At Trial, More’s Not Always Better

If you’ve been following the news recently, you’re probably aware there are currently 15 candidates running for the Republican presidential nomination.  An ongoing debate has questioned whether 15 is just too many candidates – overwhelming voters, creating chaos and making it difficult for candidates to break through the noise.  Although we have no opinion about this political issue, when it comes to witnesses at trial we do believe you can have too much of a good thing.  We’ve long believed that more is not always better, and you shouldn’t present 12 witnesses if seven or eight will do.  Similar to voters, jurors have a limited attention span – and a concise, surgical presentation is more effective than one that drones on and on. Trial attorneys sometimes feel the need to match the opposition witness for witness.  You obviously need to present enough witnesses – and the right ones – to tell your story and rebut the opposition’s case, but we don’t recommend feeling like you “need” to present a certain type of witness just to check that box and match the other side’s number.  Instead, we recommend streamlining your trial presentation whenever possible without sacrificing important testimony.  We’ve interviewed hundreds of trial jurors through the years, and one of the most common complaints is redundant testimony that “wasted our time” – not once has a juror told us one side’s trial presentation was too short. With that in mind, here are a few ways we’ve encountered to streamline your case: Have witnesses serve double duty – Have your experts testify about multiple issues when possible.  There are times in medical malpractice cases, for example, when separate standard of care and causation witnesses are necessary, but just as often a single expert could handle both of these areas.  Just because the other side uses multiple witnesses doesn’t mean you need to. Avoid repetitive testimony – If you feel like you’ve defeated a certain issue during the other side’s case through their witnesses, don’t always feel the need to present your own witness about the issue.  Although it’s sometimes helpful to re-emphasize certain points with your own witnesses, also bear in mind that you’ll be opening your witness up to potentially damaging cross-examination.  Sometimes it’s better to quit while you’re ahead. Keep it short(ish) – Jurors rarely enjoy a four-hour direct or cross-examination, and in our opinion it’s rarely necessary.  Cover the ground you need to, and move on to the next issue when you think you’ve made your point. Be prepared – Jurors find nothing so frustrating as an ill-prepared lawyer fumbling through documents during the middle of a witness examination. To the extent possible, plan ahead and know which documents you’ll need so you can make the best use of your time – and the jury’s. Every case is different, and the witnesses you'll need to present and what you should cover with them depends on the specific case.  If you'd like to get a read on the key elements of your case, our focus group process can help.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 for more information.

Rookie Expert Witnesses Can Be Worth the Risk

The start of the NFL season brings with it a crop of new rookies, bright-eyed and eager to make an impact.  As any coach, pundit or fantasy football player knows, which rookies are going to turn into stars and which are destined for the scrap heap is anybody’s guess.

But the fact rookies are unknown quantities is also what makes them so intriguing and valuable – because there is such limited information about them, they can easily sneak up on the opposing team as a secret weapon.

We believe the same applies to first-time expert witnesses.  There’s obviously a risk of using a newbie as a foundation of your case, but inexperienced witnesses also have several advantages over those with dozens of depositions and trial appearances under their belts:

• Avoiding the “hired gun” label – Witnesses who have testified dozens of times can easily be painted as “hired guns” who will say anything the attorney pays them to, especially if a large percentage of their witness work is for only one side.  New witnesses don’t have this baggage, and jurors may be more likely to think they’re testifying because they truly believe in the case rather than just because it pays well to say so. 
• Not a “professional” witness – We’ve seen expert nursing witnesses who haven’t worked at a hospital in 20 years, and retired doctors who supplement their retirement income with witness work.  It is easy to attack the credibility and freshness of these witnesses’ knowledge, especially when compared with those who are still working “in the trenches.”  We’ve found jurors often respond better to witnesses who are still actively involved in their primary careers and have testified seldom or not at all, even if they don’t have the paper credentials that come with long careers in academia or administration.
• Less polished can be more earnest – Numerous jurors have told us after trials that they found experienced, star witnesses “too slick” and therefore not as credible.  Inexperienced witnesses may not be as polished as old hands, but this lack of polish may make the witness seem more earnest and believable.  Jurors understand these people are experts because of their experience and knowledge, not their slick presentation skills.
• Can’t be pinned down as easily – Like politicians, experts with a long track record leave an extensive paper trial for the opposition to pick apart and look for things that contradict their testimony.  This is especially true for academics who have published dozens of papers and conference presentations over the years.  Younger experts without that same history are more of a blank slate, and are less likely to get tripped up by things they’ve written or said in the past.
• Younger can be better – It’s a fact of life that some in our society harbor a bias against older people.  This may cause jurors to view younger witnesses as more “cutting edge” and well informed than those heading for the twilight of their careers. 

Of course, it’s necessary to be judicious when considering an inexperienced expert witness, and you’ve got to be comfortable with their qualifications, knowledge base and ability to communicate.  We also recommend prepping these witnesses thoroughly prior to deposition and trial so they won’t be surprised by tricky tactics they’ve never encountered.  But if you choose wisely and put in the work, we believe a rookie expert can lend your case an authenticity a more experienced witness may lack. 

If you’ve got an inexperienced witness who needs to be prepared for deposition or trial, we’d love to help.  Witness prep is one of our mainstays, and we’ve worked with witnesses of all types through the years.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 to find out how we can help. 

Evaluating Your Argument Roster

During the past week, millions of Americans have started their Fantasy Football leagues.  If you’ve never played, it involves creating a mock football team composed of NFL players.  Players acquire points depending on how well they perform in their real-life games.  Each week, fantasy teams face off in a “matchup” against another team for the most points.

