Can You Argue Your Case in 15 Seconds?

The advertising world has a lot in common with courtroom communication: Grab your audience’s attention early or you may lose that audience completely.

A recent Associated Press article reports that 15-second television commercials are replacing 30-second spots as the industry standard because of viewers’ shrinking attention spans. Advertisers are finding that if they can’t make the sale in 15 seconds, they probably can’t make it at all.

This dovetails with our own research showing that 85 percent of focus group jurors deliver the same verdict at the close of the session as at the beginning. This means that no matter what information they hear later in the case, that crucial first impression more often than not determines their final decision.

Although jurors can’t change the channel during trial, they can tune you out. That’s why we recommend making your best arguments and telling your strongest story right away. Once you’ve grabbed jurors’ attention with a succinct, clear storyline they’ll remember for the rest of the trial, you can fill in the details that fit in with that overall theme.

Give us a call if you’d like to discuss our findings further. We’d be happy to share some of our opening statement tips and strategies.

Keep It Simple

We once monitored a trial where the jurors returned a verdict in 32 minutes. They would have been faster, the foreman explained later, but they wanted to eat lunch before they started deliberating.

Jurors attributed the speedy defense verdict to attorneys who presented a simple, easily comprehensible story that was consistent from beginning to end of the 14-day trial.

Contrast that with the federal criminal trial of former Illinois Governor Rob Blagojevich, where deliberations alone took 14 days – and ended with a jury deadlocked on 23 of the 24 counts.

Jurors’ comments to the media reveal that the prosecutor’s case collapsed under the weight of its own complexity. “The majority of us felt it was confusing,” juror Eric Sarnello said. “It was all over the place.”

Consider what jurors were given to work with: more than a month’s worth of prosecution witnesses and 100 pages of jury instructions. Even more stunning is what they weren’t given, perhaps the most basic courtroom tool available: a timeline. This oversight forced jurors to spend hours of their deliberations doing what prosecutors should have done for them, piece together the dates and charges from 2001 to Blagojevich’s arrest in 2008.

Our case research has demonstrated that the side who presents the simpler story has the advantage. We suggest making sure before you go to trial that you can tell a compelling story in 30 seconds – basically, an “elevator pitch” for your case. If the other side can’t do this, so much the better.

While the Blagojevich jurors were 11-1 in favor of conviction on the other 23 counts – perhaps compelling evidence that the prosecution’s case was at least in some ways better than the defense’s – the fact is that when the standard is “beyond a reasonable doubt,” the need to streamline should be elevated as well. When this case is retried, prosecutors would be well-advised to remember that focus and restraint are paramount to helping jurors understand what a case is all about.

They would also be prudent to consider that the defense did exactly what it was supposed to do: create doubt through a straightfoward contention that the government had failed to prove its case, all without calling a single witness. “Zip,” is how Blagojevich’s lawyer described their defense.

It’s hard to make it much simpler than that.

Your Juror is on the Net, Or Will Be Soon

Want to know more about the jurors hearing your case? Chances are, you can read about them online. National data from our focus groups show the number of jurors reporting they belong to some kind of social networking site has grown steadily since we began tracking in 2008.
In addition, the average age of those reporting an online social presence is increasing. In 2008, just 14% of jurors older than 40 years reported belonging to an online social site. So far, during just the first half of 2010, 40% of those older than 40 report having a Facebook or MySpace page, or similar online social network.

Further, the potential sources for jurors to “express” themselves or provide critical personal information continues to grow, as we have seen with sites like Twitter and LinkedIn.

Remember, researching jurors online is not just valuable for jury selection. Understanding a juror’s social priorities and language traits can help you better tailor themes, arguments, and words to fit your jury panel’s world views.

Call us if you’d like to know more.

The Right Words in the Right Venue

True Story. We were listening to the radio the other day as a German bakery owner hoping to entice new customers explained in his thick accent that he was a “master-baker.” We laughed and then decided to remind everyone of the importance of choosing the right words in the right venue.

