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Archive for October, 2009
It’s not just jurors who are doing it
If you haven’t heard accounts of problems related to jurors and the internet in the past year, you have been living under a rock. The increase in media attention makes it seem like a new problem. However, the internet has played a disruptive role in courtroom activities and jury deliberation since at least 2001 according to the Citizen Media Law Project. And while the legal system’s attention has been largely on jurors, don’t kid yourself! Judges. Parties. Witnesses. Attorneys. People who should know better are using the internet inappropriately. It really isn’t just the jurors.
Last week I had the privilege of participating in a distinguished program at the annual meeting of the American College of Trial Lawyers in Boston regarding the complications of internet use and jury trials. As part of the preparation for that program we at KTC did some extensive research on the role of the internet in the courtroom and prepared a brief paper. Here is some of what we found:
Social media use is most pronounced among those 25 and younger with sharp declines as we age. But don’t assume this is a consideration for younger jurors alone. Fellow panelist Sean Ellsworth, a criminal defense attorney from Miami, related the story of an important trial tainted by juror internet research. When the misconduct by a single juror was brought to light, the judge individually interviewed the entire jury. Of the 12 jurors, 8 had done some form of internet research related to the case, and the age range of the offenders was 20-68!
Social media use is a fact of life for most of us. If a burglar can’t resist checking his Facebook status while in the high-adrenaline process of burglarizing your home, what’s to stop a juror during courtroom tedium?
But it isn’t just jurors! We found examples of judges, attorneys, witnesses and parties in addition to jurors. Ex parte communication, blogging case facts too thinly disguised (as was also discussed on the panel by Boston personal injury attorney Elizabeth Mulvey), Facebook snooping, texting witnesses and more.
Jurors do, of course, misuse the internet by doing research and posting updates to Facebook or Twitter.
So what should be done? Many suggestions have been made (in addition to much hand-wringing). Our review of the literature (popular and professional) suggests the following strategies:
- Revise jury instructions with specific language about electronic devise use. The instructions need to include an explanation of why it is important, not merely a command to resist.
- Remind the jurors at regular and appropriate intervals.
- Tell jurors that part of their oath is to report any sign of juror misconduct by anyone on the jury, including any indication that someone is using the internet in violation of the rules.
- Make it clear that violations of these rules are violations of the law.
- Add voir dire questions that address actual juror internet use.
- Ask in voir dire if jurors would abide by instructions not to use the internet.
- Consider questions jurors will have as the trial unfolds, and include the issues in the examination of witnesses.
- Allow jurors to ask questions. It has the effect of diminishing juror longing for extra information, and allows them to feel like a more active part of the trial process.
Arm yourselves with information to deal more effectively with the challenges. Read the whole paper we prepared. Visit our website and download the article ‘Wired for Justice: The Internet in the Jury Room”.
But they did it on purpose!
We know that when we think someone hurt us on purpose, we are more angry and perhaps even morally indignant. The idea that we were hurt intentionally makes our blood boil (or tears flow). We know this anecdotally. And now, we know it to be scientifically true!
Harvard researchers have found that pain hurts more intensely if we think it is being inflicted intentionally rather than accidentally. The authors use the example of why we stay in abusive relationships—if we presume the hurt is accidental, it’s okay to stay. When we finally realize the hurt is intentional and will continue, we can often muster the courage and integrity to walk away.
This is an intriguing study because it speaks to the heart of telling the emotional story at trial. You want jurors to have an emotional response—a connection to your story, to your client. You want them to ‘want to’ find for your client, and see him or her as a worthy recipient of their support. What this research tells us is that if the pain inflicted on your client was ‘intentional’, jurors may have a stronger emotional response to it. Here is how we might use this research finding to inform practice:
- In a divorce case: S/he purposely deceived your client knowing full well that if these behaviors had been known, our client would have ended the relationship.
- In a contract case: They entered into this verbal agreement with no intention of performance, their intent was simply to delay competitive progress while they worked on their own plans.
- In an intellectual property case: S/he purposely worked with us to take our research findings to a competitor and secretly filed a patent application before ours was filed.
And so on. Your goal is simply to light the fire of moral indignation in the minds of the jurors. You want to answer both aspects of the common juror refrain “it may be legal but it sure isn’t right”. Show them it isn’t right. Show them it isn’t legal. Give them facts to buttress their feelings in deliberations.
Sometimes what feels wrong is still legal conduct. That is unsatisfying to jurors, but they usually want to track the law. But sometimes the law works as it should, and what is wrong is also illegal. When that happens, jurors become engaged on a very personal level. Let them know: “This one isn’t right AND it isn’t legal.”
Simple Jury Persuasion: Make an emotional connection with your jury
We all know that the emotional connection is an important one for attorneys to master in the courtroom. But what are the best ways to make that connection with jurors?
