There are few dumb jurors, but much poor teaching.
By Karen Lisko
Excerpted from Proven Jury Arguments and Evidence
- Key research findings implications for trial practice in the following areas:
There seems to be as many theories about persuading juries as there are juries themselves. Many of those theories are borne out of sound experience and scholarly research. Others are based on conventional, but inaccurate, “wisdoms” passed down from generation to generation of attorneys, some of which are amplified by publication in legal trade journals. For example, nowhere in this book will you find a citation to a statistic that 80% of jurors make up their minds by the end of opening statement, even though that claim has been “cited” in respected textbooks on trial advocacy and elsewhere. Why? Because no such claim was ever made.1Fortunately, the volume has been turned up on the voice of social science research in jury decision-making to add clarity to conjecture, especially in the last four decades.
Looking at every major aspect of trial, this chapter will focus on: (1) key research findings from academic and private research; and (2) the implications of this research for trial practice.
The jury selection process is often equated with the in-court voir dire component of jury selection. Yet, the jury selection process involves several steps before the in-court component. Experienced trial consultants typically begin the process with the design of a juror profile that identifies favorable and unfavorable jurors for a given party in the case; this profile is frequently informed by a mock trial or community attitude survey that identifies key characteristics of jurors correlated with biases against a given party. From this profile, the questions for jurors are born. Those questions can take the form of a special written juror questionnaire, questions submitted to the judge, and/or oral voir dire questions for attorney-conducted voir dire.
A. Key Research Findings
§1:01 Demographics Are Least Predictive Factor in Jurors’ Decisions
Two key beliefs seem to drive most attorneys’ perceptions of jury selection—and they both are wrong.
First, many attorneys believe demographics should be their highest priority in selecting or de-selecting jurors. Certainly, with the increasing limitations on oral voir dire in federal court, there is often little else to go on. However, demographics live on the bottom rung of the predictiveness ladder. Studies in the 1970s and 1980s assessed the predictiveness of demographics and attitudes for juries’ verdicts.2Up to 27 types of demographic information were tested, including gender, occupational status, and marital status. Demographics accounted for 3.2% to 16% of the variance in jurors’ verdicts, meaning that the vast majority (84% to 96.8%) of reasons for jurors’ verdict preferences fall outside their demographic characteristics.3
Does that mean jury composition is irrelevant? Some argue that it must matter, since the first vote in deliberations is rarely unanimous.4If jury composition was irrelevant, one would expect jurors to perceive the same information similarly and to render the exact verdict as their peers from the first moment of deliberations. The lack of unanimity stems from jurors’ filtering of the evidence based on their attitudes and background experiences.5In the 1990s, researchers who looked at jurors’ attitudes toward tort reform argued that their research accounted for 30% of the variance in jurors’ verdict preferences.6The fact that questions about jurors’ attitudes accounted for up to 10 times more of a connection with their verdicts than demographics is quite powerful. To keep these results in context, understand that the biggest predictor of a verdict has been found to be the evidence.7Our private research and post-trial interviews with actual and mock juries certainly support the validity of this finding.
§1:02 Voir Dire Is Not the Time to Sell Your Case
The second misconception lawyers have about jury selection is that the main goal of oral voir dire is to sell their case. While research has found that the defendant’s credibility can be hurt when defense counsel avoids voir dire questions designed to strategically influence jurors,8if counsel spends too much time selling and too little time listening, the wrong juror can hide on the panel until it is too late to undo the havoc he wreaks with his verdict. One study found that approximately 60% of the time spent talking during oral voir dire was by attorneys and judges, not by jurors!9
B. Implications for Trial Practice
In practice, what does all this research mean for your approach to jury selection? Five actions are key:
§1:03 Use Smart Tools to Generate Tailored Jury Profile Focusing on Attitudinal Biases
Every case has unique elements that require serious thought about attitudes jurors possess that can be either detrimental or helpful to your client at trial. When the stakes are high, conduct a mock trial or a community attitude survey with a reputable trial consultant who can tailor the research findings to a jury profile that focuses more heavily on attitudes than on demographics. You may not be allowed to ask questions that correlate with all the attitudinal information on the profile, but it is still worth having a complete profile in case a juror volunteers attitudes that appear important. When your budget does not allow for jury research, spend a few hours with an experienced trial consultant; she can review your case and give you a profile that draws from her prior experience in cases similar to yours.
§1:04 Focus Oral Voir Dire on Attitudinal Questions
Time spent on demographic or life-experience questions is time poorly spent in a world of shrinking oral voir dire. Certainly, those trial judges exist who disallow attitudinal questions during oral voir dire, but many courts allow attitudinal questions as long as they are not too personal in nature and do not get too close to the case facts. For example, an attitudinal question in a personal injury case would ask about feelings toward plaintiffs who sue to recover for personal injuries compared with a life experience question which asks jurors whether any of them have ever sued for personal injuries (which turns out to be a poor indicator of pro-plaintiff bias anyway).
Know your judge.
Research your judge’s biases on attitudinal questions. If possible, go to court and watch an oral voir dire in your judge’s courtroom well in advance of your trial.
§1:05 Include Questions That Illuminate Your Themes
A well-done oral voir dire first identifies your risky jurors and then uses those jurors, whom you know the other side will strike, to speak your themes. The three-part voir dire (Triple-Layer Structure) suggested in each chapter that follows allows you to identify risky jurors through attitudinal questioning of the group, and follow up with those jurors individually, allowing them to explain why they feel favorably toward the attitude that most helps your client.
§1:06 Press for Attorney-Conducted Voir Dire, Even If Brief
The most effective approach to oralvoir dire is to pepper attitudinal questioning with intermittent thematic questions. (See the Triple-Layer Structure for oral voir dire questioning described in each subsequent chapter of this book.) Key to this effectiveness is that counsel conduct the questioning as much as possible, rather than the judge. Although judges tend to think they do a better job of questioning,10an important study found that jurors are more candid in their responses when questioned by attorneys, rather than by judges.11Jurors tend to defer more to the authority of the bench, often giving the socially desirable response instead of their candid response. Taken one step further, the late Judge Bilby of Tucson, Arizona, was known to remark that his own research found that jurors responded much more candidly when questioned on paper, via written supplemental juror questionnaires, than when questioned as a group in open court or individually back in chambers. My experience bears this out as well.