Words create emotions and build context for the audience. And as you probably know, choosing the right words and using them to develop a context that benefits your case is the difference between communicating your point persuasively and communicating something very, very different.

We recently fielded a survey in which jurors were asked what attributes make a good nurse. Respondents were offered a range of choices including “advanced specialty training,” “responds quickly,” and “at least five years experience.”

And what was the highest-scoring attribute by a 2:1 margin? “A kind, compassionate bedside manner.”

This response mirrors our national research findings, where jurors consistently cite “compassionate," “caring” and “spends more time with patients” as the qualities they most desire in a nurse. Using language that evokes positive perceptions of a nurse or a witness early in trial can have a tremendous effect on how jurors filter and envision the details of an event.

Next time you’re in trial, use the emotional words that will play to predispositions about what a juror wants in a caregiver or other witnesses. It’ll paint a positive picture in jurors’ minds. Call us if we can help you choose the right words for your next trial.

Things That Make You Go Hmmm...

Thinking about the 12 Days of Christmas reminds us of one of the most effective argument strategies we see: Use a couple of numbers.

Magazines are well aware of this approach. Just look at the monthly covers trumpeting lists such as “Top 100 colleges,” “400 richest Americans,” and the women’s magazine classic, “Seven Ways to Please Your Man!”

Recently we watched jurors deliberate a case in which a doctor failed to diagnose an extremely rare disease in an obese patient. The patient’s presenting symptoms: moderate muscle pain and high blood pressure. The doctor assumed a pulled muscle and too many Big Macs, and said to come back if the pain persisted. The true pain source turned out to be an extremely rare, deadly bacteria.

During discussions, plaintiff-leaning jurors zeroed in on the prevailing predisposition that “doctors are rushed and don’t spend enough time with patients.” Unfortunately, the initial pushback by defense-leaning jurors was weak: “Doctors can’t always diagnose these rare conditions right away.” The problem here was that plaintiff jurors simply could not understand just how little information the patient’s symptoms provided the doctor.

Adding a number helped change this. Jurors were introduced to some statistics: There are approximately 5,100 potential diagnoses for the combined symptoms of pain and high blood pressure. During deliberations, the defense-leaning jurors effectively adopted this number as their theme and supported it with another number: The disease occurs in no more than one in every 305,000 people.

Happy holidays and the very best wishes for the New Year.

Exit Interview Tips

About three days after we check out of our hotels, an e-mail containing a feedback survey pops up in our inboxes. Hotels use these questionnaires to learn what they did well and what could be done better. I guarantee that North Carolina hotel we stayed in a little while back will be much more vigilant about springing forward their clocks and stocking the bathroom with towels after the lambasting my co-workers and I provided in our responses.

Exit interviews with jurors can provide the same wealth of information, but oftentimes attorneys and their clients concentrate too much on the good or bad news of the verdict itself and not enough on the people who actually delivered it.

During the past three years, Jury Impact has refined its exit interview process to make it more consistent, comprehensive, and useful. As a former reporter for the Los Angeles Times, I was able to incorporate journalistic skills and techniques to make these interviews as powerful a learning tool as possible for our clients.

If lawyers decide to do the interviews themselves, the following tips can help:

A good first question asks jurors to describe what the case was about in one to two sentences, as if they’re describing the trial to their spouse or best friend. Not only will it make jurors comfortable because it’s an easy question, it will also provide you a great deal of insight into the direction of their answers to later questions.

Use the jurors’ answers to transition to other questions. This creates the perception the jurors are driving the interviews, not the other way around. For example, transition to another question by saying, “Going back to that point you made about the attorney being heavy-handed with that witness, tell me more about that…” This is key to making jurors feel like they are having a conversation with you, not like you’re peppering them with questions and not really listening to the answers.

