Deliberations

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.

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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.) 

Just The Facts

What does it take to get a jury in a traditionally conservative area to award $49 million in a personal injury case?  San Francisco lawyer Randall Scarlett just did it, for a 21-year-old client who suffered traumatic brain injury in a car accident. 

Big plaintiffs' verdicts are often criticized as the product of runaway emotion, but Mr. Scarlett's explanation of his success in the newspapers is more practical than emotional.  "What the money represents is the terrible price associated with this," he told the Silicon Valley Mercury News.  "This is what it costs to rehabilitate an injury such as this."  In Law.com, he is quoted as saying:

This jury got it. In closing, I indicated to the jury that one can lose a leg, one can lose an arm, and there's a prosthesis that medical scientists have come up with. There is no prosthetic device when one loses the ability to use one's brain, one's sense of self and one's ability to have cognition.

A winning party's press quote doesn't always reflect what really happened in court, and I don't see any juror interviews on this one.   But whether this particular jury worked from emotion, logic, or both, the story is a reminder that the most powerful jury arguments are often just facts.  You can rarely make jurors angry by yelling, or make them cry by crying.  But the facts, well gathered and simply explained, can move them deeply.

(Photo by Bart Heird at http://www.flickr.com/photos/chicagobart/3364948220/; license details there.)

Sleepers

Two jurors who fell asleep have been replaced at an Ohio financial fraud trial heavy in testimony about bookkeeping and check-writing.

That's the opening line from an Associated Press story out of Akron yesterday, but unless you're following that particular trial (of former executives of Evergreen Homes), the main thing that's newsworthy is that these sleeping jurors made the paper while other jurors slept in trials all over America. 

It's been covered here before, but it's worth revisiting.  If you're a trial lawyer, you've seen jurors sleeping.  The key points are:

1.  People are tired.  Really, really tired.  They're holding two jobs, or staying up late with kids, or standing up all day, or all those things.  Put one of those folks in a chair, in a quiet room, with no talking required or even allowed, and it's amazing they stay awake as long as they do.  And like many things, our national fatigue is getting worse, not better.  The National Sleep Foundation's 2009 survey concludes that "The number of people reporting sleep problems has increased 13% since 2001. In the past eight years, the number of Americans who sleep less than six hours a night jumped from 13% to 20%, and those who reported sleeping eight hours or more dropped from 38% to 28%."  (The National Sleep Foundation is funded in large part by mattress and drug companies, but they claim research independence, and even if you discount their numbers, people are tired.)  On top of our other worries, nowadays we're losing sleep over the economy.  "One-third of Americans are losing sleep over the state of the U.S. economy and other personal financial concerns," the NSF said in March. 

2.  Fatigue affects decisionmaking.  Fatigue not only impairs memory and learning generally (Newsweek had an article last week summarizing recent research), but a a 2007 study suggests it specifically impairs moral judgment. 

3.  You can often spot fatigue in voir dire if you remember to look.  Tired jurors often look tired, will say they're tired, and will make you tired when they describe what they have to do in a typical day.  You'll miss it if you're focus only on themes and attitudes in jury selection. 

4.  Sustained sleepiness is reason to dismiss a juror.  In most courts and most states, this is a no-brainer.  A dozing juror can't hear the evidence and thus cannot decide the case on the same evidence as the others.  If a juror who keeps falling asleep isn't dismissed, it's usually because a lawyer forgot to ask, unless the trial has gone on so long and the panel is so small that the dismissal would mean (or threaten) a mistrial.

5.  You might be boring.  As we've noted, people are tired, so if a juror falls asleep while you're talking, it's usually not entirely your fault.  But think about whether it partly is.  The juror was awake earlier, right?  And if one juror slept through your expert's testimony, how many others daydreamed?  Even if your trial is "heavy in testimony about bookkeeping and check-writing," like that Akron fraud trial, you need to figure out how to make it interesting -- preferably before anybody falls asleep.

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Related posts here:

• Are You Sleeping, Brother Juror?

• Sleep And Moral Judgment

(Photo by Tambako the Jaguar at http://www.flickr.com/photos/tambako/853748895/; license details there, and follow the link to see the rest of his animal pictures, which are wonderful.)