§1:07 Press for Written Juror Questionnaire
When I conducted a survey of federal judges in 2001, I asked if they had ever allowed written supplemental juror questionnaires (or, as they are sometimes called, special juror questionnaires). Most of the judges responded, “No.” The fascinating part of this survey was the judges’ response to my follow-up question, “Why not?” Again, most of the judges replied, “Because I’ve never been asked.”
Ask the judge for permission to submit a written supplemental juror questionnaire. In the majority of cases in which I have worked with trial counsel to design a motion and questionnaire, the court has granted the motion. The questionnaire needs to be pointed; brief (two to 10 pages); and well-planned in terms of how it is to be administered to prospective jurors, how copies will be made and by whom, and how much time will be needed to review the questionnaires. Some courts are persuaded that written questionnaires expedite challenges for cause, since jurors may provide responses that identify hardships and/or biases that make it impossible for them to be fair.
Make this a joint effort with opposing counsel.
You will increase your chances of success if you reach agreement with opposing counsel to jointly submit a motion and a draft special written juror questionnaire to be administered ahead of oral voir dire.See, e.g., Chapter 11, Wrongful Termination—Race Discrimination, Form 11-A Sample Juror Questionnaire—Race Discrimination
Opening statements and the persuasive elements that comprise them—story, themes, and, often, demonstratives—receive a great deal of attention in continuing legal education programs and in publications, and rightly so. Opening statement is a critical and powerful persuasive moment that provides an important teaching framework for what jurors can expect to hear at trial. Academic research and our own private mock research underscore the fact that the evidence is the biggest predictor of a verdict.12The manner in which trial counsel chooses to introduce the evidence in opening is critical. One need only be reminded of the research finding that jurors tend to believe they heard evidence that was mentioned during the opening but was never presented during the case in chief,13to know that the opening is a powerful factor in jurors’ decision-making processes.
A. Key Research Findings
§1:10 Use of Story
The knowledge that story order in opening statements is powerful and persuasive has been around for a while14and has been reinforced in other research.15Yet many well-intentioned litigators still persist in organizing their openings topically around the legal theories in the case. Other attorneys attempt to introduce story within their legal theories; for example, some tell a liability story and a damages story. Having personally observed many hundreds of mock jurors deliberate over the past 20 years, it is clear to me that jurors do not compartmentalize story within legal theories. Rather, jurors blur the lines across those theories to tell themselves (and one another) a single complete story, inserting their own personal experiences or hypotheses where holes in that one story exist. Academic research supports this observation.16(We have also observed this same phenomenon in our privately sponsored mock research with mock judges and mock arbitrators.)
§1:11 Length of Opening Statement
Borrowing from the criminal arena, good jury research has found that the length of the defendant’s opening statement, in particular, affects jury verdicts. In this research, defendants who delivered a lengthy opening in response to a brief opening by the prosecution secured more not guilty verdicts; if, however, the prosecution delivered a lengthy opening and the defense followed in kind with a lengthy opening, guilty verdicts increased.17Presumably, a similar effect would occur with liability verdicts in civil cases; however, no known research has been conducted in the civil arena.
Practitioners use varying definitions of the word “theme.” I interpret the word “theme” to mean the “mantra” or “slogan” of your case—that single sentence (sometimes compound) that serves as a mnemonic device throughout your argument. Sometimes, the theme rhymes, as in “If it [the glove] doesn’t fit, you must acquit,” from the O. J. Simpson trial. Sometimes, it uses language devices like alliteration, e.g., “responsible and reprehensible.” No matter how it is worded, the theme is intended to encompass the tone of your case.
Little has been published in the academic literature about the effectiveness of different themes. However, in our privately sponsored mock trial research, we have repeatedly tested themes. One strong pattern has emerged from that research: The more effective themes are the ones that appeal to the tougher audience on the jury. In other words, a plaintiff who uses a defense-oriented theme is more persuasive than one who uses a plaintiff-oriented theme. The reasoning is simple: Pro-plaintiff jurors are less in need of a plaintiff-oriented theme. They walk a pro-plaintiff mindset every day. The conversion you need to accomplish at trial is with those on the jury who are not automatically prone to favor your position. A good theme focuses on what motivates this more reluctant audience on the jury. An even better theme can be readily repeated throughout the opening and other phases of trial.
§1:13 Demonstratives/Visual Use of Evidence
Demonstratives are critical for an effective opening. See §1:20, et seq. Demonstratives, Exhibits.
§1:14 Admitting Weakness or Fault
The persuasion theory of “stealing thunder” has long been held to be powerful in many settings. “Stealing thunder” is the practice by which a party reveals one’s own weakness (and minimizes it) before someone else beats him to it. In the trial setting, a defendant’s admission of weakness has been found to decrease findings of fault by jurors. In kind, both the plaintiff and defendant have been found to be more trustworthy when introducing their own weaknesses first.18
More recently, scholarly research has tested the effects of apology on jury behavior, and found that apology can be an effective defense tool.19One study found that use of apology made the defendant appear more sincere and more accepting of responsibility. However, the same study found that a full apology did not influence liability assessments or damages awards, as compared to no apology. This study generally found that apology at trialmay be too late to affect the trial outcome.20
§1:15 Blaming the Other Guy
On the flip side of apology, research finds that drawing attention to the failings of the other side during your opening statement increases jurors’ willingness to blame the other side.21However, less has been written about when to voice the blame. Do you start your opening focusing on the other side’s failings, as some practitioners suggest, or do you wait until you have first established what you did well? Our privately sponsored mock research consistently points to an answer. Consider the following scenario: In a significant civil matter for the oil industry, we first conducted a mock trial in which defense counsel blamed the plaintiff before defending its own actions. Mock jurors awarded an average of $150 million against the defendant. In a second mock trial, defense counsel first defended what it did well before pointing out the plaintiff’s failings. In the second scenario, mock jurors awarded an average of only $1,500. Since those mock trials, we have tested the approach of starting the opening (plaintiff or defense) with what the presenting party did well before castigating the other side. In general, this approach has proven more successful than starting on the attack. Make no mistake—the attack on the other side still needs to occur in most cases, but the timing of the attack matters.