Don’t be wedded to the list of questions. If a juror tells you, “The hospital killed that poor child and deserved to be punished,” don’t go straight to the next question. The follow-up question should be along the lines of, “What did the plaintiff say to make you think that?” or “At what point in the trial did you start to believe that?”

Know when to stop talking. Listen carefully and get into a conversational rhythm so that you know when jurors are pausing to collect their thoughts instead of simply not talking because they’ve finished answering the question. Don’t feel the need to fill every empty space with another question. Some of the best answers will come after you’ve paused enough to let the juror feel you want to hear more of what they have to say.

Oftentimes the best answers will come at the end of an interview, when a rapport has been established and the juror is relaxed. Save your most delicate questions for points, like, “Was there really anything the defense could have done to change your mind after you heard the plaintiff’s opening?” or “Do you think sympathy for the plaintiff affected your verdict?”

Avoid making statements during an interview that remind a juror which side you’re on. They are more likely to answer candidly if they’re not worried about offending you. At the same time, try not to get frustrated at a juror’s comments or take their words personally. Even if you can’t see the logic in a juror’s perspective, the fact remains that they feel this way and it is your job to find out why.

Take a few extra minutes during each interview to ask questions that aren’t on your survey sheet but show the juror you’re genuinely interested in their lives. If they tell you they wanted the trial to finish quickly because they had to get back to their job, ask what they do for a living, even if you already know. Sometimes this also provokes further insight into their thinking – “I’ve been fired myself so I knew what this guy was going through.”

-Claire Luna

Giving the Big Bad Wolf a Friendly Face

This may come as a shock to you, but most of the companies that hire us aren’t typically viewed by jurors as the “warm and fuzzy” types. And you'd better believe the other side does everything they can to paint them as “greedy corporations,” "monstrous institutions," or the “big bad wolf” salivating as it prepares to devour yet another vulnerable plaintiff.

Most often, these descriptions of "profit-driven corporate behemoths" help to paint a David-and-Goliath struggle, pitting plaintiff vs. defendant in a battle with seemingly impossible odds.

What the other side tends to forget is that there are a lot of friendly faces behind that so-called behemoth. No matter how big the hospital or the company, the fact remains that the people who work there – especially in healthcare – chose their careers according to what they believed would help other people. Nurses, especially, certainly aren’t doing it for the money or the easy hours.

We encourage all of our clients to do everything possible to humanize the defendants, to show that they are just as vulnerable as the sympathetic family in the Day in the Life video. Pictures of smiling nurses in an opening statement PowerPoint and, even better, those same compassionate nurses sitting in the courtroom audience day after day help to make the adversarial plaintiff-defendant relationship about people vs. people rather than people vs. “The Man.”

Even more can be done when witnesses are on the stand. Asking why nurses love nursing, especially labor and delivery, has evoked some powerful responses: “I treat them all like my daughters.” The same goes for doctors, although it must be said that knowing these responses in advance is key. We still shudder a bit when we remember the ER doc who reported choosing medicine because “nothing else seemed that interesting.”

Jurors don’t want to hear about caregivers who went into medicine by default – they want to hear about a passion for patient care. Our experience has taught us that along with that enthusiasm for helping people, jurors also respond well to credentials, experience, and training.

During a trial we monitored last year, simply labeling the labor and delivery nurses as “Level III” instantly established a credibility the plaintiffs couldn’t tarnish – and believe me, they tried their hardest.

So we urge clients to make every effort to humanize your organization – no matter if it’s an insurance company, hospital, or even a major financial institution – and demonstrate that just like the plaintiffs are people with families and feelings and dreams, the people who work there - espeically those who provided care - are as well.

-Claire Luna

Professional Often Trumps Bombastic

Perhaps it’s too many episodes of Law and Order on their DVR, but it seems like some attorneys we’ve observed during the past few years of trial monitoring are taking their cues from the bellowing, bellicose trial lawyers from TV and film. But from what jurors have repeatedly told us, that style is oftentimes is a big turnoff.

