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- Voir Dire Clinic
- Simple Jury Persuasion: My opponent has great rhetoric, I have reality
- Charlie Sheen or Tiger Woods? When behavior doesn’t fit the image
- Extremism comes in many shapes and forms
- Simple Jury Persuasion: Using counter-factual thinking to your advantage
- In the face of the unexpected: Be cool
- Voir Dire: Do you like tall extroverted men?
- Simple Jury Persuasion: Don’t confuse argument with persuasion
- Deliberations & the role of the presiding juror
- We act as we believe others expect us to act
Voir Dire Clinic
This blog post marks the beginning of a series, the frequency of which will be decided by you. I was asked, by a very gracious and experienced litigator/reader, if I would weigh in on a voir dire dilemma she recently faced in Federal Court.
There was no attorney voir dire, so she only had the opportunity to submit questions for the judge to ask. Questions had to be put plainly and directly, and she needed them to be voir dire questions of a sort the judge would consider appropriate. The results of my analysis and top 3 suggestions are below.
She suggested that this would be an interesting blog series, and I agreed. Maybe you do, too. So here is what we’ll do. If a situation we know of strikes us as being worthy of this treatment, we will offer our own fact pattern as the basis. But what would be far more interesting is if your ideas and case concerns take center stage. If reading this brings to mind your own case facts you would like to see discussed, let us know. Feel free to modify and obscure the facts to mask the case, and we will not publish the name or venue of the person who submits it. Try to limit the case description and your view of the primary concerns to about 150 words. Submit it as a comment to the current blog post, and we’ll take it from there.
We have been writing for years about the fact that we put little stock in persuasion and our belief that the best a fine trial lawyer can do is to build a bridge between the values and preconceptions of the jury and the facts of the case. A perfect voir dire weeds out the venire members who are disinclined to allow that bridge to be built. But where are the land mines? Let’s look at the case presented for analysis.
Case: Knicknack Supplies decides to contract for custom work to be done offshore. They hire Acme Logistics Co. to arrange for manufacture in China, for which Acme is to receive a fee. The fees fall grossly into arrears, time passes, and a lawsuit is born.
Quandary: What questions might we submit to the judge to identify jurors who will hold negative views of the Acme Logistics, whose whole business is arranging advantageous offshore manufacture for American companies? Acme’s counsel is confident that the contract is clearly in Acme’s favor, if only it is not muddied by these negative views.
Analysis: The underlying assumption is that the jury will attribute more of the responsibility for the move offshore to Acme than to Knicknack (which is not necessarily true). But if this assumption is true, we want to find people whose values are protectionist toward American companies, who feel the strain of the shift toward Asian manufacture, and who are more interested in punishing over the changing job climate than tracking the facts of the case.
Questions:
Who goes out of their way to buy products made in the US whenever possible?
Who feels that it is disloyal to our own country to shift jobs overseas that could be done here, just for the sake of small savings?
Who has no interest in ever visiting Asia?
Discussion:
The first question addresses lifestyle. Are you willing to work to support the US economy through your shopping choices? Most people who say this don’t live it, but it is their willingness to say it that is of the greatest interest. It signifies that they are hardcore.
The second question gets at whether they are looking for scapegoats.
The third question, which might not meet with cheerful endorsement by the judge, is actually very meaningful. It seeks out those whose minds are closed to any potential merit in understanding others and in a global culture.
So, send us some comments. Of course there will be many more questions submitted to the court. What would you add? Why would you add it?
And on what case would you like input? Shoot us a comment about this one, and pose a case and quandary for us. We’ll offer our take on it, and see what our readers suggest for consideration. This could turn out to be fun!
Simple Jury Persuasion: My opponent has great rhetoric, I have reality
The study of rhetoric is rooted in classical Greek philosophy and the mastery of rhetoric/argument was then seen as a desirable skill. ‘Rhetoric’, in modern times, is often used dismissively and seen as meaningless and perhaps manipulative as intimated in the phrase “mere rhetoric”. During the Presidential campaign, President Obama’s gift of rhetoric was often used to minimize the impact of his message—“oh he’s good at talking all right, but what is he saying?”
In the courtroom, you can use the same strategy. Frame opposing counsel’s oratory as ‘rhetoric’ and that becomes a code word between you and the jury for “meaningless and perhaps manipulative”. You, on the other hand, have “reality”—a truthful and honest account. (Just make sure you back up that assertion with some facts.)
Other strategies to underscore your adversary’s verbiage as meaningless rhetoric could include presenting yourself as consistent (where your opponent is inconsistent or ‘flip-flopping’) and producing scientific data to back up your claims (Symon, 2000). These tactics make your own presentation persuasive while throwing doubt onto your opponent’s presentation. [Because these terms can be culturally loaded due to their use in the political sphere, be careful in choosing your dismissive or laudatory terms. We recently advised a client to change his description of a wildly creative witness from “rogue” to “an innovator” because of the association with a former governor and budding news commentator.]
