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- Being a good bragger (but stopping short of narcissism)
- You know about story-telling, but do you know to wear red?
- Simple Jury Persuasion: The ‘Scott Peterson Effect’—Displayed remorse and conviction
- Your brain is a liar: It will find what it wants before it even starts looking
- Contempt for Gen Y: It’s everywhere—including law firms!
- Simple rules, beer pong, hysterical laughter & jury questionnaires
- Can you assess juror morality by counting tattoos?
- Biased hearts, biased cameras and biased verdicts
- Simple Jury Persuasion: “How likely are you to…”
- How a picture can be worth less than a hundred words
Archive for the ‘Witness Preparation’ Category
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.
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.
We don’t really know why we think what we think
PsyBlog writes that when we tell a good story about why we think what we do about others we are usually wrong. That is, when we try to describe the factors that are important to us in coming to a conclusion/decision about whether we like someone we usually identify factors that don’t actually matter at all.
In other words, when I think about why I judge a person about something—I am usually wrong.
So when mock jurors say “character doesn’t matter, it’s the facts that matter”—this is why they are wrong. They like to imagine that they are objective, and to them this means a dry assessment of the evidence.
But it is more than that, and their effort at constructing a ‘just world’ is a powerful element. It is frankly pointless to try to stop jurors from doing it—you can’t fight human nature.
The best testimony is a hybrid of important facts and a window into the character of the witness and the parties. Character matters, and if your client is woefully lacking, your challenge is to create a context for their inadequacies that mitigates the impact.
He isn’t insensitive—he is a geek.
She isn’t cruel—she is protective.
Sequence your case narrative so that good character shines through and jurors see that even though your client may have made some bad decisions, s/he is likeable and a well-intended person.
Generation Y (aka the Millennials): Just the facts
Members of Generation Y (as with other generations before them) have been derided and maligned. People love to generalize about ‘ the younger generation’, and do it all the time. And it’s been going on for centuries.
“The children now love luxury; they have bad manners, contempt for authority; they allow disrespect for elders and love chatter in place of exercise. Children now are tyrants, not the servants of their households. They no longer rise when elders enter the room. They contradict their parents, chatter before company, gobble up dainties at the table, cross their legs, and tyrannize their teachers.” Anonymous (widely mis-attributed to Socrates)
And one of my personal favorites from Clarence Darrow:
“The first half of our lives is ruined by our parents and the second half by our children.”
Those older demean those younger (and the youth are not particularly admiring of their elders). Whether we do this in our personal lives or not, is naturally, a personal choice (and just as naturally, has consequences for our relationships). But in the courtroom and in voir dire, it is wiser to make choices based on what we know to be true of human nature rather than what we assume or choose to believe.
Here is (courtesy of the Pew Research Center) what we know now about Generation Y—the newest members of the jury panel.
- The oldest members are approaching 30 (the youngest are approaching adolescence).
- They are more inclined to trust institutions than either Gen X or Baby Boomers when they were coming of age.
- They are the most ethnically and racially diverse cohort of youth in the nation’s history: 18.5% are Hispanic; 14.2% are Black; 4.3% are Asian; 3.2% are of mixed race; and 59.8% are White.
- They are the least religiously observant/practicing cohort since religious behavior was added to survey research.
- They are the most politically progressive of any age group in modern history.
- They see social networking as normal and everyday activities and internet use as routine (e.g., tweeting, texting, Facebook, YouTube and Wikipedia).
All of these factoids have relevance for voir dire, case presentation and witness preparation. Millennials are often frightening for litigators because they are so ‘unknown’. Yet, many of them are old enough, sufficiently well educated, and assertive enough to be forces in the deliberation room. It is unwise to assume “young people are bad for plaintiffs” just as it is unwise to assume “women are good for plaintiffs” or “women are tough on crime”. It simply all depends.
We will watch as more substantive research emerges on Gen Y/Millennials. Undoubtedly we will write a paper on attitudes and values and litigation advocacy with Gen Y as we did with Generation X (http://www.keenetrial.com/articles/htm). In the meantime, watch yourself. Bias is often a subtle and insidious thing. Seeing this generation as different from those that have gone before (as indeed all generations have been) can help you avoid pigeonholing assumptions.
Witness Preparation: First impressions REALLY do matter!
Remember that famous study saying communication is 55% body language, 38% tonal, and 7% verbal? Turns out that is unfortunately a distorted (albeit widely disseminated) report of the study results. While non-verbal communication isn’t as powerful as that oft-repeated research version of an urban legend would lead us to believe, we do know that first impressions (often based on appearance rather than what is said) are powerful.
When it comes to witnesses, and how witnesses present themselves in the courtroom, this knowledge is beyond valuable. Mock jurors in pre-trial research make instantaneous judgments on character and personality by simply looking and listening. A recent project we worked on asked participants to assess an attractive young woman who had made some mistakes that became quite public. Mock juror assessments of her were remarkably consistent (and remarkably negative).
