I. Communicating During the Trilogy of Persuasion: Voir Dire, Opening and Summation
A. Understanding and Utilizing the Dynamics of Decision Making
The purpose of this section is to examine the underlying principles of effective preparation and presentation of persuasive proof. Onto the ancient Aristotelian principles of persuasion, we will overlay modern forensic psychological principles which have emerged from numerous studies of the decision-making processes of jurors. From these principles and studies we deduce and examine four major goals of advocacy in persuading jurors: today’s advocate must inspire, influence, instruct and empower jurors.
We will examine methods of creating, structuring and testing messages and themes as well as techniques for effective delivery of each message through the multiple levels on which we communicate with decision makers.
1. Aristotle’s Principles of Persuasion
2300 years ago, Aristotle, in his Discourse on Rhetoric reduced the principles of argument to four major points. Examination of these four points reveals that they serve those of us who labor in the vineyards of litigation as well today as they have served Aristotelian scholars for 23 centuries.
Aristotle’s first principle: Well dispose your audience to you and ill dispose them to your enemy.
It is not sufficient to make your own case but it is also necessary to affirmatively attack your opponent’s position, particularly on their most salient points. We often win the battle on the case in chief and lose the war through ignoring the opponent’s case. Ideally, co-counsel in your office should be assigned the task of preparing fully the other side’s case from their perspective. In doing so, they will peruse the strengths and weaknesses of the opponent’s case while viewing your case from an adverse perspective. This will afford you the opportunity to analyze your opponent’s viewpoint in exploiting your weaknesses and launching attacks on your strengths. This leads to Aristotle’s second principle.
Aristotle’s second principle: Maximize your salient points and minimize your weaknesses.
It is necessary to determine the thrust of your case early in the evaluation process and design your evidentiary presentation around a few well defined points, i.e., develop a theme. With respect to the weaknesses in your case, deal with them directly. Either dispel them, distinguish them or be the first to confront and minimize them prior to your opponent’s positive use of them against you. Most importantly, don’t ignore them.
The principle of inoculation applies here. By directly addressing your weaknesses before the opponent gets the opportunity to do so, you are able to weaken the attack and choose the language with which the weaknesses will be first discussed to the jury. This will convey the important and accurate impression that you are being straightforward and honest with the jury which enhances your own most important characteristic, i.e., credibility. By openly revealing weaknesses in your case and carefully couching your discussion of them, you may successfully inoculate the jury against the inevitable attacks by your opponent.
With respect to maximizing your salient points, this is simply done through the development of themes in your case which convey your well-defined messages in simple, easily understood and memorable language which embraces the facts and provides motivation for the desired verdict. Your theme should be based upon common sense which is the hallmark of the collective wisdom of the jury. Your themes should be delivered through the use of repetition throughout the trial, which brings us to Aristotle’s third principle.
Aristotle’s third principle: Refresh the memory of your audience frequently.
Napoleon Bonaparte, who was a great orator as well as a military genius said that only one rhetorical device was needed to persuade: “repetition, repetition and repetition”. Repetition as used in the context of litigation means developing themes, and the messages inherent in the themes, and embedding the themes and messages throughout the trial through thematic repetitions from various evidentiary directions.
Consistency and repetition are the hallmark of persuasive presentation of themes. Build the thematic repetition by the threads of consistency running throughout lay testimony, expert testimony, demonstrative evidence and documentary evidence, which are totally consistent with counsel’s comments on voir dire, opening statement and summation. Proper thematic development through repetition achieves a coherent presentation which coalesces in the evidence and culminates in persuasive presentation of the thematic arguments during summation. Themes and messages should be introduced during voir dire and opening statement and developed fully in a combination logical and emotional appeal by counsel during summation. This brings us to Aristotle’s fourth principle of persuasion.
Aristotle’s fourth principle: Execute the required level of emotion.
This is probably the area in which juries are most disappointed by trial attorneys. Forensic psychologists tell us that the one word which would be most often used by jurors to describe jury service is “boring”.
Advocates fail to execute the required level of emotion by adequately involving jurors in the trial of the case. All too often, jurors sit as mere spectators to occurrences in the courtroom without being reminded that they are an integral part of the system. Counsel should strive to empower the jury with the early understanding that they are the sole judges of the factual disputes, the credibility of the witnesses and the amount of damages to be awarded in the case. Very early in the voir dire examination, make jurors understand the extremely important role which they are playing in the adversary system so that they do not view the trial as a spectator, but rather appreciate the importance of their position.
Jurors get less than they expect from advocates and when we disappoint jurors, they will return the favor in kind. There is a major place for emotion as a persuasive tool in the trial and that time is during summation. However, this is not emotion for the sake of emotion and must be distinguished from an appeal for sympathy. One of the purposes of this paper is to discuss how to get jurors to confront the plaintiff’s physical pain and suffering and mental anguish and how to involve the jury viscerally in the trial.
2. Modern Forensic Principles
a. Jurors Decide Cases on Perceptions
Jurors do not decide cases based upon reality. Why? Because unless the juror was standing on the corner and witnessed the collision and color of the traffic signal, the juror does not know what reality is. Jurors base their decisions upon their perceptions of reality. Therefore, it is relevant for advocates to consider at least six broad based sources which affect jurors’ perceptions upon which they base their decision. These include the beliefs which the jurors have before entering the courtroom, i.e., preloads; everything that they observe during the course of the trial, in and out of the courtroom; the evidence presented and the credibility of the witnesses; persuasion by counsel; the court’s charge; and persuasion by other jurors.
(1) Preloaded Perceptions
While theoretically, the perceptions of reality are created in the minds of the jurors through evidence elicited from the witness stand and through the documentary and demonstrative evidence which the court allows into evidence, we must never underestimate the importance of the preloaded perceptions which the jurors have in their minds as they enter the courtroom for the first time and how important these perceptions are to the decision-making process. For example, many jurors who are called to be the decision makers in a case involving medical negligence will begin the decision-making process immediately upon learning that this is a “medical malpractice” case. Many jurors have been preloaded with perceptions which they have formed through the press, the news media and many other sources to believe that medical malpractice cases are driving up their healthcare costs and are generally frivolous lawsuits. Therefore, the skilled advocate will give careful consideration both to the preloaded perceptions with which jurors will enter the jury box in their particular type of case and to the advocate’s role in coping with the preloads and in creating the new perceptions upon which the jury will decide the case at bar.
Perception is really each person’s own vision or version of reality. Perceptions have effect on the conscious mind. When we communicate we take action based on what we perceive to be the facts or the truth. Perception is each individual’s picture of reality. When we talk to people we communicate from the vantage point of the other person’s perceptions of reality – his or her own model of the world.
Magicians have understood this principle for years. They use it everyday to create miracles. They know that if they can fool our senses into perceiving something is so, we will believe it. Once we believe that something is so, even though it is not, we accept it. In fact, something else is really taking place. But that doesn’t matter to our senses. We continue along with a certain belief. We believe the magician’s assistant is in the box. This is not so. We are then faced with the surprise ending when we find the magician assistant is gone and is appearing from another point on the stage. Because our reality is based on perceptions, on what we perceive to be true, we have been fooled.
The importance of perception is a principle that is very important to lawyers. He or she must understand that it is not whether the adverse witness is telling the truth on the stand that counts. What counts is whether or not the jury is going to perceive that the witness is telling the truth. The witness may well be lying, but if he or she is perceived as truthful, they can still carry the day. On the other hand, our truthful witness, because of external cues, nervousness and fear, may well be telling the truth but may be perceived on the conscious or unconscious level as deceitful. In that case, we lose. What matters is that the witness is perceived as being untruthful, not what is really true. It is the perceptions of reality that carry the day, not necessarily reality. That is why it is all important to understand that we have to deal with the jury’s perceptions of reality and what affects those perceptions throughout the trial. All communication is based on perception. It is what is being perceived by the person to whom we are communicating that counts.
The use of preconceived patterns of behavior generalizations, belief systems, and stereotypes alter perceptions and those perceptions become fixed rapidly. Jurors come into the courtroom, many for the first time, carrying with them their own belief systems. They have accepted certain generalizations about life, sex, race, etc. They each have their own model of the world that they are living by. That model is filled with stereotypes and generalized beliefs.
(2) Preloads Role in Decision Making
These preconceived notions, ideas, generalizations, and stereotypes are one source of information jurors use in decision making. They use this information to reduce anxiety and to make certain assumptions about their own reality. Jurors are in an unfamiliar setting. They are looking for information. They are picking up all kinds of cues, they are sponges absorbing new information and sifting it through preconceived ideas to reduce their situational anxiety.
They want to know what is going on. They watch the parties and speculate on the nature of his or her personality. They observe the lawyer. They observe the lawyer’s relationship with court personnel. They are deciding whether to like the lawyer from the very first moment they set eyes on him. They are sifting all of this information through using their own notions about lawyers, courtrooms, etc. They are in essence making judgments continuously about you and the client based on what they perceive to be true, both from the external cues that are being given them and from their own preconceived ideas and notions.
Therefore, one must take into account, what the general beliefs are, about your client, the type of case, and about you as an attorney. One must constantly ask oneself throughout the trial what beliefs jurors are bringing with them regarding this kind of case, this type of client, and the kind of lawyer that I am. Sometimes it is wise to have performed a community survey designed by a social scientist to discover the real attitudes of the community towards the client or the type of case and other factors involved.
For example, in a recent case in Cleveland, Ohio, involving a young man who was severely brain damaged when he fell off the back of a motorcycle despite wearing a protective helmet, plaintiff’s evidence overwhelmingly showed that the helmet involved was defectively designed. In fact, the proof established that the helmet, instead of protecting the head, actually accentuated the injuries. A pretrial community survey showed that the one type of person the plaintiff did not want on the jury was someone who had experience with motorcycles or motorbikes. Instead of identifying with the plaintiff as counsel thought, these potential jurors assumed that the plaintiff knew how dangerous motorbikes were and should have stayed off of it.
(3) Preloads Role in Primacy
One has to understand that primacy plays a role here also. People use their own stereotypes, generalized beliefs, and interpret ongoing external cues to form opinions very early in the trial proceedings. These opinions often become fixed rapidly. This is the psychological principle of primacy, which tells us that those facts which people first believe, they tend to continue to believe. We have a more difficult time reversing a fact in a juror’s mind once primacy has taken effect.
The primacy portion of the trial is considered by most experts to be from voir dire through the first witness. Opening statement plays a critical role therefore in taking advantage of primacy. One should always work with voir dire questions and the opening statement to convince jurors of liability and serious injury. Additionally, the first witness always should be a strong one. By the time you finish the primacy portion of the trial, most jurors should have made up their minds that they want to decide in your favor. Once a decision is made, it is very difficult for the defense lawyer to change a juror’s adopted point of view.
(4) Coping with Long-Held Beliefs
Long-held beliefs and stereotypes are not changed by simply presenting contradictory information. People often have generalized belief systems about certain groups in the community. These stereotypes may apply to either a demographic fact or a group or class of people. For example, to many Caucasian Americans, all Vietnamese are viewed through a racial stereotype, some engendered by bad experiences from the Vietnam war and some by being inculcated with the prejudice of others. This is a racial stereotype. Or some may believe that all people from a certain housing project are thieves and totally untrustworthy. This is a demographic generalization. Such beliefs can apply to inanimate objects or a whole profession; i.e., corporations do not make unsafe products, doctors do not make mistakes, and lawyers are overpaid, greedy and bring frivolous lawsuits. In a product liability or a medical negligence case in which you are plaintiff’s counsel, you must know how to recognize such beliefs and cope with them on voir dire examination through justification, linking and building a new belief system. These longevity generalized beliefs may be fixed conclusions either in a given juror’s mind, or the group as a whole.
Jurors tend to maintain such long existing stereotypes and general beliefs in one of the following ways:
1. By ignoring contradictory information (which they often do);
2. by interpreting the contradictory information so as to render it harmless to the original concept (they do this often), or
3. by recognizing the original information as being inconsistent with new information but insisting on maintaining the original belief anyway (this can also happen).
