Surprises Don’t Need to Be

A federal jury on March 15 sentenced convicted Boston Marathon bomber Dzhokhar Tsarnaev to death, a verdict many viewed as a surprise.  After all, Massachusetts is one of the most liberal states in the country, it banned capital punishment in 1987 and a poll in late April showed only 15 percent of Bostonians favored executing Tsarnaev. 

But perhaps this verdict shouldn’t have come as such a surprise.  How a broader community feels about big-picture issues involved in a legal case sometimes does not correlate with how a specific trial jury will decide.  In the Boston case, the jurors clearly believed Tsarnaev’s crime was heinous enough to overcome their community’s hesitation about the merits and morality of the death penalty. 

In the civil arena, we have found jurors in even extremely conservative, anti-lawsuit jurisdictions will find for a plaintiff they believe has a legitimate grievance, and jurors in the most plaintiff-friendly jurisdictions are able to sniff out a bogus case or transparent money grab.

As our readers know, we believe focus groups are the best way to avoid surprises and find out what potential jurors think of your case independent of the community’s values.  If your case is one that could prompt even a conservative jury to render a large plaintiff verdict, it’s best to know that ahead of time. 

Focus groups are particularly effective at evaluating whether a jury is likely to find your big-picture themes compelling.  In the Tsarnaev case, only three of 12 jurors accepted the defense’s central contention that Dzhokhar was a patsy acting under the influence of his older brother.  If the defense had better tested this out in focus groups ahead of time, they might have placed less emphasis on that argument. 

Every jury is different, and it’s impossible to predict how a specific trial jury in any jurisdiction will react to a specific case.  If you’d like to avoid surprises and get a read on jurors’ reaction to your case ahead of time, we’d be happy to help.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 to find out more about our research services.  

Jury Selection: A Marathon, Not a Sprint

We recently sat on a panel regarding the upcoming change in Illinois from 12-person civil juries to six.  One of the discussed advantages was the potential opportunity to spend more time questioning each juror in the venire, especially since when the number of jurors is cut in half, each becomes even more crucial to the final verdict.

One point raised was how essential it is to spend as much time questioning the last half of your venire as you do the first.  Too often we have observed due to time constraints that the first six or 10 jurors in the box receive the bulk of the questioning, with lots of time spent uncovering their relevant personal experiences and biases and simply getting them talking so the trial teams can get a read on juror personality.  Is this a leader or a follower?  Does he or she have any kind of hidden agenda?  Are there items in their backgrounds that might make them plaintiff or defense oriented, evidence unheard? 

But as more and more jurors are excused and the box refilled, the last few get short shrift.  The vast majority of the time, jurors are simply asked if they have heard what the other jurors were asked and if they have anything to say based on those questions.  As during the entire selection process, yes-or-no questions, rather than open-ended ones, tend to simply elicit blank stares.  Sometimes people speak up, but oftentimes – either because they have truly forgotten all of the questions or because they just want to expedite the process – they just shake their heads and you end up with a few people in that jury box who have never said a single word in open court.

From our perspective, you should know nearly as much about the last person to join your jury as you do about everyone else.  If not, there’s a chance a key fact or issue might be missed.  Additionally, you should take the opportunity to connect with those jurors while you can, hopefully creating an audience that from the start is more receptive to your story.

For more jury selection tips or ideas for voir dire questions for your next trial, contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net. 

Show and Tell: Not Just For the Classroom

A primary focus of our research is uncovering the right arguments, language and messages to connect with the widest range of jurors possible and tell the most effective, compelling story.  However, some recent focus groups and online research projects have highlighted the importance of showing jurors, in addition to telling them.   

We have always been fans of visual timelines, but in a recent medical malpractice case this was one of the most effective, and essential, education pieces for the defense.  Not only did the timeline – incorporating entries from the medical record as well as caregiver testimony – help to establish the many actions caregivers took during a difficult, fast-paced resuscitation (the plaintiff accused caregivers of “sitting on their hands”), it demonstrated to jurors a sense of urgency and teamwork that ultimately supported the defense narrative. 

During medical focus groups, we have also found it beneficial to bring in the actual equipment used for the procedure in question – whether it be intubation equipment, resuscitation tools, IV bags or even surgical sponges.  Jurors don’t have intimate knowledge of this equipment and how it is used, and allowing them to see, and in some cases touch, these tools helps to not only identify misconceptions and crucial questions prior to trial, but also provides crucial feedback for how to present and talk about this equipment. 

For example, in a recent focus group after jurors handled an endotracheal tube and understood how it was used, they consistently referred to it as a “breathing tube,” which was a much less technical and more easily relatable name.  We also suggested to our client that when the case goes to trial, the key doctor use the equipment to explain the process to the jury.  This not only helps the jury to understand what it does, but provides an opportunity for the witness to connect with the jury while talking about what he knows best.

