Deliberations

Mississippi Healing: The Rise of Pro Bono Trial Consulting

 This post is by guest-blogger Edward Schwartz (The Jury Box), the Chair of the ASTC Pro Bono Committee. It coincides with the launch of the new sidebar link to the ASTC Pro Bono Initiative (look to your right).  I have been assailed by the rigors of life and shall return next week with a new fun-filled episode. Thanks Edward!

Did you know that you might be able to get free trial consulting for your next case?

ASTC consultants have assisted in a pro bono capacity in a whole range of cases. From a simple eviction hearing to a case that garners national attention, consultants have donated their skills. Many ASTC members give generously of their time and energy to promote justice for the budget-strapped who find themselves entangled in the American legal system. To facilitate these efforts, ASTC has developed an active pro bono initiative that helps ASTC members provide their services at no cost (or at a substantially reduced charge) to attorneys across the country. The following is one such story...

Andrew Sheldon is one of the giants in the trial consulting world. He received the ASTC Lifetime Achievement Award in 2009, after more than 40 years in the profession. While Andrew has certainly done well in the profession, what stands out most is that he has always done good in the profession. Throughout his career, Andrew and his colleagues have dedicated thousands of hours to pro bono efforts, mainly in cases involving civil rights and capital punishment.

There is a remarkable little film making the rounds at this year’s film festivals, entitled "Neshoba: The Price of Freedom." It is a gripping documentary about the efforts to finally bring to justice Edgar Ray Killen, the man thought to be responsible for killing three civil rights workers in Neshoba County, MS in 1964. (A version of those events was portrayed in the movie, Mississippi Burning.) Somewhat startlingly, Killen gave the filmmakers extensive access to his daily life, ultimately revealing his deep-seated racism and bigotry. Almost as surprising was the ambivalence of the county’s residents towards the idea of trying Killen, a man most of them knew personally, for the murders.

It was in this guarded, reluctant environment that prosecutors faced the prospect of seating a jury and mounting a case. Luckily for the prosecution team, they had help. Andrew Sheldon and Beth Bonora (another long-time ASTCer with a track record of good works) donated their services to the district attorneys working on the case. That’s right, they each spent hundreds of hours working on this 40-year-old case – for free.

The trial took place in 2005. Initially considering only murder charges, the jury seemed to be stumped. Finally, when Judge Marcus Jordan instructed the jurors about the lesser-included offense of manslaughter (over the defense’s objection), Killen was convicted of three counts of manslaughter. The judge gave Killen a 60-year sentence, the maximum permitted by law.

For a terrific interview with Andrew Sheldon and Beth Bonora, conducted by ASTC President, Beth Foley, check out this month’s edition of The Jury Expert.

Consulting with a Conscience

Could you use help fashioning a visually effective timeline? Does your case involve highly sensitive, emotional issues and you’re not sure how best to handle them during voir dire? Do you need a digital representation of a crime scene to use at trial? ASTC has trained, experienced consultants available to help with all of these challenges, and then some. In addition, ASTC members from all over the country regularly donate their time to give presentations and teach others.

Don’t know what you might need? Most of my pro bono clients tell me that they really benefit from just being able to pick my brain about their cases. I ran a series of drop-in clinics for Massachusetts Bar Advocates (those who represent indigent criminal defendants) and often just a half-hour of brainstorming would really help an attorney clarify his or her own thoughts about trial strategy.

You don’t need to have a case of historical importance to get help from an ASTC consultant. If you think you could use pro bono trial consulting assistance, please visit the ASTC Pro Bono Publico Committee homepage.

Edward Schwartz, a trial consultant from Lexington, MA, is the Chair of the ASTC Pro Bono Publico and Awards Committee. Edward can be reached through the ASTC Pro Bono Committee homepage. His blog, The Jury Box, can be found here.

BREAKING NEWS: Cute Woodland Creatures Protest Batson Ruling

 ENCHANTED FORREST  (AP) Last week, a herd of cute woodland creatures travelled to New York to picket the office of Judge Frank LaBuda (Sullivan County, NY) in response to his ruling that “hunters” should be considered a protected class under Batson.  A spokesman for the animal group, who would only give his first name (Bambi), told the crowd, “When did hunters suddenly become victims that need protection?  My mother was never tried by a jury of her peers when she received a death sentence. Why should the hunters get this special right.  We want justice for all!”

The backlash originated with LaBuda's decision to stop the trial of Robert Robar, a hunter charged with assault for the shooting of another hunter.  LaBuda concluded that the defense had systematically excluded “hunters” during jury selection when the team used all of their peremptory challenges on those who partook in the sport.  In his ruling, LaBuda noted that “hunters” were "… a class of people recognized by law… (who are licensed) to bear arms… Yet, in this case, they are being systematically excluded."

Interestingly, the peremptory challenges were utilized by the defense in an attempt to prevent other hunters from judging the actions of Mr. Robar.  This strategy of hunter exclusion angered some local hunters who supported LaBuda’s opinion. Mr. Elmer Fudd, who watched the protest from a distance told reporters, “I want to hunt wascally wabbits.  How can I feewl safe if othuh huntuhs awe shooting at me?”

This is just another instance in a string of confusing Batson-related issues.  The Washington Supreme Court recently ruled in State v. Rhone that a Batson motion should be automatically triggered by a “bright-line rule” when the last juror of a defendant’s racial group is struck by peremptory challenge.  In essence, this creates the assumption of potential discrimination:  “… a defendant establishes a  prima facie case of discrimination when, as here, the  record shows that the  State exercised a peremptory challenge against the sole remaining venire member of the defendant's constitutionally cognizable racial group.”  It is unclear how far this opinion reaches and how it will be interpreted regarding civil cases and other protected classes.

On the opposite side, defenses against Batson challenges have also become increasingly bizarre.  Given the broad scope allowed for class-neutral explanations, some attorneys have gotten quite creative. A brief search on Google will show reasons including “crazy red hair”, “shifty looks”, “working at MacDonald’s” and “having mustaches and goatees.”  If attorneys are honestly striking jurors based on these characteristics, then I would highly recommend them attending the next ASTC conference .

In my opinion, Batson is simply a Flintstones band-aid applied to (an overlooked) gushing wound in our justice system: the lack of time given for voir dire.  Attorneys are told not to use the most obvious visual characteristics to decide peremptory challenges (race, gender, ethnicity, etc.) while they are simultaneously put under severe voir dire time limitations (inhibiting the ability to learn what is beneath the skin).  Is it any wonder that lawyers end up depending on unreliable demographics to guide peremptory strikes?

Blogger: Matt McCusker

MEL GIBSON TO TIGER WOODS: The Science of Settlement Negotiation

 I kinda feel bad for Mel Gibson and Tiger Woods (he said whilst evading flying objects and hostile emails).  I agree they are terrible husbands, have done awful things and have more money than I could imagine how to spend (although my imagination can be pretty ambitious if I have some time).  However, there are few people in history who have experienced the unique sensation of watchinig one’s serious (non-criminal, as of yet) character defects scrutinized by over a billion people within a 24-hour news cycle.  Neither man was torturing puppies or attacking old ladies.  This is a matter of broken hearts, not broken laws (again, as of now). 

(Update: I've never been very politically correct. My comments above are based on the fact that no charges have been filed against anyone involved. Thanks to DA for pointing out that charges may still be coming for Gibson.  When that happens, my opinion may significantly change. In the meantime, I can't make any assumptions about the status of law enforcement investigations.)

What’s intriguing about these breakups (beyond the obvious) has been the seemingly opposite tactics utilized by Gibson and Woods in resolving them. Mel's Anger vs. Tiger’s accommodation.  Mel’s rejection vs. Tiger’s rehab.  Mel’s accusations vs. Tiger's apologies.  One would suspect that the public stances Gibson and Woods have taken in these disputes would not be terribly far from the private positioning at a mediation table.  This begs the question, which technique is more effective?

A study from the Journal of Personality and Social Psychology examined the effects of “angry negotiators” versus “happy negotiators”.  The authors demonstrated that coming to the table angry does in fact cause the other side to ask for less and give more.  However, much to Mel’s chagrin, the research also indicated that this “angry tactic” only works when the opponent feels low power in the relationship, had a low need for cognitive closure, or were under low time pressure.  As Oksana heads for “Dancing with the Stars”, I’m not getting a low-power state of mind.

One must also remember the that personality and cultural background of the opponent in a negotiation will heavily alter tactics.  An article from the Association for Psychological Science compared European American and Asian/Asian American reactions to anger in negotiations.  The study found that “appropriate” anger during negotiations caused large concessions from both European American and Asian/Asian American opponents.  However, “inappropriate” anger caused the Asian/Asian American negotiators to significantly reduce their level of concession and increase impasse.  This begs the question, what is the “appropriate” level of anger of Elin Nordegren to display towards Mr. Woods?

It would be easy to imagine Tiger empathizing with Elin’s plight, but research out of Psychological Science suggests this is not a good idea for achieving a favorable settlement.  They discovered that it is far more helpful to focus on the other side’s logical perspective and goals, rather than their emotional state of mind.  As one of the study’s authors put it:

“Negotiators give themselves an advantage by thinking about what is motivating the other party, by getting inside their head… Perspective-taking gives you insights into how to structure a deal that can benefit both parties. But unfortunately in negotiations, empathizing makes you more concerned about making the other party happy, which can sometimes come at your own expense.”

Interestingly, there is further research that supports the theory of keeping focused on your own emotions.  Another article from Psychological Science asked people to play “the ultimatum game” and try to find the most beneficial settlement that both parties could accept.  The results established that emotional self-talk significantly influenced negotiated outcomes.  The study concluded that those who were primed to “trust their own emotions” fared much better in resulting agreements than those who did not give themselves confidence building pep talks.

So, what is the answer?  If you sit down at the table too angry it may shut the other side down.  If you sit down at the table too happy it may get you fleeced.  If you try to empathize with your opponents then you may lose your own perspective, but empathizing with yourself is an odd path to victory.