Generalized belief systems die hard. They cannot be changed by simply presenting contradictory information. They are going to believe that stereotype no matter what you prove. For example, proving that the doctor made a mistake or fell below the standard of medical practice in the community may not be sufficient in a malpractice case. Jurors go to doctors. Jurors trust doctors. Jurors do not want to believe that doctors make mistakes. Jurors do not want to believe that the doctor who gave them a clean bill of health in their annual physical can possibly be mistaken. Therefore, simply showing that the doctor made a mistake or that he was negligent will often be ignored. So what do you do about these belief systems and how do you change them? How do you know during the primacy phase of the proceeding that the jurors are leaning in your favor? What considerations are involved in changing a pattern of belief that the juror brings with him or her into the courtroom?
How does one change stereotypes and other belief systems that pre-existed in a particular juror and/or the community in general? Pre-existing belief systems can never be changed by directly presenting contradictory information. No matter how much evidence you present that “corporations make unsafe products” or that “doctors make mistakes”, this will not change a preexisting belief system to the contrary. Beliefs in stereotypes can be changed only in the following fashion:
(5) Suspending Long-Held Beliefs
1. Acknowledge the pre-existing belief and justify it.
2. Link the client and/or yourself to the pre-existing belief.
3. Use this link to the belief or stereotypes to build a new belief system.
Information contradictory to the belief based on stereotype will be ignored if you attempt to attack the belief directly and disprove it. These are often very long held and deeply ingrained beliefs and we must be cautious not to make the juror feel that their beliefs are under attack. Their response will be to defend them and cling to them more tenaciously. Instead of directly presenting contradictory information, one needs to identify the stereotypes. Say it is all right to have this belief; that most people share the belief; that your client previously held the same belief; if appropriate, that you previously held the same belief, but that you and your client have altered your belief based upon several factors which you would like to discuss with this jury. You have now predicated the building of a new belief system. You are not asking the jury to reject their belief but rather to consider the same alteration of their belief which you and your client have experienced based upon the facts of this case.
For example, if you are prosecuting a medical negligence case, you can assume that most jurors believe that doctors do not make mistakes. If you simply prove that the defendant made a mistake, they will still tend to believe the stereotypes. Instead you must say to the jury either in voir dire or opening statement the following:
(a) Acknowledge and Justify Belief
“I know that most of you believe, as I once believed, that doctors generally do not make mistakes and that they are very careful. We all want to believe that physicians who are highly paid are very careful caring professionals who know what they are doing. In fact, most of us in this community still hold on to the concept, and if most Americans did not believe this firmly, it would seriously affect the delivery of health care. We have to believe in doctors. It is all right to believe that doctors generally do not make mistakes. If we did not believe that, we could not be treated by them.”
What you have done is identified the problem and justified it. You have told them it is all right to believe that doctors do not make mistakes.
(b) Link to the Belief
Now you link the client to the belief:
“My client Mary used to believe that too. When she went to Dr. Jones, the defendant in this case, she certainly thought that he would not make a mistake, that he would not let the scalpel slip and cut her ureter during her hysterectomy. It is all right for Mary to have believed that.”
You have now linked the client to the generalized belief about doctors. You have shown that the client was correct in making the same assumption about doctors that most jurors would make. She had no reason to believe to the contrary. You have shown a strong similarity in thinking between Mary and the jurors and in doing so you have suggested that the exactly the same fate could have befallen the trusting jurors.
(c) Build a New Belief System
Now you are in a position to build a new belief system:
“While it is all right for you and Mary to have this belief and to feel comfortable relying on doctors, the truth is that doctors are human beings. Just as some of us make mistakes by running a red light in a car on some occasions, on some occasions even good doctors run medical red lights. This happens for a number of reasons. Basically this happens because we are all human beings. In this case the evidence is going to show that Dr. Jones, a perfectly fine doctor on thousands of other occasions, ran a medical red light on this occasion. He made a mistake, a mistake which the law requires him to be responsible for.”
Even if the belief or stereotype is derogatory to a class of people, the link to the client can still be effectively made in order to predicate a new belief system. Another example is if you are defending a poor person charged with a crime and are confronted with the stereotypical belief that poor men commit crime because they are uneducated, jobless and always need money, you might approach that problem as follows:
“Because poor people inherently have a need for money, most of us think that crime and poverty go together. Before I did this type of work I also believed that. My client grew up in the ghetto and he believed these same things about other men in his situation. What’s amazing here is the evidence will show that my client has worked very hard to climb out of the ghetto. He is very different than others who live where he lives. He has actually read more classics than I have. He is intelligent and working very hard to succeed in life. He is not your typical poor ghetto dweller who feels that the only way out is crime.”
(6) Organization of Perceptions
Thus, the preloaded perceptions are particularly important because of the psychological principal that people attempt to maintain their original perceptions regardless of contradictory information. Forensic psychologists tell us that jurors organize their perceptions and structure them within a very brief period of time and, more importantly, people use stereotypes to organize their perceptions. Thus, jurors will form their initial perceptions very early, based on stereotypes and preloads and will measure new data against their original perceptions. If evidence or impressions are brought to them which support their original perceptions, such data will reinforce and validate the original perceptions. However, if evidence which is contradictory to the original perceptions is introduced, the jurors will tend to restructure the evidence to make it fit their perceptions or reject it outright. Only if the new data is sufficiently compelling will jurors change their original perceptions. This is the why the above technique of acknowledgement and justification of the belief, linking yourself and the client to the belief and using the link to create a new belief system is crucial.
The organization of perceptions begins upon initial contact by each juror with anyone involved in the trial. It is very important for the advocate to understand that everyone in the courtroom is being constantly observed by jurors and that the decision-making process for each juror begins with this initial contact and proceeds until a final verdict is rendered. In this section we will discuss the various factors which influence jurors in creating the perceptions upon which they decide their cases.
(7) Jurors Seek to Render a Verdict Which They Perceive as Equitable
One of the important psychological factors which makes the civil justice system work is that jurors seek to render a verdict which they perceive as fair and equitable. Jurors want to do a good job and sincerely want to render a verdict which they can look back upon with pride. It is essential for the advocate to stress to the jurors the importance of their role in the civil jury system, the permanence of their verdict and the reasons why equity and justice require the verdict which your client seeks. Use this principle on voir dire to suggest to the jurors who are unduly preloaded and prejudiced that they may be better qualified to serve, in all fairness to everyone, on a different type of case and try to obtain a challenge for cause.
b. Understanding the Conscious (Logic) vs. Unconscious (Emotion) Mind
People make decisions with subjective experience (unconscious mind) and validate decisions with logic (conscious mind).
(1) The Conscious Mind (Logic)
Understanding the function of the conscious mind is absolutely necessary. In order to understand the importance of this crucial principle, one has to understand how the conscious mind works and functions in opposition to and in conjunction with the unconscious mind. There are very important distinguishing features about the conscious mind, just as there are distinguishing features about the unconscious mind.
(a) The Conscious Mind Can Abstract
First, the conscious mind can abstract. That is, it can think in terms of a universal or abstract idea. In the conscious mind, you can think of the concept of a chair as opposed to picturing a particular chair. In fact, it is this ability to abstract that most social scientists believe distinguishes the functions of the human brain from that of many or most animals.
(b) The Conscious Mind Distinguishes Reality From Non Reality
Secondly, the conscious mind distinguishes reality from dreams which are nonreality. The conscious mind knows when it is awake and when you are asleep.
(c) The Conscious Mind and the Rule of Three
Thirdly, the conscious mind can only deal with limited information at any one time. In fact, the conscious mind generally is better dealing with only three pieces of information. This is called the rule of three. We have learned that three is a magic number. We have always believed in three’s. We are taught that God is composed of the Father, Son and Holy Ghost. The most powerful religious concept in our world comes in three people. There are such phrases in our society as “it is as easy as one, two, three.” The rule of three is well-known by comics and others in the theater and entertainment industry. That is why comedians generally do only three jokes in a routine on a particular subject, never four. Good politicians make no more than three points during a speech. One evening, in the 1960’s, Johnny Carson was telling jokes about President Lyndon Johnson and his dog. His fourth joke flopped and he immediately said to his writers off stage, “I told you never to give me more than three jokes on a subject.” This is the rule of three. It is important to understand this because when you are organizing information to give to the conscious mind, you must know that it has a limited capacity to deal with that information, and you must organize it and simplify it so as to follow the rule of three and never exceed the rule of seven. Such organization appeals to the mind on both the conscious and unconscious levels.
(d) The Conscious Mind is Detail-Oriented
Fourthly, the conscious mind sees details. It does not necessarily see the forest. It can look at the trees and count the leaves. It is oriented to organizing information and looking at detail. This function is peculiar to the conscious mind.
(e) The Conscious Mind Deals with Negatives
Fifth, the conscious mind interprets language and understands it. It understands the concept of a negative thought or idea. It can understand and interpret the words “no”, “don’t,” or “not.”
(2) The Unconscious Mind (Emotion)
Understanding the functions of the unconscious mind, on the other hand, is in many respect opposite to the conscious mind.
(a) The Unconscious Mind Records a Total Experience
The unconscious mind cannot abstract. It does not deal with details. It absorbs and records a total experience. It does not function on a logical level, it functions on an emotional level.
(b) The Unconscious Mind and Reality
Significantly, the unconscious mind cannot distinguish reality from dreams, or nonreality.
(c) The Unconscious Mind Experiences in the Present Tense
The unconscious mind experiences everything only in the present tense. It experiences everything as though it is occurring now.
(d) The Unconscious Mind Deals with Unlimited Information
The unconscious mind has the unlimited ability to deal with unlimited information. The truth is everything we experience is experienced in its entirety by the unconscious mind. Through a phenomenon, we still do not fully understand, our total life’s experience is recorded and stored in the unconscious mind. Therefore, the unconscious mind has the ability to deal with unlimited information. But it fails to see details and rather deals with the whole experience.
(e) The Unconscious Mind Cannot Interpret Negatives
It also does not understand and interpret language very well. The unconscious mind cannot interpret the words “no,” “not,” or “don’t.” If you tell someone don’t think of pink elephants, the first thing he will think of is pink elephants. That is the way the unconscious mind works, it does not hear negatives. That is why when you say to the child, “Don’t drop that glass,” the unconscious mind hears only the message “Drop that glass,” and the child will drop that glass anyway.
(f) The Unconscious Mind Handles Information Emotionally
The unconscious mind does not organize anything and deals with information on the emotional level rather than on the logical level. In essence, the unconscious mind deals with all of the aspects of the total experience as it is occurring at the present time and then stores the information about that experience on the unconscious level.
(3) Retention and Recall – Social scientists and psychologists still do not fully understand exactly how memory functions. Some researchers think that it is both a combination of electrical and chemical activity that stores the information somewhere on the surface of the brain. Certain experiments have shown that the hypothalamus gland plays a role with memory, and that therefore memories which are related to more than one sense are easier to recall. The important thing to understand about memory is that we really remember everything that we have experienced in life. That total experience of the unconscious mind is somehow recorded there on the brain surface. So it is not a question of remembering or storing information that is the problem. The problem is recalling information from the unconscious mind to the conscious mind. It is a question of recall. When we say we remember something, we mean that we have created the ability to recall an event or an experience and to bring it from the unconscious mind back to the conscious mind. That is why memory can be more effective if we use some other sense to recall the experience.
(4) The Role of the Five Senses – The sense of smell or the sense of sight can be used to bring back or recall an event. If we have something that helps us picture the event in our mind’s eye, it is much easier to recall it. Those things that we can easily recall usually also have some emotional impact to them. It is very difficult to recall what you had for lunch a week ago on Wednesday. This particular experience eating that lunch had no particular emotional impact. But if you have ever been on the scene of a fatal accident, you will have not problem recalling that experience. The emotions connected with witnessing such an event even if after it happened many years ago it gives the event emotional significance sufficient to make it easier to recall the information from the unconscious mind back to the conscious mind. We know that sight, sound, smell, taste, and all of the senses play a role enabling us to recall from the unconscious mind to the conscious mind prior experiences.
