Deliberations

What Great Basketball Coaches Can Teach Us About Trial Prep

Dean Smith, the hall-of-fame University of North Carolina basketball coach, was a master at preparing his players for opponents.  I once heard a story that described a time when Coach Smith had to get his Tarheels ready for an opposing team that had significant height at numerous positions around the court.  Rather than having a normal practice, he gathered brooms and mops from the janitorial closet and distributed them to defenders as arm extenders to block shots.  If Coach Smith’s players could shoot over brooms, then they could certainly shoot over their upcoming vertically-enhanced opponents.

Like many of the best coaches, Dean Smith knew that effective preparation often meant stacking the deck against oneself in practice.  This mantra also holds true for trial preparation.  It is easy to assume that a motion will be won to exclude damaging testimony or evidence, but what if the judge decides in favor of your opponent?  What if opposing counsel is more capable than first anticipated or an expert witness handles his or her deposition swimmingly?  

In my opinion, the best planning must assume that everything will go very well for one’s opponent.  In witness prep, this means helping those who will testify by practicing difficult cross-examination questions with great intensity.  In mock trials and focus groups, err in favor of the opponent when it comes to planning case presentations.  In mediation and negotiations, have a strategy that realizes the other side (rightly or wrongly) may be even more confident in their case than you are in yours.

Ben Franklin famously said, “An ounce of prevention is worth a pound of cure.”  While he was actually talking about house fires, the idiom has lasted for centuries for a reason.  There is an exponential return on carefully considered preparation that imagines and practices a variety of potential negative outcomes.  By imagining your opponents with brooms in their hands, you will be sure to arrive at the game with a perfect fade-away jump shot. 

Blogger: Matt McCusker

 

Defending Corporate America In Court: Bigger Is Not Better

As Wall Street zombies block the Brooklyn Bridge, the American public is struggling with an acute case of Dissociative Identity Disorder.  (*Note: Possibly, my best opening line ever.)  We don’t trust big corporations, but we need them to create jobs.  We don’t trust big government, but we need it to protect us from the corporations.  However, the many bailouts since 2008 have suggested there may be some connection between big government and big corporations (he said sarcastically).  Small local companies seem to have genetic immunity to our vitriol, but who can tell what is small anymore (see Starbucks’ 15th Ave Coffee & Tea).

The public (a.k.a. your jury), seems to be going through a phase where bigger is not better.  As a result, companies will often be entering the courtroom carrying very heavy and expensive baggage.  (Think Eva Gabor in Green Acres.)  This presents attorneys who represent large entities with a quandary: How do I overcome the “bigger” bias?

Marissa Alkhazov sets the stage in her blog entitled “The Top 5 Misconceptions Juries Have About Insurers.”  Insurers are like traffic cops, no one likes them until they need them.  The media caricature of an insurance company is often the most vivid image in a juror’s mind.  This is a problem that also plagues other industries like banks, oil companies and big pharma.  In theory, jurors should dismiss these mental images.  In reality, that is asking the impossible.

The first step in combatting this bias is voir dire.  Those whose judgment is particularly vulnerable to emotional clouding should be spotted and dismissed for cause.  (Why waste a peremptory?)   This can only be accomplished through carefully designed and executed questioning with follow ups. 

Secondly, the company must create a connection with the jury.  Many attorneys use blunt-force humanization.  For example, “This Company was founded in 1902 by Cletus Goodfellow with a few dollars and a dream.”  However, mock trial research often demonstrates that jurors see this is as an overt attempt at manipulation.  Instead, the best humanization comes from an actual human: a well-prepared witness.  Creating abstract emotional connections with a company brand is very challenging in court.  Creating a sympathetic connection with a person testifying on the stand is much easier.

Finally, focus on the story, not the characters.  If framed appropriately, jurors will be discussing the questionable actions (not actors) on the other side.  Your narrative and themes will keep people centered on the job of a jury: to decide a lawsuit, not to judge a beauty pageant.

Blogger: Matt McCusker

 

Doggie Witness Prep (Coming To A Courtroom Near You?)

Recently, a loveable dog named Rose (Rosie to her friends) sat next to a child witness in court while she gave testimony about the brutal rape and impregnation she endured at the hands of her father.  Yes, a dog sat in the witness stand.  Rosie is a service dog that can sense anxiety and was provided to the young witness to aid her in the process of testifying.  At one point, the help was very evident when Rosie “nosed” the child during a particularly difficult bout of answers.

