Testimony: How You Say It Is as Important as What You Say

When we work with witnesses during deposition or trial prep sessions, a crucial aspect of this process is videotaping the witness answering tough questions and playing back the footage for them.  If you’re one of those people who dislike the sound of their own voice, then you know how uncomfortable this can be. 

However, we believe this exercise is vitally important because it gives witnesses an idea of what a jury would see and what adjustments (in many cases, immediate ones) can be made to better appeal to those jurors.  Especially during trials where both sides haven’t given their presentations the “Twitter treatment” to simplify their stories, jurors can get bored and focus their attention elsewhere – including the clothing, demeanor and attitudes of witnesses and attorneys.

We recently monitored a trial after which we interviewed several jurors and asked them about the drivers behind the unanimous defense verdict.  In addition to aspects of the case they believed were stronger for the defendants, they also mentioned the key witness for the defense – a healthcare provider accused of skipping safety steps during a heart catheterization procedure – was a particularly strong witness.

Although this witness was on the stand for more than four hours answering a slew of tough questions, the foreperson condensed this witness’s performance down to, “She answered directly and without hesitation – that is not the type of person to veer from her routine.”  

After showing a witness' video deposition to focus group jurors and soliciting their feedback, we also find it useful to show the witness later clips of the participants discussing their observations.  Seeing objective strangers discuss a witness’ demeanor, rather than jury consultants and the legal team sitting right in front of them, can lend a certain third-party credibility to the feedback. 

We recommend conducting preparation sessions with all witnesses – not just the “challenging” ones – because as we have learned from jurors there are fine lines between “direct” and “rehearsed,” “confident” and “arrogant,” and “knowledgeable” and “defensive” – and sometimes a little outside perspective on these nuanced differences can make a dramatic difference in demeanor, attitude and credibility.  If you have an upcoming case that could benefit from witness preparation, or you would like to garner juror feedback on specific witnesses, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Give Your Story the Twitter Treatment

It’s no surprise audience attention spans are getting progressively shorter, but you may be interested to learn just how short they have become.  According to the U.S. National Library of Medicine, the average attention span in the year 2000 was 12 seconds – an already dismal figure – but by 2013 our ability to stay focused had dropped to a measly eight seconds. 

In a world where many people now get their news from Twitter in 140 characters or less, it makes sense why so many have a tough time staying engaged for long periods of time.  As technological advancements continue to create more distractions in our daily lives and feed the growing “instant-gratification” mindset - if you’ve ever binge-watched an entire season of House of Cards or Breaking Bad over a weekend, then you’ve become a victim as well - we expect this number to drop even further.

When it comes to defending lawsuits, these shrinking attention spans highlight the importance of developing themes and language that appeal to how today’s jurors process information, and presenting it in ways that get through to the easily distracted.

The simplest way to do that is put your messages, themes, explanations and opening and closing statements on a diet.  No matter how many moving parts a case has, there is no reason opening arguments should take 2.5 hours.  Our exit interviews reveal that many jurors view these kinds of drawn-out presentations, as well as long, repetitive witness examinations, as disrespectful of their time.  Whichever side has the simpler, shorter story always has the advantage and looks better in the jury’s eyes – so make sure that’s you.

We recently monitored a medical malpractice trial where opening statements took less than 30 minutes – for both sides.  The plaintiff testified, both direct and cross, in just 18 minutes.  Although not every case can be presented so quickly and not every trial can proceed at such an accelerated pace, we firmly believe the goal should always be to make things as short as possible.  A good rule of thumb is:  If you can’t fit your explanation on a Post-It note, then you can’t explain it adequately.

In response to that we often hear, “But this case is too complex to be reduced to a Twitter-friendly format.”  If that truly is the case, and trial research and even inter-office discussions are unable to reveal ways to explain each side’s position simply and concisely, then you should seriously consider that when deciding whether to take a case to trial.

And this “shorter-is-better” philosophy doesn’t start and end with juries – mediators, judges, committees and claims managers are people too, and are highly receptive to short, simple and easily digestible explanations, theories and messages.