Honestly, as a current litigation consultant and former mediator I have not yet found the silver bullet for negotiating conflict.  However, I will leave with a favorite quote from Lance Morrow to aid Mel and Tiger on their search for settlement:

“Never forget the power of silence, that massively disconcerting pause which goes on and on and may at last induce an opponent to babble and backtrack nervously.”  

If you can master the skill of silence, the world is your oyster.

Blogger: Matt McCusker

The other definition of "LAW PRACTICE"

 Attorney James Earhart had done an admirable job defending Karen Sypher.  For those unaware, she is the the woman who was accused of attempting to extort money from Louisville basketball coach Rick Pitino.  However, according to jurors, Mr. Earhart inexplicably went off-script at the end of the trial and lost them.  The following excerpt from an article in the Courier-Journal says it all…

…in his closing argument, James Earhart seemed to abandon his carefully scripted defense, Elder [the foreperson] and other jurors said.  First, the defense lawyer admitted that [Pitino] had been the victim of extortion, after previously arguing that it was Pitino who bribed Karen Sypher.  Then, Earhart abruptly offered up a culprit for all the threats delivered to the coach — Tim Sypher, Karen's then-husband, Pitino's longtime aide and equipment manager.

“It was a surprise,” Elder [said] “It was the first time we had heard it. There was no evidence to support it. It almost was like it was an after-thought.”

Ouch.

Many overestimate their ability to perform “on the fly” or “off the cuff,” but still choose to attempt it.  Some say the delivery of an impassioned speech is more “organic” or “real” when put together at the last minute.  Others just like the adrenaline rush or are serial procrastinators.  No matter the rationale, those who think a closing argument (or opening statement; or direct examination) is more powerful and effective without practice are mistaken.

This paper out of the University of Miami utilized quantifiable measurements to demonstrate that practicing speeches in front of an audience is very helpful to performances.  Moreover, it found that the larger the practice audience, the more adept the speaking presentation in front of a real audience.  So, while it may be more comfortable to stand in front of your bedroom mirror, it would be more useful to gather your family or co-workers.

Don’t have anyone to use as a practice audience?  No worries.  Researchers from Washington State University have shown that even simple visualization can substantially aid in the delivery of speeches.  Not only did those subjects exposed to visualization perform better than the control and placebo groups, but they also had significant reductions in trait and state communication apprehension.

Some people may feel like they are “special” or have a “unique ability” to deliver presentations extemporaneously.  That is certainly possible.  However, those who have read Malcom Gladwell’s book Outliers will know of the “10,000-Hour Rule” which suggests that the key to becoming an expert in any discipline includes thousands of hours of practice (and some luck).  How many of us could claim to even having 1,ooo hours of “off the cuff” speaking experience in high-pressure situations like a trial?

I realize that preparation levels vary by the importance of the performances (a deposition interview is not an opening statement).  However, I would suggest that we all sometimes cut corners under the belief that practice is unnecessary.  This is especially true when we are confident about our subject matter feel connected to it.  With that in mind, I leave you with this clip of testimony from a Santa Cruz City Council meeting.  This woman was passionate and felt like she had to make a strong case for her position, however she obviously skimped on the preparation.  As you can see, it didn’t quite work out. (Miss Teen South Carolina has met her match.)

Blogger: Matt McCusker

“Once Upon a Trial, in a Land Far, Far Away…”

 How many of you decided to read this blog post because the title suggested that I was about to tell a story?  What if I had use the alternative hook “Narratives and Storytelling in Case Strategy” as my opener?  Would you still have been as interested?  (I’m betting not.)

As this article by Jeremy Hsu outlines, we human beings are programmed to attach to stories.  For thousands of years we have utilized stories to teach, entertain, preserve history, and create social bonds.  Long before the written word, we spun tales around campfires and depended on the preservation of these words for future generations to avoid the mistakes of the past.  In essence, stories are our memory.

Given this propensity, why do some attorneys try to keep jurors narrowly focused on very particular facts or arguments when presenting a case?  Sure, there may be some lip service to a narrative or a key theme, but how often do trial attorneys start with “the story” and carry it as a blueprint for jurors through the entire trial? How often is the witness testimony organized by the principles of “the story” and the demonstratives created with “the story” in mind?  How often is “the story” at the base of every major strategic maneuver in trial presentation?

I would argue that the narrative must come first and then the facts can be organized (and often pruned) to support the tale told.  Trials are not about who has the heaviest bucket of facts, but instead about who is able to get jurors to attach to their plotline.  The victor is the side that is able to ride this juror attachment into a favorable deliberation where the group remembers and repeats the facts of “the story” they liked most.

A recent study out of Princeton University published in Scientific American demonstrates this exact point.  Through the utilization of active brain scans, researchers demonstrated that a good story can actually synchronize people’s brains through a form of neural coupling.  (Think Vulcan mind-meld, but without the physical contact.)  However, if the listener does not understand the story, then the bond is broken and the listener disengages.

A post on the blog Neuromarketing makes the same point through a discussion of advertising and The Narrative in the Neurons (by Wray Herbert).  In this post, it is explained that fMRI imaging studies demonstrate that successful storytelling actually activates areas of the brain that increase the experiential effects.  People actually “understand a story by simulating the events in the story world and updating their simulation when features of that world change.” (Click Here for another overview.)  While this research is focused on the written word, it further clarifies the power of a well-crafted narrative.

The law can be a foreign language to many jurors.  Making things more difficult is the high importance placed on jurors’ correct interpretation of technical words.  (As many recall from grammar school) when individuals are unsure of the meaning of a word, they search for context clues to enlighten them.  Without this contextual guidance, the words will often be discarded and forgotten.  I would argue that when presenting a case at trial, the best context an attorney can provide is a well-honed story that causes jurors to want to hear more.  Then, before you know it, they are hooked.

THE END.

Blogger: Matt McCusker

W.W.B.D.? (What Will Blago Do?)

 As some of you might have heard, there was a family style civil war raging in the Blagojevich defense camp this week between a young firebrand and a sage journeyman.  The firebrand (Sam Adam Jr.) wanted to throw caution into the wind and have Blago testify, but the journeyman (his father, Sam Adam Sr.) said that this case would rest without hearing from the infamous governor.  The drama was palpable and the media was salivating.  Think Tom Cruise vs. Paul Newman in The Color of Money; or Tom Cruise vs. Robert Duval in Days of Thunder; or Tom Cruise vs. Craig T. Nelson in All the Right Moves; or pretty much any 1980’s Tom Cruise movie.  (You’re welcome Sam Adam Jr.)

Father versus son in a high-profile trial with a big-haired defendant who has ties to both the oval office and Donald Trump's reality TV office?  Some might say that this sounds too good to be true.  Some might even say that this sounds staged to increase publicity.  Sadly, much like how many licks it takes to get to the center of a Tootsie Roll Tootsie Pop… the world may never know. 

However, it brings up the interesting questions associated with putting witnesses on the stand (or in the deposition chair) who are likely to be liabilities.  While the media typically focuses on whether a criminal defendant testifies in his or her own defense, this is a luxury that most witnesses do not enjoy.  The fact is that witnesses who are friendly (but “unhelpful”) are a common problem for civil and criminal attorneys in all types of cases. 

Thomas Fuller wrote, “A fool wanders, a wise man travels.”  In seven words, I believe this quote sums up one of the key differences between helpful and unhelpful testimony.  Those witnesses who “wander” and try to verbally meander into what they think is “the right” answer are in trouble.  Those witnesses who focus on clearly understanding their departure point (the question) and efficiently “traveling” to their destination (the answer) fare much better.  You should always ask yourself: Is this witness reminiscent of a college student backpacking through Europe or a professional who is traveling to an appointment with a client?

While both direct and cross examinations can be dangerous for “wandering” witnesses, clearly the cross is the most perilous journey.  Dr. Louise Ellison and Dr. Jacqueline Wheatcroft at the Universities of Leeds and Liverpool have scientifically demonstrated this danger and tested solutions.

In their research (“Exploring the influence of courtroom questioning and pre-trial preparation on adult accuracy”), Ellison and Whetcroft showed mock-witnesses a simulated crime and then recorded subjects' reactions to two levels of scripted cross-examination questioning: hard-cross and soft-cross.  The hard-cross was filled with legalese and tricky phrasing (double negatives, leading statements, etc.), while the soft-cross had relatively straightforward questions.  As has been demonstrated before, witnesses were significantly less accurate with the hard-cross.    

However, they then went a step further and repeated the test with new subjects, but provided all witnesses with a simple pamphlet entitled “A Guide to Cross-Examination.”  In the paper, it was described as follows:

“…this document contained a short explanation of the two-fold function of cross-examination - to test evidence and elicit information favourable to the crossexaminer’s case - and practical guidance to assist participants when answering questions which included directions to listen carefully to questions, to ask for clarification if a question was not fully understood and to answer all questions truthfully. The leaflet also included an example of a leading question, a question containing a double negative and a multipart question, and, in reference to leading and multipart questions, advice that participants should not agree with a suggestion ventured by the cross-examiner unless it was accurate.”

Obviously, I wouldn’t be blogging about this paper if the pamphlet did not have a significant effect.  Those witnesses with preparation made significantly fewer errors than those without. (If a pamphlet can enhance skills, imagine what real witness prep can do!)

However, what was most interesting was the increase in requests for clarification by participants.  Research has shown that witnesses are often too intimidated to ask lawyers to clarify their questions.  This study demonstrated that simply reading an informational pamphlet before cross-examination caused the rate of requests for clarification by witnesses to jump in both groups.  Asking for an attorney to be clearer is one of the most powerful defenses while being cross-examined and witnesses seldom use it.  Thus proving the ancient Chinese proverb: “He who asks a question is a fool for a moment.  He who does not ask a question is a fool forever.”  Somehow I can’t see Blago pausing long enough to listen to the questions, much less asking for them to be clarified.

(UPDATE: Blago will NOT testify.  I just heard a thousand news anchors drop to their knees and scream “NOOOO!!!”  Thanks to ASTC President Beth Foley for inspiring this blog.)

Blogger: Matt McCusker

FACTS? We (the jury) Don't Need No Stinking Facts. (Or, do we?)