(5) Pneumonics – Growing out of this understanding of how memory function, Harry Lorraine developed a system of pneumonics. Pneumonics is a system whereby one is able to associate particular objects with a picture in the mind’s eye, with the picture being associated with a particular number. Using this system, one can memorize twenty or more objects and instantaneously call back the word that was given. This is all done by using pictures created in the mind’s eye as the object is called out which said picture is associated in your memory with the particular number. The more ridiculous or emotional or crazy you make the picture, the easier it is to recall. To set up the system of pneumonics Harry Lorraine created twenty words that go with numbers one through twenty. His system actually goes to 100, but 20 is enough to have a workable memory system. The person using the pneumonic system then creates a standard picture associated with the word. The word rhymes with the number to make it easy to remember the word and associate the word with the number. This makes it easy to call back the standard picture that goes with that number. You put the object into the picture in your mind’s eye and it is very easy to recall. The list below are the twenty words that easily associate with the numbers one through twenty.
1 – one
2 – shoe
3 – tree
4 – gore
5 – dive
6 – kicks
7 – heaven
8 – bait
9 – dine
11 – football
12 – hell
13 – thirsting
14 – guarding
15 – sifting
16 – sorting
17 – leveling
18 – dating
19 – piling
20 – plenty
Let me give you an example of how the system works. If someone calls out the number 4 and the word baseball, imagine a giant baseball in a bull ring being gored by the bull. When you recall the number 4 and think of gore, the association makes it easier for you to recreate the picture of a baseball player being gored by a bull. Suppose someone gave the word “tongue” with the number 13. Thirteen is thirsting. You have the number 13. Can you imagine the ridiculousness of a tongue severed from the body, floating in a glass of water, and trying to lap the water up. The more crazy, the more ridiculous, the more emotional content, the picture in your mind’s eye, the easier it is to recall called out objects. This gives you some idea how memory functions.
(6) Negatives and the Unconscious Mind – The importance of these distinctions between the conscious and unconscious mind have certain clear ramifications to the trial lawyer. Since the unconscious mind cannot deal in negatives, all questions should be phrased so as to call for a positive or “yes” answer. If the question calls for a negative answer, the unconscious mind will hear and will interpret the opposite result. If one asks the question on voir dire, “Will you promise me that you can follow the law and not be unfair to my client?,” the unconscious mind will hear only “be unfair to my client,” Whereas, if you ask the question calling for a yes answer, “Do you promise me that you can be fair?”, that question communicates to both the conscious and unconscious mind that the juror ought to be fair.
There are many other uses of the failure of the unconscious mind to register negatives. Consider the case where a plaintiff lost his leg at the knee from an infection because a company doctor failed to take an x-ray or follow-up on complaints of continuing pain for three months. By history the employee said a co-employee dropped a pumpliner on his foot. The pumpliner is huge and weighs 125 pounds. The plaintiff brought the pumpliner in the courtroom and had the co-employee who dropped it hold it exactly as he had before he dropped it. A big board was put on the courtroom floor under where the employee was standing to demonstrate how he was holding the pumpliner when he dropped it. The defense lawyer walked up and stood opposite the employee in an attempt to distract from the demonstration. The judge made the mistake of negatively communicating to the unconscious mind of the co-employee as he said “don’t drop that”. The employee’s autonomic nervous system went into effect as he dropped the pumpliner which made a huge gash in the board and almost fell onto the defense lawyer’s foot.
(7) Present Tense Appeal – The unconscious mind sees everything in its mind’s eye as though it is real and occurring in the present tense. That is, it cannot distinguish reality from nonreality and only experiences what is going on at the present moment. The fact the unconscious mind absorbs unlimited information and that the conscious mind is very limited in what it can handle greatly influences the manner in which we structure our proof and arguments. Structure logical evidence and argument in a well organized presentation of limited scope so that the conscious mind can effectively deal with it. Structure emotional evidence in argument so as to deal positively with the total experience in order to reach the unconscious mind. The rule is structure the logical appeal in a well organized fashion, narrow in scope and great in detail; structure the emotional appeal positive in nature, dealing with the big picture.
Everything you do in the courtroom, your position, your gestures, your emotions has an effect which, while it may not be read by the conscious mind, is being read and experienced by the unconscious mind.
Using movies and stills to communicate to the mind on both the conscious and unconscious level when making an opening statement or closing argument is imperative. Most lawyers make the mistake of talking about what occurred to their client in the past tense. When the statement is made in this fashion, the information will not be nearly as effective on the unconscious level. When we create a situation where the unconscious mind feels as though the event is occurring immediately, a lasting emotional impact is created on the unconscious level. By using the technique developed by Dr. Malandro and Lawrence J. Smith, one can use movies and stills to create a situation where the event is simultaneously experienced by both the conscious and unconscious mind as though it is reoccurring at the moment it is being discussed.
By a movie we mean that one strings together in long sentences set in the present tense the events leading to the impact. One describes detail such as time of day, style of building, color of clothing, color of the victim’s hair, etc. Deliberately use present tense or “ing” ending words. Use conjunctions to string sentences together so that the picture of the event becomes like a movie where the listener is pulled into the scene and begins to experience the scene as though it is occurring now in both the conscious and unconscious mind. If the technique is done correctly, the juror is actually there sitting in the car with the victim when a rear-end collision occurs. His or her mind sees the victim who’s about to become a permanent neck cripple with subtle brain damage. They are actually experiencing what is occurring in the present tense and, therefore, it has great impact. Then one switches from movies to stills. For stills, we want to create dramatic effect. In essence, you switch to short, powerfully constructed sentences. This deliberate change in style is dramatic and underscores with impact the horrendous event that has just occurred.
In such an opening statement, describe Mary in detail, the clothes she was wearing, the weather conditions, her car and what she was seeing as she was driving through town. Slowly bring them to the scene (movies). It is the 4th of July weekend; Mary is thinking of the steaks that she has to buy which Phil is going to barbecue for the family this evening. She is in a good mood as she thinks of the joy which she always gets from the family outing each 4th of July and looks forward with anticipation to the afternoon; she thinks of the weather and is grateful that it is a beautiful, clear day, perfect for barbecuing outside and perfect for the games which the family loves to play out doors on this beautiful, cheerful holiday afternoon. (Change to stills). Suddenly there is a crash. The car is thrusting forward. Mary feels her head snap back. She feels the blow of her head against the headrest. There is sharp pain in her neck. She feels the muscles and fibers in her neck being ripped and torn. She feels the hemorrhaging and bleeding. She feels her car ram the car in front of her. Her body feels out of control. She is whipped forward by the second crash. Her head hits the steering wheel. Mary feels nothing else.
The culmination of the movie style to set the scene is achieved with long, flowing, descriptive sentences. The still shots to describe the tragic event offer an interesting counterpoint and change of pace to hold the jury’s attention. This also graphically illustrates how Mary’s life moved from one of a peaceful flowing existence to being emotional, unpredictable, and out of control in an instant.
c. Attorneys Must Create Perceptions of Reality
Since jurors base their verdicts on perceptions of reality, it is incumbent upon the skilled advocate to create those perceptions in the minds of the jurors. How are perceptions of reality created? The skilled advocate will learn to create word pictures in the minds of the jurors through the use of demonstrative evidence, evocative language, storytelling techniques, very careful word selection and the use of rhetorical devices combined with the logical presentation of the validating documentary proof and oral testimony.
d. Jurors Search For and Appreciate Similarities
(1) The Search for Similarities
There can be no doubt about it, we like people like ourselves. We want to be with others who are similar to us. The old adage is true, “birds of a feather flock together.” We search for similarity. We look for it consciously in our friends. We associate with people from the same office, in the same profession, etc. We are comfortable with people who are like us and uncomfortable with people with whom we have no similarities.
Groups tend to dress alike. The corporate executives at IBM Corporation all wear the expensive pin-striped suits and wing-tipped shoes. They dress like executives. Defense lawyers have a certain style dress in most communities. Plaintiff’s lawyers tend to be individuals and dress with more style and flair. Los Angeles gangs identify themselves by wearing certain colors. It is all part of the conscious search for similarity.
Clearly, an attorney who goes to a construction site to obtain information from prospective witnesses is not well advised to wear a three piece suit and wingtips. The dissimilarity between the construction workers and the attorney will automatically create a barrier which will adversely affect communication. The lack of similarities will make the attorney appear unapproachable, reflect an air of superiority and may slam shut the channels of communication. The attorney who wants the full cooperation of the construction worker will dress casually, arrange to meet the worker at his favorite lounge rather than on the construction site, drink a beer, shoot pool and talk about football, baseball and other matters of common interest and, after establishing rapport based largely on similar interests, talk about the case.
Attorneys are perceived by laymen as smarter, richer, socially elite, arrogant and unapproachable. Appearing at a construction site in a three piece suit and wingtips validates these perceptions. Appearing at a lounge, casually dressed, shooting pool, drinking beer and talking football replaces these adverse perceptions with a new belief system, at least as applied to this particular attorney. This effectively opens all channels of communication.
In court, similarity still counts, but the rules are different. You do not dress like jurors. You must dress like a lawyer and fit the role model. You certainly cannot come to court wearing that work suit because you suppose the jurors will be wearing the same. But on the other hand, if a lawyer tries a case in Florida where other lawyers dress more casual, then he too should dress more casual.
During voir dire ask jurors about their hobbies. If a juror has a hobby and you know something about the subject matter, let the juror know that you have the same hobby. It is all efforts to raise feelings of similarity on the conscious level. Feelings of similarity help create “liking” on a conscious and unconscious level.
(2) The Effect of Similarities
In Trial Diplomacy Journal, Sanito and Arnold reported on a study of 600 jurors who were interviewed after they had reached a verdict in different cases. The interview was designed to find out why the jurors decided as they did. The one overwhelming piece of information that was developed was that in 600 cases out of 600, the jurors decided the case for the lawyer or the side they liked. Invariably “liking” was a key factor in the decision-making process. “Liking” is a function of the unconscious mind. How can we create “liking” in the unconscious mind? The unconscious mind searches for similarity and once the unconscious mind finds similarity, it has a significant effect on liking.
(3) The Creation of Similarities
Social scientists, Dr. John Grinder and Dr. Richard Bandler have done extensive research regarding the subject matter of the effects of unconsciously perceived similarity.
(a) Neurolinguistic Programming
This basic research has developed into a body of material which is known in the social sciences as “neurolinguistic programming.” Dr. John Grinder defines neurolinguistic programming as follows:
“Neurolinguistic programming (NLP) is an exploratory activity – a pursuit of patterns of excellence.” Charlotte Britto, in “A Framework For Excellence,” (a resource manual for NLP) states:
“Neurolinguistic programming is a discipline whose domain is the structure of subjective experience. It makes no commitment to theory, but rather has the status of a model – a set of procedures whose usefulness is to be the measure of its worth. NLP presents specific tools which can be applied effectively ‘in any human interaction.'”
(b) Tap Into the Listener’s Model
Each human being is his or her own model of the world they live in. They use this model to deal with life. In fact, we all have many models and the models overlap. If we really want to communicate with another human being, an adversary or juror or deponent effectively, we must learn his or her model of the world and tap into it.
(c) Communicate With the Unconscious Mind
NLP gives us the tool with which to identify another person’s model of the world so that one can create a subjective experience that elaborates a pipeline to the other person’s mind. NLP was founded by Dr. John Grinder and Dr. Richard Bandler about fifteen years ago. It is a new, growing, and exciting science. According to one author in the field of NLP, Charlotte Britto:
“The basic premise of NLP is that there is a redundancy between the observable macroscopic patterns of human behavior. (For example, linguistic and paralinguistic phenomena, eye movement, hand and body position, and other types of performance distinctions, and patterns of the underlying neuroactivity governing this behavior).”