B. Implications for Trial Practice
Consider the practical implications of the latest research regarding the impact of opening statements on juries.
§1:16 Tell One Story That Encompasses All Key Legal Theories
Resist the practice of telling a miniseries of stories organized by legal theory. Ignore the clean, comforting lines of a topical structure and tell a story that intertwines the legal theories throughout. Every case—no matter how complex, no matter how technical—has a story in it. Regardless of how you present it, during deliberations jurors will create a story of what they believe happened. Importantly, if you do not create the story for them with your own interpretation of the evidence, they will do it for you—and not necessarily to your liking. Jurors will also learn and retain your facts better if you tell a single, cohesive story. Plus, as research has found, if you introduce your evidence and preview your arguments through story order, and the other side does not, you are most certainly ahead in the persuasion game.22
However, simply telling the story in chronological order is not necessarily the correct default. You must make wise decisions about things like: (1) where the story begins; (2) how much detail to divulge; (3) when to withhold revealing significant evidence until later in the trial; (4) how to introduce the bad guy(s); (5) what language to use; and (6) when to visually underscore certain elements of the story. If you have had the experience of hearing two different people tell the same story, then you know that the manner in which the story is told has a profound impact on its effectiveness. Trial consultants with good expertise in courtroom persuasion can advise you regarding how to make the most effective decisions about those elements for your specific case. No “cookie cutter” formula exists that applies to all cases. Good decisions regarding these six elements must hinge on the specific case facts.
§1:17 Apply the “Right Theme” Criteria
In my view, the right theme for your case gets a “yes” to three critical questions:
1. Does your theme appeal to your tougher audience?
The audience inclined to favor you will focus on your evidence and witnesses. The audience inclined against you needs more. The filter of the right theme will help them stay more open to you and your interpretation of the case. The themes I recommend in subsequent chapters suggest approaches that should appeal to the tougher audiences for each side in a given case type.
2. Is your theme memorable?
Our clients spend a lot of time and money in mock trials and strategy sessions to determine the right theme for their case. After all that effort, the key is to make the right theme stick with jurors. Why? Because the right theme should serve as a filter through which jurors view the evidence. You certainly want jurors to apply your filter over your opponent’s. A few measures that help ensure jurors remember your theme are:
- Like it or not, a clever turn of phrase works. (Rhyming may also occasionally help!) It is hard to find someone who does not recognize Franklin Delano Roosevelt’s famous saying, “The only thing we have to fear is fear itself,” or John F. Kennedy’s challenge, “Ask not what your country can do for you; ask what you can do for your country.” Both statements served as a strong filter for bolstering the courage of Americans in tough times. By contrast, many remember the first phrase of Abraham Lincoln’s Gettysburg Address, “Four score and seven years ago…,” but how many in the general public remember any more than that?
- Your theme may be brilliant, but if it gets buried among your other brilliant phrases, it does you no good. You likely need to repeat your theme multiple times for it to stick with jurors.
3. Does your theme apply throughout the opening and again at closing?
If your theme works for liability, but not for damages, you have the wrong theme. (Granted, on some rare occasions, you may need a two-part theme—one that applies to liability and one that applies to damages—but it is more powerful to have a theme that applies to both.) See the subsequent chapters in this book for examples of themes that transcend claims.
§1:18 Watch Your Use of Apology
Apology can help, but it can also hurt if not used in a sincere manner. It doesn’t help to say, “We are sorry the other side misunderstood us.” It can help to be complete in expressing remorse, but typically in advance of trial, rather than during trial. Boully’s research finds that a full apology is better than a partial apology; full apologies include: (1) expressing remorse; (2) taking of responsibility; (3) describing repair of the damage; and (4) planning reform for the future.23
A. Key Research Findings
§1:20 Visual Evidence vs. No Visual Evidence
Common sense tells us that a demonstrative display of evidence would likely have more impact on a jury than simply an oral description of it. Research supports that common sense belief, and has for some time outside the courtroom.24Courtroom research has found that any mode of demonstrative display is superior to using no visual evidence to make a specific point during expert testimony,25sometimes to the extent that jurors are persuaded by both accurate and inaccurate portrayals of evidence via computer animations when they should not be.26
§1:21 Simple Demonstratives vs. Computer Animations
We often hear worry from our clients that too sophisticated an animation will make them look too wealthy, something neither plaintiffs nor defendants want jurors to conclude about them. Our private field research has found that such a worry in this high-tech age rarely comes to fruition. Academic research is mixed on the superiority of computer animation over other types of demonstratives,27ultimately illuminating the fact that more conclusive research is necessary.
B. Implications for Trial Practice
§1:22 Use Demonstratives/Computer Animations to Underscore Critical Points
When jurors can view your interpretation of critical evidence, rather than simply listen to it, your odds of prevailing on the point most definitely increase. You may be able to see your point perfectly in your mind’s eye, but you have had the benefit of months, maybe years, of living with the evidence to perfect that image. Jurors (and judges) are not so lucky. You can dramatically shorten their learning curve by using computer animations or simple demonstratives. While current academic research finds that computer animations may not give you a dramatic advantage over simple demonstratives, our field research in more complex litigation finds that there is no substitute for an animation when you need to take someone inside a process, whether it be inside the human body or inside a technological innovation.
A. Key Research Findings
§1:25 Necessary or Not?