If It's Difficult, It Must Be Important

 Keep it simple, they say.  Maybe not, or maybe not always.

I’m reluctant to generalize much from this study, but it’s interesting.  University of Chicago psychology professor Aparna A. Labroo and Ph.D candidate Sara Kim wondered how people respond when you make something difficult. 

They assigned each of their research subjects a “goal” – either feeling good or being kind – and then had them watch an ad for something that might help them reach that goal, either chocolate (for the “feeling good” group) or a children's charity (for the “being kind” group).  The difference was that half of each group saw an ad that was clear and easy to read, while the other half’s ad was blurry and hard to read.

Whatever it is, I want it

If the “keep it simple” advice is always right, you’d think the folks who saw the clear, easy ad would respond to it more, right?  That’s not what happened.  The blurry ad for chocolate made subjects want chocolate more than the clear one did.  And the blurry ad for the charity made subjects want to donate more.

Labroo and Kim acknowledge – and provide a useful list of – prior studies finding that the easier something is, the more we like it.  But the reverse is true, they argue, when we’re trying to achieve a goal:  “Perception of high effort arising from subjective difficulty of processing the means makes it appear highly instrumental for goal achievement.”

That feels right, when you think about it.  When we’ve had to really work at something, we naturally think it was important to our success, if only because we’d hate to have to explain why we worked so hard to get it if it wasn’t important. 

Keep it simple anyway

But when the goal in question is a jury’s effort to understand a complex case, don’t think this research means you should blur and obscure your most important points.  After all, if the researchers had blurred their ads even more, at some point the subjects would have given up and stopped trying to understand them.  You don’t know where that point is, and it’s different for each juror.  You’re in trouble if you leave some behind in an effort to challenge the rest.

One lesson you probably can take from a study like this, though, is that you don’t need to oversimplify.  Lawyers are often tempted to skip difficult areas, even if they’re central.  You probably don’t need to do that.  Jurors enjoy learning – and once they’ve gone to the trouble of learning what you’ve taught, this study suggests they may value it even more than if it had been easy.

The paper is “The ‘Instrumentality’ Heuristic: Why Metacognitive Difficulty Is Desirable During Goal Pursuit” (gotta love those social-science titles), in Psychological Science.  At least right now, the paper is on line in full.

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Related posts here: 

• To Persuade Jurors – Confuse Them?
• The Jelly Bean Theory Of Keeping Jurors’ Attention

(Photo by Casey Lehman at http://flickr.com/photos/islandfreedom/2891290813/; license details there.)

How To Work With Jargon

Jury consultants don’t get many questions that have easy answers, but here’s one, and lawyers ask it all the time.  How do you handle difficult vocabulary – industry, technical, or legal jargon – with the jury?  Remarkably often, the lawyer phrases the question as though there were only two possible answers, something like this:  “Should I bore them by explaining [the lawyer usually shifts into a pedantic monotone here] exactly what a colloidal dispersion [or whatever] is, or should I just not say it?”

Neither of the above.  Here’s the answer, in a singsong form for easy memorization.  Teach it if they need it, teach it when they need it, translate if they don’t.

Step 1:  Do they need it?

Jargon falls into two categories:  words the jury needs to understand to do its job, and words it doesn’t.  So,

• In a patent case, if “solute” is a key word in the patent claims, then the jurors need to know what it means in order to know whether those claims are infringed.  If not, you can just say “the stuff that’s dissolved in the liquid.”
• In a medical malpractice case, if “bilateral hemothorax” is part of the key entry in the patient chart that allegedly shows the doctor was negligent, then you’d better teach it.  Otherwise you can say “blood in the membrane that surrounds the lungs.”
• In a criminal case, if “overt act” is the key phrase in the conspiracy jury instruction, then you have to teach it.  If it’s not, there’s no reason you’d ever say that.

Don’t worry about the words you have to teach.  Jurors routinely tell us they enjoy learning, and that they admire lawyers who are good teachers.  Teach quickly and clearly, without condescension, and don’t teach more than you need to, and you’ll be fine.

Step 2:  When do they need it?