In essence, NLP is a tool by which we can tap through the conscious minds into the unconscious mind of those with whom we are trying to communicate. With this tool we can significantly increase our chances of succeeding in achieving the desired outcome from that other human being.
As attorneys we project our thoughts and feelings onto the decision makers through non-verbal communication. Such communication flows equally in the other direction with the effect that observant counsel can discern the thoughts and feelings which jurors are projecting onto us. In order to achieve this it is absolutely essential to gain as much information as possible about each individual juror during voir dire examination or through the use of the very valuable juror questionnaires. Through utilizing personal information which we obtain from jurors, we can make the extremely important connection of perceived similarity between counsel, our clients and the juror.
(d) Using Jurors’ Frame of Reference
For example, we should listen carefully to the language, i.e., specific word choices, which each individual juror utilizes during voir dire examination, particularly when they are talking about the case, the type of injury or other directly relevant matters. This gives us additional information with respect to the language of our case which we should utilize to persuade jurors. If a juror uses a particular metaphor, simile or analogy during the voir dire discussion, it may be helpful to work the same analogy, metaphor or simile into the trial and look directly at that particular juror when using their language.
The more we can learn about jurors’ hobbies, work and activities which they enjoy, the more we have the opportunity to enhance the perceived similarity between us and the jurors. For example, if a juror enjoys bowling, we may at some point in addressing the jury utilize the metaphor about “rolling a strike” or refer to the Plaintiff’s efforts to carry on daily activities as being as difficult as trying to “pick up a 7/10 split” each time you go to the line. At the point when such metaphors are used we should establish and hold eye contact with the particular juror or jurors who enjoy bowling. The eye contact and the use of a metaphor within their field of enjoyment connects with the juror’s method of processing information and creates the perceived similarity which we are trying to achieve.
It is important to understand that we persuade jurors with greater ease, with greater effectiveness and with greater results when we operate within their framework of references rather than trying to force them to operating within ours.
(e) Psychological Bonding with Jurors
Creating a psychological connection with a juror begins with how we think of that juror in our own mind because our own thought processes are the seminal points for the impressions which we convey non-verbally and subliminally to the jurors. If we are to transmit behavioral cues to the jury which indicate warmth, respect, camaraderie and similarity we must think of each juror individually in that fashion in our own minds. This is because it is necessary for our thought processes to be congruent with our behavior. Most jurors, confronted with an attorney saying one thing verbally and reflecting an entirely different message non-verbally will be more likely to accept the non-verbal behavioral cues rather than the message which the attorney is conveying verbally.
It is suggested that we should think of jurors as individuals rather than as a collective body and that we should know each juror by name rather than referring to them within our own discussions by number. At the end of each day of trial, take a few minutes to review all of the data which you have accumulated concerning each juror and consider how the perceptions of similarities between counsel, client, your witnesses and each juror can be worked into the next day’s offer of evidence or argument. If we are to increase the juror’s perception of us as approachable, likeable and similar to the jurors, the trial attorney must think of each individual juror as unique and cater to their individual likes, dislikes, personality quirks and other characteristics. Jurors perceive that they can more easily predict the behavior of your client when they feel a similarity between them. Take the time to stress that similarity throughout the trial.
e. The Principle of Reciprocity
The important principle of reciprocity comes into play in litigation because jurors feel a need to reciprocate when someone gives them a gift whether they like the gift or the giver. This is an ingrained principle which is automatic due to our societal standards. In a courtroom setting, the jury will apply the reciprocity principle to the parties if the attorney for the person seeking relief can convey the message that a debt has been created flowing from defendant to plaintiff.
In a personal injury case the argument can be made that when the defendant ran the red light and crashed into the plaintiff’s car and crushed the plaintiff’s body, both our laws and our societal standards recognize that the defendant became indebted at that point to make the plaintiff whole, i.e., repay the debt created by their own negligence.
Our free enterprise system which is built on multiple layers of credit and debt, has ingrained in the vast majority of our jurors a great respect for the need to repay debt. Virtually all of our jurors are debtors who pay their bills regularly and by raising the specter of a debt owed by defendant, the mental organizational package which is triggered in the juror is “I pay my debts, why shouldn’t this defendant pay his?”.
f. Jurors Use Trait Associations to Organize Perceptions
Asch’s work on stimulus traits in 1946 eventually lead to the development of the trait association theory. He felt that when a person (the perceiver) identified “traits” in another person (the stimulus person), the perceiver would then, in response to his impression of the stimulus person, make further inferences about that person. According to Schneider, Hastorf and Ellsworth:
Asch believed that it was the intervening impression that made it possible for the subject to generate new information. It was then a two-step process: stimulus traits–impression–response inferences.
Bruner and Tagiuri theorized that the intervening impression may not be formed at all. They believed that inferences about another person could be based solely on the perceived traits. Some traits just seem to be “right” with other traits. For example, in completing the following sentence, “John is bright, eager and (thin, fat),” “thin” seems to “go with” the other characteristics. We do not draw an intermediate impression before choosing “thin.”
In their Handbook of Social Psychology, Bruner and Tagiuri state:
. . .what kinds of naive, implicit `theories of personality’ do people work with when they form an impression of others? We know from the Asch studies that such terms as `warm’ and `cold,’ when introduced into a description of personality, alter the apparent quality of certain other traits. In `everyday personality theory’ we would ask, what kinds of inferences is a person led to by knowledge that another person is `warm’? A study of inferential relations between attributes of personality is necessary if we are to understand common sense personality theory and the way in which certain forms of knowledge about another person come to influence drastically the total impression formed.
We all have an “implicit theory of personality,” a sense of which characteristics go with which other traits, although we may not be able to articulate it. They “seem” right and logical to us, while others “seem” wrong and illogical. Bruner and Tagiuri argue that this perceived inter-relationship among traits represents a naive, common sense theory of personality.
To understand how jurors process information it is important to study the dimensions underlying these “perceived” trait relationships. What traits do jurors link together? How about “lean and mean,” “fat and lazy.” “blonde and dumb”? The system of rules which tells us which characteristics go with which other characteristics, such as “John is bright, eager and thin” constitute our own trait associations and our implicit theories of personality.
g. The Attribution Theory on Causation Issues
The Attribution Theory is useful to attorneys in helping us understand how jurors establish cause and effect links in the evidence. There is a distinction between what laymen perceive to be the cause of the behavior of other persons and the scientific causes of behavior. Jurors seem to simplify their understanding of behaviors by making assumptions of general causes, i.e., attribution is perceived as either reactive or purposive.
(1) Reactive Attribution
Reactive attribution is when the jury feels that a party’s behavior is relatively unconscious and therefore unintended. The impact here could be that if a juror perceives a defendant’s actions as merely reactive, they may hesitate to find negligence or attribute fault to that party.
(2) Purpose of Attribution
The second type of attribution, purposive attribution, is when the juror decides that the behavior of the party was intended. The juror will then attempt to infer why the behavior occurred. Jurors use attribution processes in an attempt to understand why a person behaved as they did in a particular situation. Jurors make sense of behaviors by assuming that the behaviors were caused by the purposes and intentions of the party.
Of great significance to trial lawyers is the fact that the attribution theory tells us that jurors will establish cause and effect links if the attorneys do not. Therefore, if we fail to address the issue as to why a person acted as they did in a given situation, jurors will apply their own standards and techniques of attribution in order to fill in the cause and effect gap. This can be helpful under certain circumstances. If the attorney experiences difficulty establishing a cause and effect relationship., careful consideration should be given to the order in which evidence is introduced so that jurors may establish in their own mind, through their own discovery processes, the cause and effect relationship.
3. Goals of the Advocate
It is incumbent upon the advocate to accomplish four major goals with respect to the jury: 1) inspire the jury, 2) influence the jury, 3) instruct the jury, and 4) empower the jury. In order to accomplish this, the skilled trial attorney should learn to engage the conscious mind of each juror while communicating to the unconscious mind.
a. Inspire the Jury
Forensic psychologists who have studied the subject in literally thousands of debriefings tell us that jurors make decisions by emotion and then sift through the evidence in order to validate their emotional responses with logic. In other words, jurors make a decision with their right brain and validate with their left brain. This is an important concept for advocates to understand because it demonstrates that an emotional appeal alone is not sufficient unless counsel provides the jury with validating documentation to satisfy their logical examination of evidence. In fact, if an attorney makes an emotional appeal which wins the jury’s favor and then fails to offer validating evidence to support the emotional appeal, a juror may subliminally punish counsel and client alike for leading them astray emotionally. Obviously the most effective presentation will combine an emotional appeal to the juror’s right brain with logical validation to satisfy the juror’s left brain. Jurors make decisions by emotion through the use of their unconscious mind and validate them with logic through the use of the conscious mind. If we are to persuade jurors we must do so on an unconscious level, i.e., inspire the juror to seek to return a verdict for your client. Techniques for persuading the unconscious mind include embedded commands, anchoring, pacing, and right brain motivations.
Since jurors form their perceptions early and tend to cling to them tenaciously, it is important to inspire the jury early in the perception creating process if we are to achieve success in persuading the unconscious mind. The steps include:
(1) Creation of Perceptions
A right brain emotional present tense appeal to the unconscious mind in order to create the vital early perceptions;
(2) Validation of Perceptions
Validation through logical presentation of hard evidence which supports the appeal to the conscious mind and reinforces the early perceptions; and
(3) Motivation of Perceptions
Motivation through a combination of logical and emotional persuasion during summation.
Inspiration can be achieved by effective storytelling, and persuasively presenting themes and messages which will allow each juror to identify with a client’s cause and inspire them to a just result. This is particularly true during opening statement and direct examination of witnesses during which effective theme development can predicate the delivery of an inspirational message during summation. Each of these topics is covered in more detail in this chapter.
b. Influence the Jury
(1) Jurors Seek to Make Sense Out of Their Environment.
In order to effectively influence the jury it is necessary for the advocate to understand that jurors are constantly attempting to make sense out of this unusual courtroom environment, i.e., they are sifting through data and rejecting that which does not fit with their perceptions or is incongruent. The skilled advocate must assist jurors in this process. For example, a woman who claims to be the victim of a sexual assault must appear in court as a “victim”. If the woman appears before the jury wearing tight clothing, ostentatious jewelry, overdone cosmetics and a wild hair style, this will create an incongruence in the minds of the juror of this woman as a “victim”. The inconsistency must be resolved by either deciding that her appearance is consistent with that of a “victim” or by rejecting the idea that she is a “victim”. This is an obvious example but it is important to illustrate that attorneys must be constantly aware of even the slightest inconsistent or incongruent messages which are being presented by counsel, clients and witnesses.
(2) Consistency in Communications
Once again the important principle is that jurors are obtaining their information through non-verbal channels, such as clothing, eye contact and body motions; vocal channels such as voice characteristics and quality, and verbal channels such as the words used by the attorney, the client and the witnesses to tell the story. The non-verbal and vocal channels will outweigh the verbal channel in the decision-making process. Therefore, it is essential that there be a consistency between the verbal message presented by the attorney, client and witnesses, the vocal characteristics and quality, used all non-verbal communications.
(3) Data Which Influences Jurors
(a) Jurors are Impressed with Hard Data
Once a juror has made the emotional, unconscious decision as to the outcome of the case which they desire, they begin searching for hard data in the evidence which will logically support their desired outcome. Thus, when organizing the evidence into its most persuasive format, organize hard data such as medical bills, photographs, x-rays, contracts and other such data which the jurors can see and touch. This is among the most persuasive evidence they will receive. The important use of this data is in conjunction with the rule of primacy and the role which hard evidence may play in the formation of early perceptions by jurors. Thus, don’t hold back hard data which supports the early perceptions which you wish to create unless there is some other tactical trial reason for doing so.