While this is the first instance of “comfort dog” use during testimony in New York State, (as this article outlines) the practice has actually been happening across the country with child witnesses for some time (Arizona, Hawaii, Idaho, Indiana, etc.).  In this case, Rosie and the witness spent five weeks bonding (and prepping) prior to the trial.  The goal of the training was to help the victim reduce her anxiety about facing her father and being questioned on such painful memories in front of a courtroom full of strangers.

Not surprisingly, the defense attorney was up in arms about the dog’s presence (and is appealing).  It is certainly a valid point to suggest that the presence of a dog could be unduly prejudicial.  Would dog lovers view her more favorably?  Dog haters more unfavorably? Is it possible that a witness could lie more easily with a comfort dog present?  How would the dog impact opposing counsel’s cross examination?

These are valid questions, but the opposing response is more persuasive.

In State v. Cliff, 116 Idaho 921, 782 P. 2d 44 (1989) an eight year old victim of sexual assault was allowed to carry her doll to the stand because the court ruled the calming effect would aid in more accurate testimony.  A similar ruling occurred in Washington [State v. Smith 119 P.3d 411 (2005)] when a teddy bear was allowed to venture into the witness box.  In those cases, the defense unsuccessfully argued that the presence of a psychological security blanket would impede cross examination of the children.

Anyone worth their salt at witness prep will tell you that anxiety is one of the top barriers to effective testimony.  Much of what litigation consultants do is help in reducing witness anxiety so the truth can be more effectively presented on the stand.  Why would the reduction of anxiety in a child be a bad thing?  Further, service dogs for people with physical/mental handicaps have long been allowed in courtrooms.  Has the presence of these dogs created unjust verdicts?

Most importantly, the “comfort dog” accommodation has primarily been utilized with children.  A child witness has a special status with the court, which can be seen in states that allow closed circuit or videotaped testimony for child victims.  As this UST Law Review notes:

“…our Supreme Court  promulgated the Rule on Examination of A Child Witness  which acknowledges the special concerns of child witnesses that need to be addressed while testifying before criminal, civil, legislative, or administrative proceeding…  the main objectives of the said Rule are to ‘create and maintain an environment that will allow children to  give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of the truth.’”

Obviously, the rules of the game change when a minor is giving testimony.  Proper voir dire should spot those jurors who would not be able to set aside the influence of having a dog (or a doll, or a teddy bear) sitting with a child on the stand.  While there is some danger of prejudicial effects, the value of truthful testimony from a calm mind (and reduced emotional damage to the child) far outweighs the potential risk.

Those interested in utilizing comfort dogs in court can check out a sample brief here.

Blogger: Matt McCusker

 

The World's Most Expensive Real Mock Trial Points to Simplicity

“The problem was with some of his explanations. It reminded me of a little kid who gets his hand caught in a cookie jar. He says, ‘Mommy I wasn’t taking the cookies. I was just trying to protect them and to count them.’”

— Richard Kling, professor at Chicago-Kent College of Law who watched much of the trial, on Blagojevich’s testimony.

The jury is back and Blago is guilty on 17 counts.  The great State of Illinois can now proudly list four of its governors as convicts.  This begs the question: What changed the second time around?

I would argue that the first major factor was the apparent lack of a holdout juror.  The individual who held up the panel at the first trial was lauded by some and called a kook by others.  It takes a particular personality to stand up to a group and hold one’s ground, however, there is also a fine line between impassioned defender and obstinate fruitloop.

In prior posts, I have made the case that holdouts are most often created by confused and overly detailed case presentations.  It is much more difficult to stand against the group when the majority is well-armed with a solid understanding of the facts, the story and the law.

So, I believe Blago (part one) was the world’s most expensive mock trial.  In Blago (part two), the prosecution presented a far more “streamlined” case that did not get hung up on the tiny details.  As this article outlines, the prosecutors seemed to have learned from their mistakes and took a “less is more” approach.  This was a smart move and resulted in a storyline that kept focused on Blago’s actions. 

"It's all part of the streamlining decision. We're gonna keep it straight forward. We're going to keep it simple, we're going to go to the heart of the matter. Let's talk about selling the Senate seat, the sexiest stuff right up front so the jury makes up its mind early on that this guy is a crook, and the rest of the stuff will sort of fall into place behind that," said Prof. Leonard Cavise, DePaul college of Law.

Having facilitated many mock trials and focus groups, I can attest that this is the most common lesson learned from trying a case in front of mock jurors.  Attorneys often find that “if everything is important, then nothing is important.”  Unfortunately for Blago, the same was not true for his defense storyline. 