Exit interviews we’ve conducted this year following trials in two very different jurisdictions –one of which was in a large, fast-paced jurisdiction, where one might assume jurors expect at least a little flash – revealed that not only do jurors notice screaming, excessive sarcasm, sotto voce asides, petty objections and witness badgering, most of the time they can’t stand it.

Consider the plaintiff’s attorney in one of the cases we monitored. We watched him badger nurse after nurse, prompting all five involved to cry on the stand. He thrived on disrespecting opposing counsel in front of the jury, at one point saying, after she objected to a leading question, “If you hate it so bad, how come you do it so much?”

While we developed an immediate aversion to him on the first day of trial, we’ll let the juror comments after the trial speak for themselves:

“Did you see me rolling my eyes at him? I tried to control myself, but he was just so horrible.”
“This is the epitome of a sleazy, weaselly lawyer.”
“That ‘why is everyone so stupid except for me’ mentality got really old. The little comments he made under his breath were really insulting to his professionalism.”

To a juror, no one could stand this guy.

We had the good fortune of working with lawyers who, in contrast, jurors described as “professional,” “efficient” and “courteous.” Don’t mistake these descriptors as synonyms for boring. On the contrary, jurors appreciate examinations that move along at a good clip, using well-chosen questions in conjunction with well-placed “a-ha” moments to establish or undermine credibility.

Not only is this approach consistently more appealing, jurors understand that bombastic lawyers consume a lot of courtroom time with irrelevant asides and argumentative, often repetitive lines of questioning. When jurors’ time is on the line, and they’re looking at the clock thinking about kids who need to be picked up or work that needs to be caught up on, they want every minute in that courtroom to be used effectively.

And as entertaining as the buildup to a “You can’t handle the truth” climax is in the movies, in real life, jurors are usually looking for something much more straightforward.

-Claire Luna

Trial Tip: Don’t Make Jurors Do the Math

In our experience, simple numbers or statistics are some of the most effective ways for attorneys to make key points. But too often, lawyers use figures that force jurors to crunch the numbers and the point quickly loses impact.

For example, we work on a lot of medical malpractice cases involving premature babies. The way that doctors talk about gestation – 13 weeks, 25 weeks, 37 weeks – doesn’t make sense to the average juror unless they’re a recent parent. After conducting nationwide focus groups, we've learned that most jurors don’t even know that a full-term pregnancy is 37 weeks.

Therefore, we encourage attorneys to talk in terms in months. A baby born "three months early," as in a recent trial we monitored, paints a much clearer picture than one born at "28 weeks."

The same goes for a baby's weight. Premature babies are often categorized in grams, but most jurors hearing arguments on the fly don't have conversion calculators handy to decipher what "34 ounces" signifies. Don’t talk metrics – use the measurements people are most familiar with and describe a baby born at "two pounds, two ounces." The image is immediately clear: this is one tiny baby.

We recently monitored a trial about a baby exactly like this, born three months early and weighing two pounds, two ounces. When we interviewed jurors after the defense verdict was rendered, they said the main determinant in finding no causation (or negligence, for that matter) was that this baby was born so early, weighing so little, citing the "two pounds, two ounces" figure.

Our recommendation: Do the math for your jurors. A little conversion goes a long way when it comes to making a salient point.

-Claire Luna, Jury Impact Senior Analyst

Lord Justice: Web-savvy young make bad jurors

This is an aspect of jury selection we frequently discuss with our clients: Younger, web-proficient jurors tend to make worse, less receptive jurors.

Young people brought up with the Internet are not used to listening for long periods and would not make good jurors, according to the most senior judge in England and Wales.

By Christopher Hope, Home Affairs Editor - Telegraph

In a speech, Lord Judge of Draycote, the Lord Chief Justice, said it might be better to present information for young jurors on screens because that is how they were used to digesting information.