They overlooked her attractiveness and focused instead on her too frequent sniffing (“I think she just took a hit of cocaine”); appearing older than her age (“She looks pretty old for her age—like she’s used up”); and her apparent anxiety (“She is enjoying playing around with authority—she thinks she’s pretty smart and doesn’t take this seriously”). These impressions were not based on her words, but rather on how she looked and juror pre-dispositions to view her negatively.
Some new research enlightens us with updated information on how people make instantaneous judgments about others based on physical appearance alone. Laura Naumann and Sam Gosling led a study described on the Situationist blog where participants were asked to infer personality characteristics based on full-body photographs (not video). They were shown either a controlled pose (with a neutral facial expression) or a naturally expressed pose. With the controlled pose, traits were difficult to infer (although participants did a good job with extraversion and self-esteem). Photographs of naturally expressed poses were a different matter. Instantaneous impressions of naturally expressed poses were accurate for 9 of 10 personality traits (e.g., extraversion, agreeableness, conscientiousness, emotional stability, openness, likability, self-esteem, loneliness, religiosity and political orientation) they were asked to assess.
Gosling makes recommendations about how to communicate specific traits by varying whether you smile and how you stand (tense or relaxed, energetic or tired). Specifically, extraverts smile more, appear more energetic and relaxed, and appear healthy, neat and stylish. Giving witnesses feedback on how to relax their bodies, how to communicate energy, and how to seem likable and credible can give them more confidence and result in a more positive impression upon the jury.
As you are preparing witnesses, watch how they present themselves physically. Jurors certainly do.
“I didn’t know truth had a gender”
We figured when we did our post a few months ago on how hard it is to be a woman that we wouldn’t see more news like that so quickly. We were wrong. It happens. This time two more dings on women as witnesses and this time, it’s overtly about gender and accuracy in testifying. That is, if you’re a woman witness in court, you are likely unreliable, emotional and prone to tearfulness on the stand.
Deep breath. Here we go (again). A 69 year old male judge in Ottawa, Canada dismissed the testimony of the Ottawa mayor since she was commuting to Toronto and “leaving her husband and child in Ottawa”. The mayor’s response: “I didn’t know truth had a gender or a family.” There has been an outcry from various groups over the unfairness of this judicial ruling and comments that a male politician would not have been subject to the same thought processes.
But that’s Canada. Surely the same things wouldn’t happen here! Enter a law student from Indiana University School of Law doing research on Westlaw.
“I was researching cross-examination tactics, and I happened upon an American Jurisprudence Trials article entitled “Cross-examination of Plaintiff and Plaintiff’s Witnesses” (Westlaw citation is 6 AMJUR TRIALS 201):
(Keep in mind this from a section titled “Particular Witnesses” and the “particular witnesses” covered are children, the “aged” and women)
§ 45. Women
Women, of all types of witness, show the widest range of personality traits while on the stand, because they are usually much more emotional than men, and less inclined to observe and to relate occurrences on the basis of intellectual impressions alone. Paradoxically, most women are less inclined to exaggerate than are certain types of men, and are much more observant of minute details than are most men. As a rule, it can generally be said that women do not make strong witnesses on questions involving technical or factual matters, but make excellent witnesses on those matters involving close observation.” (see more at the URL cited earlier).
The law student involved contacted Westlaw who apparently stated they had chosen to remove the entire section. So maybe we have good news and bad news here: the bad news is that these sorts of biases obviously remain. The good news is that sometimes we can do something about bad information that is still out there.
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.”
Preparing the Witness: Sometimes it’s easy (sometimes it’s not)
Two new research studies highlight the potential complexity and also the simplicity of the witness preparation process. What is fascinating about these studies is that they approach the same problem from such different different perspectives. The challenge is in knowing when you may need to use which perspective.
Let’s say your witness is not confident and you need him or her to project an aura of confidence to enhance credibility, likability, and believability. The witness may seem nervous, fearful, or even guilty. What you do depends on your assessment of what results in your witness’ lack of confidence.
Intervention 1: You assess that your witness needs to “feel” or “see themselves” as more powerful. The first new study would say you can help your witness project more confidence by simply having them sit up straight. That’s simple, isn’t it? It can’t be right—it’s too simple, virtually dumb. But the power isn’t merely appearance—confident posture can trick our brain into thinking we are more confident and thus have impact on how we present ourselves. This approach assumes the problem is a simple matter of slightly modifying self-presentation.
Intervention 2: You assess that the witness is deeply shamed about their role in the case, the decisions they made, or how they behaved. Their reaction may be to respond to examination with anger, obfuscation, or guilty ‘deer-in-the-headlights’ paralysis. The second study shows how people who are paralyzed by shame tend to internalize and over-personalize the situation. This is a much more complex issue, but assist the witness to identify external factors that contributed to their decision. This tactic can help the witness shift their perspective from being a “bad person” to being someone who has perhaps done something bad or wrong due to external influences. They can’t run away from their conduct, but they also need to gain some perspective on their role.
