With stakes so high, plaintiffs' attorneys must be at their
persuasive best. For persuasion is the key to jurors' minds and
hearts--and jurors decide all.
Persuasion is a storytelling skill whose success depends on
establishing a clearly defined and broadly accepted theme--"Give me
liberty or give me death," "We have nothing to fear but fear
itself," "Ask not what your country can do for you but what
you can do for your country." Strong themes crystallize complex
concepts and arguments, fixing in jurors' memories the ideas they
represent.
Despite other courtroom skills, some attorneys fail to develop
strong themes for their cases. They may introduce a theme at the start
of trial but not use it throughout voir dire, opening statement, direct
examination, cross-examination, and closing argument, thus missing an
opportunity to reinforce the theme in jurors' minds. As a result,
these attorneys are less effective trial advocates.
It should come as no surprise that attorneys trained in law school
to focus with laser intensity on the law often find it difficult to
develop compelling trial themes.
It would be absurd to suggest that lawyers do not need a thoroughunderstanding of the law, but it is safe to say that too rigid anemphasis on "legalistic" thinking can be a major block toestablishing rapport with jurors.
A legal issue important to the attorney may prove of little
interest to the jurors (the old problem of lawyer perspective versus
juror perspective). While the attorney may be arguing convincingly
regarding Critical Legal Issue A, jurors may be concerned about Critical
Nonlegal Issue B or C (or, for that matter, Z, which may not even show
up on the attorney's radar screen).
Thinking in legalese is no help in developing trial themes that
jurors will find compelling. What usually results is a case focused on
complex or arcane legal issues that jurors neither understand nor care
about.
For example, a number of attorneys mistakenly consider negligence a
workable theme to build a case on. Negligence however, is not a theme,
but rather a charge that attorneys try to prove in court. More to the
point, the word "negligence" establishes no emotional or
psychological ties with juries.
To reach jurors in a negligence case an attorney might use "An
ounce of prevention is worth a pound of cure," a theme almost
everyone can relate to.
Theme development is the rock on which all writing and oratory should be constructed. It is essential to structured communications.
The value of a trial theme is that it (1) personalizes case issues
and (2) helps jurors form impressions--and impressions win lawsuits.
Scientific jury research over three decades shows--
* Jurors deliberate in themes.
* The case theme is the primary mental organizer that helps jurors
remember the facts.
* A good theme enables jurors to look for evidence that
"fits" the story and to disregard evidence that does not.
* Themes facilitate evidence comprehension and enable juries to
reach predeliberation verdict decisions.
http://www.youtube.com/watch?v=T1F1i4f1gJc
As these and other findings indicate, trial theme development is a
subject that should merit intense scrutiny, interest, and attention on
the part of trial lawyers.
A trial theme is a summary of the case that attorneys should
express succinctly. Examples that are easy for counsel to explain and
easy for jurors to understand are "Safety first, not last" for
accident cases; "David v. Goliath" for many commercial cases;
"Paying for someone else's mistake" for negligence cases;
and a Philip Corboy special--"Destruction of a Van Gogh
painting"--for damages.
"He couldn't hit a curve with an ironing board" isthe way Hall of Fame pitcher Bob Feller described retired NBA hoop godMichael Jordan during Jordan's spring 1994 tryout with the ChicagoWhite Sox. Colorful descriptions like this would make great themesummaries because they tell it like it is in a few words that are easyto remember.
Even better than themes of a few words are one-word
themes--"indifference" for medical negligence and accident
cases, "accountability" for liability cases, and
"greed" for commerical cases. Other popular one-word themes
are "integrity," "prejudice,"
"conspiracy," "arrogance," and
"protection."
One-word themes act as laser beams to illuminate and clarify the
meaning and significance of a case. They help jurors focus on the key
idea or concept essential to a favorable disposition of the case (the
case's pivotal point).
One-word themes bind the case together. They are life rafts jurors
can hold on to through all the trial tempests and tumult. One-word
themes help jurors ignore extraneous arguments and focus on the desired
point of view.
Additionally, a good theme should be consistent with the evidence
and the jurors' beliefs. And it should create a sense of values
that the attorney, his or her client, and the jurors all share.