Some have opined that experts are not that useful in litigation.28While that may be true in isolated situations, experts have been found to be persuasive in many trials, especially when the expert testifies early in the case29and when the testimony is relevant. (See §1:26, for further discussion of relevance.) Experts who are good teachers and who can translate a complex concept for a jury are critical. Experts are less useful in circumstances where jurors feel they have a preexisting grasp of the concept. In our research experience, jurors in those situations tend to rely on their own “street expertise” over that of the expert. Still, counsel may have no option but to hire an expert, even for more obvious proofs, to make a record in her case.
§1:26 Relevant Expertise
Experts and expertise (not always mutually inclusive) have been studied for several decades.30Communicators with relevant expertise are more persuasive than those who do not have that “on point” expertise.31“Relevant expertise,” however, does not automatically mean that the expert witness you have hired is the one jurors will see as the “most expert” on the subject. Nor should you assume that expert witnesses with the best pedigrees make the most “relevant” experts.
§1:27 Jurors’ Ability to Judge Reliability of Expert’s Scientific Testimony
Since Daubert32gives judges the power to determine which scientific evidence comes in and which does not, one would think “junk science” would no longer find its way into the courtroom. Judges, however, can and do allow in questionable scientific evidence at times, relying on the supposed safeguards of: (1) cross-examination; (2) opposing experts; and (3) corrective jury instructions. Can jurors discriminate the “junk” from the reliable? Research has found that jurors who have a high need for cognition are capable of such discrimination, but jurors who have a low need for cognition do not.33A “need for cognition” is defined as how much people enjoy putting mental effort into thinking activities.34How effective are the legal safeguards? Jury instructions have been found to be somewhat helpful in alerting jurors to junk science,35but cross-examination of an expert or testimony from opposing expert were not successful.36
§1:28 Impeaching the Opposing Expert
Research has found that even when accusations during cross-examination are unfounded, jurors are still influenced by the accusatory questions no matter what the answer. One study tested jurors’ perceptions of an expert who was asked, “Isn’t it true that your work is poorly regarded by your colleagues?” and “Hasn’t your work been sharply criticized in the past?” Even when the expert denied the accusation or when the questions were met with a sustained objection, jurors discounted the expert’s credibility.37
§1:29 Expert Witness’ Speaking Style
Much research has been conducted about the speaking style of witnesses in general, but little focus has been placed on expert witnesses’ styles. Our private research with actual jurors finds that the expert witness’ style matters very much, and in a manner similar to that of fact witnesses. See §1:40, et seq., “Fact Witness Testimony,” for a review of those findings.
§1:30 Expert Witness’ Gender
Some research has focused on the gender of expert witnesses, querying whether or not sex of the expert affects juries’ perceptions of their credibility. Research has found differences only when the role of the expert is judged to be stereotypically one gender’s domain over another. For example, female experts have been judged to be more credible than male experts when testifying as an expert on battered women’s syndrome38and on a child custody dispute,39both roles deemed to be more feminine than masculine or gender neutral. In gender neutral cases, the gender of the expert witness made no statistically significant difference.40
B. Implications for Trial Practice
§1:31 Stop Emphasizing Educational Pedigrees When Retaining an Expert
Jurors are not nearly as impressed by an expert’s alma mater as the attorneys who hire them seem to be. (As one example among many, I still remember debriefing a jury after a significant trial several years ago in which they had decided to believe one side’s expert over another because the prevailing expert’s public university alma mater was “bigger” than the other expert’s smaller, Ivy League school.) Yet, even the alma mater regularly fades in importance. Rather, jurors want to know that the expert knows her subject matter inside and out based on “real world” experience. In many cases, jurors conclude that an expert who is geographically closer to the events has more expertise than the highly pedigreed expert flown in from across the country.
§1:32 Consider the Expert Within Your Fact Witness
When possible, choose a fact witness, especially one with no “dog in the hunt,” over an expert witness to educate the jury. Jurors sometimes see a fact witness as having more relevant expertise than the witness you paid for, in part because the fact witness may feel more similar to the juror than a paid expert.
§1:33 Pay Close Attention to Your Expert’s Speaking and Teaching Style
Your expert should be a superb teacher. He should get on his feet in front of the jury if allowed (and if relevant) and teach a concept in a clear and engaging manner with tangible demonstratives. The expert who uses good props and language to teach is the memorable one whom our research has found jurors will believe more than an erudite scholar. With the potential for millions of spoken words in a trial, a good expert teacher is a welcome change of scenery.
You likely have encountered many peer attorneys, accountants, and scientists who have brilliant minds, but may not get the credit they deserve because they fail to communicate well. The same will be true for your expert witness. She gets no credit and leverage for your case if she cannot present well. Work with your expert to ensure she teaches well and persuasively. If need be, bring in a trial consultant experienced in expert witness preparation to help your expert be as effective a communicator as possible.
§1:34 Go on the Offense With Your Expert’s Fees
You might as well address the elephant in the room before your opponent does, especially if your elephant’s hourly rate is higher than the opposing side’s. Have your expert explain: (1) the reasoning behind her fees; (2) the fact that her opinion is never “for sale”; and (3) that the amount she has charged has been for her time (in being thorough), rather than for her opinion.
A. Key Research Findings
§1:40 Fact Witness’ Speaking Style
Researchers have studied the effect of a witness’ speech style on his or her credibility. One dominant area in the research has focused on powerful/powerless styles, including speech and nonverbal cues. A witness’ use of powerless speech significantly reduces jurors’ ratings of that witness’ credibility.41Research that focused specifically on plaintiff’s witnesses found increased damage awards occurred when witnesses for the plaintiff used the more powerful style.42Key elements of powerless speech include the use of: intensifiers (words like “very,” “kind of”, “sort of”); hedges (such as “I guess…” or “I would say that…”); hesitations/fillers (“um,” “uh,” “you know”), hyper-polite language (such as an excessive use of “sir” “madam,” “please”). In terms of the witness’ use of voice, powerless manners include a higher pitch and an upward (almost questioning) inflection at the end of a sentence. Witnesses were seen as less competent and less trustworthy when using those speech patterns.