Jurors tell us they don’t like it when lawyers cry. They see it as phony and manipulative. However, making a connection with them is essential if you are to be optimally persuasive. Emotional connections are not about tears and righteous indignation.
Jay Conger tells us that people who are good at persuasion use emotions in two very important ways:
1) “They feel their commitment to the position they are advocating in their heart, mind and gut, and are able to show that to others” and
2) “They have a strong and accurate sense of their audience’s emotional state and adjust the tone and approach of their argument accordingly” (Conger 1998).
While the second item on Conger’s list is hard to gauge in the highly fluid environment of the courtroom—the first is pure gold for the attorney presenting a case. You must prepare to the extent that your commitment to your case and your belief in what you are presenting is reflected in your “heart, mind and gut” and the jury will see your truth. If you are credible (i.e., competent and likeable) the jury will be more likely to hear your story in the way you wish them to hear it.
You connect emotionally to the jury by connecting emotionally to your case.
Conger, J. (1998). “The necessary art of persuasion.” Harvard Business Review 76(3): 84-95.
Beware the ‘expert’
If your mind is empty, it is always ready for anything; it is open to everything. In the beginner’s mind there are many possibilities; in the expert’s mind there are few. –Shunryu Suzuli
Too much knowledge can be a bad thing…
Critics of our jury system often decry the practice of removing people from juries who know too much about specifics relevant to a particular case. Recent years have seen much press coverage about physicians and even lawyers being allowed to sit on juries despite historical concerns that they could unduly influence other jurors. Researchers have indeed found that attitude change (and the willingness to allow attitudinal change) is related to a threshold level of relevant knowledge. At least a little bit of knowledge is a helpful thing.
A little knowledge or even an average amount of knowledge can still result in an individual open to changing their attitude. But having more than the average amount of knowledge (or simply perceiving yourself to have more knowledge—whether you really do or not) becomes detrimental to attitude change. Why? Because having (or believing that you have) specialized knowledge relevant to a particular situation/case results in biased processing—you fall back on what you believe to be true rather than listening to what the facts are and processing more carefully (Fives and Alexander 2001).
We saw this in a product liability case involving an automobile manufacturer. Prior to the case presentation, we measured the amount of knowledge participants in the focus group had about auto repairs and other mechanical areas. What we found was striking: the more people perceived themselves as having knowledge about cars and things mechanical, the more defense-oriented they tended to be. In deliberations they dismissed expert testimony about the frankly technical issues, relying instead in their ‘shade tree mechanic’ level of knowledge about how cars work. Those focus group members who did not have similar levels of self-perceived expertise were more frightened by what had happened and tended to be more plaintiff-oriented.
In this case, knowledge about a relevant case area resulted in a bad juror for the plaintiff case and thus, a good juror for the defense. Beware the self-professed expert with good verbal skills—unless it will work for your case. They will rely less on facts and more on their own beliefs.
Know when you want jurors who know something about your case and when you don’t.
Fives, H. and P. A. Alexander (2001). “Persuasion as a metaphor for teaching: A case in point.” Theory Into Practice 40(4): 243.
Liar, Liar, Pants on Fire!
We all like to consider ourselves good judges of character. Most of us think we are better than the general populace at knowing when someone is lying to us. Unfortunately, even the experts at deception detection are not that great at it. The threshold for detecting deception is about 60% (compared to a coin flip which would be 50%). While the popularity of TV shows like ‘Lie to Me’ may convince jurors otherwise, there is no magic formula for ‘knowing’ when someone is lying (despite assertions that there are ‘detection deception wizards’).
But take heart. Recent research has found multiple behavioral strategies that can be used to identify deception without being a wizard. These are pre-trial, deposition strategies, not on the fly efforts in the courtroom! Unlike Perry Mason, you don’t want to go fishing in the courtroom. You want to reel in your fish beforehand so you know what you have when you are questioning a witness.
To uncover deception, try these three research-based tactics:
1. Ask them to draw
A new study in the journal of Applied Cognitive Psychology shows that liars tended to draw about their story from an “overhead view” while truth-tellers drew more often from a “shoulder camera view”. The authors hypothesize that liars have less time to work out the details of the scene (about which they are lying) and that it’s easier to make something up verbally than it is to first visualize it and then create it on paper.
2. Ask them to tell their story backwards
Aldert Vrij has long done research on deception. His new research focuses on increasing ‘cognitive load’ to identify liars. Vrij says a simple way to do this is to ask the liar to tell their story backwards. Police observers were able to identify 9 signs of deception when stories were told backwards compared to only 1 when stories were told in the correct order.
3. Consider: Are they having to think hard about this answer?
Vrij also suggests that as you are in the interview, you use a more indirect questioning method. That is, consider whether the subject seems to be thinking hard about what they are saying or if they simply seem to be reporting a past recollection.
While these three strategies won’t turn you into a deception detection ‘wizard’, they will likely help you to increase accuracy in observation about who is telling you the truth and, alternately, who is not.
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