 I would like to begin this blog by directing you to the definition of irony.  Well, it’s not really the definition of the word, but instead a recent Boston Globe article (“How facts backfire”) that had the blogosphere aflutter.  I’m not going to lie, I was excited about this article too.  In fact, I quickly began formulating a brilliant blog post about jurors’ propensity to ignore the facts in favor of instincts and emotions.  Until, of course, I checked the facts.

Sadly, I actually tracked down the cryptic 2005 and 2006 University of Michigan studies that served as the basis for the article and was disappointed to find questionable methods and obvious bias within the research design. However, I would not be curtailed by the facts of a bad study.   I had already made my decision to write a blog on this subject, so I would find the facts that supported my belief (with the help of Science Daily).

Then, I found a piece by the researchers at Emory University that saved my day.  They produced an fMRI study (active brain scans) that scientifically demonstrated politically partisan voters (i.e. Republicans and Democrats) had no trouble using their reason to detect factual contradictions in the opposing party’s presidential candidate.  (Duh.)  However, their neural processing changed when they had to deal with inconsistencies from their own nominees.  In this situation, the partisan subjects' brains' emotional centers (not reasoning centers) went off like pinball machines when encountering disconcerting statements by their own favorite son. 

Most interestingly, was the following statement by Dr. Drew Western (lead researcher) “We did not see any increased activation of the parts of the brain normally engaged during reasoning… Essentially, it appears as if partisans twirl the cognitive kaleidoscope until they get the conclusions they want, and then they get massively reinforced for it, with the elimination of negative emotional states and activation of positive ones.”  In other words, when we don’t like the facts we switch to using a part of the brain that doesn’t need them, and then reward ourselves when we find a way to get around them.

Sure, this is a study about emotionally charged elections, but that doesn’t change the fact that the results would likely apply to jurors on a two-month long IP trial, right?  For the sake of my blog, I continued searching for more evidence that jurors will search for ways around the facts.

Coincidentally, I found another piece of evidence from my friends at Emory University (also using fMRI technology.)  Dr. Gregory Burns demonstrated that expert advice may in fact shut down the decision-making processes in the brain.  Even better, this is more likely to happen when the brain needs to assess some level of risk.  For this research, subjects’ brains were scanned when interpreting expert financial advice for making financial decisions.  Dr. Burns noted, “This study indicates that the brain relinquishes responsibility when a trusted authority provides expertise…The problem with this tendency is that it can work to a person's detriment if the trusted source turns out to be incompetent or corrupt.”  According to this research, when we have a risky decision with expert advice available, we decide that someone else can better consider the facts and we will just decide if we trust the expert or not.

While this was closer to my goal of demonstrating that jurors will often ignore facts, it was still not perfect.  My Hail Mary came when I saw an article in the Journal of Advertising Research entitled "TV Ads May Be More Effective If We Pay Less Attention".  This was it.  The study I had been searching for to prove my point.  Then, sadly, I discovered I might be undone by the facts.

In this research, subjects’ attention was measured for different TV ads aired during an episode of Frasier.  “Results showed that viewers paid less attention to likeable, creative adverts, and more attention to factual information-giving adverts, even when they didn't like them.”  What?  Factual ads work better?  Factual ads that people don’t like work better?  Say it ain’t so!

But then Dr Robert Heath said: "There has been a lot of research which shows that creative TV ads are more effective than those which simply deliver information, and it has always been assumed that it is because viewers pay more attention to them.  But in relaxed situations like TV watching, attention tends to be used mainly as a defense mechanism. If an ad bombards us with new information, our natural response is to pay attention so we can counter-argue what it is telling us. On the other hand, if we feel we like and enjoy an ad, we tend to be more trustful of it and therefore we don't feel we need to pay too much attention to it.”

And there it was.  I could exhale.  I had to search for it, but I was able to find the evidence to support my personal beliefs.  Even brainiac Frasier fans are more susceptible to ads targeted towards one’s emotions, over ads that are aimed at one’s intellect.  Take this to heart when planning your next opening statement, direct examination or closing argument.

 

Blogger: Matt McCusker

 

OPENING STATEMENT? We've got an app for that.

 Last year, comedian Louis CK delivered a hilarious rant on the Conan O’Brien Show about our modern-day technological expectations (click here to laugh).  CK makes his point about how accustomed we’ve become to the luxuries of 21^st century life by recounting an interaction with a fellow airplane passenger:

“I was on an airplane and there was internet, high speed internet on the airplane…it’s amazing… then it breaks down and they apologize the internet is not working and the guy next to me goes ‘this is bullsh**.’…Like the world owes him [YouTube clips] he knew existed only 10 seconds ago… Oh really?  What happened next?  Did you fly through the air incredibly like a bird? Did you partake in the miracle of human flight?  Wow, you’re flying!  It’s amazing!  Everybody on every plane should just constantly be going, ‘OH MY GOD!’ ‘WOW!’ …You’re sitting in a chair in the sky!”

Louis CK’s rant went viral through the internet because it rang so true.  Technological advancements have completely altered our daily expectations.  Think of the first cell phones, the first internet connections, the first automobiles.  How would we rate them today?  Progress has caused us to judge harshly those who fail to rise to the lofty goals we set.  The courtroom is not immune to this phenomenon.

Today’s information-age jurors expect well-crafted presentations that include advanced auditory and visual components which are interwoven with the case story.  Moreover, a famous 1963 Weiss and McGrath study demonstrated that there is good reason for this juror preference.  They found that information is retained at a remarkably higher rate when it is presented orally and visually (65% retention), rather than orally alone (10% retention) or visually alone (20% retention).¹  While many attorneys think that a good opening statement or closing argument does not need the aid of visual dynamics, both research and juror comments beg to differ.

However, there is also the danger of going too far.  Presentations should not be so shocking or overwhelming that they serve to drown out supporting evidence that may be key to the foundation of a case. A recent study published in the Journal of Current Issues and Research in Advertising found that commercials shown between “intense war news” segments had much lower retention rates in audiences.  One could see how it would be counterproductive to make key points in a closing argument directly before or after graphic photos were shown.

Interestingly, a similar point was made when researchers tested the efficacy of PowerPoint text animations.  A study out of the University of North Carolina at Wilmington found that college students retained less information when presented with animated PowerPoint slides, than when the same topics were presented through static (non-animated) PowerPoint slides.

Still, it should be remembered that a good PowerPoint presentation, demonstrative computer animation or video clip will only go so far.  This audio-visual array must also be set in a framework that allows jurors to focus on learning, rather than remembering.  Researchers from the University of Amsterdam and Duke University have demonstrated that learning and remembering compete for valuable resources in the brain.  As a result of this battle for brain power, jurors who are constantly trying to recall case elements (Who is who? Why does this matter? When did this happen?) are distracted.  If this happens, all of the money spent on fancy instructional animations could be wasted.  An effective story or narrative framework is essential to making multi-modal presentations stick in jurors’ minds.

Blogger: Matt McCusker

*Image courtesy of the Wake County (N.C.) Bar Awards and Merritt Videoworks.  Click Here to see all of the great work the Wake County Bar is doing for their community and see if you can help.

¹ (H. Weiss and J.B. McGrath, "Technically Speaking: Oral Communication for Engineers, Scientists and Technical Personnel" (1963).)

THE FUTURE OF TRIAL CONSULTING: Deep Thoughts After the 2010 ASTC Conference

 As I fly home to Seattle from the American Society of Trial Consultants (ASTC) conference in Minneapolis; I am left with two nagging questions:

1)      How can I shamelessly promote the 30^th Annual ASTC Conference next year in Seattle between June 9^th and 12^th, 2011?

2)     What can be prognosticated as to the future of the Trial Consulting profession?

Obviously, I quickly answered the first quandary.  (Shameless promotion accomplished!). 

However, the second left me pondering to come up with a few guesses…

John Grisham will write a bestseller called ‘The Consultants’

Set in the Windy City, it’s a story that centers on an all-female trial consulting firm (a la Charlie’s Angels) with the protagonists living a secret double-life.  By day, they work huge corporate cases and hobnob around the world with the beautiful people.  However, by night, they secretly devote their powers to innocent plaintiffs and death penalty defendants.  It will become a NYT bestseller and make it on to Oprah’s night stand.

Reality TV Trial Consultants will take center stage

Forget a jury, which television judge and timeslot would best fit your case?  These specialized consultants will help you choose: Judge Judy, Judge Joe Brown, Judge Mathis or Judge Reinhold?  With the right decision, you could find yourself some fortune and fame (or at least your old futon and five minutes you can TiVo.)

John Grisham’s book ‘The Consultants’ is turned into less appealing movie

Like most Grisham books-turned-movies, it is disappointing.  Rather than preserving the brilliant character-development and nuanced plot twists, the movie is heavy handed and makes terrible casting choices (Lindsey Lohan, Tara Reid and Paris Hilton play The Consultants).  As a result, the film goes straight to video.

Okay, most kidding aside, here are a few real predictions (or at least hopes)…

Trial consulting for cases without trials

The best national assessment of civil case outcomes (state and federal) was performed in 2005 by the USDOJ Bureau of Justice Statistics.  The most cited result from that study was the value "3%" (or conversely, 97%).  Only 3% of cases filed were actually decided by trial.   In other words, you have a better chance of randomly selecting a One-Eyed Jack out of a deck of cards than having your case settled by a jury.

I predict that litigation consultants will continue the rocketing trend toward offering affordable services designed for cases that settle.  This includes assistance like: witness prep for depositions; case narrative and presentation strategy; video/PowerPoint/demonstrative production for ADR; negotiation tactics; preliminary case testing with small focus groups; and much more.

We will educate our jurors 

Jurors have far more communication ability and knowledge than ever before.  While the media tends to focus on jurors who Tweet, a more important issue is jurors who Google.  Generally speaking, rules are most effectual when they are explained.  Saying “Don’t blog or Google” is not nearly as successful a proposition as saying “Here is why we are asking you not to blog or Google…”  I predict that the courts will realize this and teach jurors rather than simply making unenforceable threats of punishment.

Further, I foresee the courts being more liberal with their allowance of juror questions to avoid confusion.  I have seen some “jury instructions” that would make constitutional scholars take pause.  It is unfair to expect simple English-language speakers to understand legalese without the help of a translator or dictionary.