We see shame-based responses in witnesses with no reason to be ashamed—from medical malpractice to commercial cases. It’s not the type of case that matters. It’s the type of personal reaction your witness has to a complex combination of case facts and personal idiosyncrasies. The best possible approach may be a combination of the two interventions: address the shame and inoculate the witness against the shame. Then tell them to sit up straight!
“I can look into his eyes and just tell he is lying”
We see this routinely on witness evaluation forms and we hear it in mock jury deliberations. Perhaps the most overt misinterpretation of intuition came almost ten years ago when we were doing a focus group and jurors didn’t like the plaintiff. One of the attorneys (who had done some community theater work) wanted to come out and “be” the plaintiff. She did. She appealed to the jurors and stated her case. She returned to behind the observation mirror. As the door closed behind her, a juror spat out “I thought so before I ever saw her in person but now I know for sure! That woman is on drugs.” She was convinced and she convinced some of the other jurors. Intuition can be a powerful thing.
As a further note on that embarrassing event, I will say that we urged our clients to use deposition excerpts and not live testimony with surrogate actors (even before this). Jurors feel so strongly about the role of character, the power is truly in the messenger as much as the message. But boy, that attorney’s law partners are still telling stories about that mock trial. She will never live it down.
Recently, the Jaycee Dugard case was cracked by a police officer who credited “police intuition” for her suspicion, followed up by investigation and the eventual liberation of an 18 year kidnapping victim of a convicted pedophile. Intuition is powerful. And sometimes it’s right. And other times it is horribly wrong. One recent Texas case garnering a lot of attention across the country seemed to combine intuition with facts in a way that may have resulted in the execution of an innocent man. Intuition can close our eyes to the facts in front of us. In focus groups and mock trials we have tested juror reactions to witness testimony excerpts that run 30 minutes and longer and compared them to reactions to the same witnesses after the first 8 minutes. The scores are nearly identical. What jurors conclude about character, likeability, and trustworthiness crystallizes within the first few minutes. We see things how we want to see them. We make the story make sense.
How can we minimize the role of mistaken intuition in juror decision-making?
- Decide in advance how intuition is likely to affect your case. Do you want snap judgment or considered opinions?
- If a key witness or party isn’t reliably likeable, have lead-in witnesses provide context for the key witness’s quirkiness that makes it more palatable.
- If there are assumptions (aka inaccurate intuitions) that mock jurors attribute to your case or witnesses, establish an identity for your witnesses that accommodates the image and makes it more tolerable.
- When jurors don’t have an explanation for something, they are free to fill in the gaps with incredible flights of fancy. Ensure that your case makes sense and leaves no holes or questions for the jury to fill in without you.
Intuition may or not be a scary thing, but it is very powerful. Intuitive errors flourish when fueled by incomplete or distorted information given to us. Fill in the blanks. Clear up distortions. And then trust the process.
Eliot Spitzer, Uncivil Behavior & Possibilities of Redemption
This year has been a field day for anyone studying impact of sexual misadventures on the careers of public figures. It’s hard to know what the public cares about when the offense is merely a character flaw. If it doesn’t cost us money, we don’t seem to judge harshly, or at least not for very long.
When Eliot Spitzer, the NY Attorney General, was publicly shamed into resignation and labeled “Client #9″ in a prostitution ring scandal, few thought he had any future in public life. But a recent poll in the Atlantic magazine makes us wonder. Five hundred New Yorkers were asked (on September 1, 2009) if they would vote for Spitzer if he ran for public office again: “15% would vote for him “no matter what”, 39% would vote against him “no matter what”, and 47% said it would depend on what office Spitzer ran for and who else was on the ballot.”
The Atlantic goes on to say that they think a 2010 run for office is a long shot for Spitzer but who is to say what could happen? The public sometimes has a long memory for disgraced heroes and other times we are inclined to overlook past failures.
When Eliot Spitzer fell from grace, we wrote a paper identifying strategies for the litigator with a publicly disgraced client. In that paper, we focused on five basic steps to follow:
- Apologize correctly to mitigate hypocrisy
- Rebut the fundamental attribution error
- Focus on past positives and weigh them against this fall from grace
- Focus on what has been lost and how your client has been affected
- Avoid surprise
You can download a copy of this paper (Client No. 9: Defending Uncivil Behavior) at our website. Scroll to the bottom of the page and register for free access to various papers we’ve written over the past 10 years. We promise we won’t sell, trade or use your contact information for nefarious purposes. We just want to know who is interested in our ideas and we will let you know from time to time when we have new papers on the website.
The complete paper describes what to do in each of these steps and why (based on the recent research) you should do the actions recommended. We think you’ll find it useful.
While the public may be willing to look the other way when a family is victimized by salacious conduct, the rage against fiduciary violations has real sticking power. The findings in our previous paper are as relevant today for the management scandals of today and tomorrow as they were during the Enron scandal (see “Enron Effect: Uncertainty, Mistrust, and Cynicism”).
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