Teach no word before its time.  Patent cases are a great example here too.  If the defendant is arguing that the plaintiff’s patent is no good because the patent’s supposedly big innovation either was already known or was obvious from what was already known, then the jury instructions are going to use “obvious,” “anticipated,” and “prior art” in ways jurors have not seen them before.  You need to teach those – but the jurors won’t need them until they read the jury instructions, so you don’t need to teach them until then.  In opening and during the evidence, you’ll be swamping jurors with things like “solute”; the last thing you need is more jargon.  “Already known” and “obvious from what was already known” will do just fine to explain the defenses until you get to closing argument.

Step 3:  How do I translate it?

When jurors don’t need to learn jargon, you don’t need to teach it.  Just replace it with a nice clear phrase -- which sounds easy, but for many lawyers that’s the hardest part.  If you’ve been immersed in your patent or med mal or criminal or any other case for months, the person most in danger of speaking in jargon may be you.  If you’re in danger of this, find a bright seventh-grader, pay her handsomely for her time, and explain your case to her until you’ve got it right.

(Photo by autumn_bliss at http://www.flickr.com/photos/autumn_bliss/349693651/; license details there.)

To See Gerry Spence

Gerry Spence, cross-examining a government witness today:  "Can you tell me a case in the history of the world in which ..."

Prosecutor:  "Objection."

Spence:  "Okay, the United States."

Those are the kind of courtroom reflexes worth traveling across the country to see. 

Blogger Norm Pattis has traveled across the country to watch his legendary former teacher defend Geoffrey Fieger on campaign finance charges in Detroit.  Since the trial began, Pattis has been chronicling it from his home in Connecticut, passing on the best of the news coverage with his comments.  (His collected posts on it are here.) 

To hell with it

Yesterday, though, his coverage took a turn -- no, a trip.  The next witness in the trial was the FBI agent who would present much of the government's case.  Pattis wrote:

I sat down to write about this showdown between the lawman and one of the last remaining populist cowboys in America.

"I would give an eyetooth to see that," I started to write. I looked at the clock. It was just after three. To hell with the eyetooth, I concluded. I booked a flight to Detroit and am now at my hotel in the Motor City, some eight hours later. I'll be up early tomorrow to get a seat in the courtroom.

The posts since then are wonderful.  The wrenching moment in one of Spence's psychodrama sessions that -- I'm not overstating -- changed Pattis forever.  Coverage of the direct examination today, with that wonderful Spence throwaway.  This afternoon spent re-exploring Detroit, his childhood home:  "No way I can go home again: Most of the houses I lived in are gone, erased, kaput, vanished."  And thoughts about what tomorrow, the day he came for, will be like.

There's a lot of good fiction that isn't nearly this good.  Thanks to Norm Pattis for sharing it.

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Notes: 

1. Scott Greenfield has been following Norm's Fieger posts and adding his own comments admirably, most recently here. 
2. Mark Bennett, also a Spence alum, talks more about psychodrama and its relevance to trial lawyers here.

(Photo by Dr. Wendy T.L. at http://www.flickr.com/photos/wtlphotos/488456796/; license details there.)

Lawyers: So Certain, So Wrong

Watch a few mock trials and you'll start to suspect that lawyers have no clue how to argue to juries.  A new study suggests one reason why.

"I rest my case."

Remarkably often in mock trials, here's what happens.  Lawyers tell me they have an analogy or chart or argument they're sure will conclusively show their case is a slam-dunk win.  They present this to the mock jurors, in a voice full of hard-earned pride.  Then they listen to the jurors deliberate, and they're mortified.  The jurors hate the analogy, trash the chart, use the argument to support the other side.  The lawyer was so sure, and so wrong.

Good news from the world of social science:  it's not just lawyers.  Everybody does it.  We all assume that if we like something, the rest of the world is going to like it too -- and when we assume that, we're usually mistaken.  That's the conclusion of the wonderfully named paper "What’s Not to Like: Preference Asymmetry in the False Consensus Effect," by Andrew D. Gershoff, Ashesh Mukherjee, and Anirban Mukhopadhyay, in the coming June 2008 Journal of Consumer Research.  A good press release is here. 