Blogger: Matt McCusker

 

Yo Quiero Taco Bell’s Legal Strategy

“Hooooold me now. It’s hard for me to say I’m sorry. I just want you to stay (as a defendant).” - Chicago

Yesterday, Taco Bell leveled a smackdown of epic proportions through an open letter to opposing counsel in a class action suit.  It was witty, in-your-face and broadcast through newspapers across the land.  The full page ads began with a giant-fonted question: “WOULD IT KILL YOU TO SAY YOU’RE SORRY?”

(I highly encourage you to read the full ad here, it’s a riot.)

Alabama plaintiffs’ law firm Beasley Allen recently decided to run for the border and withdraw the class action suit against Taco Bell that alleged the company was using bad meat products and false advertising.  In response, Taco Bell has brazenly demanded an apology and pointed out that this case has ended with:

“No changes to our (Taco Bell) products or ingredients. No changes to our advertising. No money exchanged. No settlement agreement.”

The ad concludes with a final poke at the attorneys:  “You got it wrong, and you’re probably feeling pretty bad right now. But you know what always helps? Saying to everyone, ‘I’m sorry.’ C’mon, you can do it!”

Taco Bell claims that the lawsuit had no merit and cost the company millions in legal fees and lost revenue.  While this ad is an excellent way to get the “safe tacos” announcement out (e.g., I’m writing a blog about Taco Bell’s trustworthy meat), I wonder if there is a secondary goal:  fewer future lawsuits.

This ad was clearly designed to send a message, but it never specifically mentions Beasley Allen.  One reason could be to avoid any claims of reputation damage by the law firm, but I think there was also a motivation to keep the communication “open” to any future opponents.  By investing a tremendous amount of money in an aggressive campaign for an apology, the public relations tables have been turned.  Rather than agreeing to an undisclosed settlement, the company has adopted the Steve Buscemi Strategy (seemingly harmless, but with a disconcerting  unpredictability).

Honestly, I can’t see the downside in this approach.  It’s brilliant.  The question will be if others follow suit (excuse the pun) in highlighting frivolous cases, rather than simply settling them for low dollar values.  In the meantime, don’t mess with Taco Bell, they’re loco.

Blogger: Matt McCusker

 

Using Metaphorical Language Can Cure an Ailing Case (Research proves it!)

We have all felt beaten down at one point or another while preparing for trial. We’ve been lost in the woods and unable to keep our heads up as we slowly sank into a seemingly inescapable abyss. Then suddenly, an idea landed out of nowhere. We grasped it and utilized the concept to climb out of the desperate circumstances. After a little sweat and tears, we freed ourselves from old themes and ran to victory with a new strategy.

Okay, so going too metaphorical may be overkill. However, it is undeniable that the paragraph above relayed a palpable scene of being physically stuck and then escaping through pulling. What if I had described being lost in the dark (instead of the woods)? Would grasping a concept seem less helpful than discovering a bright idea or seeing the light?

A recent study out of Stanford University has demonstrated that metaphors may be even more powerful than we previously thought. More than simply conveying a concept, they may also subtly direct us on how to process and react to the information.

In this research, participants were given one of two versions of a media report on crime to read and then offer suggestions. The only difference was that one report described the crime as “a virus ravaging the city”, while others suggested crime was a “beast ravaging the city”. They then asked the participants to give recommendations for a solution.

Interestingly, those who read the “beast” metaphor were more likely to suggest utilizing increased police enforcement than those who read the “virus” version. Instead, the “virus” readers showed a greater propensity towards discovering the root issue of the problem and curing it.

All it took was a single word change and the result was a significant shift in problem solving style. Imagine if this was a case in front of a jury, arbitrator or judge. Could word choice have the same type of impact on the trier of fact?

This research demonstrates that beyond making a case more palatable or comprehensible, one can actually influence the manner of problem solving a jury might utilize. Ever reminding us that a good metaphor is like a key to the unconscious mind. (Damn, I think that was a simile.)

Blogger: Matt McCusker

 

Judicial Variability: To serve at the pleasure of the King (or Queen)

Judge Valerie Vega (coincidentally out of Vegas) recently made news by ordering jurors in a murder trial to stay all-night to finish hearing and eventually deliberating the case at hand.  In fact, the jury began deliberating at 3am (after 13 hours of trial) and finished at 7am. While juror overtime is not uncommon, this was extreme.  After the sun rose, the jury ended up acquitting Victor Fakoya in the murder of a 2-year old child that was in his care.

