“During deposition, do not put your fist in your mouth.”
Those mock jurors are filled with good advice. Some of which may seem obvious. Fisting one’s mouth during deposition testimony would certainly not be a concern in most witness preps, but the myriad ways people display nervousness is always eye-opening. There is no one like a mock juror to point out the odd quirks of witnesses.
There are many examples of public figures with foot-in-mouth and you likely don’t need us to point them out to you. But in all the years we’ve been doing pretrial research, I cannot recall a single time before when a mock juror had something like this to say:
“I don’t know the point in his deposition that the video was taken from, but he seemed like he was barely hanging in there. I noticed the voice of the lawyer was real booming and kind of like baritone and it was real aggressive. I don’t know if he was just being worn down that day, or whether the lawyer woke up on the wrong side of the bed or forgot a coffee in the morning. That questioning seemed pretty brutal and he was reacting by doing a lot of this kind of blinking and contortions. And kind of like he tried to put his fist in his mouth or something. It was strange, man.”
And he was right. It was strange. In response, the facilitator encouraged the observation, and commented that it was indeed unusual. There was a bit of anxiety expressed by mock jurors about giving such direct feedback. And then the facilitator commented,
“But here’s the thing: If somebody has an awkward mannerism that interferes with your ability to really pay attention to what they have to say, it’s better that they learn about that so it doesn’t stop you from focusing on the facts.”
Given permission, other jurors stepped forward with additional commentary. Our mock jurors are not always so funny–but sometimes a group is filled with bright and observant people who see the unintentional humor in the nonverbal behavior of anxious deponents trying hard [but failing] to stay cool. The mock juror comments contain witness preparation tips to which we are wise to attend. Frequently, trial counsel become ‘accustomed’ to the idiosyncrasies of witnesses, and overlook aspects of their presentation that startle a jury.
Style is personal: What a witness thinks looks attractive is not necessarily so
He looks pretty greasy in appearance.
Tell him to use less hair gel.
This is an often uncomfortable area for attorneys. There are many ways to give feedback to witnesses about their grooming. Perhaps the easiest is to simply say that the audience is a representative sample of the venire and has representative sensibilities. Witnesses should not make fashion statements. Tone it down. That means avoid expensive jewelry, excessive makeup, use minimal hair gel, and leave the Rolex and pearls at home. It isn’t judging, the client will likely see it as helpful advice. And it’s a lot more tactful than our mock juror feedback.
Male witnesses should avoid ‘fashion forward’ colors and fashions
Wow. Nice [lime-colored] suit! He looks like a Mafioso.
Most of us talk to witnesses about how to dress for trial testimony, but don’t make the point well enough for depositions. Atypical fashion choices often do not work well in terms of juror observations about credibility or professionalism. Other times, such as a case we worked with an older, bow-tie wearing inventor, they help observers construct a quirky and creative persona for the witness. And still other times, like the oil and gas company witnesses who showed up to deposition wearing clean clothes of the style they wear to the field, observers assigned credibility and substance to the witness. If the witness looks markedly different in their trial presentation than in their deposition, they are seen as being less reliable and trustworthy.
Beware the “celebrity look-alike” witness
He reminds me of Donald Rumsfeld. I’m not sure if that’s good or bad.
Often, we don’t see the resemblance until mock jurors point it out. It doesn’t matter who the witness resembles. What matters is the idiosyncratic association to a juror. Celebrities attract opinions, and no one is universally loved (except maybe Oprah). The best way to minimize interference from this sort of situation is to simply point out the resemblance and the witness can say “I’ve never heard that before” or “I’ve heard that a lot!” and then answer the testimony directly and succinctly. Or a glib comment about what the witnesses’ spouse says about the comparison. The resemblance is brought up and dismissed for a focus on what is indeed relevant.
Small nonverbal behavior can become hugely distracting:
Why does he lick and bite and chew and purse his lips so much? It’s not good. His lips are just going to be gone by the time he is done testifying.
Yes. And he should keep his tongue in his mouth.
