Category Archives: Jury Persuasion

Lots and Lots of Jury Instructions.

29 Sunday Jun 2014

Posted by in Jury Instructions, Jury Instructions, Jury Persuasion, Legal Writing, Trial Tips and Techniques

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The Language Of Jury Instructions, by Peter Meijes Tiersma, LanguageandLaw.org

http://tinyurl.com/qy9z2rv

Lots of information and examples on jury instructions, including a Manual on Communicating with Juries, links to criminal and civil jury instructions, to plain language jury instructions, to jury instructions for specific states, and more. If you need help writing jury instructions, this would be a good place to start. -CCE

Juries and Social Labeling.

28 Saturday Jun 2014

Posted by in Closing Argument, Jury Instructions, Jury Persuasion, Jury Selection, Opening Argument, Trial Tips and Techniques

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“Everyday is a Great Day!” Self-Fulfilling Prophecy and Social Labeling, by Jill D. Schmid Ph.D., Tsongas® Blog

http://tinyurl.com/ljah59y

‘Everyday is a great day!’ That’s what he said, and appeared to believe with every fiber of his body. He was a 20-something, male clerk in an airport hotel’s gift shop. My response to, ‘How are you today?’ paled in comparison. ‘Oh, alright,’ I said as I contemplated what was about to be a very long research day. I didn’t expect to have a philosophical discussion that morning, but after what he said, I couldn’t help but ask his secret.  He looked so content, so convincing, so . . . what’s the word?  Oh yeah, happy.

So I asked, and his answer stuck with me.  He said about five years earlier he found himself in a tough spot; he was making poor choices; he was unhappy and making others around him unhappy. He decided to change his life, and he would do it by simply declaring that every day was special, that ‘everyday is a great day!’ He said from that point on, his attitude changed and he noticed that others’ attitudes also changed.  He found that when he’d tell people that, they smiled and seemed a bit lighter, less stressed. I felt the same – his answer had reminded me that I should be focusing on the positive; that I should be thankful to have a job that allows me to have interesting and challenging conversations nearly every day; that I should be looking forward to interacting with a whole new group of people – people who had important things to say and from whom I would learn a lot. In short, it really was about to be a great day, and I needed to change my attitude.

I was reminded of this encounter during a recent jury selection.  While I typically believe it’s somewhat of a waste of time to elicit ‘promises’ from your potential jurors (i.e., ‘Do you promise that you’ll give my client a fair shake?’ ‘Do you promise that you’ll follow all of the judge’s instructions?’ ‘Do you promise to not let your sympathies influence your decision?”), this attorney took a similar, but improved tack. His questions, and subsequent labeling of the jurors, utilized a well-researched phenomenon called ‘social labeling.’ . . .

Are Acronyms Effective or Alphabet Soup?

15 Sunday Jun 2014

Posted by in Acronyms, Closing Argument, Cross-Examination, Direct Examination, Jury Persuasion, Legal Writing, Making Objections, Opening Argument, Oral Argument, Trial Tips and Techniques, Voir Dire

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DUA: Don’t Use Acronyms, by Dr. Ken Broda-Bahm, Persuasive Litigators Blog

http://tinyurl.com/p66tcgk

I’m monitoring a criminal trial this week, and at the end of opening statements, the judge looked at the jury and said, ‘Okay, both sides have been referring to ‘AUSAs’ — they know what that means and I know what that means, but I’m guessing that you don’t know that that means?” Head nods from the jury. ‘It means ‘Assistant U.S. Attorney,’ continued the judge, “so please fill that in wherever you hear it.” Good solution? Better than nothing. But it would have been best if both sides would have simply used the title instead of abbreviating it. The tiny amount of additional time it takes to say ‘Assistant U.S. Attorney’ rather than ‘USA’ is well worth it in terms of clarity and understanding.

But some attorneys, experts, and other witnesses continue to love the economy of the acronym. But particularly in spoken communication, and particularly in front of a jury, that economy comes at a cost: meaning lost in translation and increased cognitive workload even when it is translated. Practical persuaders before a lay audience are well advised to avoid acronyms almost entirely. Okay, I say almost entirely — there are some exceptions (and besides ‘Generally Avoid Acronyms’ would have been ‘GAA.’) The few acronyms that ought to still be used are those that have such widespread familiarity that they almost become words in their own right: USA, CNN, or ASAP. In all other cases where the acronyms don’t benefit from automatic translation, the litigator is best off choosing the full expression and not the acronym. This post takes a look at a few reasons, implications, and replacements for trial persuaders looking to lose the alphabet soup of acronyms. . . .

