While re-reading a summation of research on jury decision-making, I ran across this finding that brought Scott Peterson to mind. This doesn’t happen often for me—although I hear some women dream of marrying violent criminals. Evidently the allure of marrying a notorious man (the ultimate ‘bad boy’) remains powerful.

But, I digress. The important thing is not the (likely disturbed) women who want to marry notorious and violent men—but the lack of remorse seen by jurors (and courtroom cameras) from Scott Peterson. A young, beautiful and very pregnant woman was killed. Shouldn’t we have seen remorse? Sadness? Grief? Is this why Scott Peterson was convicted?

The research in this area is somewhat counter-intuitive. A literature review completed in 2001 came to some conclusions about the display of remorse in capital murder trial defendants:

• Defendant display of remorse was not related to final penalty outcomes (and most jurors reported the defendants were not remorseful).
• Indirect non-verbal displays of remorse implying the defendant took responsibility for actions were seen as more credible by jurors than direct verbal statements.
• Best predictor of penalty outcome was the defendant’s attitude toward the trial process itself. If the defendant was seen as uncaring or nonchalant, disdainful or contemptuous—they were more likely to receive the death penalty.

So, in essence, it’s better for your defendant to not say s/he is remorseful but to appear sincerely remorseful non-verbally. Jurors may think they are secretly observing true remorse if they see it but don’t ‘hear’ it.  “Walk the walk…”

Some interesting (perhaps related) research finds that if we ‘overhear’ information, we find it more persuasive than communication directed at us. If ‘they’ didn’t know we were listening, it must be true. Those Dean Witter ads in which crowds of people crave the juicy information gleaned from eaves-dropping ran for years.  It’s possible, that jurors surreptitiously observing non-verbal remorseful behavior would be more convinced than if they heard the defendant directly express remorse.   It follows the notion that we believe the inadvertent moment of candor more than a rehearsed statement.

If your defendant appears to mock or disrespect the courtroom proceedings—it does not bode well for them (unless perhaps they have unusually powerful family connections which frighten the jurors).

Devine, D., Clayton, L., Dunford, B., Seying, R. and Pryce, J. (2001). Jury Decision Making: 45 years of empirical research on deliberating groups. Psychology, Public Policy and Law, 7(3), 622-727.

Researchers have found that the mere act of posing a question such as “How likely are you to buy a Starbucks coffee today?” increases the likelihood that the person asked will do just that. It’s called the ‘mere measurement effect’. By simply having the question posed, we are likely to fulfill it positively. And what is powerful is that we do not see the question as intending to persuade us (therefore, we do not attempt to resist).

The researchers puzzle over the ethical implications of this finding for survey research (what if by simply asking people how likely they are to engage in risky behavior, you actually increase the probability that they will?). We are more interested in the application of this finding to jury deliberations.

• How likely are you to speak up in deliberations?

• How likely are you to insist that the reasons for the jury’s verdict don’t include [sympathy/race/emotion, etc.]?

• How likely are you to carefully consider the evidence presented?

• How likely are you to listen carefully for contradictions in testimony that alert you to a lack of truthfulness?

• How likely are you to be the sort of juror you would want deliberating in a case that you might file for yourself?

The possibilities are endless. Like any valuable tool, you do not want to over use it. But when you want something to happen and don’t want the jury to resist your directive—wield the ‘mere measurement effect’.

How likely are you to try this strategy?

Williams, P., Fitzsimons, G. J. and Block, L.G. (2004). When consumers do not recognize ‘benign’ intention questions as persuasion attempts. Journal of Consumer Research, 31, 540-550.

We talk a lot about how race plays a role in litigation but we also need to talk about the role of the dominant culture and sub-cultures. In this country, the dominant culture is white. There are subcultures of multiple varieties but members of the subcultures (whether they be Hispanic, African American, Vietnamese or Asian) have special knowledge of both the dominant culture and the subculture because they live in both worlds. This knowledge can be powerful on a jury.