Not every case is simple, but all cases can be simplified.  If you have a case that could benefit from some simplification and juror feedback, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Younger Jurors Have Trust Issues

Trial attorneys all have their own beliefs about who make the best jurors, and who make the absolute worst.  Many attorneys tell us they actively avoid younger jurors for a variety of reasons, including shorter attention spans, a lack of life experience and perspective, unrealistic expectations, or simply the attorney’s experience and gut instincts.  

Whatever the reasons for avoiding younger jurors, we have been crunching a lot of numbers lately and have some hard numbers to back up those intuitions and gut feelings.  First, a recent national poll of 18- to 29-year-old Americans by Harvard’s Institute of Politics revealed these younger folks’ trust in public institutions is at a five-year low, and cynicism related to the political process is at an all-time high.

The tendency of younger people to be more cynical, critical and suspicious of public institutions – which applies to most large entities including education, healthcare, health insurance and the judicial system – is what we are seeing in our own polling.  In fact, in a recent national Jury Impact poll of 834 Americans, younger jury-eligible respondents were most likely to believe plaintiffs “rarely or never” inflate their damages amounts, believe a family member of the plaintiff would be a credible witness, and to change their vote for the plaintiff if they learned they would receive no money – even if the plaintiff failed to convince them of their case.

Most troubling, those 29 years old and younger were 2.55 times more likely to conduct outside Internet research on a case during trial – even if a judge specifically instructed them not to.  Furthermore, younger respondents were the most likely to admit they would ignore a judge’s instructions not to consider lawyer’s fees when calculating damages, and not to allow sympathy to affect how they decide a case. 

So, not only are younger jurors more likely to be hostile to defendants who classify as “large institutions,” they are also less likely to respect the legal process and instructions.

Although these numbers are daunting, because there is no way to guarantee younger people won’t get seated on your jury, it is important to understand their unique mindsets when evaluating cases and developing themes and messages.  Using research to gauge the perceptions of jurors with shorter attention spans can help you develop a more concise overall message that appeals to those accustomed to instantaneously Googling the answer to any question the world has ever asked in mere seconds.  Furthermore, if you are able get through to the most cynical, skeptical audience members, then you can have confidence your approach will also appeal to the rest of your jury panel. 

As the attention spans of all generations get shorter (if you’ve ever surfed the web on your smartphone or tablet while fast-forwarding through commercials on your DVR, then you have firsthand knowledge of this trend), it is even more important to present case facts, themes and arguments in a clear, concise manner.  If you have an upcoming case that could benefit from an outside perspective – from jurors of all ages and backgrounds – please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Not All Plaintiffs Created Equal

Not all plaintiffs are on a level playing field when it comes to juror perceptions.  Certain plaintiffs – babies, children, the elderly – are just more likely to garner sympathy and potentially high damages.  During a recent nationwide survey of 864 potential jurors, we learned nearly 40 percent would award a larger amount to a poor plaintiff than a rich one.

As we know from interviewing thousands of jurors around the country, this is something jurors notice.  We still remember the jurors we talked to after a defense verdict in a birth-injury case, all of whom noted the plaintiff’s father owned an expansive wardrobe of Ralph Lauren shirts – enough to last him through a four-week trial without a single repeat.  “I was tallying those little horses every day,” one juror told us.  “Pink, blue, white, yellow, he had it all, and it’s clear these people didn’t really need more money.”

Plaintiff poverty can work the opposite way, potentially producing higher awards because the jurors want to help this person or family.  That statistic we cited above shows between one-third and one-half of your jury pool might see bigger dollar signs when considering a financially deprived plaintiff.

Looking more closely at those more likely to say yes revealed some interesting consistencies – and people to look out for during jury selection.  Those most likely to give a larger award to a poor plaintiff than a rich one shared the following characteristics:

• Asian  (1.7 times more likely)
• Student  (1.6 times more likely)
• Registered Democrat (1.5 times more likely)
• Currently serve in military (1.4 times more likely)
• From 18 to 29 years old (1.3 times more likely)
• Part-time occupation (1.3 times more likely)
• Single (1.3 times more likely)
• Annual household income less than $25,000 (1.2 times more likely)

If you would like to talk more about the plaintiff in one of your upcoming cases and whether their circumstances might prompt jurors to give a larger award, contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.