In addition to showing jurors, sometimes it is important to provide context for what they are seeing – especially in cases where there is unlikely to be knowledge or familiarity among laypeople.  For example, during a recent workplace injury case, jurors initially believed the design of a particular product “invited” workers to use it in a dangerous manner.  Although jurors had been shown a photo of the machine’s control panel, it was only once the various safety catchalls were described, and it was explained just how many steps the employee had to intentionally bypass in order to use the machine the way he did, were they persuaded the only dangerous aspect of the machine was the way the employee chose to use it – not the design itself.

If you have an upcoming case that could benefit from juror feedback on demonstratives and visuals, please call us at 714.754.1010 or email cluna@juryimpact.net.   

Deposition: Witnesses’ First Chance at a First Impression

We watch a lot of deposition videos, and too often witnesses seem rattled, nervous and, frankly, unprepared.  Unfortunately, with the growing use of technology in the courtroom, there’s a good chance a trial jury will see parts of your witnesses’ depositions during impeachment or even opening, and putting the wrong foot forward could introduce the jury to your witnesses at their worst.

Yes, you can repair some of the damage of a bad deposition by working with the witness before trial to smooth out the rough edges.  But jurors already suspect – correctly – that attorneys “coach” their witnesses, and a huge transformation between deposition and trial only confirms these suspicions and erodes the jury’s trust.  The jury might wonder whether the “real” witness is the Dr. Jekyll they saw at trial or the Mr. Hyde who showed up for deposition. 

It’s best to work these things out beforehand.  To that end, we’ve put together a few tips to make the most of your witnesses’ depositions:

• Dress the part – There’s nothing wrong with doctors and nurses wearing scrubs for their depositions, and in fact we’ve found this bolsters a positive impression of them as “caregivers.”  (That said, please make sure they’re clean.)  In most cases, though, it’s best for witnesses to dress as if for a job interview or church, including their hair and makeup.  We’ve found jurors are thrown off by witnesses who look slovenly or overly casual.  And encourage your witnesses to dress conservatively – no gaudy jewelry or low-cut tops to distract or create a negative impression.
• Know the case – Even though it’s part of “discovery,” jurors expect deposition witnesses to at least know the basics of their involvement with the case.  We encourage witnesses to refer to records when they are uncertain about events, but this should be to refresh their memories and locate details rather than figure out more generally what happened.  Witnesses should review all relevant records beforehand.
• Know your message safeground – It’s a fine line between bumbling through a deposition and appearing overly rehearsed, but witnesses should have an idea of your approach to the case and the themes you want to develop.  A “message safeground” – a big-picture theme that can shape and inform all of their testimony, as well as serve as a haven when things get tough – can help witnesses avoid costly admissions.  After all, the number one goal of every fact witness during deposition is to not single-handedly sink the case.
• Wear a wedding ring – Numerous studies over the years have found married people – especially men – are more successful in their careers in part because they are seen as more responsible.  If your witnesses are married, we’d encourage them to wear modest wedding bands for deposition.  This is particularly important for middle-aged and older men, as we’ve found through our research that when these witnesses don’t wear wedding rings, focus group jurors sometimes ask why – which is at best an unnecessary distraction. 
• Talk to the jury – Depositions can get heated, and it’s natural for witnesses to get defensive, sarcastic and angry when being badgered by a hostile attorney.  This is best avoided, as no one is at their best and most likable when they’re on the defensive.  Here’s a trick we’ve developed: If the witness is feeling anger at the attorney get the best of him, he can address his answers to the “jury” (the camera, if one is present) rather than the attorney.  Fighting with opposing counsel is your job, not that of the witness.                                                             
• Practice makes perfect – Deposition should not be the first time your witness has faced intense questioning by a hostile attorney.  Your preparation should consist of not only reviewing records, but also a mock cross-examination to give the witness a sense of what they’ll face.  The witness most likely trusts you, so ask someone else in your firm who they don’t know to conduct the questioning.  Practice until the initial shock of being questioned aggressively wears off and the witness can keep his or her composure.  It’s also helpful to videotape the practice sessions so witnesses can see how they might come across to a jury. 

We’ve worked with a lot of witnesses over the years, and we’ve developed many successful tips and tricks.  Unfortunately, many clients wait until after a disastrous deposition to call us in to help fix the problem.  From our perspective, that’s a wasted opportunity to have your witnesses put their best foot forward from the outset. 

If you’d like to find out how we can help your witnesses before deposition – or at any time – please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.