The Secret Of How To Ask For What You Want.

31 Saturday May 2014

Posted by in Closing Argument, Cross-Examination, Direct Examination, Jury Persuasion, Legal Argument, Legal Writing, Opening Argument, Oral Argument, Trial Tips and Techniques, Voir Dire

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Ask For What You Want, posted by Elliott Wilcox, Trial Theater Blog

http://tinyurl.com/kkrtqwo

Mr. Wilcox’s suggestions on how to verbally ask for what you want can also be translated into a persuasive legal writing technique. The logic works either way. -CCE

How many times a day do you ask judges, clients, or co-workers to do something or to give you something? During any given week, you probably make hundreds, perhaps even thousands, of requests. You ask your co-worker to work on a project, you ask your assistant to handle a client issue, you ask your kids to help with the dishes. . . . The number of requests that you make each week is staggering. But how many of those requests are actually granted? Have you ever had a problem with someone not doing not what you asked?

Why?  You’re a lawyer. Shouldn’t you be the master of persuasion who can get what you want, when you want it, and how you want it, every single time?

Unless your name is ‘Svengali the Master Manipulator,’ chances are that many of your requests are not being granted, or at least not being carried out exactly the way you’d like to see them handled.  But it’s not because your requests are falling on deaf ears.  In fact, your listeners are probably hearing exactly what you’re saying.  The problem is that you’re asking for the wrong thing. . . .

Inhibiting Jury Bias.

17 Saturday May 2014

Posted by in Implied Bias, Jury Persuasion, Jury Selection, Trial Tips and Techniques

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Simple Jury Persuasion: “It Makes No Difference To Me But I’m Sure It Would To A Lot Of Other People,” posted by

http://keenetrial.com/blog/category/simple-jury-persuasion/

The study of bias fascinates us. We can easily spot prejudice in others but are oblivious to our own biases. We often ask a question at the end of a research project about community values and whether our (uniformly unbiased and considerate) mock jurors think others in the area would be biased against a party involved in the lawsuit about which they have just heard. Maybe the off-topic and irrelevant bias (perhaps religion, country of origin, ability to speak English, thick accent, appearing to be a gang member, sexual orientation, marital fidelity, obesity, etc.). Typically, the answer is, “Well, it doesn’t make a difference to me but it sure would to a lot of other people who live around here!” This response is shared in all sincerity and good faith by individuals who truly do not see themselves as biased.

The problem, as pointed out by today’s researchers, is that none of us see ourselves as having blind spots. We’re better than that–especially when forewarned that biased decision-making could lie ahead. As sensible and logical and rational as that perspective may seem, it simply doesn’t appear to be true. . . .

Using Trial Graphics For Powerful Court Presentations.

11 Sunday May 2014

Posted by in Jury Persuasion, Legal Technology, Presentations, Technology, Trial Tips and Techniques

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Part IV – Trial Graphic Fundamentals: Guidelines for Trial, by  Adam Bloomberg, Managing Director -Visual Communications, Litigation Insights Blog

http://bit.ly/1juynu0

Please note that this is fourth in a series, and take a look at the three that come before it. -CCE

This blog is the fourth in a series that focuses on the fundamentals of trial graphics. Its content is based on a program Adam Bloomberg, Litigation Insights’ Managing Director for Visual Communications, co-presented with Bryant Spann, Partner at Thomas Combs & Spann PLLC, at the 2014 Midyear Meeting of the International Association of Defense Counsel in Carlsbad, California.

Graphics are powerful, because they have the ability to communicate more clearly and concisely than words. Depending on how that power is channeled, however, a graphic can either help or harm your case. The following tips for developing graphics can significantly improve them for use at trial. . . .

Include Juror Background Profiles For Strong Trial Strategy.