With walnuts and hot fudge?!

The method used in the study was simple:  ask people what they like and how much they think other people like it, and then ask those other people.  So:

• "Participants in one study were asked to choose a movie they like. They were then asked to guess what percentage of their peers liked the movie as well. On average, people estimated that 51.2 percent of other people also liked the movie, a significant overestimate. They also estimated that only 18.2 percent of people, on average, disliked it – a reflection of the belief that more people agree with us than disagree.   In contrast, when asked to choose a movie they dislike and make the same estimate, participants were less self-centered: they thought people would agree and disagree with their opinion in roughly the same numbers."
• "Another study of ice cream sundaes found that those who liked a certain flavor combination – say, mint ice cream with walnuts and hot fudge – overestimated that people would share their fondness for the sundae by 9.9 percent. Those who disliked it only overestimated that people would share their repulsion by 0.8 percent."

I can't help pointing out that a mock trial is essentially that same research method, minus the statistical precision.  Lawyers bring in arguments they really like, and think other people will like them too.  Then we ask those other people, and often they don't.  Best of all, after the mock jurors are done chuckling at the argument, we listen to them talk about what did convince them, and we watch whether and how they're able to convince each other.

Where you're most certain you're right, then, is where you might be most wrong.  A mock trial is one good way to find that spot, and set yourself straight.

(Photo by Nic McPhee at http://www.flickr.com/photos/nicmcphee/428035441/; license details there.  McPhee's blog is I Am . . . Unhindered By Talent.)

The Edges Of Vouching

One of the more enjoyable prerogatives of a blogger is to give quizzes.  Today's quiz is on the improper practice of "vouching" for a witness's credibility.  Here's the line you're trying to draw:  it's okay in closing argument to suggest what inferences jurors should make from the evidence, but it's not okay to insert your own credibility by vouching for the credibility of a witness.  The classic example of vouching is when the prosecutor says, "I've known this FBI agent for years, and I can tell you he wouldn't lie."

Got it?  Okay.  In the the trial that led to Fifth Circuit's United States v. Gracia opinion yesterday, defense counsel argued that the federal agents were lying.  The prosecutor responded with the following arguments.  Which ones are permissible inferences from the evidence, and which are impermissible vouching?  Here you go:

1. "First, the prosecutor expressed his opinion to the jury that the agents were 'very, very credible' witnesses ('Statement One').
2. "Second, the prosecutor asked the jurors rhetorically whether they thought that an agent 'who has worked as a law enforcement agent for many years, that is his career, that is his chosen life, a man from this area, a man with a family, do you think that he would throw all that away by taking this stand and taking an oath and lying to you to get Mr. Gracia'; and whether the agents 'would put their careers and criminal prosecution on the line for committing the offense of aggravated perjury' ('Statement Two').
3. "Third, the prosecutor told the jury: 'I’m going to ask you to respect their efforts as law enforcement officials and to believe the testimony that they offered' ('Statement Three').
4. "Fourth, the prosecutor admonished the jurors that, to acquit Gracia, they would have to believe that the agents 'got out of bed' on the day they arrested Gracia and decided that this was 'the day that [they] were going to start [a] conspiracy to wrongfully convict Mr. Gracia' ('Statement Four')."

Not okay

The Fifth Circuit's answer, which surprised at least me:  all four statements are vouching.  Not only vouching, but plain error, and Gracia's conviction was overturned.  The court had no trouble deciding this:

The Supreme Court’s decision in Berger v. United States makes clear that a personal assertion by a prosecutor of a government witness’s credibility is impermissible. [I'm omitting footnote citations here and throughout this quote.]  The American Bar Association’s standards for prosecutors echo this sentiment: “The prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” The government may not cloak a witness in its “protective mantle.” A prosecutor may argue fair inferences from the evidence that a witness has no motive to lie, but cannot express a personal opinion on the credibility of witnesses.

As the government concedes, it is impermissible per se for a prosecutor to offer personal assurances to the jury that government witnesses are telling the truth, as in Statement One, or to tell the jury that law enforcement witnesses should be believed simply because they were doing their job, as in Statement Three.   

