Winning Over Women on Your Jury

In our experience, women more often than not make up a majority on a trial jury.  And in case you haven’t noticed, a large majority of trial lawyers are still men.  This creates a common dynamic in which the men in the room need to appeal to and persuade the women – a task that can be difficult for some men. 

Persuading the women on your jury is of even greater importance for defense lawyers because, as our research has consistently shown for years, women tend to be more plaintiff-oriented than men.  There aren’t any secret “tricks” or “techniques” for appealing to female jurors, but there are certainly some pitfalls to avoid and issues to consider.  What follows is a compilation of some tips and observations drawn from our experience during hundreds of focus groups and dozens of trials:

• Be respectful – Being respectful is about more than just not referring to women as “gals” or commenting on their appearance – those should be no-brainers.  It’s also about avoiding more subtle behaviors that betray a lack of respect for women.  For example, we attended a trial during which the codefendant’s attorney repeatedly addressed a female expert witness, the head of an Ivy League medical school department, as “miss” or even “nurse” instead of “doctor.”  It was a slip of the tongue, but did he make the same mistake with male witnesses?  Nope.  Needless to say, it didn’t go over well with the female-heavy jury.
• Avoid stereotyping – Assumptions often work out poorly at trial, and especially when it comes to making snap judgments about what female jurors will or won’t want to hear.  We once saw a plaintiff attorney start to make a football analogy then stop mid-sentence, telling the jury of six women and two men that “it probably won’t make sense to you.”  During exit interviews, one of the female jurors – a die-hard Steelers fan – was still livid about it three weeks later.
• Don’t be overly aggressive – In our experience, few jurors of either gender like it when attorneys badger opposing witnesses, but female jurors are particularly turned off by it.  This is especially true when the witness is a woman, as being overly aggressive can make you come across as a bully and cause the female jurors to sympathize with or even feel protective of the witness.  You don’t need to wear kid gloves, but boxing gloves aren’t called for either. 
• Be nice to female colleagues – Nothing is more cringe-worthy than when a lawyer is rude to a female paralegal, attorney or clerk in front of the jury.  More subtle is when an attorney treats women differently than men, such as calling women by their first name and men by their last.  Be a gentleman and hold the door open for everyone, not just women. 
• Hire more women – Law is still a male-dominated field, and we still encounter firms where 80 percent or more of the attorneys are men.  When you have a diverse team, it allows you to better connect with a wider variety of jurors.  And try not to just use women as window dressing – if you have a “token” female (or African-American or young person) at counsel table who does nothing but fill a seat during trial, that can also be a turn-off.

If you’d like to hone your presentation skills or tailor your case to appeal more to your likely juror audience, we’d be glad to help.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 for more information.

When Patients Equate Happiness With Health

Most pregnant women say a healthy baby trumps all other concerns.  As it turns out, though, a sizeable (and vocal) group of mothers claim labor and delivery experiences have caused them trauma akin to what soldiers suffer during battle.  Even though the end result had no medical issues, these mothers say only a happy mom and baby can truly be healthy. Web sites such as ImprovingBirth.org (tagline: American maternity care is in crisis) and hundreds of Facebook groups encourage mothers to post about their negative birth experiences.  From unnecessary C-sections to forced episiotomies, VBAC refusals and unwanted inductions, women share a variety of claims about what they describe as the “trauma” and “abuse” of giving birth in most of America’s hospitals. It can be easy to just dismiss such women out of hand as overly emotional, but the fact remains that there is a growing sense that pregnant women should have more rights.  And hospitals are responding in kind, with an increasing number of “gentle Caesareans” provided to better involve parents throughout the surgery and allow skin-to-skin contact immediately after delivery. These trends become relevant in the context of medical malpractice when there are allegations of poor treatment, unwanted procedures and failure to sufficiently inform the patients.  While the defense typically focuses on the science-based claims in evaluating a lawsuit, we have observed that the more emotional allegations can resonate strongly among jurors with similar negative healthcare experiences.  This is why we have started asking in our pre-focus group questionnaires whether jurors have ever considered suing due to a poor healthcare experience – not just whether they have actually done so.  Similarly, during voir dire we recommend probing as deeply as the court will allow into relevant negative experiences, since some of the attitudes that will shape juror opinions may not come out with simple yes-or-no questions about whether they have filed a lawsuit.  For example, ask women with children whether they wanted to have C-sections rather than simply whether they had them.  Even if your case involves essentially the opposite allegation — that a C-section should have been performed earlier — a juror’s belief that they were not given enough power during their delivery experience may make them more likely to align themselves with the plaintiff.  Also, when conducting social media audits of prospective jurors, be on the lookout for “likes” or posts about activism organizations. The concept of choice has always been of fundamental importance in telling your story to jurors.  Understanding what healthcare choices were turning points for your potential jurors, and their feelings about those choices and those of their caregivers, will be key in shaping their opinions.  Contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net if you want to discuss how to translate healthcare trends into a more effective defense story.