We will get to know our jurors

My last post lauded the merits of extending voir dire and pointed to research studies (especially Judge Mize's study) that demonstrate this necessity.  As time goes on, I hope that this message gets carried further and is heeded widely.  I predict that more and more judges will continue to sacrifice the time required for a solid voir dire in the interest of seating the most impartial jury.

I believe there are some who would prefer our juries were composed of legal robots that simply interpret “the facts and law” before printing out a verdict.  This would be great, except that most cases present very different understandings of “the facts and law” which must be interpreted and weighed by people on the jury.  Given that “human nature” is required to fairly weigh “the facts and law”, it is that “human nature” that we must explore with more extensive voir dire and questionnaires.

(In my prediction, these legal robots would then get self-awareness and try to take over the world.  We would toil under the foot of our "logical overlords" until The Consultants organized a resistance to save us.  But I’ve said too much.)

Blogger: Matt McCusker

 

NO BASIS FOR BIASES: How Demographics Fool Even the Best Lawyers

 Let’s face it, we all stereotype.  We all make assumptions about others based on visual information alone.  These could be conjectures about grey hair, obesity, a tight skirt, or a body piercing; but people continually make visual judgments of others founded only on personal biases and prior experiences.  Think of the last time you were forced to stand in line (the DMV, the bank, the post office, etc.).  Did you notice the people around you?  What did you think of them?  What basis did you have?

While I do not endorse the practice of stereotyping, I accept it as an evolved part of the human condition.  Without these assumptions, the world would be a chaotic place where every new person would be an outright enigma (and even a potential threat).  Stereotyping provides order and a sense of security, even if it is often highly inaccurate.

Stereotypic predictions about individuals on looks alone come with three major downfalls:

1.       Making assumptions about individuals based on broad demographic stereotypes is simply not a reliable method.  Studies and analyses (Debunking Stereotypes, Objective Reality, Fourteenth Amendment) have shown that trying to apply large group characteristics (gender, race, age, hair color) to specific questions about an individual (Are they intelligent? Are they dangerous? Are they likely to convict?) is a generally ineffective technique.  Typically, the larger the group, the more flawed the assumption. 

For example, it is popular for some people make stereotypic assumptions about the automobile driving ability of particular demographic groups.  Let’s take a hard look at the stereotypes.  Which group reference do you think would likely be a good predictor for spotting an unsafe driver?

 

• Asian drivers (racial stereotype, approximately 4.5 billion people);
• Women drivers (gender stereotype, approximately 3.5 billion people);
• Drivers who have received speeding tickets (very common experience, certainly  in the tens of millions);
• Drivers who have rear-ended another vehicle  (less common experience, no data available); or
• Drivers who self-report on a questionnaire that they tend to speed and/or engage in “risky behavior” on the road (small group that is limited by how many are asked).

Notice that the smaller and more focused the pool, the more comfortable we feel in our assumption?  

2.      It’s easy to be right when one never knows the correct answer.  For the most part, none of us are typically able to test our stereotyping hypotheses.  These broad generalizations are only maintained for those people who we never get to know (the stranger in the DMV line will always remain a stranger).  Those who we actually meet (strangers who become new friends or acquaintances) will give us more individual information, thus making the stereotype unnecessary.  For everyone else (strangers who remain strangers), we simply get to move on with our lives assuming that we were right (which reinforces the stereotype).

3.      In several key areas of our society, we are specifically prohibited from depending on particular stereotypes (race, gender, age, sexual orientation, etc.) to make particular decisions (housing, employment, education, peremptory challenges, etc.).  This is generally because we have found that faulty decision making based on inaccurate stereotypes can have drastic consequences.

Recently, there has been a fervent discussion about the removal of peremptory challenges from the jury selection process.  The primary reason for this outcry is the belief that despite the Batson v. Kentucky ruling, attorneys depend too heavily on racially-based stereotyping when utilizing strikes (which this research suggests is likely).  As a result, some assert that minority criminal defendants are being placed at a disadvantage at trial, violating their 6^th Amendment right.  .

Banning peremptory challenges would remove racial prejudice through the restriction of information, rather than the promotion of openness and honesty.  While it’s true that this solution would limit race-based strikes, it would also come at the cost of increasing many other types of juror bias.  Without the presence of peremptory challenges, the courts would likely perform even less voir dire than the limited amount we see today.  By further reducing potential jurors’ ability to speak during voir dire, we would see even more serious cause and bias issues influencing our jury deliberations and verdicts (as the Mize study demonstrated).

Rather than denying the existence of stereotyping or asking people to continually suppress a basic human instinct, there is a better way to help reduce demographic profiling in forbidden areas.  The simple answer is to increase the time for voir dire and utilize jury questionnaires.  The minimal cost associated with these processes will exponentially increase the amount of information provided by individual jurors.  As we have seen, the best weapon against stereotyping is simply allowing a person to talk about their opinions and life experiences (something many of us are happy to do).

Blogger: Matt McCusker

WHAT AN UMPIRE CAN TEACH BP AND TOYOTA: How Truly Being Sorry Can Change the Legal Game

 It was a deeply sympathetic moment that we will all remember; Toyota’s CEO (Akio Toyoda) immediately delivered a heartfelt apology to his company’s consumers as soon as it became evident that there was a safety problem with some Toyota gas pedals.  What?  You don’t remember that?  Well, maybe it was more of a very belated, quasi-apology in front of the U.S. congress teamed with a commercial contrition that was more of a salute to prior Toyota glory and their “commitment” to be a top auto manufacturer again.

However, BP’s Tony Hayward wasn’t going to make the same mistake.  He released an ad that actually said “I’m deeply sorry” only 6 weeks after the disaster (a.k.a. 20 million gallons of oil later).  While this was slightly quicker, it also mixed the “deeply” remorseful message with touts of all the great things BP was doing to fix the problem.  By the way, congratulations to BP on the largest cleanup effort in U.S. history,  the polls are showing that bragging about this is really helping their image (or not, as this Ace Metrix data shows.)

Then there is Jim Joyce, the umpire who mistakenly blew a call that would have given Detroit Tigers’ pitcher Armando Galarraga a perfect game (which is amazingly rare in major league baseball).  Sadly, instant replay undeniably confirmed that that call was wrong.  So, upon seeing the evidence, Mr. Joyce immediately asked to personally see Mr. Galarraga to apologize profusely and tell him how terrible he felt (face to face).  The meeting ended with a hug and Armando said “I understand.”

Jim Joyce did not try to make excuses or point out all of the great calls he had made in the past.  He quickly owned up to his mistake and gave a heartfelt mea culpa that showed his distress about the situation.  He did not wait for a chorus of negative press.  He did not need to see if thing blew over.  He acted like a man who truly felt sorry.

Studies out of the University of Illinois have shown that apologies can “resolve legal disputes ranging from injury cases to wrongful firings, giving wounded parties a sense of justice and satisfaction that promotes settlements and trims demands for damages.”  This includes significant reductions in financial demands.

In an article published in Contemporary Accounting Research, a collaborative study between George Mason University and Oklahoma State University found that jurors reduced the frequency of negligence verdicts when auditors expressed regret for mistakes that resulted in damage. “We found that apologies reduce the jurors’ need to assign blame to the auditor for any negative outcomes to the client,” said one of the authors.  The same has been shown at Johns Hopkins for patients who feel that their doctor was legitimately sorry about malpractice and did not try to make excuses.

In fact, an investigation out of the Nottingham School of Economics found that if a company says “I’m sorry” to wronged customers, it can be more effective than sending a check.  This research asked consumers to withdraw a negative evaluation of a company for a delay in the shipping of a product to them.  Some consumers were offered money (“As a goodwill gesture, we can offer you €5 if you would consider withdrawing your evaluation.”) while others were told “We are very sorry and want to apologize for this.”  Twice as many respondents withdrew their complaint after the apology than when offered compensation.

While BP and Toyota said they were sorry (sort of), the public has not felt that it rang true.  Their messages were mixed with self-serving statements and attempts to spin the message.   Umpire Jim Joyce (and the research on apologies) has demonstrated that when a mistake is made with dire consequences, sometimes the most beneficial path is just admitting fault and asking forgiveness.  The court of public opinion (and juries) are sometimes not as blood-thirsty as some might imagine.

Blogger: Matt McCusker

What THE CSI INFECTION Teaches Us About ASS-U-ME(ing) Juror Biases

 We’ve all heard about the CSI Effect, but what about the CSI Infection?  A recent paper out of Loyola University explores how the widespread fear of a very debatable CSI Effect in America’s courtrooms has set off a series of chain reactions that Ms. Lawson has dubbed a CSI Infection.  If you wander around your office ready to make cheesy puns before removing your sunglasses or you have The Who’s “Won’t Get Fooled Again” set as your ringtone; then you may not want to click this link.  It is a review of empirical studies on the CSI Effect that generally suggest it does not exist (or at least it cannot be demonstrated).  However, if you need to cling to your guns and DNA testing, only read the anecdotal reports/media stories in the review and keep your rose-colored David Caruso Ray Bans on.

(Blogger’s Note: I have facilitated a focus group on a project exploring the “CSI Effect Phenomenon” and remain thoroughly unconvinced of its existence.)

As Felix Unger says, when you ASSUME, you make an ASS out of U and ME.  Oftentimes, attorneys will let their assumptions about a large group of people (i.e. the jury pool) dominate their expectations of an individual’s behavior (i.e. the juror).  This is faulty logic, as it tries to make comparisons between apples and rhinoceroses. (I believe oranges are too close to apples and actually would make a better comparison). 

The CSI Infection is rooted in a mass assumption (without much support) by many in the legal community that most jurors are too dumb and/or emotional to truly realize that a crime drama is not real life.  It has left many attorneys believing that TV has indeed rotted juors brains and made them too “soft-in-the-head” to effectively determine levels of proof or hear a case fairly.  Honestly, is this likely?

Or, is the following scenario more likely?

1.       Prosecutors choose which cases to take on.  So, the attorneys are already weeding out many cases that have the weakest evidence (physical or otherwise).