Although the government does not concede that Statements Two and Four were errors, we cannot meaningfully distinguish the prosecutor’s admittedly improper remarks and those that the government does not concede were errors. All four statements urge conviction based not on the objective evidence before the jury or its independent judgment of the witnesses’ credibility, but on something uniquely within the prosecutor’s knowledge. We have held it improper for a prosecutor to ask a jury the rhetorical question whether federal agents would risk their careers to commit perjury, as in Statement Two. We have deemed improper an unequivocal statement by a prosecutor that, for the jurors to believe the defense’s account, they would have to believe in a government conspiracy, as in Statement Four. The subject remarks of Gracia’s prosecutor share the same basic flaw: A prosecutor’s impermissible assertion of his own credibility, or that of the government, to bolster the credibility of a witness. As we held in United States v. Gallardo-Trapero, “it is particularly improper, indeed, pernicious, for a prosecutor to seek to invoke his personal status as the government’s attorney or the sanction of the government itself as a basis for convicting a criminal defendant.” As the “power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says,”—here, that the agents were credible witnesses—all four of the prosecutor’s statements constituted error.

Really?

I'm out of my expertise in this area, but it doesn't seem all that clear to me.  In "Statement One," for example, surely there's a difference between saying "I personally know this witness is credible" and simply using the adjective "credible" to describe his testimony.  Likewise the argument in "Statement Two," that it's illogical to think a witness would have lied under the circumstances the evidence shows, would be pretty normal in a civil trial.

I ran a search and found a law review note, a little old but it reinforces my doubt.  It's "Prosecutorial Misconduct," in the June 1998 "Criminal Procedure" issue of the Georgetown Law Journal.  Footnote 1881 (you read that right; the footnote numbering in the issue seems to continue from one note to the next) collects vouching cases from the 1990s, and they're all over the map.  The author cites the Seventh Circuit as holding that calling a witness an "honest citizen" isn't vouching (U.S. v. Morgan, 113 F.3d 85, 91 (7th Cir. 1997)), and the Sixth Circuit as holding that when a prosecutor argued that a  detective would not risk his 18-year career by lying, the conviction would stand because the jury was instructed (as juries always are) that the lawyers' arguments were not evidence (U.S. v. Martinez, 981 F.2d 867, 871 (6th Cir. 1992)). 

Scott, Mark, Jamie, and other criminal defense readers, set me straight here.  Is this plain error really so plain?

(Photo by C.P. Storm at http://www.flickr.com/photos/cpstorm/146721021/; license details there.)

The $1.99 Effect

Which is more, $395,425, or $395,000?

In civil trials, damages evidence is almost never clear to the penny.  Instead, lawyers make judgment calls about the exact amount of damages to ask for.  A new study suggests the decision may make more difference than you thought.

This paper has been out for awhile, but I missed it until it was on NPR this morning.  Researchers from Cornell University's Johnson School of Management report that many of us misunderstand basic quantities because we're fooled by whether the number is "precise," like the $395,425 figure above, or rounded.  And we're fooled in the same way:  we think the precise number is smaller than it really is.  In the example above, a surprising number of people respond that $395,425 is the lower price -- and it isn't.

I'll take that one

And the "precision heuristic" doesn't stop at simple miscalculation.  In an experiment that assigned precise and rounded numbers to hypothetical home prices, the researchers found that subjects were more willing to buy when the price was precise.

Why are we so easily fooled?  The authors considered whether the precise price sent a stronger signal that the seller had taken more care to set the price, or was more willing to bargain, than a rounded price would.  They couldn't rule these possibilities out, but another explanation seemed more likely:  we've learned to think this way.  From the discount store to the gas pump, we're conditioned to think "discount" when we see a precise number.  The experiment itself gave support to this learned-behavior theory; when the researchers primed the subjects with pairs of numbers where the rounded number was lower, the subjects got the hang of the comparision, and stopped making the mistake.

If precise numbers are more acceptable and credible until listeners are taught otherwise, the lesson for lawyers seems clear.  Plaintiffs' lawyers should think about not rounding.  And defense lawyers should teach jurors the fallacy of assuming precise numbers represent real precision. 