He said: "Most are technologically proficient. Many get much information from the Internet. They consult and refer to it. They are not listening. They are reading. "One potential problem is whether, learning as they do in this way, they will be accustomed, as we were, to listening for prolonged periods.

"Even if they have the ability to endure hours and days of sitting listening, how long would it be before some ask for the information on which they have to make their decision to be provided in forms which adapt to modern technology?

He said: "Our system of jury trials depends on 12 good men and women and true coming to court and listening to the case. Orality is the crucial ingredient of the adversarial system.

"Witnesses speak and answer questions. Counsel speak and address the jury. Judges speak and give directions."

Currently information is provided on screens to jurors, such as in complex fraud trials, but "not without difficulty and with great expense", he said.

Younger jurors, sometimes called the MTV Generation, have been brought up on 24-hour news, frenetic action movies, incessant advertising, feverish competition for their attention and disposable income, and more consumer choices than ever imagined. Call them the IGIG, or Instant Gratification Internet Generation.

These jurors, when they need an answer to a question, acquire the information as quickly as they can type into Google or Wikipedia. When I was growing up and needed the answer to who the 23rd Vice President was (Adlai Stevenson--I just Googled it), it was essentially the Dewey Decimal System or nothing.

Anyhow, it's not surprising that jurors accustomed to obtaining information and consumer goods in mere seconds, could become impatient with a judicial system set up to slowly introduce information from both sides over the course of weeks.

Although the article does not explore this, shorter attention spans can also be dangerous because these jurors--accustomed to quickly forming opinions about complex issues based on soundbites and 3-minute news pieces--also tend to quickly take a stand on their trial verdict, before opening arguments conclude. This is a concern with jurors of all ages, genders and races, but in our experience is more prevalent among young, attention span-challenged jurors.

So how do you find out if a juror is web-savvy? In our experience, the simplest is asking whether they belong to social-networking sites, such as Facebook or MySpace, or if they Twitter or maintain a personal blog. In addition to being an indication of web-sophistication, obtaining this information can also provide insight into how beneficial or unfavorable that juror could be.

If a juror has a web page on a social networking site, it allows our jury selection team to look them up and glean basic information not included in (or removed by opposing counsel) the juror questionnaire. Jurors may have revealed certain information about themselves on their web pages related to lifestyle, personal outlook, or political views. Even if the page is set to "Private," at the very least confirming a juror has a page can be an indication they are more web-savvy than those without.

Lastly, this topic highlights the importance of presenting all jurors with simple, effective visual presentations in addition to simple, effective themes that play to their predispositions and IGIG tendencies.

CLICK HERE FOR THE ENTIRE ARTICLE, YOU WEB-SAVVY YOUNGSTER

You Don't Say...

In a recent article, In U.S., Partisan Expert Witnesses Frustrate Many, The New York Times explores a subject that we frequently discuss with our clients: The tendency for plaintiff and defense expert witnesses to "cancel each other out."

Judge Denver D. Dillard was trying to decide whether a slow-witted Iowa man accused of acting as a drug mule was competent to stand trial. But the conclusions of the two psychologists who gave expert testimony in the case, Judge Dillard said, were “polar opposites.”

One expert, who had been testifying for defendants for 20 years, said the accused, Timothy M. Wilkins, was mentally retarded and did not understand what was happening to him. Mr. Wilkins’s verbal I.Q. was 58, the defense expert said.

The prosecution expert, who had testified for the state more than 200 times, said that Mr. Wilkins’s verbal I.Q. was 88, far above the usual cutoffs for mental retardation, and that he was perfectly competent to stand trial.

Judge Dillard, of the Johnson County District Court in Iowa City, did what American
judges and juries often do after hearing from dueling experts: he threw up his hands. The two experts were biased in favor of the parties who employed them, the judge said, and they had given predictable testimony. “The two sides have canceled each other out,” Judge Dillard wrote in 2005, refusing to accept either expert’s conclusion and complaining that “no funding mechanism exists for the court to appoint an expert.”