Much misinformation exists among trial attorneys regarding how to
determine the best trial theme most effectively. A random gathering of
colleagues and support staff, organized to deliberate on presentation of
a case, seldom succeeds in determining the best trial theme. Indeed,
attorneys often learn to their chagrin that the recommendations of ad
hoc groups lead away from the best trial theme and strategy.
Relying on any group's intuitions concerning the best theme
and case strategy is an unreliable way to forecast jury attitudes. A
theme based on intuition, instinct, or guesswork often proves a shocking
disappointment for the attorney at trial time--and a disaster for the
client.
Developing Jury Simulations
An effective way to determine the ideal theme is through jury focus
groups and other jury simulations. Like test-marketing products or
conducting political polls, jury simulations are results-oriented and
minimize guesswork.
Major corporations never introduce products without first testing
their appeal with consumers. Political parties use opinion polls and
primaries to test a candidate's appeal with the voters before
sponsoring an individual for public office. Similarly, the trial
attorney should use jury focus groups and jury simulations to
test-market alternative trial themes and case strategies.
Not just any jury focus group or jury simulation will do the job.
Some mock juries that are organized for attorneys prove no more reliable
in predicting jury attitudes than do ad hoc groups organized by
attorneys.
What jury focus groups and jury simulations work? A textbook
definition will be helpful.
Meaningful results in determining a trial theme that will gain the
widest possible level of acceptance (that is, the theme most consistent
with jurors' thought processes) can only be achieved through
carefully constructed and controlled social science experiments using
scientifically valid jury focus groups and jury simulations and precise
theme-choice recommendations based on statistical and other
sophisticated analyses of the results of these experiments.
This definition is precise--and for good reason. Each of its
qualifiers and conditions describes the type of surrogate jury research
that can reliably predict jury attitudes and behavior.
Meaningful results--Attorneys are assured that scientifically valid
jury focus groups and jury simulations can determine the best possible
case theme with real certitude. The theme recommendation is validated by
the scientific methodology employed in litigation research.
Widest possible level of acceptance--Determining the best trial
theme for the typical "red light, green light" type case is
usually not too difficult. Finding themes with the broadest possible
appeal for more complex cases is much more demanding.
Scientifically valid--Anyone can organize a meeting of colleagues
and friends to try out trial themes and then recommend what he or she
deems to be the most popular theme. But this approach does not use valid
scientific methodology. Any theme recommendation developed this way will
have no quantifiable significance regarding the appeal it may have with
a jury. (It may have none.)
Statistical and other sophisticated analyses--Even if the surrogate
jury is properly organized and administered, all comments must be
scientifically evaluated to achieve meaning. A lawyer can interpret the
law, but a social scientist (generally a psychologist specializing in
jury research) is needed to analyze the deliberations of subjects in
controlled psychological studies. These include jury focus groups and
jury simulations.
Not an Art
The organization of jury focus groups and jury simulations is not
an art--it is a science. This field is known as litigation research. It
employs actuarial methods based on experimental design. Its product is
the statistical analysis and interpretation of systematically collected
scientific data concerning probable jury responses to selected stimuli.
Litigation research is concerned with juror predispositions,
beliefs, opinions, and attitudes. The findings that derive from this
research, although not foolproof, significantly increase the probability
of developing jury-validated trial themes and of impaneling the best
possible jurors for a particular case.
Litigation research yields scientific findings that often are
presented as a series of "if-then" statements--"If this
theme is used, jury response 'X' will occur"; "If
this evidence is presented, jury response 'Y' will
occur." Much of this information springs from surrogate jury
research and can be invaluable in planning courtroom strategy.
Surrogate juries and jury focus groups are organized on an informal
basis to encourage full and open participation and instruction. Members
participate in abbreviated versions of an upcoming trial. The jurors are
carefully selected and their deliberations are professionally
interpreted to determine jury attitudes concerning the theme and
presentation of the case.
Formats for surrogate juries vary depending on experimental design,
specific issues to be determined, and the type and complexity of a case.
Every surrogate jury is "case specific" and is usually
conducted in the venue where the trial will take place. This aids in
recruiting surrogate jurors whose values and beliefs will match those of
the area's pool of actual jurors. The number of surrogate jurors
generally will be the same as is planned for the actual jury.