(b) Jurors are Impressed with the Court’s Instructions
Counsel must understand that jurors are impressed with the court’s instructions and we should wrap ourselves in the court’s instruction as often as possible throughout the trial. Ask questions of witnesses couched in the language of the court’s instruction. Use signposts as you go through the questioning such as “the court is going to ask these ladies and gentlemen of the jury to decide upon the value to be placed upon the physical pain and suffering and mental anguish which you have endured, let’s talk about that now Mr. Plaintiff”.
(c) The Principle of the Value of Scarcity
The next principle regarding data which influences jurors is that people are more easily influenced when they believe the source to be scarce and valuable. Advertising agencies have understood this principle for decades, thus, we encounter the “limited offer” sales, “today only” deadlines for purchase, etc. Likewise evidence which is considered to be hard to get will be considered to be more valuable. When jurors are dealing with scarce information, two things occur; first, their attention is called to the information that is being presented and secondly, the information is anchored in their minds for retention and recall at the important time in the jury room.
Thus, the advocate should regard information which appears scarce as valuable. The effect of scarcity can be severe.
It does not take great deliberation to understand the principle of scarcity. A rare art work, something that is one of the kind, is always more valuable than any numbered print. It is the original Rembrandt that brings millions of dollars at a London auction, not a copy. Originals are one of the kind, rare items. It is the very unavailability or scarcity of an item that drives its value up.
Scarcity can have a severe effect on the value of an item. One needs to think back only to the early 1970’s to realize the importance of this principle. Remember the oil crisis? The market price for oil was being manipulated by the Arab nations. We were made to believe we were going to run out of oil worldwide. There would be no gasoline. While there was not a real shortage, there was a perceived shortage of gasoline brought on by market manipulation. Fuel began to be hoarded and long lines formed at every gas station. All of this because of perceived scarcity, not real scarcity. Remember the first principle, all communication is based on perception. In other words, there never was a real scarcity of oil, just a perception of scarcity. Nevertheless because of perception, the price of gasoline soared to tremendous heights approaching almost $2.00 per gallon. This is a prime example of perceived scarcity having severe effect.
(d) Objections Increase Perceptions of Value
Scarcity also works in the courtroom. Broder did a study in the 1970’s at the University of Chicago. He used actual jurors. It was a civil trial. The testimony was videotaped so that it could be totally controlled. There is only one variable used between each group of jurors who heard the case and decided.
That variable was insurance. It was an admitted liability rear-end collision case. The first set of jurors was not informed one way or the other as to whether the offending driver was insured. In the second situation, the jurors learned that the driver was in fact insured without objection. In the third situation, insurance was introduced by plaintiff’s counsel and defense counsel objected strenuously, the objection was sustained, and the judge sternly instructed the jury to disregard the fact that there was insurance involved.
The results of the study showed that the verdicts increased significantly when the jury is told to disregard the fact that there was insurance involved. In the instances where they did not know there was insurance involved or where they were simply told the fact that insurance was involved, the verdict had the same median value. But where the jurors were told to disregard the fact that there was insurance involved, there were significantly higher verdicts both on median and on average. The average verdict where the jurors did not know about the insurance was $33,000. Where jurors were told about the insurance it increased on average only slightly to $37,000. Where the jurors were instructed by the judge to disregard the information on insurance, the average verdict shot up to $46,000, a $13,000 increase over the case where the jurors did not know about insurance. The point is that knowing or not knowing about insurance had little effect. But where the same information was made scarce there was a significant increase in the verdict. It is obvious that the principle of scarcity plays a role. When jurors had information which they were told not to use, that information became scarce and therefore more valuable.
Wolf and Montgomery replicated the study using a criminal trial setting. In that case the key factor was a police officer’s testimony. There was little difference in the conviction rate where the police officer’s testimony was given or where his testimony was not used. But where the testimony was given and then ruled inadmissible with the jury being instructed to disregard it, the conviction rate shot up substantially. Scarcity works in the courtroom.
The lesson one learns from the principle of scarcity is the effect of objections in the courtroom. All too often inexperienced counsel makes a number of technical objections in front of the jury. An experienced counsel knows that objections are like a red pencil, underlining the material you are trying to keep out. This is why experienced counsel, if they think objectionable material is going to come in, try to keep it out through a Motion in Limine. An experienced counsel will not object frequently and when it is necessary to object, the objection is executed in the mildest possible fashion so it is not to stress the importance or scarcity of the material objected to. Objecting at trial is performed best by a request to approach the bench so the objection is out of the hearing of the jury. The jury does not even hear the words, “I object,” and the material whether admitted or not does not become scarce and valuable.
(e) Scarcity of the Expert
Scarcity also has an effect on the evidence. The scarcer you make your expert witness appear, the more valuable his testimony becomes. The further away he comes from, the rarer his credentials all increase his testimony’s value. Let the jury know how hard it is to find that witness and the rarity of his credentials. There are very few of his kind in the world. He is the expert’s expert. One can also underline a particular piece of evidence with scarcity. Show how rare it is. Show how difficult it was to obtain or how hard it was to come by or how scarce or new the technique used to find the evidence, a DNA match-up, for example. The more difficult you make it appear to obtain the more valuable your evidence becomes.
Combining scarcity with the need to be consistent with our commitments is shown by at least one group that understands the combined power of scarcity and the power of consistency, it is the toy manufacturers. They know the value of the lure of the unobtainable. Just look at the Cabbage Patch doll. Look at the imitations that came on the market when it was not available.
Have you ever wondered why toy manufacturers spend millions of dollars advertising toys that are not adequately available in the market in October and November, right before Christmas? Why do they spend money on TV advertising GI Joe or the Cabbage Patch doll, and when mother goes to buy it at the toy store none are available? There is a simple reason. The toy manufacturers want to make double sales.
Here’s how it works. The toy manufacturers know that they are going to have a big market for toys in November and December because of Christmas. They know that parents are not going to let Christmas go by without having something under the tree for little Johnny. Little Johnny wants GI Joe. They have advertised it to little Johnny on Saturday morning television. He just has to have it. Mother goes out to buy it for Christmas and it is not available anywhere. No store has it. How could the manufacturers be so stupid as not to anticipate the market? The answer is they did anticipate the market, but they needed a market for January and February when toy sales were going to drop radically. they know this toy is going to be valuable to you because it is scarce. You looked for it and you could not get it. Further, they are relying on people having overwhelming need to be consistent with their commitments. You have promised; i.e., made a commitment to little Johnny to get him GI Joe. When it is not available, the toy manufacturers know you are going to buy him another toy, i.e., a substitute to put under the Christmas tree. Come January and February little Johnny is sure to see it at the toy store and remind you of your commitment. They are sure you will be consistent with that commitment. Additionally, you will pay top dollar because GI Joe is hard to get and therefore valuable!
Scarcity and consistency can be combined in the courtroom. One way to do this is to make sure that you have only one red flag or key question to obtain a commitment on during voir dire. Do not dilute the importance of this question by trying to obtain commitments on three or four issues. Make it a rare issue and it increases in value. The commitment made during voir dire becomes more powerful psychologically if you make that commitment rare or scarce.
When commitment and consistency are combined, it also appeals to the jury’s integrity. Discussion during summation should stress the importance of the role of the jury, i.e., the power of one vote out of 12 in the jury as opposed to one voter out of millions in an election. An appeal to the importance and integrity of a jury verdict effectively combines the psychological principles of scarcity with commitment and consistency. It makes the jurors feel their verdict to which they are committed is rare and therefore of great value. Important verdicts of value are generally not expressed in zero. Important verdicts generally reflect significantly adequate awards.
(4) Jurors are Subject to the Anesthetizing Effect
The better part of wisdom dictates that when a severely injured Plaintiff is being presented to a jury, the less time the jury can actually observe the victim, the stronger effect the injuries will have on the jurors. Long term and constant exposure to a severely injured person causes an anesthetizing effect with individual jurors who become accustomed to the injuries and less empathetic with them as time progresses.
For example, a seriously burned individual who has horrendous scarring may cause jurors to look away upon first contact. However, if that person sits in the jury room in sight of the jurors six or more hours per day for several days of trial, by the time the jurors enter the jury room to deliberate on damages, they will be anesthetized to the damage and will not view it as tragically as they would have upon initial contact.
From the Plaintiff’s viewpoint, the wiser course is to bring the seriously injured victim in to introduce to the panel on voir dire examination. Then ask the court that the person be excused and not have them return until they are called to the witness stand to testify. After testifying, they should not be seen again by the jury until the jury deliberations begin and the jurors find the victim sitting with the victim’s family in the courtroom anxiously awaiting the jury’s verdict.
The absence of the Plaintiff during the trial can be explained by a medical witness or psychologist who will testify that it is in the best interest of the Plaintiff not to hear the testimony concerning the accident either from the viewpoint of reliving the horrors of the events or hearing testimony about the devastating long term effects. Therefore, the Plaintiff should be kept away from the trial on doctor’s orders.
(5) Attorney-Client-Witness Credibility
One of the major influences on the jury is credibility of the attorney, clients and the witnesses. Since jurors serve as the sole judges of credibility of the witnesses and the weight to be given to their testimony we must understand how credibility is gauged by jurors.
(a) Jurors Search For and Appreciate Credibility
Credibility exists solely in the mind of each individual or juror. To each juror credibility means that this is an individual whose message they can trust which results in the juror listening more closely, for a longer period of time and giving more weight to the message presented by the credible person, whether that person is an attorney or a witness.
Jury consultants have identified credibility factors as being affected on several dimensions. One dimension is personal appearance. An advocate should gauge his or her personal appearance so as to appear both credible and approachable to jurors. A second factor which can effect credibility is behavioral patterns, i.e., the projecting of confidence, the projecting of a belief in one’s own case and the projecting of a warm and trusting relationship between attorney and client. A third dimension which has been identified by Malandro and Smith is as follows:
A third factor is the use of powerful speech and special language techniques such as repetition, metaphors, similes, analogies, and rhetorical questions. The perception of credibility of attorneys is closely related to expectations that counsel knows where he is headed, knows how to present information, is understandable, is quick and has a moderate to fast rate of speaking. All of these factors together help to add to the perception of credibility. Smith and Malandro, Courtroom Communication Strategies, p. 274 (Kluwer 1985).
(b) Achieving Credibility
People are more easily influenced when they perceive the source of information as credible. How is credibility developed? Perception of credibility is based on three factors, 1) competence or expertness, 2) trustworthiness, and 3) dynamism. Expertness and competence refer to the skill and/or knowledge of the individual. Trustworthiness refers to the fact that a person presents information without bias. He appears to be fair and just. The concept of dynamism is the measure of how forceful, bold, or active the person appears to be. Dynamism means that the person is perceived as being forceful. It is the perception, not necessarily the reality, of all of these three concepts that creates credibility.
With regards to the perception of competence or expertness, jurors use various judgments. They look at the attorney and decide whether he is experienced. Does he look older? Does he appear intelligent? If he has one or more of these factors going for him, they will probably rate him as being competent. Sometimes an attorney or a witness can have “floating competence.” This means that if he appears very competent in one area, the jurors will assume that he is competent in all areas. Competence or the perception of competence is also a function of intelligence. By this we mean that if the attorney appears to respond to situations in a positive manner, and to be in control, he will be rated as competent. If he is quick to respond, he will be considered by most people as having some expertise.
Expertise is generally judged upon experience, floating competence and intelligence. Jurors generally assume that greater experience equates with a higher degree of expertise. Floating competence is a term used by Smith and Milandro to mean that if jurors see an individual as very competent in one area they tend to ascribe competence to that person in other areas regardless of whether the person has the skills or background in the second area. The fact that he’s already perceived as being competent gives him a type of “floating competence” which results in a continued perception of credibility in other, often unrelated fields. The third factor, intelligence, simply means that we respond positively to those people who can control a situation, are quick to respond, and who display other characteristics of intelligence. These three factors also provide a composite picture of the criteria by which jurors judge an expert.