At the start of the season, a team will draft more players than are needed and then pick who will play each week, benching the rest.  There are a lot of different strategies to choose which player to use that week, but oftentimes people go with their gut.  Sometimes this instinct turns out well, sometimes not.

When it comes to arguments at trial, you may experience the same pitfalls.  Structuring your whole case around what you think the strongest argument is could fall flat in the courtroom. 

Our focus groups are a great tool to test arguments and ensure you’re putting your best players out there.  Along with the participants themselves, we operate as a fresh set of eyes.  We can test multiple arguments using our Instant Response technology to see which ones potential jurors in your jurisdiction rate the highest.  We then follow up with jurors to talk about why they favored a particular argument.  This allows you to not only identify which arguments to use, but to also hear the language your jurors use to discuss it.  On more than one occasion, we’ve even had jurors surprise us by rating the underdog argument as one of the strongest for the defense, which has helped attorneys restructure their defense more effectively.

If you would like help identifying which arguments to play and which ones to bench, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010. 

Don’t Let The Reptile Slither Into Your Trial

The Reptile Theory has been all the rage among the plaintiffs’ bar for the past several years, and you have no doubt encountered a practitioner of this theory slithering his way around a courtroom. 

The theory is simple: The most successful way for a plaintiff to persuade a jury is by using fear to appeal to the primitive, reptilian part of the brain that houses our survival instincts.  By focusing on the supposed dangers of the defendants’ conduct, attorneys prompt jurors to react out of fear for themselves and the community and punish the defendants for putting the community at risk.  The most common way they do this is by creating supposed “safety rules” and suggesting the defendants violated them – endangering the entire community, not just the plaintiff.

Although we’re skeptical of the neuroscientific trappings of the theory – which scientists have challenged – there’s no doubt scaring a jury can be an effective way to get jurors to react emotionally rather than intellectually – and emotion in a trial usually benefits the plaintiff. 

But the defense bar has not taken this lying down, and in trials we’ve attended during the last couple of years, we’ve noticed defense attorneys challenging the reptile tactic more proactively.  Here are a few things you can do to send the reptile on its way:

• Motion in limine – Many people have noted the Reptile Theory is nothing new – it’s really just a restating of the Golden Rule, in which jurors are encouraged to put themselves in the place of the plaintiff.  Golden Rule tactics are usually not allowed, and we’ve seen several attorneys successfully obtain motions in limine against plaintiff attorneys mentioning “safety rules,” “safety principles” and other terms that suggest a duty to someone other than the plaintiff.  We’ve also seen judges bar plaintiff witnesses from testifying about what would be the “safest” thing to do, as the standard of care is “reasonable,” not “best” or “safest.”  We would encourage all defense attorneys to submit motions in limine in any case where the plaintiff might engage in Reptile Theory – even if the judge doesn’t grant it, the motion will get the tactic on his radar and you might prevail the next time around.
• Prepare your experts – A favorite tactic of reptile practitioners is to create demonstratives or charts of supposed “safety rules” or “safety principles” and get the defense’s expert witnesses to agree these rules are valid.  The “rules” are often phrased in such a general way that witnesses fear looking unreasonable if they do not concede, but by conceding, the witnesses in effect “endorse” the plaintiff’s standards.  Expert witnesses need to be warned about this tactic and made to understand what the plaintiff attorney is trying to do.  Witnesses should push back against the assertion that these principles apply in all situations, and that they apply to any particular case.
• Choice, fairness, accountability – Safety can indeed be a powerful motivating factor for a jury, but there are other principles that resonate just as deeply.  We have long believed that “choice,” “fairness” and “accountability” are the most popular words in the English language, and if you can couch your story in these terms, you can effectively appeal to jurors’ fundamental instincts.  Jurors want to do what’s fair and hold the right people accountable – even if it’s plaintiffs themselves – and you need to convince them you are on the side of right.

We’ve seen a lot of defense attorneys in the courtroom successfully take on the Reptile Theory, and we’d be happy to share our experiences with you.  If you’ve got a case involving these thorny issues, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 to find out how we can help.

Collective Memory Can Be Collective Mess

Generation X received a shock recently when they realized that the Berenstain of the Berenstain Bears – purveyors of life lessons including healthy eating, sharing and stranger danger – is spelled with an a, not an e. 

A large and vocal percentage of those who read these childhood favorites about a family of moral-focused, treehouse-dwelling bears staunchly believe that their surname was Berenstein.  Evidence that in fact it is Berenstain has produced conspiracy theories and talk of a glitch in the matrix and the existence of parallel universes where the names were spelled differently. 

The more accurate explanation is that this is another example of what researcher Fiona Broome dubbed the Mandela Effect.  This phenomenon was described after large groups of people all had very vivid – and very false – memories of Nelson Mandela dying in prison well before his actual passing in 2013 at his home.

These types of collective false memories can also be a factor during a trial, when a majority of jurors remember a piece of testimony or a key demonstrative differently than what actually came out in court.  This is why we believe repetition is so important at trial, since the more a person hears something, the more it’s established as fact.  Also, allowing jurors to take notes and ask questions of witnesses can solidify accurate memories of what is said and shown at trial so that during deliberations, the correct information is disseminated.

To discuss more about how to combat this phenomenon at trial, especially when you expect a case will take many weeks or even months to try, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.