Researchers also have investigated the effect of powerful/powerless nonverbal cues, including: poor eye contact, asymmetrical positioning (leaning, rather than upright), fidgeting, and mixed facial messages. Witnesses who used the powerless style were seen as less credible than witnesses who were more powerful in their demeanor.43
Ultimately, research has assessed the combination of powerful/powerless nonverbal cues and powerful/powerless language styles.44Not surprisingly, the research found that a witness who used a combined powerful language/powerful nonverbal style was rated as more credible, and a witness who used a combined powerless speech/powerless nonverbal style was rated as the least credible. What happened in between was the most surprising. My doctoral research tested “mixed testimonial styles” whereby witnesses combined powerful nonverbal styles with powerless language and vice versa. Witnesses who used a powerful nonverbal style/powerless linguistic style were deemed more credible on many dimensions than witnesses who used a powerless nonverbal style/powerful linguistic style.
§1:41 Gender of the Witness
Interestingly, this research also found that jurors rated the male witness in the extremes of credible and not credible. In other words, when I tested a powerful male against a powerful female, the male was judged to be more credible. By contrast, when the male witness’ nonverbal behavior was powerless and contradicted his powerful language style, he was sanctioned more than was the female witness compared to if he had been consistently powerless. The long-standing role theory may explain why. According to the role theorists, role expectations are standards of appropriate behavior that we have for others in specific contexts.45They argue that it therefore follows that when an actor’s behavior conforms to the observer’s role expectations, then the actor’s behavior is judged as appropriate. Contrary behavior is considered inappropriate.
§1:42 Attractiveness of the Witness
A great deal of research has focused on the effect of the visual attractiveness of a witness. While much of the research has focused on the attractiveness of criminal defendants, some research has focused on civil litigants. These studies have found that more attractive witnesses fare better with jurors and are given more of a benefit of the doubt.46
§1:43 Non-Native Witness’ Communication Behavior
The nationality of a witness can impact jurors because of the manner in which a witness’ culture often influences his or her communication behavior. Intercultural writing in the early 1990s focused on common communication characteristics of people raised in collectivist societies (like China) versus individualistic societies (like the United States).47Juxtaposed against legal communication research concerning communication traits that American juries find credible,48there exists great overlap between characteristics of credible witnesses and characteristics of speakers from individualistic societies. Specifically, speakers in individualistic societies tend to be more direct in their responses to questions, tend to use direct eye contact with any status person, and tend to use stronger volumes. By contrast, many speakers in collectivist societies use more polite or respectful forms of address, give less direct responses to others, use more indirect eye contact with high status people, and speak with a softer volume.
In addition, some research has found that nonnative witnesses who testify through a translator are deemed to be less credible than those who spoke English.49
B. Implications for Trial Practice
§1:44 Prep Your Witness to Draw Out Witness’ Natural Speaking Strengths
Those who criticize the practice of witness preparation amaze me. I doubt many of those critics would ever stand up to give an important speech without practicing their use of language and their delivery. Their meaning and key message likely would not change, but their delivery would, hopefully, become more genuine and compelling with practice. The nervous witness is not necessarily a liar; the nervous witness may be just nervous.
Ethics in the prep session determine whether manipulation is occurring, not the fact of the prep session itself. (I have helped prepare several hundred witnesses over the years and have only encountered one instance of an unethical prep of a witness who seemed to be lying. When I pointed it out to trial counsel, he immediately discontinued the prep session.)
§1:45 Avoid Translators When Possible
If you have a non-native witness who wants a translator, work hard to determine if this wish stems from nervousness or from a genuine need to have the language made clearer. In my experience with non-native witnesses who have a good command of English, they often need practice and reassurance more than they need a translator. If these witnesses get stuck here and there, our experience indicates that jurors often are quite understanding of such a witness’ requests to have questions repeated while on the stand, provided the requests occur throughout both direct and cross.
A. Key Research Findings
§1:50 Importance of Closing Argument
Jurors have cited closing arguments as second in importance only to the evidence phase of trial.50This fact may be surprising, since many theorize that jurors have made up their minds long before closing arguments. Jurors certainly form initial leanings early in a case (seen.1), but they can change their minds a few to several times over the course of a trial. When the case is close, the closing argument may be crucial to determining a juror’s ultimate decision. When the case is not so close, closing argument may be less important to jurors’ verdicts.
§1:51 Message Structure
Of all the research that has been conducted surrounding closing arguments, the most compelling and conclusive is that which focuses on message structure. A few studies have found that the story format in closing argument is inferior to other approaches.51Rather, a structure that organizes persuasion around the legal claims has been found to be more effective. Given the power of story in persuading the audience (see §1:10, Use of Story), this finding may seem counterintuitive, but our own privately sponsored research supports the conclusion that the use of a topical structure built around legal claims is more effective in closing. This finding makes sense given that jurors are keenly aware at this stage of the trial that their job is to complete the verdict form. By this point in the case, they need and want a clearer sense of the verdict form’s contents and how to organize the evidence around the issues.
§1:52 Dealing With Hindsight Bias
Good litigators know that “hindsight bias” plays a role in trial. “Hindsight bias” is that tendency to overestimate one’s own ability to have predicted the outcome of a prior event.52Jurors who are susceptible to hindsight bias often presume the parties had the ability to have predicted (and prevented) the outcome as well. These jurors have been found largely incapable of setting aside their knowledge of the outcome in rendering their verdicts.53 Some research in civil litigation has found that the use of “hindsight debiasing” strategies can be effective in minimizing the negative effects of hindsight on defendants, thereby allowing jurors to judge the parties based more on the evidence than on hindsight.54In this research, the hindsight debiasing strategy was two-fold. First, defense counsel “outed” plaintiff’s counsel by pointing out the plaintiff’s strategy in capitalizing on hindsight bias. Second, defense counsel appealed to the jury not to second-guess the defendants’ decisions. Mock jurors who were part of the hindsight debiasing condition were significantly less likely to apply hindsight when assessing the parties’ actions in the case.
