Different Views in the Same Light

Social media was taken by storm a few weeks ago when an image of a dress divided people into “Team Blue and Black” or “Team White and Gold.”  For those of you who don’t spend all day poking around the Internet, the dress depicted in the link below looks very different to different people – some see it as white and gold, while others just as clearly see it as blue and black.

People were baffled that the same photograph looked vastly different to someone else, and it was shocking someone else could not see the same thing they did.  It even sparked optometrists and technology experts to publish scientific explanations of this phenomenon.

However, we weren’t surprised in the least to hear that people can receive the same information yet reach wildly different conclusions.  From the beginning of each of our focus groups – and often even at the end – participants hold markedly divergent views about a case despite the fact they’ve been given the exact same information.  A piece of evidence will seem crucial to one person but fall flat with another.

One explanation for the dress phenomenon explained that our eyes and brain use the context of daylight to interpret colors.  Like the dress, context is the key to different perceptions among jurors.  Biases and personal experiences can affect the way jurors view a case, and it is important to explore those biases before a juror sits on your trial.

During our focus groups, we spend time discussing with jurors their experiences with various aspects of the case before we even dive into the case fact pattern.  This way, we can examine how their experiences will come into play once they hear from both sides.  More often than not, when explaining their thoughts about the case, participants use phrases like, “In my experience…”  This information can be used at trial as topics to explore during voir dire to identify those with life experiences or opinions that might predispose them toward one side or the other.

At trial, it’s important to understand not everyone will see the same information in the same light.  The best way to navigate these differences in perceptions is to know the ways in which someone will interpret the evidence in the context of their own lives.  If you need assistance exploring juror perceptions in your case, please contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.

Be Careful Selling the Plaintiff Short

People generally like to think of themselves as optimistic and hopeful.  We like to give people the benefit of the doubt, and we like to think they can succeed if given the chance.  Jurors are no exception, which can put attorneys in a delicate situation when it comes to talking about some of the underlying factors that drive damages.

Consider a case involving a child with a mild brain injury.  One of the factors driving damages, of course, is whether that child will be able to work as an adult and in what capacity.  Consulting experts often opine that although the child might have some learning disabilities, he or she will be perfectly capable of working in a lower-level job such as a landscaper or kitchen worker. 

The assessment seems innocuous, but it runs up against jurors’ fundamental optimism.  We’ve found repeatedly through our research that jurors blanch at such cold calculations of a child’s potential, and they can find it insulting.  They don’t want anyone to put that child “in a box,” and they certainly don’t want the defense for the people who injured the child to do it.

The same goes for long-term care needs, one of the most significant factors driving awards.  The plaintiff’s attorney wants to downplay his client’s ability to live and function independently, and the defense wants to do the opposite.  In this case, the defense has the benefit of being the optimist, arguing that the plaintiff can achieve more and live a full life, and his experts are selling him short.

Whenever possible, we recommend placing yourself in the position of the optimist to appeal to your jurors’ good nature.  Even if the plaintiff is likely to have some limitations, stress what it is possible for him to achieve with hard work, a little help and the right attitude.  Instead of acknowledging the fact the plaintiff’s career opportunities may be limited to labor-type jobs, emphasize that he will be capable of having a fulfilling career and supporting his family.

Of course, there will be times when optimism doesn’t fit your game plan. As a defense lawyer in a case involving a severely injured plaintiff, you have little choice but to argue that person’s life expectancy will be shortened.  Needless to say, you should approach this as delicately as possible and don’t harp on it repeatedly.  Jurors aren’t illogical – most will understand that someone who is bedridden and brain-damaged is unlikely to live to be 80 – no matter what the plaintiff’s lawyer says.

Discussing these damages issues without seeming callous or insulting the jury is one of the most difficult balancing acts to manage.  But a little optimism can go a long way, and make you more sympathetic to the jurors who will be deciding your case.

If you have case involving delicate damages issues, we’d love to help you find solutions.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

When Experiences Turn Into Expertise

When a B-list actress becomes an authority on science, and thousands of parents decide not to vaccinate their children based on her contention that it causes autism, it might make an attorney question whether they really need to bring a qualified expert to the courtroom.  We have been observing more and more often that certain jurors are willing to substitute their own personal experience and the opinions of anyone with a Twitter account for science. 

This phenomenon is not limited to the vaccine issue.  According to a recent study from Pew Research, there is a wide gap between scientists’ perceptions and public perceptions about various scientific topics, ranging from genetically modified foods to evolution. 

In an era of instant access to almost unlimited information, people often believe that with a little research they can become “experts” and substitute their own judgment for that of the true experts – a dynamic we believe filters into the courtroom.

We frequently see jurors – during both focus groups and real court cases – use their own experiences and knowledge to call into doubt what expert witnesses tell them.  For example, many jurors insist a C-section is a “quick and easy” way to prevent a birth injury, despite evidence of the substantial risks of this surgery.  Similarly, we frequently see jurors opine about possible contributing factors to an illness or medical event that experts for both sides agree are totally irrelevant.

The good news is that despite the public’s misconceptions, they remain responsive to science.  Not only does the Pew study show the public holds science in high regard, but science-based arguments (involving data or detailed explanations of causation) during our focus groups typically resonate widely – especially among men. 

The catch is the arguments have to be communicated in a clear and concise way so they don’t go above jurors’ heads.  We believe it’s crucial to make sure your expert witnesses understand the importance of using layman’s terms and analogies to ensure jurors have a clear understanding of the science.

You can overcome jurors’ preconceived medical notions by using hard facts, data and clear explanations.  If you want to explore how to incorporate science more successfully into your case, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010. 

Body Language Lost in Translation

It goes without saying that in cases involving significant factual disagreements, juror perceptions of witness credibility are paramount.  But it’s important to understand that when trial jurors decide (very quickly in most cases) whether or not they believe, respect, like or feel sympathy for a witness, they are considering way more than just what the witnesses is saying.  

All of us, every day, form quick snapshots of people we encounter based on countless, constant observations – friendly or standoffish, knowledgeable or inept, helpful or rude – and jurors are no different.

During focus groups, we often play snippets of key witness depositions to gauge juror perceptions of credibility, competency and general observations about what they saw and heard.  What we find particularly interesting is how quickly the vast majority of jurors form strong opinions about credibility based on no more than a two-minute clip, as well as the other aspects jurors are noticing and considering when forming these “gut reactions” – namely body language.

Based on our observations, actions as small as “looking down” or “fidgeting” or “fumbling their fingers” can damage credibility and make witnesses appear like they are being untruthful or searching for the right answer.  However, sometimes respondents disagree with each other about what certain body language means, and get so sidetracked by scrutinizing body language that they forget to pay attention to the actual answers and whether they actually believe the witness. 

The solution?  Work with your witnesses before trial to eliminate as many of these subconscious body language tendencies as possible, and remove the potential for guesswork or distraction.  

When we conduct witness preparation sessions, or "Testimony 101" as we call it, we video record a mock cross-examination of the witness then play it back so the witness can see for themselves their unique body language tendencies – tics, sighs, eye rolls and all.  We have found it’s one thing to give witnesses tips about where to look or put their hands when answering questions, and another thing entirely to force them to watch and scrutinize themselves as witnesses.  By highlighting how they appear to jurors – and how certain body language cues can dramatically affect credibility – witnesses gain confidence and conviction.  This allows jurors to focus on the message rather than trying to figure out what that long blink or finger tapping meant. 

If you would like to schedule training sessions with witnesses in an upcoming trial, please don’t hesitate to contact us at 714.754.1010 or cluna@juryimpact.net.