However, what made this story truly newsworthy was Judge Vega’s reasoning.  Shockingly, she was set to start a two-week vacation the next day and wanted a verdict so she could be free to leave.  While Judge Vega blamed the attorneys for the long trial, it was uncovered that many of her court days were cut short so that she could go watch her kids play soccer.  No matter the reasoning, it is hard to believe that a jury that had been up all night could fairly consider the facts in any case, much less the potential murder of a 2-year old.  It is also hard to believe that Judge Vega’s decision was completely within her rights as judge.

I would like to first say that the vast majority of judges are fair individuals who work hard at being the referees of our complex judicial system (and would never hold a cheeky blog against someone).  That said, the power a judge has over a case can be remarkably scary to those who sit outside our legal bubble.  In fact, I suggest that many would choose not to go to trial if they had a palpable sense of how little control one has over one’s fate after the case has been calendared.

As a litigation consultant, I’m often asked about the generalized procedures for jury selection and am typically embarrassed when I must reply “It depends on the judge.”  Surely someone who advises on these matters would know what the rules of the game are?  However, as many of us are painfully aware, the rules are actually guidelines that can be widely interpreted from state to state, from city to city and even from courtroom to courtroom within the same building.

There are many questions that come with jury selection: What qualifies for cause or hardship?  How are the alternates selected?  When does the day start and end?  How long is lunch?  What is the procedure for administering strikes and how much time is there to decide?  Are the attorneys given a real opportunity to ask questions in voir dire?  What questions will the judge ask the jurors?  Are juror questionnaires allowed?  However, the answers to these questions vary wildly.

To some it would be natural to ask:  why have we not developed more standardized rules and procedures for courtroom logistics?  Realizing that judging the strength of a cause strike or hardship claim comes down to personal opinion, there are still many other decisions that simply speak to the personal preference of the judge.  It could be argued that this variability of judicial inclination increases stress, the likelihood of a mistake and in some cases (like Judge Vega’s) abuse.

That being said, the true value of a litigation consultant is demonstrated through the fact that judges who preside across the hall from one another can have very different answers to all of the above questions.  A consultant who is worth their salt is ready to go into any courtroom situation and makes his or her living from the seat of the pants (figuratively and literally).  While judicial variability may be an added stress, it is one that we in the field of trial consulting are happy to help manage.

Blogger: Matt McCusker

Blue Chip Lawsuits: “We do what banks won’t.”

Imagine a world where you could buy and sell a financial interest in a lawsuit like one does with shares of Microsoft or Ford.  Picture yourself looking at the Wall Street Journal to what price your investment in the Jones v. Home Depot case was trading at.  Does this sound crazy?  Believe it or not, this is not as unlikely as one might think.

When the Dow was in the tank, investors searched for new opportunities that escaped a beaten down and skittish market.  One avenue that began to gain ground was the area of lawsuit investments.  The upside is clear: big jury verdicts and big settlements mean big winnings. However, much like any casino gamble, the downsides for the borrowers are less obvious and often hidden in the detail.

The Premise

Lawsuit investment is the loaning of cash by a bank or private investor to plaintiff attorneys (and their clients) to help fund a case.  With skyrocketing litigation costs, finances for necessary expenditures can be hard to come by.  This money goes towards a variety of expenses, including: expert witnesses, demonstratives, scientific testing, consulting and more.  Given this need, companies like LawFinance (whose questionable slogan is “We do what banks won’t.”) filled the gap and offered to invest in cases through litigation loans.

It’s easy to see why many support this concept and major players like Citigroup and Bank of America have entered the fray.  Plaintiff attorneys that can be easily outspent by corporate defendants see an opportunity for leveling the playing field.  This is particularly true for claims represented by small attorneys that deep-pocketed defendants might view as being able to be outspent to a verdict. 

Proponents suggest that much like the free market, weaker claims will not get investors because the outcome would be too risky. Conversely, strong claims would receive the funds necessary to mount an effective case and justice is served.  While this is true, there is always a catch (or even several).

What’s the Vig?

When discussing a loan of any sort, my Uncle would always ask: “What’s the vig?” (Translation for those of you who deal with more reputable lenders: “Are there interest charges and at what rate do they accrue?”). The answer is always “Yes!” and they are often pretty unseemly.  Interest rates can be 24% per year and higher, which can get pretty nasty when you think about the slow wheels of justice.  Heck, for that kind of scratch, you might as well put it on your credit card and earn enough points for a free trip to Tahiti to manage litigation stress.