Even though social science research has focused on the detrimental effects of hindsight bias on defendants, our private research has found that plaintiffs suffer from hindsight bias as well, especially in this era of significant anti-corporate bias. Jurors often criticize plaintiffs who entered a business relationship with a corporation and the transaction went sour, noting that the plaintiff “should have known better” than to trust the defendant corporation. This criticism often affects jurors’ verdicts.
B. Implications for Trial Practice
§1:53 Assume Closing Argument Is Critical
I know many trial attorneys who have turned to drafting their closing argument literally the night before it was to be given. While some valid reasons may exist for this delay (e.g., critical rulings were pending until this point in trial), many trial attorneys seem to defer attentiveness to the closing out of a misguided belief that the closing is less important than witness preparation throughout trial. Note the self-reported importance jurors place on the closing (see §1:50), and consider the following approaches to help streamline drafting during the hectic pace of trial:
- Draft your skeletal closing at the time you draft your opening. You know you want the structure of the closing to align with the verdict form questions (versus story order for opening), so make your best guess as to the final elements of the verdict form and the key conclusions you plan to draw upon the close of trial. Revise on a daily basis during trial.
- Retain a trial consultant to attend trial with the daily job of noting critical testimony and exhibits for incorporation into the closing. A good consultant will take responsibility for evolving the closing draft on a regular basis, freeing you to focus on your trial day. Near the completion of the evidence, you and the trial consultant should make final judgments about the draft and any holes that need to be filled in advance of delivering the final argument, as well as help with practice run-throughs of the closing.
§1:54 Use Structural Organization Driven By Verdict Form
You do the jury an immense favor by organizing the key evidence around the verdict form’s structure, in such a way that can carried into the deliberation room. Ironically, many attorneys organize their opening statements in this manner, but this is too early in the case for jurors. At that stage, they lack the context necessary to appreciate the relevance of that organization. The closing argument stage, however, is the prime time for teaching jurors how to take what they have heard during trial and apply it to deliberations. Begin with the first question on the verdict form, and methodically present the evidence in support of your client. Then, move on to the next question. It is a good idea to make a blow-up of the form (or use an ELMO projector) and complete it as you walk jurors through your argument.
§1:55 Consider Role of Hindsight Bias in Your Case
As noted above, both plaintiffs and defendants suffer from hindsight bias. What varies from case to case is the determination of which side suffers from it more. Knowing that fact should help you determine whether you want to use hindsight debiasing strategies in your case. For example, if you suffer from hindsight bias to some extent, but your opponent suffers from it more, you may be well advised to stay quiet, rather than to apply a hindsight debiasing strategy. The best way to determine who suffers more is to conduct a mock trial that tests the basic story for both sides in the case.
1 The 80% figure came from a 1958 study which found that this percentage of jurors formed initial leanings after the opening. Broeder, D. E. (1958). The University of Chicago Project. Nebraska Law Review, 38, 744-761. Most of those leanings change throughout trial. One study found that 95% of jurors change their minds at least once during trial. Hannaford, P. L., Hans, V. P., Mott, N. L., Munsterman, G. T. (2000). The timing of opinion formation by jurors in civil cases: An empirical examination. Tennessee Law Review, 67, 627-652. While some research finds that jurors make decisions early in trial, other research has found that closing arguments can be more influential than opening statements. Support for the first proposition can be found at: Diamond, S. S., Casper, J. D., Heiert, C. L., Marshall, A. (1996).Juror reactions to attorneys at trial. Journal of Criminal Law and Criminology, 87, 17-47.; Pyszczynski, T. A., Wrightsman, L. S. (1981). The effects of opening statements on mock jurors’ verdicts in a simulated criminal trial. Journal of Applied Social Psychology, 11, 301-313. Support for the second proposition is at: Walker, L., Thibault, J., Andreoli, V. (1972). Order of presentation at trial. Yale Law Journal, 82, 219-233; Wilson, W., Miller, H. (1968). Repetition, order of presentation, and timing of arguments and measures as determinants of opinion change. Journal of Personality and Social Psychology, 9, 185-194. Zdep, S., Wilson, W. (1968). Recency effects in opinion formation. Psychological Reports, 23, 199-204.
2 Hastie, R., Penrod, S., Pennington, N. (1983). Inside the jury. Cambridge, MA: Harvard University Press., Saks, M. J. (1977). Jury verdicts: The role of group size and social decision rule. Lexington, MA: Lexington Books., Penrod, S. D. (1979). Study of attorney and “scientific” jury selection models. Unpublished doctoral dissertation, Harvard University.
3 It should be noted that several of these studies were based on criminal cases. However, our privately sponsored research with several thousand mock civil jurors over the years bears this out as well.
4 Kalven, H. Zeisel, H. (1966). The American jury. Boston: Little Brown.
5 Diamond, S. S. (1990). Scientific jury selection: What social scientists know and do not know. Judicature, 73, 178-183.
6 Moran, G., Cutler, B. L., and DeLisa, A. (1994). Attitudes toward tort reform, scientific jury selection, and tort reform: Verdict inclination in criminal and civil trials. Law and Psychology Review, 18, 309-328.
7 Visher, C. A. (1987). Juror decision making: The importance of evidence. Law and Human Behavior, 11, 1-18.
8 Reinard, J. C., Arsenault, D. J. (2000). The impact of forms of strategic and non-strategic voir dire questions on jury verdicts. Communication Monographs, 67, 159-177. See also Arsenault, D. J., Reinard, J. C. (1997). The effect of attorney-directed question types in voir dire upon jury deliberation, defendant culpability, and attorney sociability. Paper presented at the meeting of the Western Psychological Association, Seattle, WA.
