – even though the facts and presentation of the case were identical.

The bad news is that none of the defense strategies tested – ignoring the demand, countering it with a much lower number or attacking it – erased this anchoring effect.  However, it’s not all doom and gloom, as the study revealed some glimmers of hope for defense lawyers.

First, proffering outrageous demands appeared to hurt the plaintiff’s credibility and chances of winning the case, as jurors who heard the high demand found for the plaintiff about 20 percent less of the time compared to those who heard the more moderate demand.

In terms of what you can control – how you respond to a plaintiff’s excessive demand – countering the demand with a more reasonable amount was significantly more effective than either ignoring or attacking it – and attacking it was easily the worst option.  

Defense attorneys are sometimes concerned that offering an alternative number might seem like an admission of liability, but the study found countering the demand actually led to more wins for the defense.  By contrast, ignoring the plaintiff’s demand reduced the defendant’s success by 6.6 percentage points and attacking it reduced the win rate by 14.7 percentage points.

Moreover, countering the plaintiff’s demand with a more reasonable suggestion of $50,000 reduced the average damages by between 9 percent and 41 percent (depending on the scenario details), confirming our long-held observation that jurors often find a number somewhere between the plaintiff and defense suggestions.  As with liability, attacking the plaintiff’s demand was the worst option, resulting in the highest average award in all scenarios.

Although scholars clearly have more research to do in this area – particularly by looking at real trial outcomes – this study demonstrates that offering a reasonable alternative to the plaintiff’s non-economic demand offers the best chance for success on both liability and damages.  It may be tempting to get on your high horse and attack the plaintiff’s outrageous demand, but the research shows this is not the way to go.

If you’d like to explore how jurors react to a damages claim in your case, we can help with either focus groups or an online study.  Contact Senior Vice President Claire Luna at or 714.754.1010 to find out more.