Both sides of the case are presented during the focus group
proceedings, followed immediately by comprehensive deliberations among
the surrogate jurors. The behavioral scientist who is present stimulates
but in no way leads these deliberations. His or her primary goal is to
keep the discussion focused on what the surrogate jurors determine to be
the basic issues of the case.
Surrogate jurors are subtly encouraged to simplify the case--to
break it down into fundamental components and issues. They are further
encouraged to develop answers for some essential questions: What is the
significance of the case? What is it all about? What is its underlying
message? What word or phrase best describes the case and brings it all
together? What is its theme?
In addition to a professional analysis of the group's
deliberations, all surrogate jurors are interviewed privately to
determine their attitudes concerning the basic issues of the case. These
individual responses are evaluated psychometrically to quantify mental
and other subjective data vis-a-vis the various trial themes being
investigated and/or tested. Then individual responses are again measured
psychometrically against the surrogate jury's group deliberations
on a theme for the case.
In most cases, two separate series of jury simulations are
conducted. A typical series involves a presentation that is repeated
with 3 to 10 different groups of surrogate jurors to ensure the validity
of the results.
The first series of jury simulations takes place at least 90 days
before trial or before discovery is complete. It is organized to
determine the issues important to potential jurors, along with the best
trial theme and strategy. The second series of simulations is performed
shortly before the trial will take place. It helps determine how jurors
will perceive the facts, evidence, and arguments once discovery is
completed.
Through this highly focused investigatory process, the basic theme
for the case eventually emerges. This interactive testing is repeated
again and again with different sets of surrogate jurors to ensure the
validity of the results. In this way the focus groups arrive at the
trial theme guaranteed to achieve the widest latitude of acceptance with
potential jurors.
Key Information
Jury focus groups and jury simulations reliably indicate to lawyers
* what jurors think and feel about a particular case;
* which "personality types" will likely perceive the
facts of the case favorably or unfavorably;
* what relevant attitudes may predispose jurors to be less than
neutral;
* what issues jurors consider most important;
* which trial theme and case strategy have the most appeal;
* what voir dire questions work best;
* what information jurors need to hear (and even when they want it
presented);
* what areas of the case are subject to faulty perceptions by
jurors;
* what the problem areas of the case are;
* what case issues and facts are likely to be misunderstood;
* what the assessment of damages is; and
* what questions, if left unanswered, will stay in jurors'
minds--and possibly may even destroy the case.
This information can help an attorney determine a winning trial
theme and presentation strategy. He or she learns how to answer every
question and address issues that the jury simulations show are critical
to a favorable verdict.
Signaling Jurors
A psychological principle known as "attribution theory"
predicts how individuals place blame. It is a key determinant of the
method jurors use to decide court cases. Attribution theory posits that
blame devolves to a "person" versus "situation"
decision. Did the patient die due to the fault of the doctor (person)?
Or because the patient was very sick (situation)? Did the plane fall out
of the sky because of pilot error (person)? Or because of weather
conditions (situation)?
Certain linguistic signals cue specific juror responses regarding
how jurors place blame. One type of signal cues a blame response toward
a person; a different signal, toward a situation. Through our
firm's research we have discovered that these special linguistic
cues are "owned" either by the plaintiff or the defendant.
Recognizing such cues and knowing how to put them to use can make the
difference between success and failure in the courtroom. The following
example will help demonstrate the point.
In the winter of 1993, I worked on a products liability case with
Buddy Payne of Miami concerning a vehicle rollover. When we first tested
the case, we found that the surrogate jurors spent much of their time
speculating on how the driver probably "overcorrected" on his
steering, thus causing the rollover. Who owns
"overcorrection?" The driver. So jurors blamed him for the
incident.
We recast the deliberations by intro-ducing two new
terms--"steerability" and "steerworthiness." Who
"owns" these terms? "Steerworthiness" clearly
"belongs" to the vehicle manufacturer. Now jurors blamed the
manufacturer for the rollover.
We repeatedly tested "steerability" and found that it
achieved broad acceptance as a trial theme with different groups of
surrogate jurors. We proceeded to trial, and the plaintiff won. The
manufacturer lost because (1) it "owned" the
"steerability" theme and (2) we hung the theme on the company
whenever we could during trial.