Simplicity – The Universal Language

Popular tech T.V. sitcoms such as The IT Crowd or Silicon Valley make light of the fact that “tech-talk” can be a foreign language to the general public.  To the shows’ characters, HTML is simple, but to a layperson it could look like ancient hieroglyphics.  We find it funny while watching, but forget we’re guilty of the same occupational language barriers. 

Oftentimes, those who are deeply involved in a case use legal and scientific language they don’t realize are above a layperson’s head.  While you, as an expert, may be familiar with a concept, jurors are likely learning about it for the first time.  Failing to carefully explain your reasoning can severely damage your case by confusing jurors.

Even if jurors have heard of a concept, complex legal and scientific jargon during trial could get lost on them.  It’s important to keep language simple and remember not everyone uses the vocabulary of experts with a post-graduate education.

In fact, a troubling study about literacy in the United States in 2013 revealed 21 percent of U.S. adults read below a fifth grade reading standard, increasing the need for lawyers and witnesses to ensure their language is understandable for their audience.  Even if jurors have a higher reading level, the goal is to make it easy for them to understand.  The easier it is for them to understand, the more they’ll be able to use their brain power to focus on the content of what you’re saying rather than trying to figure out the definitions of the words. 

Here are some tips to ensure your language is simple enough for a layperson to understand:

• Use analogies:  Relate difficult concepts or abstract sizes to everyday tasks and objects.  For instance, explaining the size of a premature infant could fit into the palm of your hand. 
• Use shorter sentences:  Make it sound conversational.  You wouldn’t use a sentence with multiple, complex clauses when talking to a friend over dinner.
• Don’t use unnecessary large words:  If there’s a shorter word to use, use it.  Although words such as “enormous” or “utilize” may sound fancier, “large” and “use” work perfectly.  
• When possible, use visual aids:  This will help jurors who are struggling to follow the language to comprehend the concept.

Our focus groups are a great tool to test out complex topics.  Participants will often help develop their own analogies and language from the case, figuring out the best language for you. Please contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net if you would like to discuss how focus groups can help you simplify the language in your case. 

Making Long Odds Work in Your Favor

We’ve long been fans of incorporating numbers and data into your case whenever possible.  We find jurors like to hang their hats on hard data – even if it’s only to solidify and confirm their emotion-based, subjective feelings about a case.

One time that numbers can work against you, however, is when you’re dealing with odds and probabilities.

Consider a case where a doctor is being criticized for failing to test for and diagnose a rare disease that occurs in something like one in 500,000 or a million people.  As the defense, you might think those odds work in your favor and no reasonable juror would expect a doctor to diagnose that disease within a few hours.

You’d be wrong.  In case after case – especially in plaintiff-friendly jurisdictions – we’ve seen jurors insist caregivers should have tested for any and all possible diseases, no matter how rare. 