The element of trustworthiness is a very important part of credibility. If an attorney appears untrustworthy, he or she becomes totally unable to persuade others. We cannot transfer a mood or in any way make the juror feel anything about injuries or what is right or what is wrong without having their trust. Any attempts at mood transference, if they do not feel the attorney is trustworthy, will be perceived as fake and insincere. Trustworthiness includes the perception of sincerity and honesty. If an advocate is to build the vital empathetic bridge between the client and the jury, trustworthiness of counsel must absolutely be established. It is not possible for counsel to achieve mood transference if the jury does not trust you as being authentic and sincere.
The first step in creating trustworthiness in the minds of the jurors is to be a trusting individual, i.e., trust the jurors to make fair and intelligent decision. This trustworthiness on your part will be communicated at both the conscious and unconscious levels to the jury who, hopefully, will reciprocate in kind. The second factor in order to achieve trustworthiness is to present the information in an ethical, fair and unbiased fashion. Evidence can and should be presented forcefully and enthusiastically without being biased. Bias in your own presentation of evidence simply detracts from its validity and your trustworthiness. Finally, sincerity and honesty are the by-words of trustworthiness.
Finally, we turn to the element of dynamism. This refers to how forceful, empathetic, bold, and active the individual appears. In essence, it is a rating of the ability of a speaker to communicate actual emotional feelings. It relates to the attorney’s direct overall sincerity regarding his feelings about the case. If an individual is dynamic, there is no question that he creates a mood transference among his receivers or listeners. Again, this cannot be created if you are perceived as untrustworthy, insincere, and dishonest. But if you are perceived as trustworthy, then through the proper use of vocal cues and other communication methods, one can become dynamic.
Credibility and dynamism are affected by the way a message is structured and delivered. With regard to the structure of a message, it is important that the message be kept simple. The salesman’s rule of “kiss” applies. “Kiss” means “Keep It Short and Simple.” It means that an advocate should not let his or her messages become too complex. If the message becomes too complex so that the jurors cannot understand it, they will not blame themselves. They will not say to themselves, “I cannot understand this message because of my own lack of intelligence.” Instead they will blame the speaker. They will say that he or she is not smart enough, not dynamic enough, not competent enough to make the message understood. Therefore, if the message is too complex and not understood by jurors, the speaker will lose credibility.
Another important rule which applies to the structuring of a message is whether or not a message or argument should be presented anti-climax/climax or climax/anti-climax. By anti-climax/climax we mean that the weaker arguments are put first so that you build to a climax with the stronger arguments. By arguing climax/anti-climax, we mean that you put the strong arguments first.
Perceptions are organized very quickly and first impressions count. Remember the rule of primacy. This ought to answer the question of how one should structure a message or an argument. One should always, both in oral argument and in a brief, put the strongest argument first. Why do this? The answer is simple. Have you ever seen an attorney argue a motion in court on rule day? If he offers the judge an argument and the judge does not buy it, primacy works against him. When he makes the next argument, even if it is persuasive and on point, he may well lose the entire motion. Once the judge does not believe the first argument, it becomes much more difficult to persuade him with the second or third. We should always put our strongest argument first because our weaker arguments will tend to lessen our credibility. If we save our strongest argument for last, we will have so damaged our credibility that our argument will not be structured with any persuasion at all.
Word choice also affects credibility and dynamism to the extent that they affect simple communication of ideas. The message should always be in strong, positive terms. The message should be focused on the issues and the message should be repeated. In jury trials, legal jargon should be avoided. Try to talk in plain English. Terms like “heretofore” should be substituted for words like “before.” The legal phrase “subsequent thereto” should be substituted by the words “after” or “following.” “By reason of” should be substituted for “because.” Also strong language should be used. The language should be positive and not weak. Nonfluencies in speech such as “ah” need to be avoided. One should always avoid unfilled pauses unless it is done for dramatic effect. Direct and positive answers are also helpful in establishing the credibility of a witness. Witnesses should not weaken answers by being conditioned with language like “I think” the answer is “yes” or that the proposition put by the lawyer is “probably true.”
These elements contribute to the dynamism which affects how forceful, empathetic, bold and actively aggressive each individual attorney appears to a jury to be. These characteristics are also established through vocal cues, the ability to communicate actual emotions or feelings, the sensitivity to issues that are being presented, direct association with overall feelings about the case and a belief in one’s client and the client’s cause. An individual who is truly dynamic will have absolutely no difficulty in mood transference from counsel to the jurors so long as the advocate is speaking from an actual feeling which he is experiencing at the moment.
Dynamism in transferring your feeling of empathy for your own client and your client’s plight to the jury is achieved not by acting but by a high level of association with your client’s true feelings. In order for an advocate to convey dynamically an empathetic feeling there can be no separation between the advocate and the feeling he is conveying at that moment.
(c) Influences on Perceptions of Credibility
(i) Personal Attributes
Significantly, the personal attributes of an advocate which influence the jurors include such elements as physical appearance, the speaker’s delivery style, likability and approachability and the effective use of humor. The use of humor by an advocate is not for the purpose of entertaining but for the purpose of demonstrating a sense of humor. The personal attributes and reputation of the attorney also have effect on his or her credibility.
(ii) Self-Monitoring Characteristics
Social scientists have developed a test to evaluate a person’s so-called self-monitoring characteristics. The test is a series of questions which can determine whether a person is a so-called “low self-monitor” or a “high self-monitor.” (See “Courtroom Communication Strategies,” by Smith and Malandro, pp. 259-260.) Low self-monitors are very concerned with objective truth and are rigid in their thinking. They do not worry about what other people think. They are the accountants, scientists, and bookkeepers. They are very objective and want hard facts. They are very believable, but do not make good impressions. High self-monitors, on the other hand, are very concerned about what other people think. They are constantly changing their position to be popular. High self-monitors are movie stars, politicians, and trial lawyers. They are very good at impressing people, but are not very believable. They are very dynamic, but lack credibility. On the other hand, low self-monitor is very believable, but not very dynamic.
The point is that you have to have the attributes of both in order to appear credible. You must be both dynamic and trustworthy. If you are a low self-monitor, you have to work on dynamism. If you are a high self-monitor, you have to work on credibility. You should know what personality type you are and work to obtain some of the attributes of the other. Good trial lawyers are well-balanced. They give off the attributes from both the low self-monitor and the high self-monitor. They are dynamic and credible at the same time.
Reputation also plays a role in establishing credibility with the jurors. Some attorneys have built up a significant reputation and have instant credibility. Gerry Spence of Jackson Hole, Wyoming, is credible because, although flamboyant in both dress and style, his general reputation precedes him. He is known as a great trial lawyer. Scotty Baldwin in Marshall, Texas, has instant credibility in East Texas. He is a great lawyer and everyone knows it.
Jurors in your hometown, if it is small, know something about you. You would want them to know that you are a specialist in a particular area of the law. This gives you expertise and therefore adds credibility to your reputation. Once jurors believe something, they tend to retain that information even if contradictory information is presented. Once they believe you are credible, you have a much better chance of influencing them.
One should always be fair, and appear fair in front of the jury. Never show the jury an exhibit without showing it first to the judge and the other side. Always create the appearance of fairness. Never appear to be hiding something or holding something back from the jury. Make sure that you never do anything that the judge has to admonish particularly when it is going to be apparent that you were doing something that was wrong. Such an evaluation can drastically affect your credibility with the jury and you may not be able to repair the damage.
When jurors examine attorneys from the viewpoint of credibility, they look for the knowledge and skill of the advocate, i.e., expertise; whether the advocate presents information without bias, fairly, justly and ethically, i.e., in a trustworthy fashion; and the forcefulness, boldness and charisma which the advocate brings to the presentation of proof, i.e., dynamism.
(d) Attorney’s Goals to Establish Credibility
(i) Establish Rapport
It should be the goal of the skilled advocate to establish rapport with the jury; to humanize both attorney and client, primarily through the demonstration of a sense of humor; and establish approachability, which primarily is accomplished by the jury observing counsel’s interaction with witnesses, laymen, court personnel and others with whom counsel comes in contact during the trial.
(ii) Importance of Integrity
In order to establish credibility it is also necessary for the skilled advocate to convey a very high level of integrity. This is accomplished through the manner in which the attorney demonstrates honesty and sincerity throughout the trial, both in dealing with people and dealing with the admissibility of evidence. It is also necessary that counsel demonstrates a sincere belief in the client, the client’s case and the message which the attorney is delivering to the jury.
(iii) Attorney-Client Relationship
One of the most important areas for achieving congruence between the verbal, vocal and non-verbal messages conveyed to the jury is in the relationship of attorney and client. If the attorney refers to the client as “my friend, John” and then throughout the trial ignores the client during the breaks, lunch hours and the beginning of each day of trial, the jurors will get the clear non-verbal message that “my friend, John” is merely another fee. They will then punish the attorney because of the obvious misleading information delivered in the verbal communication regarding “my friend, John”.
(iv) Display Professional Demeanor
Be an exemplar of professional conduct. Forensic psychologists also advise us that one area in which we consistently disappoint jurors is in the level of professionalism which attorneys exhibit in trial compared with what jurors anticipate prior to trial. Jurors expect lawyers to act in a professional manner in dealing with the court, the jury, the witnesses and opposing counsel. The failure of counsel to conduct themselves with professional demeanor during the course of a trial can reduce the attorney’s credibility quotient so thoroughly that by the time counsel rises to argue, the persuasion has become an uphill battle.
The closing argument may be the most interesting and challenging phase of trial as it offers a critical opportunity to bring coherence and clarity to those issues favorable to the client. Summation is an opportunity for counsel to exercise long-practiced skills and techniques of advocacy. However, in order to achieve the highest level of persuasive potential, counsel’s own integrity and credibility must be solidly established with the jury when counsel begins to argue. One of the means of accomplishing this is by conducting the trial with professional demeanor which includes a proper attitude towards the court, the court’s staff, the jury and all counsel and witnesses.
(v) Communicate Simply
Finally, in order to effectively influence jurors it is necessary to learn to communicate simply. Legalese is counterproductive. Legalese builds a barrier between counsel and jurors, reduces the advocates approachability and detracts from the ability to successfully to meet the first requirement of a great trial lawyer: simple communication.
(6) Arenas of Influence
It is incumbent upon the skilled advocate to understand that the data which influences jurors is conveyed in many arenas and is communicated in an ongoing process from the time the first juror sees the first person involved in the case until the final verdict is signed and delivered to the court. The arenas of influence include the witness stand, courtroom, courthouse, and any place where a juror can witness anyone associated with your side of the case. There are also extrajudicial considerations which must be taken into account to make sure that you are not victimized by “evidence” offered outside the courtroom.
(a) Witness Stand
While theoretically the influences on the jury should take place from the testimony delivered from the witness stand by sworn witnesses, each person testifying in a case must be aware that they are observed at all times anywhere near the courthouse. Jurors’ impressions of each witness are being formed from the first instant that the juror and the witness establish either visual, auditory or physical contact. The first moment the witness enters the courtroom, observation begins and continues through the testimony, in the hallways, elevators, coffee shop and cafeteria, and perceptions are still being formed through the observation of non-verbal behavioral cues emanating from the witness. Perceptions are also being formed through the observation of the relationship which exists between the witness and the parties and the attorneys. This is also true outside the courtroom as well as inside. As in the case of attorneys, the vast majority of the communication done by witnesses is done on the non-verbal and vocal levels rather than on the verbal level. Be sure that witnesses are fully aware of this.
Witnesses should be trained in vocal cues such as eye contact, body language, use of hands and body posture to communicate a message. They should also be aware of the importance of their vocal delivery of the message such as speaking with authority, confidence and sincerity while maintaining eye contact with the jurors.