Symon, G. (2000) Everyday rhetoric: Argument and persuasion in everyday life. European Journal of Work and Organizational Psychology, 9(4), 477-488.
Charlie Sheen or Tiger Woods? When behavior doesn’t fit the image
The uproar following Tiger Wood’s one-vehicle accident at his home and the subsequent disclosure of multiple infidelities remains huge. The deluge of stories are in a temporary lull, but they are coming back when Tiger returns. There were a few thoughtful and even eloquent stories like this one from sports columnist Mike Wise. But the majority were pejorative, salacious, gossipy, breathless and tantalized. The gap between who we thought Tiger was and who he really turned out to be was simply too vast. A poll showing his popularity plummet from 85% to 34% in December, 2009 was seen as evidence of that public/private gap and the public feeling of being deceived by his behavior.
Charlie Sheen, on the other hand, caused hardly a ripple with news reports that his wife called 9-1-1 to report he had threatened her with a knife and that she was terrified he would kill her. While obviously we cannot know if these reports are true or not and Brooke Mueller (Sheen’s wife) is now retracting them—Charlie Sheen has been here before. His divorce from Denise Richards was fueled by reports of drug abuse and violence and their child custody dispute has been highly conflicted.
Yet while many of us seem to think Tiger Woods is despicable, we see Charlie Sheen’s alleged behavior as simply reflective of who he is—a bad boy. Tiger acknowledged his ‘transgressions’ and ‘infidelities’. Charlie’s lawyer says we shouldn’t jump to conclusions about anything. Tiger broke our hearts while we expect no better from Charlie.
It’s an instructive lesson for us about the damage done when the behavior doesn’t match the image. We blogged about David Letterman’s acknowledgement of his own ‘bad behavior’ and how he masterfully spun an amusing and almost charming tale about his fall from grace. And then he stopped talking. As more news came out about his situation, many of us cringed a bit at what we heard, but Dave wasn’t talking. And the media focus passed.
What does this have to do with litigation consulting? Simple. It is never too early to think about identity for your clients, opponents, and witnesses. If a party or key witness is risky to your case, prepare the jury for what they can expect. Control expectations by characterizing a strong opposing witness as being an expert salesperson or a veteran speaker. Have early witnesses talk about how shy and nervous your client is. By controlling expectations, you prepare the jury, and shape the way the witness is perceived.
Extremism comes in many shapes and forms
Given the focus of our country on terrorism, now if we say ‘extremism’—we likely have a common image that comes to mind. But there are many kinds of extremism. We’ve written about some of them: racism here, and here, polarizing opinions, and hate group members.
What we’ve noticed is that when we have mock jurors who describe themselves as “very liberal” or “very conservative” or “very religious” or very anything—they often have trouble listening to and actually hearing evidence. It is as though their ‘bias filters’ are turned so high that they hear not what the litigator is saying, but instead what they believe the litigator means or even should be saying.
These are often jurors who end up seeing conspiracy, hidden agendas or motivations, or simply ‘know’ something is not true despite evidence to the contrary. Those who identify themselves as extreme on any belief system or attitude are generally too unpredictable to leave on a jury.
Spira (2002) writes about this reality: “high levels of certainty and extremity result in resistance to persuasion”. We agree. Rigid extremists do not magically turn into open-minded and curious jurors for your case even though they may say they can “be fair”. In our minds, this is not the time to extend the benefit of a doubt. Exercise a strike.
Simple Jury Persuasion: Using counter-factual thinking to your advantage
We often hear directives to anticipate ever-present juror counter-factual thinking. It’s really tough (and sometimes impossible) to figure out all the imaginative directions jurors can go to come up with their own hypotheses as to what ‘really happened’. So we wonder—why don’t more litigators simply turn counter-factuals to their advantage?
Counter-factual thinking is the label used to describe what happens when we think about ‘what if’ or ‘if only’ alternatives to a regrettable situation. When jurors employ counter-factual thinking in response to litigation, they often think things like:
“If only she hadn’t driven a different way to work that day…”
“What if he had sought out a third opinion?”
“If only they hadn’t decided to have a second child…”
“What if the company had trained their employees not to do…”
Often the answer to these questions are that this horrible thing would not have happened and jurors attribute injuries, death, disability, horrible accident to bad luck, fate, God’s will, or simply shrug and say “bad things happen”.
Advertising researchers take current thinking in the story-telling model a bit further. Krishnamurthy & Sivaraman (2002) found that counter-factual thinking induces careful scrutiny of incoming information. Our thought is that this careful scrutiny is due to the recipient assessing how this new information fits with the story they have individually constructed.