9 Johnson, C. and Haney, C. (1994). Felony voir dire: An exploratory study of its content and effect. Law and Human Behavior, 18, 487-506.
10 Lisko, K. O. (2001). Trial practice perceptions by the federal judiciary. Unpublished survey of federal judges nationwide conducted by facsimile.
11 Jones, S. E. (1987). Judge- versus attorney-conducted voir dire: An empirical investigation of juror candor. Law and Human Behavior, 11, 131-146.
12 Visher, C. A. (1987). Juror decision making: The importance of evidence. Law and Human Behavior, 11, 1-18.
13 Pyszczynski, T. A., Greenberg, J., Mack, D., and Wrightsman, L. S. (1981). Opening statements in a jury trial: The effect of the promising more than the evidence can show. Journal of Applied Social Psychology, 11, 434-444.
14 Bennett, W. L., Feldman, M. S. (1981). Reconstructing reality in the courtroom. New Brunswick, NJ: Rutgers University Press.; Pennington, N., Hastie, R. (1992). Explaining the evidence: Tests of the story model for juror decision making. Journal of Personality and Social Psychology, 62, 189-206.
15 Spiecker, S. C., Worthington, D. L. (2003). The influence of opening statement/closing argument organizational strategy on juror verdict and damage awards. Law and Human Behavior, 27, 437-456.
16 Hannaford, P. L., Hans, V. P., Mott, N. L., Munsterman, G. T. (2000). The timing of opinion formation by jurors in civil cases: An empirical examination. Tennessee Law Review, 67, 627-652.; Hans, V. P., Sweigart, K. (1993). Jurors’ views of civil lawyers: Implications for courtroom communication. Indiana Law Journal, 68, 1297-1332.
17 Pyszczynski, T. A., Wrightsman, L. S. (1981). The effects of opening statements on mock jurors’ verdicts in a simulated criminal trial. Journal of Applied Social Psychology, 11, 301-313.
18 Williams, K. D., Bourgeois, M. J., and Croyle, R. T. (1993). The effects of stealing thunder in criminal and civil trials. Law and Human Behavior, 17, 597-609.
19 Bornstein, B. H., Rung, L. M. and Miller, M. K. (2002). The effects of defendant remorse on mock juror decisions in a malpractice case. Behavioral Sciences and the Law, 22, 393-409.
20 Boully, K. R. (2005). Mea culpa in the courtroom: Juror perceptions of defendant apology at trial. The International Journal of Speech, Language and the Law, 14(2), 301-304.
21 Branscombe, N. R., Owen, S., Garstka, T. A., Coleman, J. (1996). Rape and accident counterfactuals: Who might have done otherwise and would it have changed the outcome? Journal of Applied Social Psychology, 26, 1042-1067.
22 Spiecker, S. C., Worthington, D. L. (2003). The influence of opening statement/closing argument organizational strategy on juror verdict and damage awards. Law and Human Behavior, 27, 437-456.
23 Boully, K.R. (2005). “Mea Culpa” in the courtroom: Juror perceptions of defendant apology at trial. Unpublished dissertation. The University of Kansas.
24 Weiss, H., McGrath, J.B. (1963). Technically speaking: Oral communication for engineers, scientists, and technical personnel. New York: McGraw-Hill.
25 Binder, D.M., Bourgeois, M.J. (2004). Effects of the use of PowerPoint by expert witnesses. Unpublished manuscript, University of Wyoming.
26 Kassin, S. M., and Dunn, M. A. (1997). Computer-animated displays and the jury: Facilitative and prejudicial effects. Law and Human Behavior, 21, 269-281.
27 Bennett, R. B., Liebman, J. H., Fetter, R. E. (1999). Seeing is believing; or is it? An empirical study of computer simulations as evidence. Wake Forest Law Review, 34, 257-294.
28 Plotkin, H. (2008). The two ways jurors decide trials. American Bar Association: Second Chair Column.
29 Brekke, N., Borgida, E. (1988). Expert psychological testimony in rape trials: A social cognitive analysis. Journal of Personality and Social Psychology, 55, 372 – 386; Schuller, R. A., Cripps, J. (1998). Expert evidence pertaining to battered women: The impact of gender of expert and timing of testimony. Law and Human Behavior, 22, 17-31.
30 Aronson, E., Turner, J. A., Carlsmith, J. M. (1963). Communicator credibility and communication discrepancy as determinants of opinion change. Journal of Abnormal and Social Psychology, 67, 31-36.; Wilson, W. J., Sherrel, D. L. (1993). Source effects in communication and persuasion research: A meta-analysis of effect size. Journal of the Academy of Marketing Science, 2, 101-112.
31 Brekke, N., Borgida, E. (1988); Schuller, R. A., Cripps, J. (1998); Fox, S. G., Walters, H. A. (1986). The impact of general versus specific expert testimony and eyewitness confidence upon mock juror judgment. Law and Human Behavior, 10, 215-228; Kovera, M. B., Gresham, A. W., Borgida, E., Gray, E., Regan, P. C. (1997). Does expert psychological testimony inform or influence juror decision making? A social cognitive analysis. Journal of Applied Psychology, 82, 178 – 191.
32 See Daubert v. Merrell Dow Pharmaceuticals, Inc. 113 S. Ct. 2786 (1993).
33 McAuliff, B. D., Kovera, M. B. (2003). Need for cognition and juror sensitivity to methodological flaws in psychological science. Unpublished manuscript, Florida International University, Miami, FL.; Kovera, M. B., Russano, M.B., McAuliff, B. D. (2002). Assessment of the common-sense psychology underlying Daubert: Legal decision makers’ abilities to evaluate expert evidence in hostile work environment cases. Psychology, Public Policy, and Law, 8, 180-200.
34 Cacioppo, J. T. , Petty, R. E. (1982). The need for cognition. Journal of Personality and Social Psychology, 42, 116-131.