Although there’s no perfect solution to this issue, and some jurors just won’t be persuaded, we’ve found one successful tactic is to create a demonstrative including a long list of many possible diagnoses that were statistically more likely than the one it turned out to be.  By listing dozens of rare diseases and their incidence statistics – the very long odds that anyone would contract them – you can illustrate it is unreasonable to expect a doctor to test for all of them right off the bat and create a narrative that identifying the correct condition was like “looking for a needle in a haystack.”

Another type of case where odds come into play is one in which the plaintiff alleges he or she is at risk for some rare complication in the future.  If the odds of that happening are long, you can use your closing argument to tell jurors about other improbable things that are more likely to happen – getting killed by a meteorite (one in 700,000), being struck by lightning in your lifetime (one in 12,000) or 20 coin tosses in a row all coming up tails (one in a million). (We found a list of the odds of all kinds of rare events.)

The point is, odds can be tricky because some jurors will insist that if something can happen, it probably will – or is at least likely enough to consider that it might.  By comparing the odds relevant to your case with other occurrences that seem unfathomable – such as getting killed by a meteorite or contracting Bubonic plague (one in 3 million) – you can drive home the point that those odds are basically zero.

If your case involves odds or numbers you need to communicate to a jury, focus groups are a great way to test different approaches.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 to find out how we can help.

Private Eyes Are Watching You…And Jurors Know It

These days privacy, or what’s left of it, seems to be all over the news.  Target recently paid out $10 million to settle a class action lawsuit stemming from a data security breach that caused the theft of customers’ financial and personal data.

Many people don’t know, or want to know, that companies collect and sell our demographic information, search tendencies and purchase histories to other companies.  In fact, Radio Shack announced it will sell its customer information as part of its bankruptcy proceedings. 

So how does all of this privacy talk relate to the courtroom?  Well, depending on the type of case, juror perceptions of privacy, and whether it is dead as we know it or worth protecting at all costs, can make a significant difference in how case facts, and certain evidence, are weighed. 

For example, surveillance footage of a plaintiff in a personal injury case can play very differently just by virtue of where the trial is held.  We have found jurors in some jurisdictions don’t have high expectations for privacy and generally believe it is “fair game” to film claimants in a lawsuit.  However, jurors in other trial venues are easily offended by the idea of a private investigator following plaintiffs around, filming without their knowledge, and shut out this evidence. 

Conventional wisdom states that jurors in large, urban city centers – who are more accustomed to seeing cameras in their daily lives (street corners, stoplights, grocery stores, etc.) – would tend to be less protective of privacy and more accepting of surveillance footage in a lawsuit.  Although logical, we have found this is not always true.  Depending on the unique demographic, socioeconomic and political makeup of that city center, jurors can become quite incensed by the perceived invasion of privacy and dismiss this surveillance evidence out of hand – regardless of how incriminating.

The same goes for showing jurors a plaintiff’s Facebook, Twitter or other social media postings at trial.  We have found that in certain jurisdictions there is outward hostility toward using an individual’s “digital footprint” against them in trial, and instead jurors share perceptions this information should be strictly “off limits” – prompting the trial team to find softer, more creative avenues for introducing this information.

We used to believe younger jurors – who tend to be more connected through social media and seemingly more accepting of the value proposition of losing a bit of privacy in order to gain a lot of convenience – would not have a problem with using this kind of evidence at trial.  However, we have observed that younger people can actually be the most offended by these practices – depending on who is doing the digging and why.

This speaks to the importance of understanding your jurisdiction and jurors and their unique mindsets and the environmental and social factors that contribute.  Whether by using community surveys, online research or live focus groups, we have found it crucial to test these issues and evidence before trial starts, to ensure what we think of as “slam dunk” evidence doesn’t get swatted away at the hoop due to moral qualms with the type and source of the evidence. 

If you are interested in getting juror feedback on an upcoming case, or particular pieces of evidence (the evidence itself, or even how it was obtained), please contact us at cluna@juryimpact.net or 714.754.1010 so we can discuss the best method for your goals.