It should also be noted that much like any bank (or loan shark), the interest does not go away if your investment turns sour (bad settlement, outright loss, years of legal delay, etc.).  In essence, these can be more like high-interest loans for risky bets with little to no asset backing. Where have I heard this before?

“Pros” (professionals) and “Cons” (con artists)

Don’t get me wrong, there are plenty of times when this is a good idea.  Professional investment banks will often devote months of in-depth review and analysis before funding a case.  They will put in the research intensity of a Las Vegas odds maker to determine how much should be loaned and at what rate.  What is the history of jury verdicts in the area?  How often does this defendant (and legal representation) settle?  What is the potential length of trial? And many more questions must be answered before a loan is granted.

However, there are also less scrupulous lenders. These are investors who charge outrageous interest fees and sometimes help create lawsuits that they can fund.  As with any industry, there is often a seedy underbelly that looks to take advantage of the system and prey upon those who are desperate.

Things that make you go “Hmmmm….”

Despite one’s personal opinion of lawsuit investments, there are serious issues that must be addressed as the practice continues to grow and States pass legislation that allows it to expand. 

First off, attorneys are not always required to clearly inform clients that they are getting loans, but can still pass the cost on to the clients.  Some lending operations even advertise their services as “free money” because the client gets stuck with the interest charges.

Secondly, there are major issues of privilege as investors want tremendous detail on the case before they will grant a loan.  As a litigation consultant, I am keenly aware of what I need to do to help preserve the sacred attorney-client privilege.  I think it would be hard to argue that a loan officer at the bank is part of the trial team.

Finally, this practice creates an outside pressure to settle as interest continues to accrue day after day.  Even if the attorney does nothing on the case for several months, the cost of the case continues to rise.  It is possible that settlement advice could be altered based on the cost of the loan rather than the merits of the case.

Once someone invests in something, they can often sell or pass on their share to someone else. We may not be at the point of mutual funds consisting of high and low risk lawsuits, but the rapid expansion of litigation lending suggests it could be on the distant horizon.  Whether this is something we want is still to be determined.

Blogger: Matt McCusker

 

If Miss Cleo Couldn’t Predict a Jury Outcome, WHO CAN?

In an end to an illustrious career, Miss Cleo and her Psychic Readers Network came to a landmark settlement with the Federal Trade Commission where the company sacrificed $500 million dollars in fees and paid a $5 million fine for deceptive business practices.  This result brought three questions to my mind:

1. A $500 million settlement! How much money was Miss Cleo Making?  How much did she “psychically predict” a jury would award?
2. This is just one example in a sea of settlements based on predictions of trial outcomes, I must ask: How accurate are these predictions?
3. If I wore a turban and spoke in Jamaican accent, could I be a successful psychic litigation consultant? (Seriously. I cannot get over that $500,000,000 figure for a psychic hotline.)

A recent analysis out of Cornell Law School attempted to explore the meaning of “jury predictability” in the United States and if such a thing even exists.  They utilized a national comparison of jury verdicts via the 2005 National Center for State Courts Civil Justice Survey (an amazing study I have cited before) and the 2005 and 2006 U.S. Chamber of Commerce State Liability Ranking Studies.  Through a process I won’t go into here, Valerie Hans and Theodore Eisenberg established a creative method of analyzing the relationship between corporate and insurance attorneys’ assessments of juror predictability and the actual verdicts that were eventually rendered in various States.

Their results demonstrated that predictability ratings had little relation to jury compensatory damage awards, but were surprisingly in synch with punitive damage awards.  It suggests that the outcomes of cases with punitive damages (awarded in only 5% of judge or jury civil plaintiff verdicts nationally) are dominating defense attorney assessments of jury predictability.

In 2008, a paper published in the Journal of Empirical Legal Studies entitled "Let's Not Make a Deal" analyzed 9,064 decisions in contested litigation cases to examine the number and magnitude of errors made by attorneys and clients in failed settlement negotiations that ended in jury verdicts.  The results reconfirmed the findings of three prior empirical studies: both plaintiff’s counsel and defendant’s counsel frequently make dramatic miscalculations when predicting trial outcomes.  Interestingly, plaintiffs had a high rate of miscalculations (61.2%) with mid-level financial magnitudes, while defendants had a lower rate of miscalculations (24.3%) that resulted in very high financial magnitudes.  In other words, the plaintiffs guessed wrong regularly but only took a medium hit to the pocketbook, while defendants miscalculated less often but it cost them tremendous amounts of money. (I call it a tie.)