We did a focus group a few years ago where the plaintiffs were an African American family and the grandmother matriarch of the family was deposed on video. The story was a very sad one. Her daughter had died in an industrial accident, leaving young children who were being raised by the grandmother along with their father. Her testimony was stoic and the mock jurors were not impressed with her. They spoke of her lack of emotion and interpreted it as her being in this “for the money”.

And then a thoughtful young Asian male spoke up. “She reminds me of my Grandmother,” he said. And he explained her stoic attitude as one stemming from pride and discomfort in showing emotion to strangers. And the room turned. Jurors wanted to find reasons to like the Grandma. Seeing her seeming distance and aloofness as pride mixed with grief made sense to them. They imbued a young Asian male with knowledge of the African American sub-culture because he said something that resonated with them.

The lesson for the litigator is simple. If you have witnesses or parties who are immigrants, members of ethnic minority groups, or simply present in a fashion that makes them appear odd or uncaring—frame their presentation as a likable and sympathetic characteristic.

• Establish an identity for your witnesses, both through your opening statement and through testimony that precedes their own.

• Tell jurors ‘why’ the witness comes across as they do.

• Have other witnesses testify as to their integrity, warmth, caring, and discomfort in strange environments.

• Show them caring for family members or grandchildren in a loving way.

• Show them with pets or in volunteer activities.

Clarence Darrow said a lot of memorable things. One of them was about the main job of the trial lawyer being to help the jury like his (or her) client. His belief was that if the jury likes your client, they will find ways to support your client. We believe that too.

Brumbaugh, A. (2002). Source and nonsource cues in advertising and their effects on the activation of cultural and subcultural knowledge on the route to persuasion. Journal of Consumer Research, 29, 258-269.

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.

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).

Likability. It’s a tough one. Especially in court where you might be a little nervous and there are so many uncertainties.There are some who say “just be yourself” and we would say “well, if your ‘true self’ is likeable, that’s fine” but there are ways the research tells us you can increase your likability. It wouldn’t hurt to try them out. If you’re worried about whether they will seem genuine, test them in a focus group and see what happens. [Note:  We have observed people evidently testing these strategies out in bars, but we don’t recommend this.  Too many complicating variables… unless your jurisdiction allows you to play music and serve drinks to jurors.  If your jurisdiction allows this, please contact us immediately.]

Similarity, praise and compliance

The first finding has to do with similarity and praise. Researchers have found that two factors stand out as particularly compelling in terms of increasing likability: similarity and praise. Robert Cialdini is one of the gurus of persuasion and communication strategies. A real rock star in the marketing world.  He reports that feeling similar to others quite literally draws people together. We stand closer when we learn we have similar political views. And we enjoy sincere praise. We all know how that makes us feel closer to the person praising us (as long as we believe they can be trusted).  What Cialdini shows us is that praise generates liking and willing compliance with the wishes of the person praising us.

So find similarities between yourself and the members of the venire and praise them for honesty and willingness to respond to your queries.

Smile and the world smiles with you

Ever caught yourself smiling at a coworker or neighbor just because they smiled at you first? Cialdini calls this the principle of reciprocity. We tend to treat others as they treat us.

If you want the jury to receive you warmly, treat them warmly first. Smile.

Get juror’s commitment publicly

While liking is a powerful force, you also want to get jurors to be committed to what you want them to do. Cialdini says there is powerful evidence to show that when we publicly commit to a course of action through the spoken word or in writing, we tend to follow through. We aren’t suggesting that you ask for commitments on verdict issues, which is obviously improper in most jurisdictions.

