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?  

A Juror Reminds Us That The System Works

Last week, Ed Fletcher of the Sacramento Bee wrote a truly insightful piece about his jury service on a criminal trial. Not surprisingly, the story got little attention from media outlets around the country.  (Apparently, only incite-ful jury pieces need apply.)  The title of the column was “I voted to send another brother to prison.”

Mr. Fletcher is a black man (as was the defendant).  Mr. Fletcher is a journalist.  Mr. Fletcher was leaning towards a not guilty verdict at the trial’s opening.  Most importantly, Mr. Fletcher was the foreperson.

To some prosecutors (and armchair lawyers), this would be a situation that demanded an immediate plea deal.  However, that decision would have been based on an opinion of Mr. Fletcher that was rooted in stereotype and personal bias.  Worse, it would assume that the prosecution’s presentation would be so inept and disjointed, that it would be unable to overcome any juror predilections.

Instead, the State chose to present a compelling case and let the jurors decide.  As Mr. Fletcher noted:

“The gunshot residue was big, but no piece of evidence offered the clear cut satisfaction supplied by ‘CSI,’ ‘Bones,’ ‘The Closer,’ or ‘Criminal Minds.’ In our real world case, witnesses' views were obscured by darkness, the handgun had no incriminating finger prints and the (video) footage was crap.”

He continued…

“When I entered the deliberation room, my gut told me that we were headed for a hung jury. But as we kept reviewing evidence, re-reading the jury instructions on the law and talking about our positions, more of the jurors began to reach the same conclusion: Boyce fired the gun.”

Despite the harrowing cries of incompetence from the public and blogosphere, this is the typical process that justice follows in our system.  As this National Center for State Courts research indicates, hung juries are rare.  They are the exception, not the rule.  

After the trial, Mr. Fletcher did research on the newly convicted defendant.  He discovered that the man crying like a baby in court was no angel.  This put Ed Fletcher’s mind at ease:

“Today, I feel much better about our collective decision. Freed from court instructions not to do any research, I now know that Boyce's record stretches back to 1999 and includes a murder charge that was dropped in 2003, two separate plea deals on spousal abuse and a 2005 plea deal on an assault with a deadly weapon charge.”

I would argue that this is the perfect example of our system at its best.  Mr. Fletcher’s eyes presumed the defendant’s innocence from the start.  His conviction was based on the prosecution’s presentation of evidence of the crime, not an opinion of Mr. Fletcher that was rooted in stereotype and personal bias.  Sadly, it is the exception, not the rule that most of us remember.

Blogger: Matt McCusker

 

The Real Danger from Casey Anthony's Trial: Scary Scientific Precedents

A cause of death that cannot be determined by the State’s medical examiner, but can be asserted on the stand by an anthropologist who has never done an autopsy.  The morphing of a projected child’s photo into a picture of her skull.  The description of a colorless decompositional  fluid (which is typically black).  Air samples that contain "the smell of death."  A phantom image of heart sticker that “disappeared” before the examiner could return to photograph it.

These are some of the worst examples of “evidence” that the State has used to make its case against Casey Anthony.  Most of these forensic techniques have never been allowed in any trial in the U.S.  Prior courts deemed them inadmissible because questionable scientific analyses should not be presented to laymen jurors (especially when a death penalty sentence is on the line).  The average juror does not have the expertise to differentiate between “good science” and “junk science”, so the court must help them by excluding dubious evidence.

For example, the “lie detector” or polygraph machine has been around for over 70 years.  Despite being regularly featured in crime shows and suspense movies, it is still generally inadmissible in our justice system.  This is because the machine is too unreliable and jurors will make more of polygraph results than can be scientifically substantiated.

 Chief Judge Belvin Perry is a very experienced legal mind.  He made his name as a prosecutor and actually brought the first woman to death row in Florida in nearly 150 years ( Judy Buenoano).  In fact, he attended the execution, so Judge Perry knows what the stakes are in capital murder cases.  This is why I have been so surprised by some of his rulings.

Casey Anthony very likely had something to do with her child's death.  However, I believe this case may well be overturned on appeal based on the reckless use of overreaching evidence.

Despite this, the alternative possibility is even more disturbing.  Once a technique has been admitted as evidence (especially in a case as high profile as Casey Anthony’s trial), it has a much greater chance of being allowed in other trials.  If this happens, the ramifications of this trial will span far beyond the salacious intrigue that has captured the nation.

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

 

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

 

The other definition of "LAW PRACTICE"

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

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

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

Ouch.

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

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

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

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

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

Blogger: Matt McCusker

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

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

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

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

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

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

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

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

THE END.