2.      The accused know if they did the crime and get to see the evidence against them.  So, when the evidence is strong, criminals will often take a plea arrangement to avoid a harsh judge sentencing.

3.      This leaves a collection of trials under the following circumstances:

a.      The person didn’t do the crime (suggesting there should not be much strong physical evidence);

b.      The person did the crime but sees weak evidence (suggesting they have a shot at an acquittal or dismissal).

c.       The person did the crime and sees strong evidence, but decides to roll the dice anyway (explaining our high conviction rate).

This same rationale can be applied to many civil cases and settlements.  Replace the word “prosecutor” with “plaintiff’s attorney” and “plea arrangement” with “settlement.”

While it is easy to blame the jurors, sometimes a weak case is just a weak case.  Sometimes an attorney’s presentation of the evidence is poor and the jurors just “don’t get it.”  Sometimes a jury is not very bright and gets it wrong.  However, rarely (if ever) does the popularity of a crime-based television show create a substantial influence on a verdict.  Unless, of course, the trial actually involves the TV show, actors or network.  Then you might say it would be a case of the CBS Effect (cue The Who, put on sunglasses, cut to show opening credits).

(Blogger’s Note: I apologize for that last line.  I’m not as good at cheesy puns as one might ass-u-me.)

Blogger: Matt McCusker 

MAN WINS PREGNANCY DISCRIMINATION SUIT (Seriously.)

 As I prepare my Mediation Workshop for the upcoming American Society of Trial Consultants Conference (June 17-20), I have been floating in a dispute resolution state of mind. Then, I came across this story...

Eversheds, one of England’s largest law firms, recently found themselves in quite a pickle.  For financial reasons, the firm needed to lay off one of two redundant Associates at their Leeds office (one a bird, the other a bloke).  As experienced barristers, the higher-ups at Eversheds knew a lawsuit would be likely if they chose to sack the female employee who was actively on maternity leave (Ms. Angela Reinholz).  So, they created an “unbiased” rating system and ended up dismissing the “lower scoring” male Associate instead (Mr. John de Belin).  Crisis averted, time for tea.  Or, was it?

In a classic case of “damned if you do, damned if you don’t,” Mr. de Belin sued Eversheds for choosing to terminate him because he “was not on maternity leave.”  With further investigation, it became clear that Ms. Reinholz (the new Mum) had been given “generous marks” on certain scoring measurements that allowed her to edge out Mr. de Belin by half a point in the Eversheds Associate Assessment.  Not surprisingly, Mr. de Belin was awarded £123,000.

There are many crazy lawsuit stories out there:

Musician sued for copyright infringement on silence.

Student sues teacher for being woken up too abruptly during class.

Woman sues police dog for intention to bit.  (Seriously, she sued the dog.)

However, this pregnancy discrimination case is fascinating to me because it is both bizarre and seems like a prime candidate for a mediated resolution.  The way I see it, there were four “inside the box” options:

1.       Lay off the woman on maternity leave and likely encounter a lawsuit.

2.      Lay off the man who was not on maternity leave and subsequently encounter a lawsuit.

3.      Keep both people (who were in redundant positions), lose money, and avoid a lawsuit.

4.      Lay off both people and hire a new person.  Thus, avoiding a discrimination lawsuit, but potentially finding a wrongful termination lawsuit and losing money on training the new employee.

Truth be told, I don’t know what courses of action were considered or proposed and what potential barriers existed.  Despite this, I thought of a flurry of potential “outside the box” mediated cures for Associate redundancy that are all likely cheaper than the costs of a lawsuit defense and subsequent damages award:

·         Offer to re-task one of them to a different area of the practice. (Many people like shifting gears.)

·         Offer a transfer to one of the 47 other Eversheds offices where they wouldn’t be redundant. (Many people want to live abroad.)

·         Promote one. (If they were worth designing a fancy test for, they were worth keeping.)

·         Offer to help them get a job at another firm before the lay off. (People know people.)

(For more on finding alternatives to money awards, see Getting to Yes, a.k.a. the Negotiators’ Bible.)

Many attorneys hate the idea of mediation.  This stems from a variety of reasons, but I think that the most common complaint is the inaccurate belief that mediation is a waste of time and rarely works.  While it is true that many cases do not find settlement agreements on the day of mediation, it is also true that much of the groundwork for an eventual settlement (which may arrive weeks or months later) is established through formalized negotiations.

It is easy to get trapped in a battle of numbers.  This can happen to both clients and attorneys.  The benefit of mediation is not simply to demonstrate case strengths and fight over dollar figures, but also to create an environment where “outside the box” alternatives are floated in conjunction with monetary settlements.  As a former mediator, I have seen huge shifts in dollar values in exchange for such items as: A favorable joint-press release, lifetime access to a beach, and even a simple “I’m sorry.”

Blogger: Matt McCusker

GOLDMAN SACHS' WONDERLAND WITNESS WORK

 So, you have to testify in front of the U.S. Congress?  Just remember these sage words of wisdom from Goldman Sachs’ attorney K. Lee Blaylock II (O’Melveny & Meyers):

“Long, thoughtful pauses followed by rambling non-responsive answers can easily devour half of a (congressional) member’s allotted questioning time.” 

The BLT (Blog of Legal Times) has a great article on Mr. Blaylock’s advice.  First and foremost: Always remember that congressional hearings are not about getting to the truth.

What!?  Witnesses should be “rambling?”  We have no intention of finding the truth?  I suddenly feel like I am sitting at a tea party in Wonderland and celebrating “A Very Merry Un-Birthday” with the Mad Hatter and March Hare.  Apparently, the end of the rabbit hole comes out somewhere near the Potomac.

While this advice may work to prevent congressional grandstanding, it is not the way to go in the courtroom.  Of all the mistakes that can occur in the process of trial preparation, the overestimation of witnesses’ abilities is likely the most common.

So, in the spirit of helping witnesses and attorneys everywhere (even in Wonderland), I have compiled a few common mistaken assumptions and their pitfalls.

(NOTE:  Watching the YouTube clips will make this post much more entertaining.)

 “My witness knows their business.”  Testifying is much like public speaking (which Gallup found as the #2 fear amongst Americans, just behind “fear of snakes”).  Testimony about work is not the same as talking to someone at a bar about what one does for a living.  For even the most rock-solid executives, being on the stand or in a deposition can be a nerve racking experience.  Remember, witnesses have little control over the Q & A process.  With loss of control, comes fear.  With fear, comes anger and defensiveness.  As we all know, an angry and defensive person looks like they have something to hide. 

Take a look at these depositions of businessmen who lost control…

Angry Businessman #1

Angry Businessman #2

“My witness is a successful expert.”  Even being an experienced expert witness does not equate to being a great expert for this case.  Without the proper preparation, experts can easily be caught off guard and look like a deer in headlights.  Check out this successful accident reconstruction “expert” who starts confidently but is apparently in desperate need of remedial math. (It gets good about three minutes into the clip, or is that 180 seconds?)

Uncomfortable Expert #1

 “My witness is really smart.”  Some believe that intelligence correlates with performance on the witness stand.  If this were the case, then Hollywood would be filled with Mensa members.  Oftentimes, those who are extremely intelligent have a diminished ability to handle the stress of being aggressively questioned without fighting back.  You might recognize this guy…

Famous Smart Guy #1

Those with high intelligence may also be used to being the manipulators, not the manipulated.  This loss of power can bring out the worst and cause them to try and take control of the questioning process, which is never a good idea.

Angry Businessman #3

(In the next clip, note the phrase: “I think your answers are unresponsive and rambling.”  This sounds like Wonderland testimony to me.)

Famous Smart Guy #2

While it’s easy to blame the witness, often the attorney shares equal fault.  Witnesses are walking into an unfamiliar world and need careful guidance and training.  They need to be taught how to stay calm.  They need things carefully explained to them.  They need to know why it is unhelpful to aggressively fight or try to overtly battle opposing counsel.  They need to be protected with breaks and provided with safe harbors when cross-examinations get heated.  Most importantly, they need practice.

The best witness preparation is practice in an unfamiliar space with an unfamiliar attorney asking unfamiliar adverse examination questions.  Just think if Alice had practice before conversing with the double-talking Cheshire Cat?  It is only through practice that the unfamiliar becomes familiar and witnesses can keep calm and focused.

A calm and focused witness is always the primary goal.  Sill, keep in mind that if the attorney loses composure, the witness doesn’t have a chance…

Let's Get Ready to Rumble!

Blogger: Matt McCusker

CONNECTING WITH JURORS? Just Look to Kindergarten (and Neuroscience)

 I want to begin this blog by saying that this piece is not a hatchet job on juries or attorneys.  Both are the backbone of our justice system and a very important part of putting takeout food on my table and a roof over my three dogs’ heads.  That being said, many of us have seen a rift growing between jurors and litigators.  Jurors are frustrated with the legal process while attorneys complain about jurors’ inability to understand case arguments, basic premises of law, and instructions. 

Unfortunately, this disconnect has spawned sayings like “The only people on juries are those who were not smart enough to avoid jury duty.”  However, I believe that this confusion (often thought to be a lack of intellect) is often due to poor communication.  Jury duty is tough.  Jurors must face complex legal issues, sit like silent sponges without interaction, delay deliberation, and proceed with little guidance.

Imagine if 12 attorneys were brought to a conference of astrophysicists to judge who had the correct theory about the size of the universe.  Let’s suppose that the lawyers were told to sit and watch days (even weeks) of presentations by top physicists, were not allowed to ask real-time questions, and were not allowed to deliberate until the very end.  What would physicists say about the attorneys who could not understand such basic premises: The Planck epoch, relativity, and the cosmological constant?  My guess is that it would not be complimentary.

The problem, as with many of the world’s ills, is one of common language.  So, I suggest we go back to the basics and look to the rules of Kindergarten to find our answers.

(BTW, as a shout-out to Science Daily's hard work, the following links all go to their articles.)

The Golden Rule:  In 1992, Bill Clinton famously uttered the phrase, “I feel your pain.”  New research suggests that this may have been more than rhetoric.  A study published in Cell Press found that our brains show similar patterns of activity both when we feel pain and when we see familiar pain in someone else.  However, the study suggests that it is much more difficult for us to process unfamiliar pain.  This impediment can have big implications on both jury selection (looking for those who have common pain) and the need for metaphors and similes to bridge the gaps (speaking to those without common pain).