So, what does this mean? I would suggest that there could be several factors at play:

• Current methods of predicting potential case outcomes may be lacking due to an over-reliance on a small sample of similar jury trial outcomes.
• The stronger side may be sacrificing too much during mediation and settlement negotiation due to an unrealistic fear of loss or a lack of preparation towards fully establishing the power of the case.
• The idea of what a case is worth may be too heavily based on what similar cases have settled for, furthering a vicious cycle of faulty settlements.
• There is an over-dependence on Jamaican mystics and psychic hotlines.

Predicting jury outcomes is tremendously difficult task and every situation is different.  The best insurance against faulty guessing is to spend significant time learning one’s case and developing the strongest possible strategy prior to negotiation.  Just remember, that attorney who just had the embarrassing loss on a similar case down the road may have been depending on a very questionable strategy that began with 1-900…

Blogger: Matt McCusker

 

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

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).)

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 

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.)

 

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

What Is It About An Underdog?

Given the presence of well-known underdog stories in literature, mythology, and sport, it might seem intuitively obvious that most people sympathize with and support such figures. But why should we be drawn to the Davids, Texans at the Alamo, Greeks at Thermopylae, or Rocky Balboas of the world?

That's the question posed by the University of South Florida's Joseph A. Vandello, Nadav P. Goldschmied and David A. R. Richards in their paper "The Appeal of the Underdog," in the December issue of Personal and Social Psychology Bulletin.  (Because I'm so slow in posting this, the whole article is free on line; download it here.) 

Hustle, effort, heart, and wanting to win

The four experiments described in the paper are fun, and the results predictable:

• When students were told which countries had the most Olympic medals and asked which teams they'd back in various pairings, they rooted for the teams with fewer medals. 
• When students were shown a map of Israel dwarfing the the Palestinian territories, they expressed support for the Palestinians -- but when they were shown a map of Middle Eastern countries dwarfing Israel, they expressed support for Israel.
• Students watching a taped basketball game not only rooted for whichever team they had been told was the underdog, but attributed more "hustle, effort, heart, and wanting to win" to that team.
• Students told that a team was likely to lose and that it had a lot less money than the other team, they rooted for that team.  But when they were told a team was likely to lose and that it had a lot more money than the other team, they didn't much care who won.

Why we do it

So why do we root for the underdog?  The fourth experiment gives a big clue to one of the reasons:  because we want to help compensate for undeserved inequality.  If one contestant is outmatched for reasons that aren't his fault, that's unfair, and our sense of justice reaches out to fix it. 

We might also root for underdogs just because we enjoy drama: 

An alternative, or additional, motivation for supporting underdogs might derive less from abstract moral concerns about fairness and more from self-interested,   rational calculations of one’s own emotions. Because underdog success is by definition unexpected, this may increase the excitement of rooting for an underdog.

And for almost every little guy who wins, there's a big guy who loses, and that makes us happy too:

Rather than being strongly supportive of underdogs, might people instead root against dominant entities (this would be consistent with the sentiment, “my favorite team is whoever is playing the Yankees”)?

Working with it

Many trials can be framed as an underdog against a big dog, and this dynamic is often critical.  Civil personal injury lawyers often use the narrative brilliantly; although defense lawyers in those trials can sometimes turn it around if they show that the plaintiff somehow has earned his "weaker" position.   On the other hand, even though a criminal defendant is usually a heavy underdog, criminal defense lawyers (except Jon Katz) are less successful in using the "underdog" narrative -- often, again, because the government convinces the jury the defendant's life of crime is what put him in the underdog spot.

Let this paper challenge you to think more subtly about the underdog dynamic than you might have before.  Who is the underdog in your next trial?  Is it fair or unfair that she's in that position, and why?  Take a few steps back -- is there a sheer entertainment value in watching how the weaker side might conquer?  How does that affect your client?  Is there a "big dog" that jurors might enjoy taking down, no matter how much the underdog deserves to lose?  What is it that makes that party so easy to root against?  Are you that party?

(Photo -- get it?  Under dog? -- by Dan Bennett at http://www.flickr.com/photos/soggydan/481674998/; license details here.)

The Grim Power Of Grim Evidence

Criminal and personal injury defense lawyers, pencils ready.  Next time you ask a judge to keep gory pictures and other disturbing material out of evidence, cite David Bright.  "Jurors presented with gruesome evidence, such as descriptions or images of torture and mutilation, are up to five times more likely to convict a defendant than jurors not privy to such evidence," a recent press release about his work says.