Blogger: Matt McCusker

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

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

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

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

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

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

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

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

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

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

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

 

Blogger: Matt McCusker

 

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

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

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

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

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

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

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

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

Blogger: Matt McCusker

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

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

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

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

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

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

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

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

John Grisham will write a bestseller called ‘The Consultants’

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

Reality TV Trial Consultants will take center stage

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

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

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

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

Trial consulting for cases without trials

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

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

We will educate our jurors 

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

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

We will get to know our jurors

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

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

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

Blogger: Matt McCusker

 

GOLDMAN SACHS' WONDERLAND WITNESS WORK

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

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

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

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

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

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

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

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

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

Angry Businessman #1

Angry Businessman #2

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

Uncomfortable Expert #1

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

Famous Smart Guy #1

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

Angry Businessman #3

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

Famous Smart Guy #2

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

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

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

Let's Get Ready to Rumble!

Blogger: Matt McCusker

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

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

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

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

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

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

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

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

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

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

Blogger: Matt McCusker

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

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

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

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

1)     Assess the Subject

2)    Identify the Narrative Goal

3)    Manipulate Your Presentation

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

Step One: Assess the Subject

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

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

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

Step Two: Identify the Narrative Goal

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

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

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

Step Three: Manipulate Your Presentation

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

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

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

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

Blogger: Matt McCusker

When They Don't See What You See

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

Here's a fact about health care.  Ready?

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

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

Existing attitudes change perception

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

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

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

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

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

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

Just The Facts

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

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

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

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

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

Sleepers

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

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

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

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

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

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

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

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

___________________

Related posts here:

• Are You Sleeping, Brother Juror?

• Sleep And Moral Judgment

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

If It's Difficult, It Must Be Important

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

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

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

Whatever it is, I want it

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

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

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

Keep it simple anyway

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

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

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

_____________________________

Related posts here: 

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

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

How To Work With Jargon

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

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

Step 1:  Do they need it?

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

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

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

Step 2:  When do they need it?

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

Step 3:  How do I translate it?

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

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

To See Gerry Spence

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

Prosecutor:  "Objection."

Spence:  "Okay, the United States."

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

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

To hell with it

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

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

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

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

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

______________

Notes: 

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

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

Lawyers: So Certain, So Wrong

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

"I rest my case."

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

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

With walnuts and hot fudge?!

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

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

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

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

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

The Edges Of Vouching

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

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

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

Not okay

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

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

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

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

Really?

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

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

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

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

The $1.99 Effect

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

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

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

I'll take that one

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

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

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

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Notes:

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

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

Walk This Way

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

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

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

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

Toe-tapping their way to higher sales

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

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

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

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

"A delicate balance"

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

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

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

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

Too much to remember

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

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

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

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

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

Our Great National Jury Seminar

It's a theme of this blog that you don't have to read books or go to seminars to learn about juries.  All you have to do is look around -- except in an election year, when you don't even have to look.  It's all coming at you.  Your newspaper, television, radio, dinner parties, and office break room are all focused on one question: how people choose which of two competing candidates they will support.

The 2008 election is not only a great reality TV show on its own.  It's also a terrific voir dire workshop. Among the issues this class covers:

1.  What do race and gender really mean?  Most studies of jurors conclude that juror demographics don't directly affect verdicts -- with the important exception that jurors lean toward parties of their own ethnicity.  (That's from Devine et al, Jury Decision Making:  45 Years of Empirical Research on Deliberating Groups, 7 Psychology, Law, & Public Policy 622 (2000)).  But at the same time, we know that people of different races and genders often have shared experiences.  Since experiences in turn shape attitudes, race and gender matter in ways that go beyond loyalty, but are difficult to define.

Trial lawyers have long wanted to understand this better -- and these days, so does every news organization in America.  One fascinating piece of this is how individual one's group identity can be, as Newsweek explains in an article that's well worth reading in full:

Which candidate a voter identifies with is one of the most important gut-level heuristics, since it is tantamount to deciding that someone is enough like you to "understand the concerns of people like you," as pollsters put it. "If you feel a candidate is like you racially or by gender, you're more likely to believe that that candidate will support what you support," says [Harvard political scientist Pippa] Norris. But with a white woman and a black man vying for the Democratic nomination, where does that leave black women? Whom they most identify with depends on which aspect of their own identity dominates their self-image. For instance, in a study of whether black women believed O. J. Simpson guilty or not of the 1994 murder of his ex-wife and her friend, those whose identity as a woman trumped their sense of themselves as black were significantly more likely to believe Simpson guilty. But black women whose self-image was dominated by their race tended to believe him innocent.