Attorneys often ask jurors to commit to deliberating fairly and without bias. But what does that really mean? Instead, focus on something they have already done as a ‘first step’ toward a commitment to fairness.   Build a bridge between their commitment to what is acceptable, such as fairness or a commitment to the evidence, and the verdict that you attach to it

“During jury selection we discussed the idea of fairness.  Of what justice means.  Of how the American jury system is the single greatest protection we have as citizens, because it is citizens, neighbors, voters making the decisions.  Not politicians or bureaucrats.  It is our community.  So it leaves us with the challenge of making our community represent fairness in real life, and doing the right thing not just for the people in this court, but for our county, for our state…”

If they have completed a juror questionnaire, refer to their effort made in an attempt to show where the areas where they might have trouble being fair. Praise them for being thorough in their completion of the questionnaire. Frame completion of that task as step one. Participation in voir dire is step two. Listening intently and maintaining an open mind throughout the courtroom presentations is step three. And step four is deliberating fully and with integrity to allow justice to be done.

Similarity, praise, smiles and a call to action based on past behavior. And voila! You are not only more likable, you are more likely to have actively engaged jurors who want to do the right thing.

Persuasion strategies that have the effect of making a story more attractive or palatable are known in the research as “alpha” strategies. They are the most commonly used and most commonly understood persuasion tools. For example, when a car sales person lowers the price of the vehicle you are considering purchasing–that can be seen as an “inducement” to purchase or an “alpha strategy”. There are other tools however, known as the “omega” strategies that are used to minimize resistance to the offer being given or the story being told.

Eric Knowles, Ph.D. has done a fair amount of research in the omega strategies. As Dr. Knowles concisely states on his website:

“Rather than adding inducements for action, I study how to identify and dispel opposition to change. Resistance can be avoided, minimized, confronted, reframed, acknowledged, distracted, used up, or turned against itself using a variety of effective, inexpensive, psychological techniques. If an action didn’t have resistance, there would be no need for persuasion.”

Not surprisingly, we like to think about Dr. Knowles ‘omega strategies’ in the context of litigation. But we turn them inside out a bit and think about how to use them to either decrease or increase resistance depending on your goal. (We’re funny like that.) Let’s take just one of the omega strategies and show how this can be done in a litigation scenario.

Anticipated feelings of regret: As we make decisions, we are anxious about making mistakes or somehow being disappointed in ourselves over choices we made. Addressing those fears directly can result in either an increase in resistance or a decrease in resistance—depending on your goal.

“The Defendants are saying the Plaintiff will not live to a full life expectancy so why fund a full life care plan? The one thing you can be absolutely sure of is this:  No matter how much money you think she will need for care, no matter how long you think she will live—You are wrong!  You can’t know for sure, no one can.  So in a very real way, the question for you to answer is ‘What mistake would I rather live with? Would I rather run the risk that she exhausts the money she needs to live a life with some dignity, or would I rather run the risk that she will die prematurely, and her family will inherit what she leaves behind?’”

or

“The plaintiff is right. Ms. Jones has been horribly injured and no amount of money will ever bring her back to the life expectancy she may have had. It’s a very sad thing and we join you jurors and everyone else in this courtroom in feeling the tragedy of her injuries.  As a society, we need to care for one another.  But as individuals, we are responsible only if we are the cause of the injuries.  My client, even though they are a company, is to be treated like a person.  Like any person, in any courtroom, seeking justice.  It is no more or less than any of us deserve.  And the evidence is, that the person that is my client is not responsible for the needs of Ms. Jones.  If we are, as a society, let’s gather somehow and have that discussion.  But that gathering place should not be this courtroom, and the responsible party is not my client.”

There are other omega strategies, including  ‘disruption’ (asking for the unexpected which decreases resistance) and ‘exposing deception’ (“you’ve been fooled by the other side already” which will increase resistance). Using these strategies effectively in litigation requires you to think creatively.  Instead of thinking of ways to change the juror’s minds, think of how you can increase resistance to the other side’s case and decrease resistance to your own case.

How do you get jurors to truly set aside their biases and deliberate from a place of fairness and tolerance? In 2000, Wendy Wood published a review of literature on social influence and message-based persuasion.  We think they are truly relevant to litigation advocacy and we want to focus on two findings in particular (from Pool et al., 1998 and Abrams & Hogg, 1988).