Say Thank You (or at least think it):  Researchers from the field of management consulting have discovered that thinking about worse case scenarios connects us more strongly to our actual (if imperfect) reality.  Their study found that employees (concerned about the economy) who were asked to think about potential pitfalls that their company had survived, were more likely to have greater attachment and positivity towards their employer.  For example, FedEx employees felt better about the company after focusing on the thought of what would have happened if the founder (Fred Smith) had not chosen to make his desperate 1973 flight to Las Vegas to help his company meet payroll. In other words, counting our blessings both makes us appreciative of what we have and tends to mitigate negativity about the present.

More Pictures:  Researchers at North Carolina State University have discovered that the saying “less is more” does not necessarily apply to charts and graphs.  They found that rectangular bar charts were actually processed more quickly with a circular (filled with circles) background than with a blank/white background.  They posited that contrast was the key to identifying important information, not simplicity.  Throw out the boring demonstratives, complex ones can actually increase retention and attention.

Nap Time: While I know it’s unconventional (yet unintentionally partaken by many), I end this blog with a plea for a national “nap time” to be inserted into the trial day.  In support of my call, I point to research out of Beth Isreal Deaconess Medical Center that shows dreaming about a complex task (doing a maze) during a nap increased performance by 10 times over those who did not nap.  Don’t we want our jurors maximizing their retention and processing?  Support the national call for nap time, Winston Churchill did: “Don’t think you will be doing less work because you sleep during the day. That’s a foolish notion held by people who have no imagination.”

Blogger: Matt McCusker

THE ART OF PSYCHIC MIND CONTROL (In Three Easy Steps)

 Let’s face it, we have all been in the position where we wanted to use psychic mind control to influence the actions of someone around us (spouse, child, neighbor, juror, etc.).  Unfortunately, no matter how well we explain our position, sometimes the other person just doesn’t “get it.” Well, argue no more.  Now, for the price of a free cup of coffee, you too can utilize your brain to its maximum potential and psychically control your family, friends, and even perfect strangers! 

(DISCLAIMER: Brain maximum potentials may vary.  Consult your doctor before participating in any brain maximization exercises. Deliberations is not responsible for any injuries resulting from brain overuse or unfortunate consequences associated with psychic mind control.)

How is this possible?  It’s easy! Just follow these three basic steps and watch everyone do whatever you say:

1)     Assess the Subject

2)    Identify the Narrative Goal

3)    Manipulate Your Presentation

Or, as I like to say: “Tune up your brain and A.I.M.”

Step One: Assess the Subject

Research has shown that we all have the ability to read minds.  At last year’s American Society of Trial Consultants Conference in Atlanta, Dr. David Matsumoto of Humintell taught us how microexpressions are universal indicators that humans from Fiji to Finland display regularly.  Amazingly, I found that after two hours of video training, I increased my accuracy at correctly identifying these brief emotional indicators from around 40% of the time to over 80%. 

We can even read minds “remotely” through photos.  A blog by Katie Moisse at the Scientific American outlines research that suggests people can predict a person’s political party affiliation (Republican or Democrat) based on facial photos.  This study utilized black and white pictures of U.S. Senate candidates and college year book photos of voters to test whether people could accurately predict which party they aligned with. The results showed significant success (although generalized and imperfect) based on stereotypes about Republicans and Democrats. (Which begs the question: Should covers actually be used to judge books?)

For attorneys, step one would entail making an honest assessment of the community and jurors involved in their case.  This could include: Thinking about the attitudes of the area, doing pre-trial research, designing strong voir dire or juror questionnaires, and most importantly, paying close attention to the responses. 

Step Two: Identify the Narrative Goal

While it would seem easiest to simply tell someone what you want them to do, psychic mind control requires more finesse.  Rather than dragging them along, it’s better to decide on a finish line and offer signposts to help your audience arrive where you want them to.  The most basic method of accomplishing this is by engaging in the art of storytelling.

Whether it be through religion or culture, the most lasting stories of human history are those that impart some sense of morality or learning experience.  The Bible; The Koran; The Torah; Buddhist Sutras; all of these impart morals that highlight the benefits of being a good member of society (and the potential downfalls of not).  Theories of sociocultural evolution suggest that we have a predisposition to attach to these stories of morality because, as humans, we need the group to survive.  Ted Kaczynski types aside, we are a very social species and naturally attach to themes that engage this premise.

Some of the best examples of lasting stories come from a Greek slave named Aesop.  His fables became so imprinted in the cultural lexicon that we now only need to speak a few words to impart the entire story: “Sour grapes”, “cried wolf”, “the Tortoise and the Hare.”  One of the best methods of accomplishing psychic mind control is to create a story that taps into this internal need for social justice (honesty, hard work, selflessness, etc.).

Step Three: Manipulate Your Presentation

You have measured your listener(s) and catered your goals, the final step of psychic mind control is to change your message transmission; this means altering your language.

Research has suggested that something as simple as word choice can have dramatic surprising psychological and physical effects to the state of the listener.  One method of utilizing this phenomenon is to build themes on common turns of phrase and imagery (“taking a step back”, “unclean thoughts”, “that’s heavy”, etc.).

The Association for Psychological Sciences published an article (The Body of Knowledge) which outlines a variety of studies exploring the field of embodied cognition.  This area is based on the premise that many common sayings actually provide cognitive/neurological reactions from the recipient.  For example, one study found that subjects who were asked to think about a time they were rejected by someone, assessed the temperature of the experiment room as significantly colder than those who were asked to think about a time they were accepted by someone (“out in the cold” versus “warmly received”.)

By choosing your words carefully, your listeners will both hear and feel the power of your story. Thus, rendering them helpless to your metaphysical manipulations. It’s as easy as 1, 2, 3.  Just (1) know your audience; (2) craft a good story; and (3) use powerful imagery through language; then you too can be an expert in the Art of Psychic Mind Control.

Blogger: Matt McCusker

What do Homer Simpson, Fonzie, MacGyver, and Batman have in common?: THE MIND OF A HOLDOUT JUROR

 I begin this post not with Henry Fonda (12 Angry Men), but with a few lesser-known (yet still famous) references to holdout jurors.

Some will remember that Homer Simpson was a holdout juror who argued a man’s innocence in the name of a free hotel room, free food, and free HBO. He noted, “Marge, it was horrible. Everyone was against me in that jury room. But I stood by the courage of my convictions and I prevailed… And that's why we had Chinese food for lunch.”

Both Fonzie (Happy Days) and MacGyver (MacGyver) also held out in the name of justice for the innocent.  Fonzie utilized his knowledge of motorcycles during the deliberation to prove a man not guilty (actually “Not Guiltyamundo”), while MacGyver … well …  pulled a MacGyver.

Despite being sequestered, MacGyver used two soda cans and a coin to distract the guard and sneak out of his hotel room.  He then conducted his own investigation of the crime scene, eventually nabbing the real attacker. (Before you think Hollywood is unrealistic, the judge did admonish MacGyver for these crazy antics… but then thanked him for finding the truth.)

However, my favorite holdout juror comes from the comedy 3rd Rock from the Sun. Putting a nice twist on the 12 Angry Men plot, Dick tries to defend a very obviously guilty man and sway the jury to set him free.  Here is an example of his case theory: “Well, Foster SAID he didn't do it.  Are you calling him ... AND his attorney ... LIARS?"

If you recall, I began this blog series on hung juries and holdouts, talking about the 20% of French faux-reality show contestants who refused to shock a man (actually an actor) into unconsciousness.  I was curious to know what type of people stand up to the group and refuse to comply with the wishes of a badgering game show host and vocal studio audience. 

While this is by no means an exhaustive list, and choices depend greatly on the case at hand, here are a few things to look for when thinking about jurors who are aversive to compromise or don’t play well with others:

1)      Watch the Talkers:  A study on interaction rates amongst members of split juries showed that the smaller the size of the minority faction, the more they talked.  It is easy to sit quietly when supporting the majority in a deliberation.  The holdouts are often required to argue and explain why they won’t go along with the group.  During voir dire, make a note of the people who like to talk.

2)     Strong Houses Rest on Solid Foundations:  Frequently, those who indicate “very strong” opinions about issues of ethics and morals are likely to be unwilling to shift to a position that would be in contradiction with these beliefs.  Those schooled in cognitive dissonance know that often, the stronger the belief, the more extreme the need to stay in line with it (even if it means wild theories with little support).

3)     Agree to Disagree:  There are some people who just like to argue.  They will often place the thrill of debate in front of the search for justice.  Anecdotally, I offer a few potential giveaways for these conflict-magnetic individuals during voir dire:

a.      Debating with attorneys or other jurors during Q&A;

b.      Whispering jokes in the back of the courtroom;

c.       Angrily staring at you with the “evil eye”; and

d.      Giving curt answers that are obviously intended to send you a message.

4)     Step One - Read Instructions:  A study by the American Bar Foundation showed that juries were twice as likely to hang if they began their deliberations focused on votes instead of evidence.  While this is usually out of attorneys’ control, asking judges to give jurors guidance about evidence-based deliberations could go a long way towards finding unanimous verdicts.

*A Caveat:  Those who have read the first two parts of the series already know that research suggests that holdouts are born from a split group that has different interpretations of the strength of the evidence and testimony.  The holdouts seldom begin the deliberation as 11 against 1 , but arrive there after a string of minority defections to the majority.

I end this post as it began, with another reference to a famous holdout juror.  Believe it or not, Bruce Wayne served on the jury of a man whom he captured as Batman.  In this scenario, (possibly due to the lack of evidence associated with “arrest by superhero”) Bruce had to convince the jury that the man was actually GUILTY!  Before you complain about juror deception, you should know that during voir dire, the Caped Crusader openly admitted in court that he would be a poor  juror because he was, in fact, Batman.  As would be expected, everyone laughed but him, the holdout. 

Blogger: Matt McCusker

(BTW, feel free to post comments with other famous juror holdouts.)