The research in question isn't brand new; Mr. Bright's most recent papers are from 2006 and 2004.  But he recently presented a seminar on his work in his native Australia (you can listen to the audio and see a syllabus here) -- and the University of New South Wales, where he is a Ph.D. candidate, used the occasion to issue the press release recapping his recent work.  Be glad they did.  With his colleague Jane Goodman-Delahunty, Mr. Bright has spent the last five years exploring the effect of gruesome evidence on juries.

Pictures or no pictures

The research Mr. Bright describes in his 2006 paper -- "Gruesome Evidence and Emotion: Anger, Blame, and Jury Decision-making," in volume 30 of Law and Human Behavior -- is a straight-up comparison.  Just over 100 subjects were assigned to read a summary of the murder trial.  The facts were the same in each summary, but the researchers varied the amount of detail in the description of the victim's wounds.  In addition, some subjects got photographs of the victim's wounds with their summaries, some got "neutral" pictures of the crime scene, and some got no pictures at all.

The photographs had a huge influence.  Only 8.8% of the mock jurors who didn't see pictures voted to convict the defendant, compared to 38.2% of those who saw neutral pictures and 41.2% of those who saw gory pictures.  The level of verbal detail, on the other hand, seemed to have no effect.  Why did the photographs make such a difference?  Another finding suggests the answer:  the jurors who saw gruesome pictures "reported higher levels of anger directed at the defendant" than the others.

Changing the facts

The 2004 study ("The Influence of Gruesome Verbal Evidence on Mock Juror Verdicts," in volume 11 of Psychiatry, Psychology and Law) focused solely on verbal evidence, but it is less striking because the researchers varied the underlying facts.  In the case file they used, a husband was accused of killing his wife -- but some subjects read a summary where the victim was tortured (and her mutilation was described in detail), while others read a summary where the victim was stabbed once in the chest. 

Those who read the torture summary were more likely to convict, but it might not have been the gore that did it.  I'm no expert, but it would seem that jurors might be more willing to believe that a random attacker was guilty of a stabbing, and that an enraged husband was more likely than a stranger to have committed the torture in the gruesome version.  The paper doesn't attempt to rule out this possibility. 

Protecting trials, protecting jurors

Both papers recap other research in the field.  The 2006 paper also suggests another reason courts should consider excluding lurid pictures:  the impact on the jurors themselves.  Bright's mock jurors reported significant levels of disgust, sadness, and fear when they had to see gruesome pictures.  The researchers called these intense reactions "unexpected," but real courtrooms see them often.  The same week Bright's press release came out, an Australian juror vomited after hours of medical evidence including photographs of horrific injuries inflicted on a little girl.

_________________

Notes:

1. Both Corrections Sentencing and EvidenceProf Blog got to this story faster than I did; but California forensic psychologist Karen Franklin saw it first, because she saw it in the Sydney Morning Herald.
2. I dreaded having to find a picture for this.

(Photo by Sara Petagna at http://www.flickr.com/photos/apesara/1542716302/; license details there.)

Juror Disqualification: The Role Of The Ask

The last few days have turned into a juror disqualification series.  Friday listed some issues that might disqualify jurors; Monday talked about ways to prepare for those moments; and Tuesday looked at Monday's death-doubting-juror decision in Uttecht v. Brown. 

There's another point that pulls it all together, a critical factor -- maybe the critical factor -- in juror disqualification.  Over and over, cases seem to turn not on what the juror actually said or did, but instead on how extensively the trial judge questions, or allows questioning of, the juror and the rest of the panel.  To borrow a phrase from fundraising circles, it's all about The Ask.

The Ask in Uttecht v. Brown

Karl Keys at Capital Defense Weekly points out that the Uttecht v. Brown opinion relies heavily on the quality of the trial judge's voir dire:

Justice Kennedy need not have set out number of days in voir dire, appended the jury selection, mentioned the use of questionaires, or even that the jury panel was told repeatedly that life meant life without parole; none of those facts were necessary for the Court to reach its decision. Those details, however, are important if you are trying to send a message to those courts where such procedural safeguards are not taken. The processes Brown received at his trial were substantially more than you get in 80-90% of capital trials nationally. Justice Kennedy’s chambers reviews those same cases and he knows Brown received more process than almost all the hundreds of men the Court has sent to their deaths.

The import of the opinion then, at least in my mind, is the blueprint it sets out for what voir dire should look like.

