Let Your Witness Make Conversation

People can be quick to judge those who fill their speech with “um” and “well” and “I guess.”  To a listener, such disfluencies have the potential to reduce perceptions of the speaker’s intellect.

However, a recent study published in The Journal of Language and Social Psychology examined transcripts from previous studies and showed those who use filler words such as “like” and “you know” are more conscientious and thoughtful.  The authors of the studies indicated these filler words as used are markers to show the individual’s desire to share or rephrase their opinions to others. 

Although we have found some filler words such as “um” can indicate a witness’ lack of confidence, the idea behind this study is a useful one: certain filler words help a witness come across as more conversational and better able to explain concepts simply. In fact, earlier this year we conducted a national survey of more than 800 jury-eligible participants and asked them to list what characteristics were most important in an expert witness.  Consistent with our previous research, the ability to explain things in simple terms was one of the top traits.  Approximately 64 percent of jurors rated it as one of the top characteristics (second only to years of experience). When a witness explains a key medical procedure, the safety procedure for a bus driver or the science behind traffic patterns, complex technical jargon can get lost on jurors.  Lay jurors appreciate a witness who is able to connect with them on the same level and educate them about complicated information in a simple and conversational way. When we work with doctors or nurses, we ask them to explain complicated procedures the way they would to a patient, and this helps them adapt their language to the audience.  However, people in other industries don’t have this experience and can have a difficult time translating their advanced level of knowledge, so preparation is key before deposition or courtroom testimony. If you have a case involving complex concepts and would like help finding the best way to educate jurors about them, or help prepping a witness to explain things more conversationally, please contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.

First Step to Persuading Jurors: Simplify

Recent news out of California shows it might be impossible to simplify things too much for a jury.  A Fresno jury’s confusion about how to fill out the verdict form — they acquitted an accused burglar instead of indicating they were deadlocked as they intended — meant the man was freed from custody.  A few hours later, he was killed in a fight at a relative’s house.

Some might be inclined to dismiss these jurors as “stupid” and consider their verdict form dilemma a one-off.  However, this attitude ignores the reality that it doesn’t matter why the jury didn’t know how to fill out the form (and along the same lines, why jurors don’t understand concepts you may find basic such as agency or negligence).  All that matters is that for these jurors, this was their reality, and neither the attorneys nor the judge simplified the verdict form in a way that made sense to them.

Our experience has taught us that the side with the simpler story has the advantage.  Put another way, as one of our clients told us recently, “When you’re explaining, you’re losing.”

The point is that in this information-heavy world, where infinite data is available at the touch of a smartphone screen, delivering an effective story to a jury means providing the simplest package possible.  That package has to include discussion of the verdict form so jurors know what to expect when they start deliberating.

Concepts such as negligence, cause and agency can consume entire chapters in a law school textbook, but put these words on a verdict form and we expect jurors to understand them with a two-paragraph instruction.  Countless times we have interviewed jurors after a trial and heard, “I still don’t really know what negligence is.”

We often tell our attorney clients they know their cases too well, potentially producing false assumptions about what their jurors should, or will, understand.  This can also result in bad assumptions regarding jurors’ ability to navigate the verdict form, and attempts to educate your jury should always include an explanation of the verdict form and the concepts it contains. 

If you would like to talk with us about how best to explain some of the key concepts in one of your upcoming cases, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Conspiracy Theories More Common Than You Might Think

We’ve written before about jurors’ tendency to invent and embrace conspiracy theories during the course of a lawsuit, and those of our readers who have done focus groups with us have likely seen that dynamic in action.

It turns about that tendency – particularly as it relates to medical conspiracy theories – is even more pronounced than we thought.  A new study by a University of Chicago political scientist published in March in the journal JAMA Internal Medicine found that half of Americans – and likely half of your jury panel – believe at least one popular medical conspiracy theory.

Among the highlights, the study found more than one-third of respondents believe the FDA is keeping natural cancer cures off the market because of pressure from drug companies, 20 percent think cellphones cause cancer but the government is ignoring it to appease corporations, and 20 percent believe doctors and the government know vaccines cause autism but continue using them anyway.

It takes no great leap of imagination to conclude jurors holding these views might be quicker to assume doctors, hospitals or corporations being sued would engage in a cover-up.  The challenge, of course, is to identify these potential jurors during voir dire – before they have a chance to poison your jury.

The study found people who embraced conspiracy theories tended to be less educated, poorer and members of minority groups.  But a deeper look reveals some interesting trends that could give you a leg up during voir dire.

For example, conspiracy theorists were less likely to use a primary care doctor for medical advice and instead relied on the Internet and celebrity doctors such as Dr. Mehmet Oz.  In fact, more than 80 percent of people who look to celebrity doctors for medical advice believed at least one of the conspiracy theories.  Conspiracy believers were also more likely to buy organic foods, take herbal supplements and avoid vaccines. 

Interestingly, political liberals and conservatives embraced conspiracies in almost equal numbers (with conservatives being slightly more conspiracy-minded), so don’t rely on political ideology alone during jury selection.

What ties this all together is a deep distrust of institutions and authority, whether it be government or the health care industry.  From our perspective, these are the types of issues you should probe during voir dire: Do you think hospitals put profits before people?  Do you trust your doctor to give you unbiased advice, or do you look for advice elsewhere?  Do you think vaccines cause autism or cell phones cause cancer?

If you have a case where conspiracy might rear its head, it might be worth it to see how this plays out in focus groups.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714-754-1010 to find out how we can help.

Separating Jurors’ Desire to Help From Their Verdict

Juror sympathy is a force to be reckoned with, despite judges' instructions telling them to separate emotion from verdict, as we have explored before in this space.  But the more important question to us is how a plaintiff might be able to secure a verdict based on sympathy alone.

Consider some of our recent focus group cases, when staunchly defense-minded jurors indicated willingness to change their verdict once they learned their inclinations meant the plaintiff would not get any money.  Again, these were participants who not only believed there was no breach in the standard of care, but were also convinced in most cases of an alternate, more logical cause for the plaintiff’s injuries than the alleged negligence.  Yet they were willing to put these convictions aside in the name of compensating the plaintiff.

In a recent national survey we conducted of more than 800 potential jurors throughout the United States, one-fifth of the participants – 20.2 percent – stated they would be more likely to side with the plaintiff if they knew a vote for the defendant meant the plaintiff wouldn’t get any money.  They believed this to be true “even if a seriously injured plaintiff hadn’t convinced you to support their case.”

In looking more closely at those 20.2 percent, a few commonalities stood out.  Those most likely to side with the plaintiff to ensure they would get money were young and “untethered.”  For example, 18- to 29-year-olds, those who rent, single people and the unemployed were all almost twice as likely to say they would be more likely to side with the plaintiff.  Surprising to us was the fact that those who currently serve in the military were nearly three times as likely to vote for the plaintiff in this scenario.

We have had some success in shifting this mindset by focusing jurors on one of the concepts they hold most dear: fairness.  By asking jurors if it is fair to find against a defendant they truly do not feel did anything wrong, they oftentimes conclude on their own that although they would like to find a way to give the plaintiff money, it would not be just to do so.

If you have a case where you’re concerned jurors’ desire to help the plaintiff may prompt them to ignore what they truly believe about liability, contact Jury Impact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.  We would love to talk with you.

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Are any of you planning to attend the 2014 DRI Trucking Law Seminar in Las Vegas this month?  If so, please make sure to say hi to Claire, who will be leading a presentation on working with challenging witnesses.