According to Wood, Pool et al., (1998) finds we agree with people we favor. Another way of saying this is that we are influenced by our desire to be like those whom we admire, value, see positively and respect.

Wood sees Abrams & Hogg’s (1988) work as concluding that we also are influenced to change our attitudes by a desire “to be true to oneself and to achieve a coherent, certain self-view”. In other words, we want to see ourselves as reliable and consistent, values that most people rank highly.

So how do you use this in litigation advocacy?  First, know that it is safe to encourage jurors to be the best version of themselves.  Second, encourage them to set aside bias, hatred, superiority, jealousy, racism, ageism, sexism, and pretty much any other ‘ism’ you can call to mind. We’ve seen this strategy used by a masterful attorney friend in Houston over the years and it could go something like this in a closing statement:

“I want you to close your eyes with me and picture a parent who loves his or her child. And that child grows up and makes some mistakes along the way as we all do.  The loving parent recognizes that like all of us, the child is imperfect and struggling, and in spite of his special needs he has hopes and dreams like we all do.  And so the parent devotes untold hours per day, every day, for years.  Then one day that parent is horribly hurt and the now-grown child is left alone to be cared for by relatives. When you look inside yourself at the very best ‘you’ there is, should it make a difference when you open your eyes if that child you see in front of you is black (or old, or Hispanic, or disabled, or disfigured, or poor)?  Of course not.  Because a child, even when grown, is still a child.  And needs must be met.”

Our client is a master.  Even when we know it’s coming, we tear up. The message is delivered solemnly, quietly and almost musingly to the jury. The case narrative is encapsulated into a few sentences and the ‘hook’ is a direct invitation to set aside our biases.

It is an invitation to be the best we are. To align ourselves with those we admire rather than acting out of our own petty biases and fears. It is a call to arms and a call to arms of the best aspects of our selves. We want to see ourselves positively. We want to feel good about what we do. And on a jury, we want to right wrongs.

Abrams D. and Hogg, M.A. (1988). Comments on the motivational status of self-esteem in social identity and intergroup discrimination. European Journal of Social Psychology, 18:317–34.

Pool, G.J., Wood, W., and Leck, K. (1998). The self- esteem motive in social influence: agreement with valued majorities and disagreement with derogated minorities. Journal of Personality and Social Psychology, 75:967–75.

Wood, W. (2000). Attitude Change: Persuasion and Social Influence. Annual Review of Psychology, 51:539-570.

Aristotle talked about the ‘three pillars of persuasion’ in his famous essay “Rhetoric”. He labeled the three pillars: logic (or fact), pathos (or emotion) and ethos (or credibility). We can still learn today from the wise men of old as is illustrated by the following update on Aristotle produced shortly after the turn of the millennium (McIntyre-Birkner 2001).

Pillar 1:  Logic

Fact—to be believable, you must present truthful information and show how your facts (or logic) can be used to logically arrive at a conclusion.

Pillar 2:  Pathos

Emotion—to be persuasive you must push your listener’s emotional ‘hot buttons’ in a way that supports your cause/desired outcome.

Pillar 3:  Ethos

Credibility—you must come across as honest, sincere, knowledgeable, competent, capable, and trustworthy.

Building Aristotle’s three pillars of persuasion into your voir dire and case presentation is easier said than done. There are so many pieces of evidence, so many details, so many facts to be introduced that it is easy to lose sight of the goal to tell a logical, gripping, and credible story that allows jurors to understand what happened, how it was wrong, and how to make it right.

Remember to tell the story to non-lawyers: your spouse, friends; significant others; your teenagers; focus group participants; and others who can help you determine the most important elements of the story. Your goal is to bring clarity to the listener and to build their confidence in the action needing to be taken in order to right the wrong done.

Logic, emotion, or credibility alone are not persuasive—blending the three into a coherent frame will tell your story in a manner that leads the listener to action.

McIntyre-Birkner, R. (2001). “Communicating to persuade.” Occupational Hazards 63(6): 10.