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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

Wednesday, January 27, 2010
posted by Rita Handrich

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?

Monday, January 25, 2010
posted by Douglas Keene

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.


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

Wednesday, January 20, 2010
posted by Douglas Keene

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.