Often, you won’t see this sort of behavior until deposition commences and anxiety rises or fatigue sets in. Many of us, for example, have seen the “Rainman” Bill Gates deposition excerpts. It can happen to the smartest witnesses. Unusual witness behavior (usually nonverbal) and eccentricities in appearance or attire can distract listeners from the content of the testimony (as can unusual case narratives).
In terms of your efforts to prepare witnesses, what’s important is to think through how any video will be used and who will see it. We tell witnesses to always keep their audience in mind. In deposition this is a real challenge, because their “audience” is never present. The witness’ audience is always the jury. So be unfailingly polite and respond to questions while managing your anxiety off camera.
For example, you can curl your toes in your shoes or tense and then relax your calves. As long as it doesn’t show on camera–and is fairly unobtrusive as well as helpful–use it to help manage your anxiety. But do not rock in your chair. In fact, if the chair rocks or is on wheels–replace it with one that doesn’t so you do not self-soothe or unconsciously display discomfort by rocking or swiveling without realizing what you are doing.
There is a difference between eccentric, quirky, and non-pretentious behaviors and those that are just plain odd. Or as our mock juror would say, “It was strange, man.” Pre-trial research is a good way of figuring out if highly identifiable behavior or attire will be endearing or distracting to jurors. Although let’s just be crystal clear here. We cannot think of any situation where putting your fist in your mouth during testimony is going to endear you to jurors. (In case you were wondering.)
This story isn’t actually about money. We’ve written a fair amount about American bias against Asians. And we’re not alone. Friendly and liberal Canada appears to have the same issues with Asian Canadians.
Apparently, the Bank of Canada was using focus groups to “test” their new $100 banknotes prior to release. The image on the banknote was an “Asian-looking woman scientist”. And much like our mock jurors, the focus group participants went down a rabbit trail. This particular rabbit trail was ethnicity-based. Multiculturalism hit a wall.
Here are some of the comments from the focus group participants. The comments are characterized in the report, rather than quoted, and appear to have been “sanitized” for presentation to the Bank of Canada.
“Some believe that it presents a stereotype of Asians excelling in technology and/or the sciences. Others feel that an Asian should not be the only ethnicity represented on the banknotes. Other ethnicities should also be shown.”
A few even said the yellow-brown color of the $100 banknote reinforced the perception that the woman was Asian, and “racialized” the note.
“The person on it appears to be of Asian descent which doesn’t rep(resent) Canada. It is fairly ugly.”
Apparently there were also concerns that the Asian woman was on such a large denomination of banknote ($100) rather than on a smaller and less valuable banknote. Wow. So. The Bank of Canada went back to the drawing board and “neutralized” the woman’s ethnicity. In other words, they made her look Caucasian.
Asian Canadians are insulted and hurt. There are comments that the Bank of Canada’s decision to “neutralize her ethnicity” amounts to an overly sensitive reaction to racist comments and the Bank is being criticized for not standing by the original design. Not surprisingly, the bank isn’t commenting on the controversy.
Ethnocentrism is everywhere. It’s all of us. This real-life tale serves as further evidence that when we see people “different” than us, we unconsciously reject the person by finding excuses to reject them for reasons unrelated to any salient issue before us. It’s a powerful lesson we often learn about (and often in very disturbing detail) in pretrial research.
It doesn’t really matter if the issue is gender, age, ethnicity, religious predilection, sexual orientation, disability status or whatever difference. Differences tend to divide. Our task is to identify how the specific case “divides” and figure out how to refocus attention on similarities despite differences and thereby reduce bias. Ultimately, the “different” person needs to become familiar for us to be comfortable.
Being on the road a lot means I enjoy a lot of music and listen to a lot of audiobooks. Recently, I’ve been listening to Amos Lee. This is music you listen to—not music as background noise. And that is just what great trial lawyers are able to do. They tell stories that are not buried in background noise.
The tricky part is figuring out what is the story and what is background noise! There are times when the story is so disturbing (read: juicy and salacious) that you cringe thinking about how opposing counsel will relish presenting those aspects to the jury.
And so you need to beat them to it. We wrote about this almost two years ago and the recommendations from that post hold true now. But what if the story isn’t so headline-worthy? No egregiously bad behavior from anyone, but some complexities and plenty of possibilities for jurors to get lost in side issues and rabbit trails. How, without the salacity to worry about, do you tell a story that highlights the important parts and keeps juror focus where it needs to be?