35 Groscup, J., Penrod, S. D. (2002, March). Limiting instructions’ effects on juror assessments of scientific validity and reliability. Paper session presented at the biennial meeting of the American Psychology-Law Society, Austin, TX.
36 Kovera, M. B., McAuliff, B. D., Hebert, K. S. (1999). Reasoning about scientific evidence: Effects of juror gender and evidence quality on juror decisions in a hostile work environment case. Journal of Applied Psychology, 84, 362-375.; Levett, L. Kovera, M. B. (2003). Can opposing experts educate jurors about unreliable expert evidence on child eyewitness memory? In B. Cutler L. Van Wallandael (Chairs), Expert psychological testimony on eyewitness memory. Symposium conducted at the meeting of the International Interdisciplinary Conference on Psychology and the Law, Edinburgh, Scotland.
37 Kassin, S. M., Williams, L. N., Saunders, C. I.. (1990). Dirty tricks of cross-examination: The influence of conjectural evidence on the jury. Law and Human Behavior, 14, 373-384.
38 Brekke, N., Borgida, E. (1988); Schuller, R. A., Cripps, J. (1998).
39 Swenson R. A., Nash, D. L., Roos, D. C. (1984). Source credibility and perceived expertness of testimony in a simulated child-custody case. Professional Psychology: Research and Practice, 15, 891-898.
40 Memon, A., Shuman, D. W. (1998). Juror perception of experts in civil disputes: The role of race and gender. Law and Psychology Review, 22, 179-197. and Vondergeest, L., Honts, C. R., Devitt, M. K. (1993). Effects of juror and expert witness gender on jurors’ perceptions of an expert witness. Modern Psychological Studies, 1-6.
41 O’Barr, W. M. (1982). Linguistic evidence: Language, power, and strategy in the courtroom. San Diego, CA: Academic.
42 Erickson, B., Lind, E. A., Johnson, B. C., O’Barr, W. M. (1978). Speech style and impression formation in a court setting: The effects of “powerful” and “powerless” speech. Journal of Experimental Social Psychology, 14, 266-279.
43 Lykken, D. T. (1998). Tremor in the blood: Uses and abuses of the lie detector. New York: Plenum.
44 Lisko, K. O. (1991). Juror perceptions of witness credibility as a function of linguistic and nonverbal power. (Doctoral dissertation, University of Kansas).
45 Biddle, B.J., Thomas, E.J. (1966). The nature and history of role theory. In B. Biddle E.J. Thomas, (eds.), Role theory: Concepts and research (pp.3-19). New York: John Wiley and Sons. Also, Katz, D., Kahn, R.L. (1978). The social psychology of organizations (2nd ed.) New York: John Wiley and Sons.
46 Darby, B. W., Jeffers, D. (1988), The effects of defendant and juror attractiveness on simulated courtroom trial decisions. Social Behavior and Personality, 16, 39-50.; Kulka, R. A., Kessler, J. D. (1978). Is justice really blind? The influence of litigant physical attractiveness on juridical judgment. Journal of Applied Social Psychology, 8, 366-381.
47 Triandis, H.C. (1994). Culture and social behavior. San Francisco: McGraw-Hill, Inc.
48 Lisko, K.O. (1991). Juror perceptions of witness credibility as a function of linguistic and nonverbal power. (Doctoral dissertation, University of Kansas).
49 Stephan, C. W., Stephan, W. G. (1986). Habla Ingles? The effects of language translation on simulated juror decisions. Journal of Applied Social Psychology, 16, 577-589.
50 Matlon, R. J., Davis, J. W., Catchings, B. W., Deer, W. R., Waldron, V. R. (1985, November). Factors affecting jury decision making. Paper presented at the meeting of the Speech Communication Association, Denver, Colorado.
51 Spiecker, S. C., and Worthington, D. L. (2003). The influence of opening statement/closing argument organizational strategy on juror verdict and damage awards. Law and Human Behavior, 27, 437-456.; McCullough, G. W. (1991). Juror decisions as a function of text format of opening statements and closing arguments. (Doctoral dissertation, University of Kansas). Dissertations Abstracts International, 52, 3768A.
52 Fischhoff, B. (1975). Hindsight ? foresight: The effect of outcome knowledge on judgment under uncertainty.. Journal of Experimental Psychology: Human Perception and Performance, 1, 288-299.
53 Casper, J. D., Benedict, K., Kelly, J. R. (1988). Cognition, attitudes and decision-making in search and seizure cases. Journal of Applied Social Psychology, 18, 93-113. Casper, J. D., Benedict, K., Perry, J. L. (1989). Juror decision making, attitudes, and the hindsight bias. Law and Human Behavior, 13, 291-310.
54 Stallard, M. J., Worthington, D. L. (1998). Reducing the hindsight bias utilizing attorney arguments. Law and Human Behavior, 22, 671-683.
Karen Lisko, Ph.D., has over two decades of practical experience in hundreds of cases across the country in the areas of civil plaintiff, civil defense, and criminal defense ranging from simple to complex litigation. She provides expertise in courtroom persuasion, strategic jury selection, case theme development, persuasive opening statements, and closing arguments, and assists with witness preparation for deposition, arbitration, and trial. She has trained many attorneys, both individually and in groups.
Dr. Lisko utilizes her training to conduct focus group and mock trial research for arbitration, bench, and jury trials. She relies on her experience with hundreds of actual and mock juries as well as with mock judge panels to develop case strategy recommendations based on the research findings. Dr. Lisko has provided expert witness testimony on jury bias, jury decision-making, and community attitude survey research for change of venue. She holds a doctorate in legal communication, a specialized degree held by only a few consultants in the nation.
Dr. Lisko is the former president of the American Society of Trial Consultants (ASTC), and she is a lecturer in the Trial Consulting Certificate Program at Towson University in Towson, Maryland. She is also a member of the Board of the ASTC Foundation, and a member of the American Bar Association, Section of Intellectual Property Law. In addition, she has published several articles and has spoken to numerous groups regarding courtroom persuasion and jury decision-making.