It is important for lawyers to understand the power of certain
words and to select and use them with care. For example, the attorney
representing the plaintiff in a medical negligence case should avoid the
word "disease" because it is "owned" by the client.
Safer words are "treatment" or "solution." "Why
did the doctor not come up with the right treatment?" "Why was
the right solution not developed?"
Is the proposed trial theme "owned" by the plaintiff or
the defendant? Who benefits and who loses due to its use? Counsel should
keep these key considerations in mind when choosing a trial theme.
Theme Integration
Attorneys must learn to make the most of the theme by very
carefully "enveloping" or integrating it in every part of the
trial--voir dire, opening statement, direct examination,
cross-examination, and closing argument.
This strategy guarantees that jurors will understand the theme.
Consider the following example: A negligence case has been brought
against a large hotel. Jury testing indicates "prevention" is
the ideal theme for the case. The attorney's job is to integrate
the theme into the key segments of the trial:
* Voir dire--"Do you believe it's important to prevent
bad things from happening to people?" "What do you think about
companies that don't do anything to prevent avoidable injuries from
taking place on their properties?"
* Opening statement--"The basic issue in this case is simply,
'Could the defendants have prevented the injury from happening to
my client?' Why is prevention apparently not an important concept
to them?"
* Direct examination--"Shouldn't a major hotel with over
$--- million in assets have been more concerned with preventing people
from being hurt on their premises? What steps could they have taken to
prevent this type of horrible injury from paralyzing my client?"
* Cross-examination--"Please look at this chart showing the
many injuries that have taken place at the hotel since 19--. Can you
tell us how many of these injuries could have been prevented if proper
safety measures had been implemented by the hotel?"
* Closing argument--"We've been here for six days, but
not once has the defendant described a single step it took to prevent
injuries like the one that has condemned my client to a wheelchair for
the rest of his life."
In many ways, a great trial theme is like a Swiss Army knife--it
can be used in 1,001 different ways. And a great theme can be used in
conjunction with many very powerful rhetorical techniques:
* Similes and metaphors--Jurors who do not understand what a lawyer
is talking about probably will not find in his or her client's
favor. Similes and metaphors can make a point. For example, if
prevention is the theme, the lawyer might point out to jurors, "The
defendant's failure to prevent this injury from occurring is like
failing to move a pair of roller skates from the middle of the cellar
steps."
* Rhetorical questions--Asking a rhetorical question will often
produce more favorable results with juries than making a statement. A
question like "Is the defendant simply too arrogant to worry about
preventing this type of injury from taking place?" adds interest to
the proceedings by involving the jurors and is quite likely to evoke a
positive response from them as a result.
* Expectancy statements--Saying "You can expect us to show
that..." is an excellent way to get jurors to anticipate (and wait
for) trial-theme messages and other key information the lawyer plans to
introduce later. In psychology, this is termed gaining the
"selective attention" of the subjects. Jurors will
unconsciously go on to look for information that supports the case
argument and will disregard information that doesn't support it.
What they will hear is "You can expect us to show that the
defendant could have prevented this injury from happening--but
unfortunately failed to do so."
* Visual aids--Jurors take an essential first step toward forming
opinions through a memory process called encoding. Attorneys should help
jurors encode with pictures and other visual aids. All demonstrative
evidence should support case themes. Colors that evoke associations with
feelings or symbols--like red for "stop" or green for
"go"--should be used. For example, a chart that lists in red
all preventable injuries that took place at the hotel over the years
will help demonstrate to the jurors what the attorney has been telling
them throughout the trial.
* Parallelism--Using parallel structure in language is another way
to hold jurors' attention. Take for example the statement "The
injury to my client was preventable because it was avoidable. It was
avoidable because it was foreseeable." This statement illustrates
the power and energy of rhythmic language.
* Rule of three--Communications research shows that an idea must be
repeated at least three times for it to be remembered. Few would contest
that an exhortation like "Prevention! Prevention! Prevention! If
only the defendant had given some though to this basic concept, none of
us would have to be here today" will implant an idea that jurors
will retain.