Avoid ‘rabbit trails’ by answering juror’s natural questions as they listen to your story
One of our favorite stories about this stems from a post we did back in 2009:
An example of this type comes from San Francisco and a jury deliberating a charge of “disturbing dangerous animals” after a mentally ill man snuck into the home of two female grizzly bears at the San Francisco Zoo. The question was whether the defendant had known he was entering a bear enclosure. Jurors however, became preoccupied by how one would know if you had indeed “disturbed” a bear, and they eventually acquitted the defendant.
This is obviously an unusual trial story. What is more important is that the jury became sidetracked and engaged in a lengthy discussion of how one knows if a bear is disturbed. Walking the jury through the jury questions is a terrific way of helping them to focus their attention in deliberation. Let them know what the operative (i.e., important) terms are in the case. Then, when faced with a rabbit trail, jurors can appreciate the humor in a “define disturbed” segue but return quickly to the (relevant) task at hand.
Test your story [by focusing on what you really want to say]
This can be done in pretrial research or it can be done simply with a group of family and friends. Real people, not legal friends. Tell them your story. See what they focus on. Is it where you want them to focus—or somewhere else? Modify your story and try again. It might be an issue of story sequencing, or analogies, or themes. Ensure that what is heard when you tell your story guides people to the mental images, values, and conclusions you are seeking.
Our blog is full of posts with information on how to tell a story. Whether the case is about a car wreck or a software patent, it is always a story about people and their struggle to achieve their goals in the face of obstacles. And every juror knows that.
We invite you to read and if you have questions for us, you can email directly at firstname.lastname@example.org. Tell your story. Reduce the noise. Let the important elements resonate with jurors.
So it happened again. We do a lot of pre-trial research and observe a lot of both mock jurors and the dynamics related to presiding jurors. This past weekend, we re-experienced the frustration of how bad it can be when you get a controlling and dominant presiding juror. In a real jury, a dominant presiding juror who loves your case is a godsend. But in a mock trial or focus group, they undermine the deliberative process badly, and compromise what we can learn from the research. And as we thought back over the past six months, we saw that it has happened three times. All male jurors. Two white, one Hispanic. Always dismal if left unchecked.
Some trial consultants think you simply observe the process. You focus on what can go wrong if the dynamics sour. We don’t do that. To us, the work product is more important than the process between the jurors. We know how deliberations can jump the tracks and become unproductive—we’ve seen it and know that it can undermine the quality of our efforts, so we don’t let it stray very far.
We walk in, disrupt the unproductive process, and redirect them to the task at hand.
We clearly describe what we want from the presiding juror so it isn’t a matter of lack of clarity.
We have gone so far as to warn the presiding juror their role will be removed if they do not allow more dialogue and stop talking so much.
If the presiding juror doesn’t have the ability to effectively guide the deliberations, a senior consultant steps into the group, and gently but firmly takes over the role of presiding juror.
To be very clear, we explain at length to our clients various ways in which focus groups and mock trials are not cleanly predictive of actual jury outcomes, and this kind of intervention is certainly one example. It highlights the fact that the goal for a jury trial (a favorable verdict) is different than the goals of jury research (information about why jurors respond to the facts and argument as they do).
So when our presiding jurors run amok, it’s truly indicative of just how bad it could get. But why is it that the ‘problem’ presiding jurors are always men? We have female presiding jurors. But they don’t take on the power of the role as an excuse to dominate. So why do our men? Even recent research (cited below) tells us that our leadership stereotypes are male. That is, as the researchers state, “Specifically, people viewed leaders as quite similar to men but not very similar to women, as more agentic than communal, and as more masculine than feminine.”
But, you may protest, it’s 2011! What do we do? We aren’t sure, exactly. But here’s what we’ve seen.
Groups led by controlling and male presiding jurors tend to demonstrate leader/juror communication almost exclusively. There is little juror-to-juror dialogue. If you did a communication map of how dialog in the group transpires, the communication lines are all between the presiding juror and the others in the group, not among group members. This is a classic example of poor group communication, and it leads to decreased investment in the decision-making process and its outcome.