2.  How much do looks matter?  We know they do, and new evidence comes in all the time.  (BPS Research Digest today reports on a study suggesting that a company's profits are related to the CEO's facial appearance.) 

Nearly every variation on this theme has come up in the election.  When Hillary Clinton is photographed looking tired and wrinkled, the world responds.  When this story came out in December, Ann Althouse said, "A picture like this of a male candidate would barely register."  That's probably true, but men's faces matter too.  CNN and others have wondered whether Mitt Romney is too good looking; but when you hear women gushing "He's perfect!" to radio reporters, you have to think his looks are a plus overall.  So is Mike Huckabee's 100-pound weight loss.  And one thing early drop-outs Bill Richardson and Fred Thompson may have had in common was that they didn't measure  up to their opponents on the look-like-a-president scale.

3.  What happens if you cry?  Scooter Libby's lawyer cried in closing argument, and it didn't seem to help.  Few lawyers would plan a teary outburst, but trials are emotional, and it can happen.  Hillary Clinton is helping us figure out exactly where the line is when it comes to tears.  By all accounts a little welling up was the most helpful thing she did in New Hampshire.   When she wiped another tear away the other day, though, she lost some people, like the vehement QuizLaw, while Nicole Black (at her great new blog Women Lawyers - Back on Track) pointed out that we probably have a double standard here too.

4.  Can you attack and still be admired?  On both sides, candidates are struggling to find the line between pointing out an opponent's weaknesses and appearing nasty and mean.  They're finding too that negative messages work better coming from some team members than from others:  Bill Clinton, for example, didn't turn out to be the right guy to go after Barack Obama.

5.  Do polling and focus groups help?  Pre-election polling was highly predictive in New Hampshire -- if you were a Republican.   The uses and limits of polling are a constant theme now, as campaigns and news organizations gear up for each new contest and then find out where and how they were wrong.

6.  How can I improve my presentation style?  It will be four years before you have another chance to see two or three major speeches, given by talented presenters and written by the best speechwriters in the country, every single day.  Watch Barack Obama speak.  Then watch him again.  Watch Hillary Clinton in small groups, where she excels.  If you agree with me that Mike Huckabee is able to strike a more personal note from the podium than either John McCain or Mitt Romney can, see if you can identify what he's doing to accomplish that.

(Photo by Joe Crimmings at http://www.flickr.com/photos/joecrimmings/2096982084/; license details there.)

What Not To Wear

Here in Milwaukee we're kind of uncomfortable with how we're perceived by outsiders.  Once we get done explaining that we're in Wisconsin, not Minnesota, we know what questions come next.  No, it's not really like "Laverne & Shirley," and we don't drink beer all day long. 

When the local legal news makes a national splash, it usually doesn't help.  (Remember Jeffrey Dahmer?  He was from here.)  So we winced when Milwaukee County Circuit Judge William Sosnay was Above the Law's "Judge of the Day" today; winced again when the same story inspired the WSJ Law Blog to start a new chapter in its society of sartorial societies; and winced a third time when Corrections Sentencing captioned the story, "See Why I Left Wisconsin?"

What was it?  A lawyer and a judge arguing over what to wear.  As the Milwaukee Journal/Sentinel reported (and the paper's great law blog Proof and Hearsay spread the word):

Justice may be blind, but Milwaukee County Circuit Judge William Sosnay's sense of courtroom fashion is not.

In the courtroom of the pompadoured judge long known as a fastidious dresser, a sentencing hearing in a misdemeanor case was delayed for three hours Tuesday after a veteran prosecutor turned up for court wearing an ascot.

A courthouse rule requires all lawyers to wear neckties, but prosecutor Warren Zier's occasional choice of creative cravats drew the judge's ire.

Sosnay's review found Zier's red ascot - which matched the handkerchief in the breast pocket of Zier's pinstriped gray suit - "borders on contemptuous," given the judge's prior warnings that he only cottons to neck- and bow-ties.

"This is not about the definition of an ascot or a necktie," Sosnay said in court, addressing a reporter in the gallery directly while a case waited to be heard. "This is an issue which I believe deals with the integrity of the court."

Luckily this is a jury blog, so there's no need to me to take sides.  On the only issue I write about, they agree, and they're both right:  don't wear an ascot in front of a jury. 

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(Photo of Milwaukee's beautiful lakefront, which hardly ever makes national news, by Indy Kethdy at http://www.flickr.com/photos/indykethdy/2122175295/; license details there.)