* Montgomery variable--Bob Montgomery of West Palm Beach can turn a
juror's natural fear of being injured (as was the plaintiff) into
righteous anger. He takes the jurors' "fear" energy and
turns it into "anger" energy by saying, "If the defendant
had tried to prevent this type of injury from occurring, my client would
be able to walk today. What if it were you--and not my client--who could
no longer walk again? How do you think that you would feel...knowing
that your injury could have been easily prevented?"
* Double binds--Characterizing the opposition in either-or terms
that are both negative is an effective way to minimize juror sympathy
for the opposition. "Did the defendants fail to prevent this injury
because they were negligent... or because they were arrogant and just
didn't care about preventing injuries to their guests?"
It is important for lawyers to understand that jurors tend to use
an idiosyncratic approach to handle the information presented in a case.
Repetition, key phrases, similes or metaphors, visuals, tone of voice,
and other nonevidentiary factors have powerful effects on each
juror's subconscious mind and the way he or she processes
information and reaches decisions.
By constantly "enveloping" the theme throughout every
point of the trial, attorneys are able to orient the viewpoints of an
individual juror to the case as they want jurors to see it. The theme
becomes the jurors' primary trial "road map"--showing
them the direct route to a good verdict.
However, the wrong theme cannot guide jurors to a successful
verdict. Indeed, repeated mention of an ill-chosen theme will likely
irritate jurors and turn them off.
Vital Step
This is why the trial theme must be thoroughly tested through jury
simulations before its actual use in court. If this vital step is not
taken, there's no reliable way to tell whether or not jurors will
react positively or negatively to the proposed theme. It's a roll
of the dice either way.
Cuing Positive Memory Recall with Jurors
Hypnotists, behavioral modification counselors, specialists in
neurolinguistic programming, and professionals in related fields are
skilled in showing lawyers how to use psychological techniques to
convince, persuade, and influence jurors. The techniques penetrate
subconscious mental processes. They are potent memory enforcers. One of
the most effective of the techniques is a process known as
"anchoring."
Anchoring makes jurors react positively on cue to an unspoken
message. The procedure involves using a specific gesture--a positive
behavioral anchor--simultaneously with a verbal "message" to
produce a classic Pavlovian response in jurors.
Assume, for example, that your case hinges on the fact that four
different witnesses have placed the murdertrial defendant in a different
state at the time the killing took place. This is a fact you will want
jurors to remember. You can anchor this point every time you repeat it
by making a specific gesture like stroking your chin or straightening
your tie. This associates the gesture with the pivotal message until the
gesture stimulus alone will retrieve and reinforce the memory.
After the stimulus-response mechanism is adequately established,
you need only repeat the gesture to immediately trigger subconscious
positive responses of individual jurors to the pivotal point.
In effect, this conditioning technique establishes bankruptcy lawyer an altered state
of consciousness very much like hypnosis among the jurors. Jurors will
now focus almost exclusively on the case's pivotal point. Altering
jurors' consciousness allays and to some extent replaces their
usual anxiety state. Since anxiety almost always arises from
jurors' customary confusion about differing trial arguments,
eliminating the confusion benefits the attorney substantially.
There is another way you can effectively anchor a case's
pivotal point. As you mention the pivotal point, always stand in the
same spot in the courtroom. This can be next to the flag, the
judge's bench, or any other well-established symbol of authority in
the room. This creates a powerful and positive association in the
jurors' minds regarding the pivotal point and the symbol of
authority.
Attorneys need to understand that classic conditioning is neither
pseudoscientific nor unauthenticated. Rather, it is a proven and widely
used behavioral-modification technique that is guaranteed to work if
performed correctly. It will not work, however, if the stimulus is
documented or is overgeneralized. To ensure success, your pivotal point
message must always be specific. You must repeat the message and pair it
with the gesture stimulus. Beware of stating the pivotal point without
the accompanying gesture stimulus. You will break the association, and
the stimulus will no longer cue jurors to the desired message. The
message will also be lost if you overdo the gesture.
Attorneys should use the gesture stimulus selectively--mainly when
it is necessary to get jurors in touch with their subconscious
predilections concerning the pivotal point. For example, the gesture
stimulus at the critical point of opposing counsel's closing
argument can be most effective.
Classically conditioning the case's pivotal point is an
excellent way for attorneys to develop a subtle but extremely powerful
edge with jurors throughout the entire trial. Why not let it work for
you?