Guess the reversals

Whether or not Uttecht v. Brown will end up limited to strong voir dire performances by trial courts, it's not the only recent case to turn on the quality of the trial court's questioning.  It's hard to rank the last several weeks' cases by how egregious the juror's conduct was.  Try it:  which of these trial court decisions do you think would stand up on appeal?

1. In a death-penalty case, to the question whether anyone had a problem with the idea of the defendant not testifying, one juror responded, "I do.  I think he should have to.  I know the law is not that way, but I think so."  Defense counsel asked whether the juror could set aside those thoughts, and he responded, "I don't know."  The trial court refused to dismiss the juror.
2. A trial judge dismissed a juror after she recognized the defendant and "although she was unsure, she had some recollection that he was fired for an incident involving a gun."  She had said she could be fair and wouldn't tell the others.
3. A juror complained that the defendant was "eyeballing" him.  Noting that the jury had been “repeatedly admonished not to make up its mind about any issue,” the trial judge left him on the jury.
4. In a death-penalty case, a white juror told African-American co-workers -- at his workplace, away from the other jurors -- that he was “going to the hardware store to buy rope to hang this man with.”  The defendant was African-American.  Questioned later by the trial judge, the juror insisted he was only saying what he thought his co-workers expected him to say, and he had not really made up his mind.  The trial judge left him on the jury but made him an alternate, so he did not deliberate.
5. In a death penalty case, the trial court refused to strike for cause ten jurors who remembered seeing publicity, including one who "related that she knew others who felt he was probably guilty and that she felt the same," one who said "that most of the people in the community at that time believed" the defendant was guilty, one who "was not sure if she could remove all information from her mind during the trial and deliberations," and one, the eventual foreman, who said in voir dire "that he wanted evidence from Appellant to prove his innocence."

And the answer is . . .

Only one of these cases affirmed the trial judge, and it's the one with the most egregious facts.  It's Case No. 5, where the ten tainted jurors remained (and nine deliberated.)  The opinion is Foley v. Parker, decided by the Sixth Circuit on May 17.  Granted, it's the only federal habeas case on the list, but the turning point in the opinion is The Ask:  "[T]he trial court conducted a thorough voir dire and was satisfied from the responses of the ten challenged jurors that they could set aside what they had heard about the case and decide it based upon the evidence presented in court."

Each of the other cases is different from the rest, of course -- different facts, jurisdictions, procedural postures, legal standards, and appellate judges.  What they all have in common, though, is that the trial court didn't ask enough:

1. Case No. 1 is Kopsho v. State, a death-penalty direct appeal in Florida decided May 24.  "Neither the State nor the trial court attempted to rehabilitate Mullinax after this exchange with defense counsel" in which Mullinax said he thought the defendant should testify.
2. Case No. 2, where the juror recognized the defendant, is People v. Dukes, decided by New York's highest court on May 1 and discussed in this blog here.  In Dukes the trial judge asked the juror what she remembered, and then reflexively dismissed her even though defense counsel objected.  The Court of Appeals reversed, saying the trial judge should have inquired whether she could still be impartial.
3. Case No. 3, the eyeballing case, is U.S. v. Simtob, a direct appeal decided by the Ninth Circuit on May 11 and a favorite of this blog.  (I know I keep bringing up Simtob, but it keeps being relevant.)  The Ninth Circuit sent the case back to the trial court to "determine whether the perceived threat impaired that or any other juror’s ability to act fairly and impartially," since the trial judge didn't do that the first time.
4. Case No. 4, where the juror talked about lynching, is State v. Loftin, decided yesterday by the New Jersey Supreme Court on postconviction review, not direct appeal.  (The case is discussed here at Capital Defense Weekly.)  The trial judge should have dismissed the juror immediately because his comments were so heavy with racism, the court said -- but more than that, the trial judge should have questioned the other jurors: 

[T]he trial court had to voir dire the jury and satisfy itself either that Juror No. 4 did not express predetermined or biased views to other jurors or that if he did, the jurors were not influenced by those views. Therefore, the trial court first should have dismissed Juror No. 4 and then voir dired the jury. In cases in which a jury has been potentially exposed to external influences that could undermine jury impartiality, our courts have not hesitated to make inquiry of the jurors to ensure that they have not been fatally tainted.

The lesson is easy here.  If you're a judge, ask and ask and ask.  If you're trial counsel, be ready, and object precisely.

(Photo by Jilligan86 at http://www.flickr.com/photos/gillian_m/448800043/; license details there.)