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Notes:

1. The Cornell paper is "Do Consumers Perceive Precise Prices to be Lower than Round Prices?" by Manoj Thomas, Daniel H. Simon, and Vrinda Kadiyali.  It can be downloaded here from SSRN. 
2. I've written before here on research showing we can change the way our listeners do math by changing the words we use to express math concepts. 

(Photo by Matt McGee at http://www.flickr.com/photos/pleeker/133232691/; license details there.)

Walk This Way

If you want to get better at persuasion, maybe you should practice imitating other people. 

Anything that increases the common ground and reduces the distance between you and the other person is a good thing.  And the quickest way to accomplish this it so synchronize as many of the other person's aspects as you can -- adopt the same attitude, make the same motions and speak the same way.

There's some good jury learning in self-help books.  That quote is from Nicholas Boothman's How To Make People Like You In 90 Seconds Or Less, and before you unsubscribe to a blogger who would own such a thing, read Benedict Carey's article "You Remind Me Of Me," in the science section of tomorrow's New York Times.  It turns out that research supports this idea:

Psychologists have been studying the art of persuasion for nearly a century, analyzing activities like political propaganda, television campaigns and door-to-door sales. . . . They have found that immediate social bonding between strangers is highly dependent on mimicry, a synchronized and usually unconscious give and take of words and gestures that creates a current of good will between two people.

Toe-tapping their way to higher sales

Mothers unconsciously imitate babies, friends unconsciously imitate friends -- but conscious imitation is powerful too.  Carey describes a number of studies, including this one by Duke researchers Robin Tanner and Tanya Chartrand: 

The team had 37 Duke students try out what was described as a new sports drink, Vigor, and answer a few questions about it. The interviewer mimicked about half the participants using a technique Dr. Chartrand had developed in earlier studies.

The technique involved mirroring a person’s posture and movements, with a one- to two-second delay. If he crosses his legs, then wait two seconds and do the same, with opposite legs. If she touches her face, wait a beat or two and do that. If he drums his fingers or taps a toe, wait again and do something similar. . . .

None of the copied participants picked up on the mimicry. But by the end of the short interview, they were significantly more likely than the others to consume the new drink, to say they would buy it and to predict its success in the market.

"A delicate balance"

But wait, you say.  I won't do it right, and I'll get caught.  It's true; you might, especially if you jump on the other person's gestures too quickly.  The article continues:

Dr. [Jeremy] Bailenson, the Stanford psychologist, has been testing the effects of different forms of mimicry by programming a computer-generated figure, an avatar, to mirror the movements and gestures of people in a study.

He has found that his subjects pick up the mimicry when it is immediate and precise. If the avatar is slightly out of sync, however — waits four seconds, for instance — then the mimicking goes unnoticed, and the usual rules apply. The virtual creating comes across as warm and convincing, as if controlled by another human.

“The point is it’s a delicate balance to get it right, and I suspect that people who are good at this know how to do it intuitively,” Dr. Bailenson said.

Too much to remember

It's all fascinating, but does it mean you should add mimicry to your list of trial skills?  Probably not, unless you're already a natural at it.  Most obviously, whether conscious or unconscious, it's a way that one person relates to another.  It wouldn't make sense to mirror six or twelve people.  And there's far too much else to remember in trial.

A more modest, goal, though, is worth striving for.  Two or three times during your next trial, or next anything, try to notice a gesture or posture that you could mirror.  You'll probably be surprised at how difficult this is.  The thing that keeps us from doing it is the same thing that keeps us from connecting better with jurors:  we're too wrapped up in ourselves.  You'll be planning your next sentence, or thinking about your last meeting, and suddenly you'll realize that for the last several minutes you've hardly known whether the other person's eyes are open.

Anything that makes you notice will make you better -- and this is fun.  Try it.

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Note:  What a relief.  For years I thought I'd never remember the punch line that responds to the old line "Walk this way."  Riddle solved; there are more than a dozen, used over decades, and they're catalogued in Wikipedia from "After The Thin Man" to "M*A*S*H" to "Rugrats."

(Image by Jim Crossley at http://www.flickr.com/photos/raindog/10550156/; license details there.)