 

“CAN’T WE ALL JUST GET ALONG?”: How Juries Get Hung

 When creating the story of a hero, three things are generally needed:

1)      A righteous cause that we can get behind;

2)     An individual who is facing seemingly insurmountable odds; and

3)     A hard-fought struggle, that may or may not end with success.

This formula is imbedded in the human consciousness and can be traced back to the times of Homer and Plato.  Once you start looking for it, a familiar story structure begins to appear everywhere (from Spartacus to Serpico to Twelve Angry Men).  It’s no wonder that when we think of a hung jury, many of us assume that there was one person who heroically refused to abandon their convictions and submit to the will of the collective.  (This is an especially common caricature in death penalty cases with hung juries.)

Certainly, a brief review of the media reports about deliberation deadlocks supports this gut feeling.  While not always portrayed as heroes, the jury holdouts are often painted as victims of the group.  Some examples include:

    One Juror Between Terrorist and Death

Holdout Jurors Can Put Legal System to the Test

Save the Holdout Juror from the Internet

However, jury research suggests that “a Holdout” is often less of “a Lone Hero” and more of “a Captain going down with the ship.”  I cited the National Center for State Courts project in Part One of this series because it is a fantastic resource on hung juries.  While it’s true that the project depended on an amalgam of sporadic studies over the last 50 years, its research corroborates the suggestion that hung juries often begin with a split group that is whittled down to one or two holdouts. 

Kalven and Zeisel (The American Jury) performed extensive research on splits during their historic work in 1960s and 70s. They discovered that hung juries typically give much weaker ratings to the “power of the evidence” and the “clarity of the law” than unanimous juries.  When calculating rating strength, the jurors’ scores were set to a baseline of comparison with ratings provided by the judges and attorneys involved the case.  In other words, juries were more likely to be hung when they started out unsure and when there was one person in the group who refused to move off of their initial (often weak) position.

Additionally, hung juries are more common in deliberations that begin with a “verdict-driven” approach as opposed to an “evidence-driven” approach (see Inside the Jury).  It is important to note that if individuals avoid locking into a position early, the group is more likely to find consensus.  I find it a sobering thought that something as simple as instructing jurors not to start off with a verdict polling could have such dramatic effects on group cohesion.

Not surprisingly, the story of “the Holdout” becomes less compelling when it is framed as one stubborn goat who can’t concede to a verdict that everyone else has agreed on.  With apologies to all you “rebels” out there, research shows that a group of people is often better at decision-making than an individual.  Blinder and Morgan demonstrated this in Are Two Heads Better Than One?  For every Einstein or Copernicus out there who is ready to prove us wrong and shift our paradigm, there are a thousand crazies who are adamant that aluminum foil is the best defense against mind control. (Everyone knows this is an urban legend, anything less than a titanium alloy is useless.)

The research suggests that holdouts typically thrive in confusion.  However, these obstinate individuals are made far less powerful when a case presentation is able to arm more rational jurors with the themes necessary for a fruitful deliberation.   

In the next installment, I will examine the mind of the holdout and methods of spotting them.

Blogger: Matt McCusker

PART 1: HOW THE FRENCH’S SHOCKING BEHAVIOR RELATES TO JURY DYNAMICS

How the French’s shocking behavior relates to jury dynamics

 

 Last week, TV viewers in France saw a replication of Stanley Milgram’s shocking 1963 experiment  with a 21^st century twist: Reality TV.  Much like the original version, participants on  "The Game of Death" were asked to progressively increase the voltage of electric shocks administered as punishment to an unknown person. The recipient of the shock was obscured from vision, but the screams of pain were clearly audible (and eventually ceased due to supposed unconsciousness or death).  Unbeknownst to the shockers, the shockee was an actor who was faking it.

The 80 contestants (shockers) were told that this was a pilot game show, so there was no money to be won.  Everyone was asked to sign releases indicating that they would be willing to shock another person for incorrect answers.  Unlike Milgram’s study, this whole process was being conducted in front of TV cameras, a very enthusiastic live studio audience and directed by an eager game show host.

Those who know Milgram’s work will not be surprised with the results: 80% of the contestants went “all the way” and shocked the man into unconsciousness. However, as a jury consultant, I am more interested in the 16 people who said “No!” and ceased pushing the button.  The people who went against the group, despite intense social pressure to do otherwise.  In the legal world, we call these people “The Holdouts.”

This blog series will examine “Hung Juries” and “Holdouts” in three parts:

1)      Hung Juries and NFL Ties: Both are Unsatisfying and Rare

2)    “Can’t We All Just Get Along?”: How Juries Get “Hung”

3)     A Peek into the Mind of a “Holdout Juror”

(Part 1) “Hung Juries” and NFL Overtimes: Both are Unsatisfying and Rare

As terrible as a loss feels, ending in a tie (or being forced into a redo) can sometimes feel worse.  Granted, this depends heavily on your goals (excuse the pun).  Some criminal defendants and winless NFL teams ('82 Colts) may see a tie as a victory.  However for many, a draw is synonymous with a wasted effort.  Given the emotions involved, a hung jury can often epitomize this feeling.

How often do hung juries occur? Due to a lack of access to state court records, there have been a limited number of studies investigating the percentage of “hung juries” (and most have been in the criminal arena).  Research has suggested rates varying from 1% to 12%.  Much of this variability is based on jurisdictional changes and differing working definition of “hung” (one count, all counts, the most serious count, etc.). 

The National Center for State Courts (NCSC) completed an ambitious account of hung juries in 2003.  Data on Federal civil and criminal cases provided by the Administrative Office of the U.S. Courts (1980 to 1997) suggested a very low, consistent and stable hung jury rate.  Over the seventeen year span, Federal civil juries were hung less than 1% of the time and Federal criminal juries less than 3%. 

Data collected from State criminal courts in 1996-1998 by the NCSC was very different.  These numbers suggested a much higher hung jury rate and significant variability.  While the national average calculated was 6.2% (over 30 counties in 13 states), the percentages ranged from a low of 0.1% in Pierce County, WA to a high of 14.8% in Los Angeles County, CA.  To throw more confusion into the mix, an analysis of all 62 counties in the State of New York found an average hung jury rate of 2.8%.

I know percentages can be misleading, but this data confirms our belief that hung juries are rare.  This begs the question: What causes these rare occasions when agreement is impossible to find? Jeffrey Rosen wrote a piece in The New Yorker ("One Angry Woman: Why Are Hung Juries on the Rise?") suggesting racial divides were the primary root of jury nullification (a popular theory). Part 2 of this series looks at this and other theories/research investigating why juries hang.   

Look for the next installment, (Part 2) “Can’t We All Just Get Along?”: How Juries Get Hung, to arrive within the next week.

Blogger: Matt McCusker

Shoot-out at the OS Corral (v1.2)

There are a lot of sayings out there that warn us against making the same mistake twice:  

“The definition of insanity is trying the same thing over and over again, but expecting different results.”

“Don’t bang your head against the wall.”

“Those who fail to learn from history are doomed to repeat it.”

And so on…

Despite this sage advice, many of us continue habit patterns that have been exposed as unhelpful. I am left wondering, why are changes so difficult to make? 

A potential example of this comes from a recent verdict against Microsoft in an East Texas courtroom.  Two gunslingers met for a rematch over a high-stakes patent case.  Douglas Cawley represented the plaintiff (VirnetX), while Matthew Powers (an IP Top Gun) again wore the defense hat for Microsoft. As Zusha Elinson of Law.com writes: 

“The two have shown contrasting styles, according to lawyers who have faced them: A tall Texan, Cawley speaks slowly with a slight twang and comes off as a gentleman. Powers has an erudite and sometimes imperious style.” 

Less than a year ago, on a different high-dollar patent case against Microsoft, the same two lawyers fought it out in the same courthouse with the same judge.  The verdict was once more in favor of Mr. Cawley’s client (a Canadian software company called i4i).

I know few details about these cases, and would never suggest that two instances make a pattern.  However, I did see some quotes from jurors who spoke with Joe Mullin of The Prior Art after deciding last year’s battle ( i4i v. Microsoft):

“I expected Microsoft to have done a better job…”

“We all thought if this was that big a deal to Microsoft, they might have had some of their more executive-type people present.”

“It's big business. They just don't care.” 

“…if I was Bill Gates, and had $200 million on the line, I would want to be present.”

As Mr. Mullin’s recounts a conversation with one juror:

“…they ‘both seemed really intelligent.’ But… the jury found Cawley ‘much more genuine and sincere.’ Powers…‘came across as being cocky, and kind of always on the defensive about everything. He made several low blows...’”

The first trial’s result hinted that Microsoft was having difficulty connecting with the jurors of East Texas.  While it’s true that this venire has often been labeled as a plaintiff’s dream for IP cases, I would be curious to know how much presentation strategy was altered for the VirnetX case as a result of the prior loss.

In honor of Anne Reed’s new position at the Wisconsin Humane Society, I end this inaugural blog post as it began, with a common turn of phrase: "Don't let the tail wag the dog."  

Our habit patterns (conscious and subconscious) make life easier and predictable.  Without habit patterns, we would have to consciously choose every decision we make. (Is it brush-rinse-spit or brush-spit-rinse?).  However, these habit patterns should not become “the tail that wags us” and inhibits us from taking risks and discovering new habit patterns that are even more effective than the old.  There is no panacea that will work for every case.  Always remember the benefits of “trial and error.”

Thanks Anne, it’s an honor to continue what you began.

Blogger: Matt McCusker

PRELUDE FROM THE PRESIDENT: "Deliberations Ends Hibernation on 3/25/10!"

As President of the American Society of Trial Consultants (ASTC),   I’m proud to announce that Anne Reed has given us the keys to Deliberations.  ASTC is fond of Anne, as she has taught us about the blogging world through her practice and at our annual conferences. Her blog will continue in a style that we truly hope will make her proud.  Anne’s insight of giving this gift to a professional association will be a benefit to Deliberations’ readers.  ASTC is the only professional organization for trial consultants and celebrates its 29th year at the annual conference in Minneapolis this June. We tout a diverse membership with backgrounds in psychology, communication, sociology, theater, law and other fields.