If you want to appreciate the role of the juror, walk into any courtroom in which a trial is taking place. Take a seat on the front row and then sit quietly for one hour, acting out the role of a juror. Listen to the testimony of the witness and consciously attempt to serve a juror’s role. See how long it takes for your mind to begin to wander and for your attention to move from the witness stand to watching the non-verbal communication which is taking place in the courtroom. After a short period of time you will begin observing such things as the posture of the attorneys and the witnesses; the attitude and attention of the court; the non-verbal responses by all counsel to testimony being proffered by the witnesses; the actions and reactions of everyone else in the courtroom, and the role which the words coming from the mouth of the witness plays in this overall courtroom communication scene. You can begin to gain an appreciation of the effects of non-verbal communication when you observe what the jurors are watching as evidence is being offered. The simple rule is that everything that occurs in the courtroom during every moment that a jury is present, can influence the creation, re-enforcement or rejection of perceptions and must be consciously considered by counsel as an important part of the trial.
Many war stories are told about statements made in front of jurors on elevators, in bathrooms, cafeterias or hallways. However, there is a greater dynamic at play than statements made within hearing range of jurors. That dynamic is the observation of non-verbal communication by jurors of the trial’s participants in parts of the courthouse other than the courtroom. The Plaintiff’s doctor who is observed by jurors laughing and chatting chummily with the Plaintiff’s attorney is much more subject to an attack on credibility by defense counsel as being the Plaintiff attorneys’ hand-picked doctor than one who is seen only by the jurors on the witness stand.
The witness who is seen huddling with the attorney in the hall may be perceived by jurors as being coached by the lawyer on how to testify and what to say. The simple rule is to advise all clients, all witnesses, all members of the litigation team and everyone who is identified by jurors as being a member of the advocate’s entourage to be constantly aware that they are being observed by jurors and that perceptions are being formed by those jurors based upon the non-verbal communication which they witness.
(d) Extrajudicial Considerations
Be constantly aware that jurors are gathering “evidence” at all times. Many cases have been won and lost in the hallways without the court or counsel being aware of the influences. For example, in a case involving medical negligence on the part of a doctor for failure to timely diagnose lung cancer in a patient, the Plaintiff’s expert witness testified not only as to the negligence of the defendant doctor but also testified extensively as to the cancer being caused by a forty year smoking history of the Plaintiff which should have put the defendant doctor on notice to look closer for the possibility of lung cancer. The doctor testified at length as to the horrors of cancer arising out of smoking. He was an impressive witness. However, the jury rejected his testimony completely. Why? Because during a coffee break in the middle of his testimony, the doctor was observed by jurors smoking in the hallway outside the courtroom. The doctor’s non-verbal message that smoking is acceptable to him was totally inconsistent with the verbal message which he had gone to some lengths to deliver from the witness stand. As will generally occur, the jurors accepted the non-verbal message which they “discovered” for themselves and rejected the verbal message which the attorney and doctor had attempted to convey.
In a more simple case involving child custody, the child was adjudged by the court to be too young to testify. The case involved the efforts to take the child away from her father, a paraplegic in a wheelchair. Five days of testimony inside the courtroom, pages and pages of documents, numerous items of demonstrative evidence, expert testimony and lay testimony were all proffered to the jury from the witness stand. All of which was ultimately meaningless in the decision-making process. Why? Because every time a break occurred and the jurors entered the hallway outside the courtroom, the father would roll his wheelchair out the courtroom door and the child, who was not allowed inside the courtroom during the trial, would run to her father, climb up in his lap, put her arms around his neck and kiss him. Each time he had to return to the courtroom, she would hug his neck and say “I love you daddy, I’ll be waiting.” There is absolutely nothing which could have occurred inside that courtroom which would have overcome the extrajudicial evidence which the child, who was too young to testify, conveyed to the jury every time they went into the hall.
Counsel must constantly be aware of and guard against such outside influences on the jury.
(7) The Real Final Argument
In order to maintain the proper perspective on the influence of jury leaders, we must understand that the final argument in a lawsuit is not given by the attorneys but rather is given by the individual jury members during the deliberative process. The final arguments which count most and which influence the outcome of the case are those given by the jury leaders who effectively sway the other jurors to their viewpoint. Thus, it is incumbent upon the skilled advocate to identify the various roles that jurors play in the deliberative process. During the trial, identify the persons who fill those roles. By understanding the process by which the jury selects leaders and the influence which the leaders exert over other jurors, we can more effectively arm the juror advocates who are espousing our side of the case with the arguments which will allow them to prevail in the jury room.
(a) Identifying Roles Jurors Play
For our purposes it is convenient to categorize jurors into five roles which they play: juror advocates, followers, bench warmers, negotiators, and hangers.
(i) Juror Advocates
The juror advocate is a juror who will proactively argue their position with such skill and force as to effectively sway the minds of other jurors to their position. The juror advocate is the most important category of jurors due to the ability to lead the bench warmers, trade with negotiators and persuade followers. The foreperson of the jury will generally, but not necessarily, be a juror advocate for the reason that the type of traits used to select a foreperson are included in the same traits of a juror advocate. Those jurors who emerge as leaders in jury deliberation generally demonstrate the following leadership qualities: 1) high status and authority; (2) high intellectual abilities as exemplified by strong, articulate answers to difficult questions; (3) decisiveness and strong will, exemplified by self-confidence and strength of conviction, and (4) past leadership training or experience.
A follower is a juror who knows how he or she intends to vote but either has no desire or does not have the skill to persuade others to follow their lead. The follower will immediately support the jury advocate who best espouses their position. Another type of follower is one that will attach to a position presented by a leader with whom the follower chooses to align. Followers are generally less assertive and aggressive, have lower social status and are somewhat more intimidated by the courtroom setting.
(iii) Bench Warmer
A bench warmer is a juror who, for whatever reason, is indecisive. A bench warmer will generally go along with the majority during jury deliberations and if the majority shifts, so will the bench warmer. The bench warmer may be identified by uncertainty in responding to voir dire questions, lack of self confidence, and difficulty in grasping the concepts involved in the trial, as discussed on voir dire.
Negotiators are those jurors who seek the middle ground and try to bring the warring factions and polarized jurors together. The negotiators are generally left brain dominant individuals who negotiate the middle ground by use of logical arguments. On voir dire examination, a negotiator will stress his ability to be “even-tempered” and his ability to be totally open minded, understand both sides of an issue and give fair consideration to everyone in the case.
Hangers are jurors who will maintain their own position without regard to the view of the majority. These are individuals who are not bothered by differences of opinions, tensions, pressures from other jurors or their identity as a “spoiler”. Jurors who appear on voir dire to be non-conformist, stubborn and unintimidated by authority figures are the most likely holdouts.
(b) Selection and Influence of Jury Leaders
The reviews of numerous juries by jury consultants have developed a pattern which help us predict the emergence of the jury foreperson. Group leadership is linked to the status of the participants.
(i) Ascribed or Achieved Status
As a general proposition, the higher the status of the individual, the more likely he or she is to emerge as the leader or to be chosen by the members as the group’s leader. Status comes in two forms: 1) ascribed status or 2) achieved status. Ascribed status is considered to be the prestige that goes to a person by virtue of such characteristics as family, wealth, good looks or age. Achieved status is status that an individual has earned based on merit of his or her own accomplishments.
Studies demonstrate that the foreperson is more likely to be a person of higher socioeconomic status and also reflect that high socioeconomic status members tend to participate more in jury deliberations. Individuals of higher status have more communication acts directed towards them and those communication statements tend to be more positive than statements directed to lower status members. Thus, high status persons have an inordinate ability to control the flow of the juror’s interaction. Forepersons of juries tend to be from certain higher status occupations such as professional or proprietor positions.
(ii) Leaders Are Confident and Communicative
The most common trait of the juror usually elected foreperson was that he or she was exceptionally talkative. Forepersons were also seen as confident individuals as well as warm persons who communicated well with others. Those who speak first when jury deliberations begin are chosen as foreperson 36% of the time.
(iii) White Males Prevail
The foreperson will most likely be a male (70% of the time) and white (95% of the time). Women are much less likely to be chosen as foreperson in civil trials. For example, women were chosen foreperson 3% of the time when women comprised 36% of the civil juries. During jury deliberations, male jurors tended to proact, i.e., initiate conversations, suggestions and solutions to solve the problem. Women tended to react to the contributions of others, agreeing, understanding and supporting. One study reveals that 67% of the jurors studied were men but they accounted for 80% of the conversation during deliberation.
(iv) Leaders Use Communication Skills
The most vocal members of the group are more likely to be chosen as leaders. Significantly, this applies to both verbal contributions and non-verbal contributions. Those who are perceived as leaders and chosen as forepersons tend to verbalize their opinions more and to use more gestures and other non-verbal movements during the deliberative process.
(v) Identifying Juror Advocates
It is essential for the skilled advocate to attempt, during the course of the trial, to identify potential leaders in the jury room, particularly juror advocates who will be in the role of persuading the other jurors.
While we all have a tendency to watch the jurors during witness testimony, it is submitted that more information may be gained by observing jurors during the coffee breaks and lunch periods. Through such observation we can see how jurors break up into groups; who is the dominant talker in the group; who is the first person to speak, who is quiet and strictly in a listening role, and who is most effective in the use of non-verbal communication. Through the understanding of non-verbal communication, we can perceive by observing juror groups in hallways those to whom deference is paid by the jurors and those who exude confidence and leadership qualities.
(c) Arming Juror Advocates
The skilled advocate will identify, persuade and arm the juror advocate during the course of the trial. Since we know that the juror advocates are the jurors who will persuade the other decision makers towards the final verdict, it is incumbent upon us to identify them through careful questioning on voir dire examination, and careful observation at all times throughout the trial. The juror advocate then may be persuaded by personalizing analogies, metaphors and arguments that should appeal to that leader; by utilizing the language and argument which he or she used during voir dire examination and by maintaining eye contact during the crucial portions of the summation while arming them with the thematic arguments you wish them to make in the jury room.
Since the juror advocate will be leading the final argument in the jury room, we can be of great assistance in insuring that the advocate’s argument is persuasive, predicated on the right theme and utilizes the right tools. During summation, we should, through careful eye contact at crucial points, arm the juror advocates with the precise arguments which embody our themes which we want them to make in the jury room to the other jurors. We may also arm them with demonstrative or documentary evidence which we want them to utilize during such arguments. This is accomplished during summation by holding a piece of demonstrative evidence, establishing eye contact and moving back and forth between two juror advocates as we advise them that “when you come to the question of the defective design of the product, remember Plaintiff’s Exhibit 6 and remember that…” This is followed by the simple straightforward logical, common sense argument which you want the juror to make in the jury room tied to this piece of demonstrative evidence.
Jury studies show that one of the methods used by jurors during deliberations in order to gain the attention of their fellow jurors is to utilize demonstrative evidence. Therefore, remind the juror advocates whom you perceive as being on your side as to the precise piece of demonstrative evidence which they should use in the jury room to discuss the outcome determinative issue. Then arm them with the precise argument that they should make to the other jurors tied to this piece of demonstrative evidence. In addition, remind them of the metaphors, analogies, similes and other rhetorical devices which they may use in the jury room to persuade their fellow jurors. These rhetorical devices should be carefully chosen in order to conform to the activities and attitudes of the jurors as you have determined them on careful voir dire examination.
c. Instruct the Jury
(1) Jurors Look to Attorneys for Guidance.
Attorneys spend seven years in college and law school obtaining the education which we need before we can enter the courtroom as an advocate. We then spend countless hours preparing our witnesses and ourselves in order to fulfill our role in a specific trial. The judge was often a skilled trial lawyer before taking the bench and has experience from both sides of the bench to aid him or her in performing their duties. However, those who serve in the extremely important role as the sole judges of the facts, the credibility of the witnesses and the arbiters of the amount of damages to be awarded in the case enter the jury panel completely naive as to their role, their power, their rights, their duties, their obligations or the procedure for accomplishing their extremely crucial role in the dispensing of justice. Even worse, they enter with pre-loaded misconceptions about the irresponsibility of jurors, run-away jury verdicts and the recent, much publicized failure of the civil justice system.