The storytelling model would say that you sequence the order in which you introduce the parties. So, for example, if you are the plaintiff, you might tell the story of the drunk driver irresponsibly running a red light and injuring or killing the plaintiff so that the juror will think “if only s/he had not driven drunk” rather than “if only she hadn’t taken the alternate route that morning”.
What Krishnamurthy & Sivaraman’s work would say is that yes, you tell the story in that order and then you articulate the counterfactual that works for your case for the juror: as the plaintiff (“if only s/he had not driven drunk”); as the defense (“if only s/he had not taken that route”). In other words, you don’t leave it up to the juror to generate the counterfactual—you articulate it for them in opening statement and this will, according to Krishnamurthy & Sivaraman, result in the juror’s carefully scrutinizing the remaining evidence through the filter of the counterfactual that works for your case.
Krishnamurthy, P. and Sivaraman, A. (2002) Counterfactual thinking and advertising responses. Journal of Consumer Research, 28(650-658).
In the face of the unexpected: Be cool
A few years ago, this post might have been illustrated with a photo of John Travolta. But time passes. Now, the essence of unflappable coolness is George Clooney. Trust me on this one.
Recently, George (I call him George) was promoting his film “The Men Who Stare at Goats” at the Venice Film Festival. Reporters were asking questions. George was answering questions. All very straightforward and predictable. No surprises. Until suddenly a ‘reporter’ stood up to ask a question and instead took off his clothes and asked if he could have “just one kiss” from George Clooney.
Instead of being embarrassed, tongue-tied, or otherwise mortified, George is the essence of cool. Watch the video. He listens to the man’s breathless advances, tells the man (as he disrobes) that he has a “nice tie and it’s just long enough!”, ad libs about Peter Sellers, cracks a joke about how embarrassing it is when you take a big chance and it just doesn’t work out—and, at that point, security hauls the man-fan away.
And my point is? My main point is that George Clooney is extremely cool. And my ancillary point is that communication is sometimes required to be off-the-cuff. You cannot plan for the unexpected. Especially when you are in the courtroom. The unexpected can simply burst forth. And at moments like that, the person behind the role becomes visible.
A man named Grafton Hull who happens to be a professor of Social Work wrote a brief article on the importance of what you do when the unexpected bursts forth back in 2003. He could have been picturing George Clooney at that press conference some years in the future. What did Dr. Hull say about communication in the face of the unexpected?
“Be well prepared, never look flustered, keep your cool.”
It’s great advice.
Voir Dire: Do you like tall extroverted men?
We mean on your jury. From our perspective, it depends. You may remember back in the 1950’s there were studies completed that found tall men were influential in groups. As we move into 2010, things haven’t changed a whole lot. A study of jurors in 2000 found that jurors rated the extroverted, tall men among them as the most influential in group discussion (Marcus, Lyons & Guyton, 2000).
Interestingly enough, another study completed about the same time looked at juror gender and decision-making on guilt or innocence. Voss & Van Dyke (2001) found that male jurors focused more on the evidence in terms of their guilt judgments while women considered evidence but also situational factors. Voss & Van Dyke theorized that men are more influenced if the emotional content can be related to the evidence. Women, on the other hand, are more influenced if the emotional content relates to the defendant.
So if your final choice is between a tall, extroverted man and a female juror, and you’re listening to these researchers, do you like tall men?
If you are the prosecutor and the evidence is circumstantial but compelling, you probably should like tall men. According to Voss & Van Dyke, men would focus more on the evidence and the power of that evidence in ascertaining likely guilt. Women would weigh the evidence but they would also consider motivation, alternative possibilities and may slow down the juries march to a guilty verdict.
If you are defense and the evidence is circumstantial but compelling, you don’t like tall men so much. They may be influential in the jury room and persuade other jurors that the evidence is strong enough to convict. A female juror would likely listen more to context and the broader picture.
Research, however well done, shows us but a slice of human behavior. Yes, men and women may process things differently and we may see evidence differently. Somehow though, we doubt that all women think through evidence in the same way, and of course there is a range of styles among men as well. We tend to take information like Voss & Van Dyke’s with a grain of salt and focus more on experiences, attitudes, values and beliefs of jurors. But all other things being equal, information like this can give you a small measure of comfort when you have to make that last strike decision.
Simple Jury Persuasion: Don’t confuse argument with persuasion
Despite what you may have seen on the used car lot, persuasion is not a hard sell. It’s important we not lose sight of the many facets of litigation advocacy. In other words, don’t confuse argument with persuasion. You may argue your case beautifully but you still need to connect with jurors, show empathy and create some emotional response.
We blogged about Aristotle’s ideas on persuasion here. Aristotle talked about three pillars of persuasion: fact, emotion and credibility. A few hundred years later, Manallack (2002) & Hosman & Siltanen (2006) write about what they think is important in persuasion. We’ll focus on just a few of their ideas here.