While ASTC will assign a blogger, any blogger’s views and comments will not represent the opinions of ASTC.  Matt McCusker will keep Deliberations up to date through June 30, 2010.  In the future you may see an editor with additional guest bloggers – all ASTC members.  We expect readers will find our members’ posts both valuable and entertaining.

 Again thanks to Anne Reed for creating this site and to Matt McCusker as we open a new chapter.

 Cynthia R. Cohen, Ph.D.

ASTC President

An End And A Beginning

I have news. 

In January I will start a new job -- and a new professional chapter -- as executive director of the Wisconsin Humane Society.

It's hard to express what an honor this is, and what a responsibility.  WHS is the largest animal welfare organization in Wisconsin and one of the oldest and most respected in the country, with a 130-year history of care and advocacy.  For the last 15 years, it was led by Victoria Wellens, who earned the love of her staff and a deserved national reputation before she passed away far too young, of cancer, in March.  Since then, longtime operations director Ellen Clark has served with steady skill as interim executive.  She'll continue, thank goodness, as deputy executive.

Animal welfare is people welfare

The scope of WHS's impact might surprise you.  First, like other leading animal welfare organizations around the country, WHS is a "people welfare" organization too -- and that's not just because of all the people who live with loving companions they found there.  The link between animal abuse and community violence is established, and in programs like WHS's "PAL" curriculum, kids learn compassion that could literally change the future.  In addition, WHS has one of the country's largest wildlife rehabilitation hospitals; information and classes on dog training (if you can learn to live with the dog, you might not need to give up the dog);  legislative advocacy; programs to help feral cats thrive but not multiply; and much more.  I'll need, and hope soon to have, another blog to describe it all. 

My work on this blog, though, will come to an end, with deepest thanks to all who and helped it along. 

Thank you

My law firm, Milwaukee's Reinhart Boerner Van Deuren SC, needs to be thanked first.  To put it mildly, blogging was a new concept to my partners when this blog started, and they were supportive and interested from the start.  After more than 28 years at Reinhart, it will be strange to work anywhere else.  But the values I learned there will come with me, as will my friendships with the amazing lawyers and clients I have worked with.

Then there are the friends of this blog:  those who have linked to it, commented on it, said kind things about it, and challenged it.  I know I must be missing some people, and I'm sorry -- but I know I need to thank at least Robert Ambrogi, Judge Daniel Anderson, Barry Barnett, Emma Barton, Mark Bennett, Dan Berexa, Niki Black, Beth Bochnak, Ken Broda-Bahm, Michael Connelly, Judge John DiMotto, David Donoghue, Blawg Review's Ed., Carolyn Elefant, Dennis Elias, Karen Franklin, David Giacalone, Gideon, Melissa Gomez, Scott Greenfield, Grant Griffiths, Jon Groth, Stephen Gustitis, Rita Handrich, Scott Henson, Mark Herrmann, Michael Heise, Christopher Hill, Thaddeus Hoffmeister, Rick Horowitz, Dan Hull, Suann Ingle, Katherine James, Jon Katz, Paul Kennedy, Karl Keys, Pat Lamb, Susan Cartier Liebel, Susie Macpherson, Judge Gregory Mize, Brent Nistler (he gave me the title), Kevin O'Keefe, Walter Olson, Sean Overland, the guys at Popehat, Rob Precht, Vickie Pynchon, Colin Samuels, Judge Richard Sankovitz, Brooks Schuelke, Edward Schwartz, Paul Scoptur, Bonnie Shucha, Anne Skove, Dan Solove, Jamie Spencer, Dr. Sunwolf, Ron Sylvester, Brian Tannebaum, Suja Thomas, Tara Trask, Eric Turkewitz, Bill Tyroler, Lew Wasserman, Diane Wiley, Cindy Zautcke, WUWM Milwaukee Public Radio's "Lake Effect" program, the Wisconsin Law Journal, the American Society of Trial Consultants, and all my juror artists, especially Mike Rohde, who was brave enough to let me post his drawing when there were no other juror artists yet. 

The length of that list is a testament to the power of blogging.  I didn't know most of you when I started here, and you've become trusted colleagues and in many cases close friends.  To each of you, and to everyone I missed, I am grateful. 

One more thing . . .

Finally, I'm going to jump into one of the most important parts of my new role.  If you liked this blog at all and are moved to do something to show it, you might donate here to the Wisconsin Humane Society.  It would mean a lot to me, and much more to the animals whose lives you would save. 

Whether or not you do that, thank you.  It has been a privilege to know you were reading, and that this blog was sometimes of help.

Unforgettable Juror Art

Deliberations collects juror art, as you may know --  drawings and photographs made by real people on jury duty, gathered in what we cheerfully call the "American Gallery of Juror Art."  The collection is meant to show both the light side of jury duty and also the often-missed depth and talent of many jurors.  Much of the work is extraordinary.

A story like this, though, can't just go in the collection.  You have to read the whole thing, but the short version is that artist Alberto Araoz, a 64-year-old Cuban immigrant, sat as a juror in a California murder trial where the victim was a four-year-old girl.  When it was over, he went home and painted the little girl's portrait -- beautifully.  Six months after the trial, he gave the finished painting to her grieving grandparents. 

I've been reading a lot of "jury duty" tweets on Twitter lately, and feeling a little discouraged at the frustration, boredom, and alienation that many people express.  It was awfully good to see this article.

(No picture with this post; just look at the ones in the article.)

When They Don't See What You See

A recent study highlights what might be the most important thing lawyers and clients miss about how juries will react to their cases.  The same evidence that makes you angry at the other side might make jurors angry at you.  I'll show you how it works.

Here's a fact about health care.  Ready?

Many people get diabetes because of social or economic factors in their neighborhoods, such as lack of neighborhood grocery stores or safe places to exercise.

Does that fact make you more supportive of public policies to prevent diabetes, or less supportive?

Existing attitudes change perception

If you're like the subjects in the study by University of Michigan researchers Sarah Gollust, Paula Lantz, and Peter Ubel, your answer depends on what your political orientation was in the first place. "If you are more liberally minded the 'neighborhood explanation' can be motivating, but for people who are more conservative politically, that message can backfire and make them even less interested," Ubel said in the study's press release. "The same information can polarize people."

Mock trials have convinced me that this isn't just a political phenomenon.  A single piece of evidence can bring one juror adamantly to the plaintiff's side and send another firmly into the defense camp. The difference isn't the evidence, it's the jurors themselves -- their backgrounds, attitudes, frameworks.

Unlike many trial pitfalls, lawyers and clients often don't see this one coming.  After all, the same forces are working on them too. They arrive at the mock trial personally convinced, deeply convinced, that the facts are not only indisputable but irrefutable -- that they can only be interpreted one way. When it takes a mock juror less than a minute to use the same facts as evidence for the opposite conclusion, they're shocked.

"Advocacy groups need to be very careful in thinking about who their audience is and what framing will work best for that audience," says Michigan researcher Ubel.  Individual advocates do too.

___________________

The full paper will be in the upcoming December issue of the American Journal of Public Health.

(Photo by Kate McCarthy at http://www.flickr.com/photos/soyunterrorista/48433453; license details there.) 

Look At The Jury Expert Now

The Jury Expert doesn't need me anymore, but I'll keep posting about new issues anyway.

Back in May 2008 when the first on-line issue of the American Society of Trial Consultants' bimonthly journal came out, it got 500 hits, and if Deliberations wasn't the only blog to write about it, it was one of a very few. 

A year and a half later, The Jury Expert is such a celebrity it probably has to wear sunglasses to go to the drugstore.  Each of the last two issues got more than 12,000 hits.  The Texas Lawyer named TJE's great Twitter feed one of the "top 20 legal tweeters" in their Sept 28 issue, and the TJE website is one of the Editor's Picks in the Top 60 Legal Websites for ABA's 2009 Tech Show, which starts today.

What made TJE so popular?  Plain solid quality, as in the current issue (September, if you click that link after November comes out).  There is something here you need:

~~~~~~~~~~~~~~

The Impact of Graphic Injury Photographs on Liability Verdicts and Non-Economic Damage Awards, by Bryan Edelman

Over the years, the use of graphic, and at times gruesome, visual imagery in the courtroom has become commonplace. Although the use of such imagery has become the norm, the prejudicial nature of this evidence continues to be a contested issue in courtrooms across America. This paper focuses on the impact of graphic injury photographs in a civil dispute where the evidence favors a defense verdict.

Civil Case Mediations: Observations and Conclusions, by James A. Wall, Jr. and Suzanne Chan-Serafin

"You can see a lot by just looking". The authors observe 62 mediations in two cities to identify themes and patterns in successful mediations. Three experienced trial consultants offer their reactions to author assertions.

Identifying Leaders, by Barbara Rich Bushell

An experienced jury consultant discusses how jurors pick presiding jurors and how you can identify their most likely picks as you are engaged in voir dire and jury selection. 

Hate Crimes and Revealing Motivation through Racial Slurs, by Gregory S. Parks and Shayne Jones

If a white man assaults a black man and during the assault repeatedly refers to the victim as a "nigger", is it possible that ISN'T a hate crime? A response to the 'hip-hop culture' defense used in the Nicholas Minucci case by two writers who believe the use of racial slurs should be viewed as prima facie evidence that a hate crime has been perpetrated. Two experienced trial consultants offer their reactions to this assertion.

Anthropomorphism in Technical Presentations, by Jason Barnes

How do you explain the often dry technical information in intellectual property cases in a way that is understandable to a lay jury? Try anthropomorphism. An experienced graphic designer and trial consultant offers his experiences in strategies to help jurors emotionally connect with technical data.

Will It Hurt Me In Court? Weapons Issues and the Fears of the Legally Armed Citizen, by Glenn Meyer

An examination of how gender of juror, gender of shooter & type of weapon used interact to modify verdict and sentencing. Two experienced trial consultants respond.

Alternative Cause Strategies in Product Liability Litigation: The Need for Affirmative Defenses, by Sean Overland

An experienced trial consultant breaks down a corporate defendant's case into component parts and demonstrates how alternative causes can be presented for a complete and persuasive defense strategy.