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

ARTICLE: As Jurors Turn to Web, Mistrials Are Popping Up

Remember when we said technologically-proficient, web-savvy people tend to make worse jurors?

Well, by way of the New York Times, here's another example:

Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.

Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, wasting eight weeks of work by federal prosecutors and defense lawyers.

“We were stunned,” said the defense lawyer, Peter Raben, who was told by the jury that he was on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.

Last week, a building products company asked an Arkansas court to overturn a $12.6 million judgment against it after a juror used Twitter to send updates during the civil trial.

And on Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded that the judge declare a mistrial after a juror posted updates on the case on Twitter and Facebook. The juror even told his readers that a “big announcement” was coming Monday. But the judge decided to let the trial continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.

Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based only on the facts that the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web, or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.

A juror on a lunch or bathroom break can find out many details about a case. Wikipedia can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from point A to point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.

“It’s really impossible to control it,” said Douglas L. Keene, president of the American Society of Trial Consultants.

...

The technological landscape has changed so much that today’s judge, Mr. Keene said, “has to explain why this is crucial, and not just go through boilerplate instructions.” And, he said, enforcement goes beyond what the judge can do, noting that “it’s up to juror 11 to make sure juror 12 stays in line.”

It does not always work out that way. Seth A. McDowell, a data support specialist who lives in Albuquerque and works for a financial advising firm, said he was serving on a jury last year when another juror admitted doing a Google search on the defendant, even though she acknowledged that she was not supposed to do so. She said she did not find anything, Mr. McDowell said.

Mr. McDowell, 35, said he thought about telling the judge, but decided against it. None of the other jurors did, either. Now, he said, after a bit of soul searching, he feels he might have made the wrong choice. But he remains somewhat torn.

Here is my favorite part:

“I don’t know,” he said. “If everybody did the right thing, the trial, which took two days, would have gone on for another bazillion years.”

Forget about the law, America's Next Top Model is on tonight! And we end on this gem:

Mr. McDowell said he planned to attend law school in the fall.

Off to a great start, pal!



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Trial Tip: The Details Matter

An Eagle Scout pin on a lawyer’s lapel.

A Day in the Life video briefly showing a Mercedes SUV in the garage of a plaintiff’s family claiming financial hardship.

The attorney whose objections are only sustained one time out of a dozen.

Jurors notice all of these things, and more. To them, what they observe and analyze in a courtroom is so much more than what the witnesses are saying on the stand. As their attention and focus spread beyond testimony and case facts, jurors’ observations of seemingly inconsequential details can be a powerful tool in shaping their opinions of the lawyers, parties involved, and the merits of the case itself.

Consider a recent five-week medical malpractice trial we monitored. As much as we noted about courtroom events and the jurors’ reactions, it turns out the jurors were just as attentive to the most minute details, including those described above.

Although they were quick to say during exit interviews that they didn’t arrive at a verdict based on any of those observations, it was clear that the lawyer with the Eagle Scout pin quickly gained credibility among the panel – and that his slightly unkempt suits stood in sharp contrast to the other side’s bespoke ensembles.

Also evident to these jurors was the fact the plaintiffs involved "weren’t hurting for money." In addition to the pricey SUV, jurors also noted the large house (and were critical that the plaintiff's young son with cerebral palsy had a room "barely bigger than a walk-in closet") and the father’s tendency to wear designer Polo shirts in the courtroom. “I kept a tally, and I saw that little horse every day,” one juror told us. “Those shirts aren’t cheap, so I didn’t think they should be crying poverty.”

One thing our clients learned during this trial was the importance of paying as much attention to detail as the jurors. After one expert was finished testifying, a gleaming black town car was waiting outside the courthouse to take him to the airport. Not a good way to connect with the jurors--especially the farmer who gawked as he puttered by in his battered 1970s pick-up truck.

Because strong case facts and concise, effective themes are the cornerstone of any good trial presentation, it's sometimes easy to overlook details. But jurors are watching, and consciously or not, their observations of the little things are helping to shape their impressions of the big picture.

-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

ARTICLE: Confessions of a Hotel Housekeeper

The title of this article alone gave me the heebie jeebies, so naturally I'm going to share it with the rest of you!

I cut corners everywhere I could. Instead of vacuuming, I found that just picking up the larger crumbs from the carpet would do. Rather than scrub the tub with hot water, sometimes it was just a spray-and-wipe kind of day. After several weeks on the job, I discovered that the staff leader who inspected the rooms couldn't tell the difference between a clean sink and one that was simply dry, so I would often just run a rag over the wet spots. But I never skipped changing the sheets. I wouldn't sink that low, no matter how lazy I was feeling.