Manallack writes about the importance of connecting emotionally, of infusing your facts (or evidence) with emotion, of being credible and establishing a common ground with your audience. All of these ideas are compatible with (and critically important to) your courtroom presentation.
Hosman & Siltanen focus on a more specific issue: powerful versus powerless speech patterns. Powerful speech patterns, say these two researchers, are more persuasive and powerless speech patterns tend to elicit more negative thoughts on the part of the listener.
Powerless speech patterns include indirect language, excessive use of qualifiers such as ‘like’ or ‘you know’ and sentences that end with queries—“don’t you think so?” and so on. Passive language ( e.g., “It would be reasonable to… “ versus “It is reasonable to…”) is equally deflating. It is a good exercise to monitor your use of these sorts of speech patterns and to remove them as much as possible from your courtroom communication.
These writers also point out that women and minorities are more likely to have powerless speech patterns. If you are female or a minority group member, increase your self-monitoring for powerless speech patterns. If you have parties, witnesses, clients who have these speech patterns, work with them to minimize or remove the powerless habit of speaking.
Communication can be powerful and persuasive without being argumentative. A hard sell isn’t necessary but clear, direct, straight-forward and confident communication goes a long way toward your credibility and persuasiveness to others.
Deliberations & the role of the presiding juror
You work hard to prepare and present your case so that your client has the best representation possible. Don’t forget to plan for a really important task: teaching the jury how to do their job effectively. Ineffective juries end up not reaching a verdict, not considering the evidence carefully, or simply not paying attention. After all the effort you have put into planning, preparing and presenting your case, don’t leave the effectiveness of your jury to chance.
Ten years ago, Arce, Farina, Novo & Seijo (1999) examined how juries fail to reach a verdict. Their work is still useful today for litigators seeking to avoid the hung jury. Here are some lessons from their research on how to help juries deliberate effectively:
- Teach the jury about the jury charge and the questions they will be asked to consider in the jury room. Walk them through the questions and tell them the answers you would like and the evidence that you think supports those answers.
- Hung juries have poor deliberations. They do not focus on evidence-verdict relationships and they do not attempt to integrate the evidence as they deliberate.
- Teach the entire jury about the role of the presiding juror. Knowing the role played by that juror will help them choose well. The foreperson needs to manage deliberations so that evidence is appraised and destructive arguments avoided. All the jurors, however, can work together to ensure deliberations are respectful and civil.
- Hung juries tend to have presiding jurors who do not know how to manage arguments or guide deliberations through the jury charge. The role of the presiding juror is truly to stimulate thought and debate; not allow the group to settle too early on a particular decision or outcome; and to encourage a focus on facts rather than opinions.
Taking the time to think through instructing the jury on how to deliberate effectively can result in a positive experience for you and for the jurors. Keep in mind that the payoff for jurors is the feeling that they have solved a problem, or made the world a better place. A hung jury or an acrimonious deliberation is as unsatisfying for them as it is for you. You’ve done your job thoroughly when you’ve presented the best case you can for your client and you’ve taught the jury how to do their job as well.
We act as we believe others expect us to act
PsyBlog recently posted about a classic study where researchers examined how attractiveness was related to stereotypes about sociability, humorousness and intelligence. What they found, of course, is that when we believe others think we are attractive—we then appear as more scintillating, sociable and amusing. Their conclusion is that this offers an explanation of why we are different across various social situations.
So imagine you are concerned about how the jury will react to you. You’ve had limited trial experience and you expect that they will figure it out and as you think about it you become increasingly anxious. What the research just described would say about this is that your negative thinking is going to shoot you in the veritable foot.
Instead, visualize how you wish you would present yourself in voir dire. Then do it. Smile. Make eye contact. ‘Like’ the jurors. Appear confident. Show self-effacing humor. Set the tone early on for the jury to see you as likeable, attractive, intelligent and reasonable. As the trial goes on, you are more scintillating and intelligent and entertaining than usual. Which makes you more credible and believable. Hmmm.
Maybe you have a big deposition coming up. A ‘friend’ sent you a videotaped deposition of “how we do it in Texas” and after you stop laughing hysterically you begin to wonder if this is really how you are supposed to depose someone in the Lone Star State. It certainly isn’t what you intended to do. Then you realize that your friend sent it to you to break your anxiety. A friend indeed!
So breathe. Think about your goal. Be grateful that your deposition is not likely to involve fisticuffs with a senior citizen. Be polite and follow your plan.
We are different in various situations. But fortunately we have choices about how we’ll approach different people and situations. Challenge your intrusive anxious thoughts about performance. Play the role of a confident, likable, intelligent attorney a few times and it becomes second nature. It’s who you are. It’s what you do.
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