Groups led by controlling and male presiding jurors tend to have higher levels of demeaning or minimizing communication from the presiding juror to those individual jurors who disagree with him. When that happens, individual jurors often withdraw and no longer participate in any questions from the presiding juror to them. They feel powerless and ineffective.
Unseating the power of the presiding juror requires a small group (of generally about three jurors) to confront the presiding juror and take control of the process.
So here are some strategies for effective management of deliberations. (And probably good ideas for handling workplace discussions and family dinners.)
Teach the group ‘how’ to deliberate. Let them know what to expect and how to work with each other to come to consensus.
Teach the group ‘how not’ to deliberate.
Carefully describe the role of the presiding juror. It is not that of a dictator. It is not the person with the ‘right’ answers. It is a role for those who are not attempting to control the others, but rather, to hear from everyone.
Empower jurors to disagree with the process if they do not feel heard. Empower jurors to confront the juror not feeling heard if they believe that person is trying to monopolize the conversation by crying ‘victim’. This may happen more naturally if you have a number of women on your jury, but teach them what language to use anyway.
Use a jury charge in your closing argument to tell jurors how the evidence supports your case and how you would like them to vote. In other words, give jurors who support you words to use in the deliberation room. You may want to encourage them to close their eyes during certain parts of your closing argument.
The idea is that you are still with the jurors in the deliberation room. They are not abandoned when the door closes. They have your words, your graphics, and your direction for what lies ahead.
If you read us and find us useful, helpful, entertaining, or in any way enlightening–please consider nominating us for this year’s Blawg 100 listings. You brought us into the Blawg 100 for 2010–how about helping in 2011? Nominate us for the ABA Blawg 100 here.
Koenig AM, Eagly AH, Mitchell AA, & Ristikari T (2011). Are leader stereotypes masculine? A meta-analysis of three research paradigms. Psychological Bulletin, 137 (4), 616-42 PMID: 21639606
Conspiracy theorists have been with us for perhaps, forever. Most recently we’ve been reading about birthers and deathers. But the idea of conspiracy theories goes beyond fringe elements. According to a recent issue of Rasmussen Reports, 53% of us believe elections are rigged to help incumbents in Congress. Sometimes, those espousing conspiracy theories are actually harmed when they jump from one conspiracy to the next [like Donald Trump, who has decided to serve mankind by not running for President] but often the new story and questions inherent in that story gain traction, because the implications are so salacious. And sometimes conspiracy theories appear to be true. The “possibilities” seduce and entice our imaginations.
We see it often in pre-trial research when there are holes in the case story and jurors fill in the holes with suspicions and ideas of conspiracy.
“I think there are things we don’t know about this story.”
“Someone is paying her off.”
“There is something between those two. You can just tell by looking at them.”
One of the questions we discuss with clients is “How will the jury fill in the missing information? To what conclusion does their intuition lead them?” Just a hint of suspicion in the absence of facts and the discussion can turn very ugly. But you learn about a land mine you never imagined. Often, the circumstances leading to a conspiracy theory are incompetence (the right hand didn’t know what the left hand was doing) or simple coincidence. But as has been said many times before, it’s impossible to disprove a conspiracy theory. And you don’t want jurors who support your case to try and advocate against a conspiracy theory in the deliberation room.
So pay attention to even the most far-fetched theories that come up in pre-trial research.
“I think the doctor and nurse had an affair and it ended badly.”
“I think they did steal the idea from [the inventor] and they are paying off their researcher to take the fall for it so they can blame him and not the whole company.”
“I have a feeling something strange is going on here and we need to question everything they told us. I think they are lying and I am not sure why.”
Knowledge of these crazy theories gives you a chance to head off wild speculation that may otherwise gain traction in the jury room. The more tightly constructed the case story, the fewer rabbit trails jurors follow.
Sullivan D, Landau MJ, & Rothschild ZK (2010). An existential function of enemyship: evidence that people attribute influence to personal and political enemies to compensate for threats to control. Journal of Personality and Social Psychology, 98 (3), 434-49 PMID: 20175623