...

I was disgusted by the many guests I came in contact with through the things they left behind: the hairs on the pillow, the urine on the toilet seat, the half-eaten cookie, the stained sheets. One woman had soiled her sheets so thoroughly that we had to toss them in a biohazard bag—they could never be used again. Rooms where young kids stayed were the worst, with food ground into the carpet and piles of used diapers in the trash. That kind of demoralizing mess could take 45 minutes to clean up. Most maids wore rubber gloves when they worked, but mine were too big, so I discarded them. Unsurprisingly, I got the flu twice.

When you travel as much as we do, a clean, decent hotel room is high on the priority list. I remember one particular trip to Baltimore there was a mix-up at the [REDACTED] hotel. Due to a Red Sox game (we love Baltimore, but there are few things more depressing than the meager turnouts for Orioles games. Only when a "good" team comes to town would there be anything approaching a half-full Camden Yards) all the rooms were booked.

And because we got in so late due to flight delays, the hotel had torn up our reservations in favor of early-bird New Englanders. Unfortunately for us, the entire city was booked solid--we couldn't rent a utility closet if we had $1,500 and an infectious smile. Anyhow, the only place the [REDACTED] hotel could put us up was across town in an incredibly shady area. Having no choice, we drove over and were faced with our worst nightmare.

We're talking long hairs on the shower walls, the stench of cigarettes complimenting (an impressive number of) cigarette burn holes in the comforter, a lumpy, saggy mattress, stained, damp carpet, running toilet, police sirens all night--take my word for it, all it was missing was a chalk outline next to the air conditioner. Needless to say, none of us slept well that night.

The [REDACTED] hotel did the right thing and gave each of the three of us a heaping of hotel points for our troubles, but I'll never forget that particular experience.

And just in case you weren't properly nauseated, I want you to think about the one thing in a hotel room that probably gets the most use: the TV remote control. Consider the sheer number of filthy mitts that have come into contact with that remote before your arrival, and the incredible amount of bacteria and who-knows-what-else clinging to that thing.

Now, within the context of the above article, think about how often the housekeepers hit that thing with a little Formula 409.

2008 Jury Research Findings: Tell the Right Story, Right Away

If we’ve worked together you’ve heard us say: Jurors make up their minds quickly, and then spend the rest of the trial trying to prove that their initial decision was right. Now, we’ve got proof.

Our focus group methodology tracks three key votes – one after jurors have reviewed a basic fact pattern, another after they’ve heard the plaintiff’s arguments, and a third after hearing the defense.

At the end of 2008, we took a “30,000-foot” look at these votes by entering into our polling software the data from approximately 1,000 juror interviews. Here’s what the data revealed:

Eighty-five percent of jurors delivered the same verdict at the close of the focus group session as they did in their first vote. This meant that no matter what the expert testimony was and no matter what arguments they heard, 85 percent of respondents latched onto arguments and testimony that justified their initial biases about the case.

This doesn’t mean jurors can’t be persuaded from their initial impressions. They can. It also doesn’t mean that expert testimony isn’t important. It is.

What it does mean is that your opening is the most important part of your case…and you need to tell the right story, right away. Get your best, strongest arguments out there immediately…and don’t wait until your closing. By then, most jurors have made up their minds.

Give us a call if you’d like to discuss...we would be happy to share the additional findings from our 2008 data review. If you would like a full presentation of our analysis, let us know.

-Jeff Harrelson

Article: Jurors Kicked Off Case For Romance

Just in time for Valentine's Day TheDenverChannel.com(via Fark.com) we are treated to a wonderful story of two jurors falling in love while serving on a jury...for a child-abuse trial.

According to the story, the man and woman were dismissed from the 16-member jury on Tuesday, after people reported seeing them walking arm-in-arm together and giggling with each other.

The former jury showed up Wednesday and sat in the spectator section of the courtroom but he refused to answer questions when approached in the hallway by a reporter.

Here are some details of the child-abuse trial that inspired such romance:

Twenty-nine-year-old Alex 

Midyette is accused in the 2006 death of 11-week-old Jason Midyette. Prosecutors say Jason had 37 broken bones.

Midyette's attorneys say Jason had a metabolic disease and wasn't abused. A doctor testified that Jason had bone abnormalities that were misidentified as fractures.

A doctor testifying for prosecutors said Jason's skull was fractured before he died.

Jason's mother, Molly Midyette, was convicted of child abuse for failing to get medical attention for her son. She is serving a 16-year sentence.

Yikes.