This really shouldn't come as much of a surprise. Most jurors are fairly adept at following the money and forming common sense conclusions about bias.

In most instances, expert witnesses for both sides boast credentials in education, training, and relevant experience--with neither being more credible than the other (on paper at least). We find that jurors, driven by the common sense perception experts will cater testimony to support the side signing their check, often find that paid experts don't carry much sway. Jurors instead tend to focus on personality traits, whether the witness educates jurors in "plain english," and even tie colors and mannerisms when assigning credibility.

I found this amusing. The expert witness for the state provided a telling quote describing the experience:

“After you come out of court,” Dr. Welsh said, “you feel like you need a shower. They’re asking you to be certain of things you can’t be certain of.”

Another colorful quote:

“To put it bluntly, in many professions, service as an expert witness is not considered honest work,” Samuel R. Gross, a law professor at the University of Michigan, wrote in the Wisconsin Law Review. “The contempt of lawyers and judges for experts is famous. They regularly describe expert witnesses as prostitutes.”

And another zinger:

Martin Belli, the famed trial lawyer, endorsed this view. “If I got myself an impartial witness,” he once said, “I’d think I was wasting my money.”

This article strongly supports a sentiment we often share with clients, especially in medical malpractice cases: Expert witnesses mainly serve to support a jurors' initial perception of the case facts--and rarely influence jurors to switch to the other side.

Therefore, tapping into juror predispositions--the biases they are likely to walk into the courtroom with--and shaping expert testimony to conform to those preloads, is where legal teams should focus most of their energy. Relying on an expert witness, regardless of their impressive credentials or background, to turn the tides of juror sentiment, is fraught with risks given the likelihood for opposing witnesses to "cancel each other out."

Read the entire article...

Simple Statistics

If social scientists are right and jurors only retain 10 percent of what they hear in a courtroom — more likely than not what they heard first — what can you do to make them remember the defense’s case?

Using only a few carefully chosen statistics or key numbers to illustrate a point is a great way to arm jurors with ammunition they can use in the deliberations room.

As an example, a general internal medicine patient died from a calf sarcoma after multiple tests in response to “arthritis-type” pain.

Focus group research in the case revealed that highlighting the extent of the efforts made to diagnose the patient’s condition was crucial. The defense formulated a phrase that was used repeatedly to reinforce its theme: “Four tests were done by three different radiologists, at two hospitals, and none of them saw any sign of cancer.”

After trial, exit interviews revealed those words rang out again and again during deliberations — “four tests, three radiologists, two hospitals, and no cancer!”

Used correctly, simple statistics and numbers help to illustrate a theme and help arguments resonate in jurors’ minds, which they will hopefully remember when it comes time to render a verdict.

"Making" the Right Jury

It's often asked whether there are sure-fire tricks to "picking the right juror."

First, it's important to keep in mind that you rarely "pick" anyone - the best you can do is eliminate the worst potential jurors. But if you can't always pick the "right" juror, there are opportunities to educate the jurors you get.

Consider this: A defense lawyer represented a corporate client who had taken a beating in the local press over the case. Worse, the judge refused a venue change, even though nearly every juror on the panel was familiar with the press' accounts.

After the lawyer used much of his allotted time to expose special biases among the jurors, he shifted his questioning from questions designed to expose and eliminate to questions designed to educate those who would ultimately serve.

"Who thinks there was a rush to judgment in the Duke Lacrosse case - I mean by the media?"

Nearly every hand on the panel went up.

The lawyer continued, "And who thinks that a lot of opinions about those three boys changed once the defense finally put forward its case - meaning what the media had originally written wasn't fair, or was at least incomplete?"

Again, nearly every hand was raised.

In the end, the lawyer couldn't "pick" the right jury, so he "made" it the right jury.