(2) Lead Jurors Through Suggestions
Skilled counsel will utilize the trilogy of persuasion as an opportunity to instruct the jury as to their role in the civil justice system and offer suggestions as to how that role may be most effectively fulfilled in this particular case. Suggest to the jurors the order in which they may wish to consider the evidence when they enter the jury room; suggest the evidence which they should consider on each question which they are called upon to resolve; suggest a method of calculating damages, and suggest the minimum amount of damages which should be awarded with respect to each element.
(3) Advise Jurors of Duties and Responsibilities
Most importantly, if we are to recover adequate compensation in a personal injury or wrongful death case we must make the jurors understand and feel their duties and responsibilities with respect to the consideration of damages.
We are advised by forensic psychologists that Jurors do not deliberate on the issue of evidence of damages for the reason that jurors do not like to confront physical pain and suffering, mental anguish, physical disability and physical disfigurement. They do not like to see it, hear testimony about it or sit down in a room with eleven strangers and discuss it and attempt to put a monetary value on it.
It is our duty as advocates to instruct the jurors as to their duties. We must make jurors understand that they have the duty to confront the injuries and their sequelae, i.e., the physical pain and suffering, mental anguish, physical disability and physical disfigurement which has been suffered by the plaintiff in the past and will be suffered by the plaintiff in the future.
Jurors must also be informed that they have the duty to raise and fully discuss the evidence of damages in the jury room; that they have the duty to award full compensation; that they have the duty to follow the law, particularly with respect to the award of damages; and that they have the duty to render full and complete justice.
(4) Sample Argument Regarding Duties
The following is a sample argument with respect to advising the jury as to the necessity of confronting the general damages:
The quality of the first 14 years of Annette’s life was the responsibility of her parents. The quality of Annette’s life for the two years since this tragedy is the direct responsibility of these defendants. But the quality of the next 60 years, the rest of Annette’s life, is directly in your hands.
On voir dire examination we advised that the 12 of you who were chosen would have the difficult task of confronting, carefully considering and calculating the dollar value to compensate for 60 years of Annette’s lifetime companions of physical pain and suffering, mental anguish, physical disability and physical disfigurement.
Such a grizzly audit is difficult, but indispensable. If the injustice which has been done to Annette by this defendant is to be overcome by your verdict, you must do your full duty, follow the court’s instructions and fully evaluate Annette’s physical pain and suffering, mental anguish, physical disability and physical disfigurement. But as you sit in that jury room and discuss the evidence of these devastating damages, remember that you and I only have to discuss Annette’s physical pain and suffering, mental anguish, physical disability and physical disfigurement. Annette has to live it every second of every minute of every waking hour of every day of her life forever.
The hardest part of any trial for the lawyer and for the parties is waiting for the jury verdict after deliberations begin. But your decision is so crucial to how Annette spends the next 60 years of her life that we will wait as long as it takes you to fully evaluate each and every piece of evidence on each and every element of damage concerning Annette’s physical pain and suffering, mental anguish, physical disability and physical disfigurement. Remember that Annette has waited two years for this, her last day in court. If we have to wait two days or ten days for you to arrive at a verdict which you can look back upon with pride for the rest of your life, we’ll gladly wait. We understand that reviewing all of the evidence and carefully considering all of the damages is your duty. Take the full time it requires. We will wait.
This is the type of argument which is designed to aid the jury in understanding their duty to return full compensation.
The jury needs assistance in making decisions. Lead them in a concise and pertinent fashion to the damage award. Give them the foundation to justify the large sums of money that will be required to compensate for the duration of plaintiff’s damages. Do not make the mistake of telling the jury what to do. Show them – explain to them – lead them to their necessary decision. If plaintiff’s counsel has properly prepared the closing argument, all the pieces of the case should coalesce and provide the motivation that each juror needs to decide on a proper verdict for the plaintiff.
d. Empower the Jury
(1) Jurors Do Not Understand Their Power.
In a recent survey, two out of three jurors who were serving in civil lawsuits felt that their award of damages was strictly advisory to the court. If they gave too much the court would reduce the amount appropriately and if they awarded too little the court would increase the damages to the proper amount. It is incumbent upon the skilled attorney to make the jurors understand their power. They must understand that they are the Supreme Court with respect to the facts; that they are the Supreme Court with respect to the damages; that they are the Supreme Court with respect to the credibility of the witnesses and the weight to be given to their testimony. Jurors must also be made to understand that they are the last bastion of hope; that these are the parties’ last days in court; that their verdict is written in indelible ink, not in pencil; that they not only can but must award full compensation; that they have the power to right a wrong, correct an injustice or pay a debt. In a product liability case they have the power to influence corporate conduct and make this community and America a safer place to live. In a medical negligence case they have the power to send a message to the health care community and to act as the conscience of the community in establishing the standard of medical care which will be acceptable to the community. By making the jury understand the power which they possess we can make them more conscientious in fulfilling their role as jurors.
(2) Use of Rhetorical Questions
One of the most useful techniques for empowering the jury is through the use of the rhetorical question. Throughout the opening statement and summation the skilled advocate may ask the rhetorical questions, the answers to which help the jurors understand their power. For example, in a case involving the wrongful death of a child, the rhetorical question, “what is this child’s life worth in our community?” was asked a total of 20 times by the plaintiff’s attorney, followed by various versions of “that is your determination in this case”. This drives home the point to the jury that they have the duty as well as the power to determine the value of a child’s life in the local community.
(3) Imbue Jurors with a Sense of Power
Jury service is not a spectator sport. It is one of the most important roles of counsel to make the jury clearly understand that they are sitting as judges in your case; that their decision is the only one which your client will ever obtain and that they are the only ones who can render full and complete justice in this case. There are numerous messages which can be utilized during summation which convey to the jury the importance of their role and the extreme importance of the exercise of their power in this particular case. If counsel can successfully imbue the jury with the appropriate sense of their power during voir dire examination and opening statement, jurors will pay more attention to what transpires during presentation of evidence which, in turn, makes counsel’s summation far more meaningful to the empowered jury.
B. Creating and Adapting Themes and Messages
It is axiomatic that counsel should develop a theme during voir dire examination, carry it through opening statement, expound upon it in the evidence and use the fully developed theme as a cornerstone of summation. There are numerous ways to develop a theme but two of the most useful are through client involvement and assimilation of the standard themes to your case.
The utilization of one or more themes is an effective method of organizing and presenting the closing argument. Themes should be selected at the initial stages of case preparation. They can then be implemented throughout the trial–including voir dire, the opening statement, the trial of the case itself, and the closing argument. The theme gives the jury a title, a goal and a purpose within a vital framework for deliberations.
Thus, when structuring the summation, plaintiff’s counsel should focus on those issues which will have maximum impact on the jury. Time is very precious during the closing argument and should not be spent on superficial or frivolous issues. Counsel can choose either a climax or an anti-climax order for the presentation of strongest points. The climax argument begins with points of lesser impact, then builds and culminates with those of maximum impact. The anti-climax argument is obviously just reversed. Counsel, however, should NEVER allow issues of main impact to be diluted by blanketing them in the middle of the argument.
1. Developing Case Specific Themes
If your client is catastrophically injured, such as paralytic, brain damaged or otherwise severely impaired, one means of effectively developing a theme is to spend the day with your client. It is your job as counsel for the injured plaintiff to convey to the jury a clear understanding of the physical pain and suffering, mental anguish, physical disability and other elements of damage which your client has suffered in the past and will suffer in the future. In order to accomplish this, counsel must acquire empathy with the client on these issues. We cannot effectively and persuasively convey to the jury that which we do not fully understand.
A second technique of client involvement is to have the client write their own thoughts with respect to the physical pain and suffering, mental anguish, physical disability and impairment to earning capacity which they are experiencing. In addition to gaining a valuable basis for proof and argument of damages, you may gain a considerable insight into your client’s reasoning process and level of suffering and endurance.
Finally, conduct an in-depth general damages interview with your client, preferably with a medically trained person present. Ideally, we conduct these interviews on videotape with the video equipment being set up as unobtrusively as possible. By encouraging your clients to talk, as soon after the accident as possible, about the physical pain and suffering and mental anguish which they are experiencing, you acquire a new understanding of the depth and scope of their problems which will help you in developing, understanding and conveying your theme regarding damages to the jury.
2. Adapting Standard Themes
There are numerous standard themes which have been developed over the past few decades of litigation. There is no need to reinvent the wheel when we can stand on the shoulders of giants such as Harry Philo, Bill Colson and Scott Baldwin the people who have developed and successfully used these standard themes for decades. The standard themes include, for example, corporate greed vs. consumer safety, child safety, product safety, workplace safety or whatever category your client fits into in the case. The corporate greed theme is that:
A corporation has no heart, it has no soul, it has no nerve center, it has only bank accounts. Corporations exists solely to produce profits and converse only in the language of accounting. But this corporation must receive the message that the citizens of Texas will not tolerate corporate greed over consumer safety. As jurors in this case, you have the opportunity to send that crucial message to the corporation in this case.
That is a standard theme which can easily be assimilated to fit your case. Standard themes are located in several books that have been written on the subject of summation.
1. Case Themes – The importance of case themes is so vital that every case should have a case theme. It may be a simple theme in a rear-end collision case revolving around damages and the value of human life. In a malpractice case you may use a series of impact words and phrases that describe why the plaintiff ought to win and the defendant ought to lose. A case theme which explains both the plaintiff’s position and reverses the defendant’s theme is the perfect case theme. The case theme should be short and perhaps use alliteration or other literary techniques to make it more memorable.
Here are some examples of case themes. In a rear-end collision a young man was struck so hard that his head broke the rear window of the truck and he sustained brain damage. The case occurred because a laundry truck driver was changing lanes quickly in heavy traffic and did not see the plaintiff bring his vehicle to a stop in front of him. The theme for that case was “an erratic lane change led to a catastrophic life change.” That theme obviously said everything about the case. It said it was a serious case and that the injuries had substantial effect on the plaintiff’s life. It states that the injuries occurred because the defendant was negligent in changing lanes. In an oil refinery explosion, the defendant contractor had installed 120 valves backwards and had valves which allowed volatile hydrocarbons to bleed into the atmosphere. In that case, the theme was, “Ladies and Gentlemen, they contracted to build an extension to the oil refinery, instead they built a bomb!” Throughout the case that plant became a bomb in the jury’s eyes. Ultimately the reinsurance company, who sent someone over from London to observe the trial, decided they had enough of hearing about the bomb. They settled for substantial money on the third day of trial.
In an anesthesiology medical negligence case a child became anoxic due to a laryngospasm (a spasm of the larynx blocking off breathing). Instead of acting rationally and giving the drug Anectine to reverse the spasm, the anesthesiologist tried to force a laryngoscope (a tool used to insert a breathing tube) into the child’s mouth. When he could not force it in, he flung it across the room. The theme in that case was, “A professional panicked. Professionals must not panic.” This theme like the others said all there is to say about the case. It showed why the plaintiff ought to win and the defendant ought to lose. He panicked and he should not have.
These are just some ideas of what we mean by a case theme. You have to design your case theme with each individual case and each individual set of facts. With a little experience we find ourselves thinking of each case as “this is the case of (blank)”. Eventually we learn to develop great case themes and our presentation will become more effective. The case theme is repetitive. The key words are used in voir dire, driven home in opening statement, logically supported by evidence from witnesses, documents and demonstrative evidence, and driven home forcefully in closing argument. By repeating a case theme, we tie the case together in the jury’s mind. We will now consider a technique which will encourage the jury to adopt your case theme.
3. Thematic Anchoring – Anchor the case theme so that the message contained is remembered and used. See infra at C2 (b).