08 Thursday May 2014

Posted by in Jury Persuasion, Jury Selection, Trial Tips and Techniques, Voir Dire

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Jury Research Education Series | Developing a Juror Profile: Having a Strong Foundation, by Merrie Jo Pitera, Ph.D-CEO, Litigation Insights

http://bit.ly/1ipKpno

Ultimately, a panel of jurors will decide your case. Knowing as much as possible about those jurors is therefore a critical element of trial strategy. Developing a juror profile you can requires gathering information about the characteristics of pro-plaintiff/pro-defense jurors in a scientifically valid manner. Just asking staff at your firm or a group of friends what they think doesn’t give you reliable information. The most reliable tool to develop your profile is based on the background questionnaire used in your jury research projects. In this blog post, we discuss how results from a questionnaire can serve as the foundation for your juror profile and how to design a well-constructed background questionnaire that gives you information you can trust. . . .

The Strategy of Dissociation – Don’t Go To Trial Without It.

02 Friday May 2014

Posted by in Closing Argument, Cross-Examination, Defense Counsel, Direct Examination, Jury Persuasion, Opening Argument, Trial Tips and Techniques

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Dissociate (to Separate Bad Image from Good Image in Litigation), by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://bit.ly/1lJsEka

At the start of their game last Sunday, members of the L.A. Clippers ceremonially left their warmup jackets in a heap in center court, and warmed up with their shirts turned inside-out in order to conceal the name and logo of the team. This act came in response to recorded comments by team owner Donald Sterling telling his girlfriend ‘not to bring them [‘black people’] to my games.’ The response by the players was a move of dissociation: a way to say “We are not that,” and to clarify, in no uncertain terms, that the owner’s racism does not represent the team. This need to dissociate – to separate one meaning from another – is common in all communication situations, including those that involve the potential for litigation. Recently, for example, General Motors made the bold move of offering a full and complete apology for its inaction in addressing a long-term problem with its ignition switches, but in subsequent congressional testimony, CEO Mary Barra was careful to draw a distinction between the ‘Old General Motors’ prebankruptcy, and the ‘New General Motors’ that today stands before congress, court, and consumers.

Dissocation plays a role in lower profile cases across the country as well. A range of litigation-relevant situations create a need to communicate that ‘we are not this.’ Like most good persuasive strategies, the notion has its roots in rhetoric, the ancient and modern study of the best available means of influence. But the idea is more than just ivory tower philosophy.  Dissociation also translates into some important practical strategies worth considering by trial attorneys in a number of situations. This post takes a look at the underpinning, as well as the concrete strategies of dissociation. . . .

Powerful PowerPoint Courtroom Presentations.

27 Sunday Apr 2014

Posted by in Closing Argument, Experts, Jury Persuasion, Legal Technology, Opening Argument, PowerPoint, Presentations, Technology, Trial Tips and Techniques

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Adding Power to Courtroom Presentations, posted by Elliott Wilcox, TrialTheater Blog

http://tinyurl.com/lddsa49

I ran across this blog today, and I like what I see. PowerPoint is a powerful tool. Like you, I have seen far too many poor presentations.

A good power PointPresentation is an art. It doesn’t just happen. If you have never bothered to find out whether there are guidelines or rules for a good PowerPoint presentation, then you may be guilty, regardless of how witty, entertaining, or persuasive you think you are.

Take some time to read all you can about what makes a good presentation. Do not read your slides. Instead, let them compliment what you say or let them be the “punchline” to your idea. Pay attention to font size. Resist the temptation to fade in, face out, and use dancing graphics that scamper across the screen in every slide.

This post from TrialTheater will tell you how.  Please also note that there are additional posts listed at the end that are also interesting. This is a blog I plan to watch more closely. –CCE

The lights dim, and the first slide appears. You think to yourself, “Oh no, another boring PowerPoint presentation.” The first line of text soars in from the left, each character twirling and dancing across the screen. You count eleven bullet points on the first screen (the shortest of which is sixteen words long). The second slide is even more confusing. The third is a picture of his kids. Fortunately, the room is dark, so no one notices as you start to fall asleep…

Why are most PowerPoint presentations so dreadful? When was the last time you saw a presentation that was actually enhanced by PowerPoint? The reason PowerPoint decimates the effectiveness of most presentations is because the presenters don’t understand how or why to use it. But, when you need to illustrate a point in the courtroom, PowerPoint can be a tremendous addition to your trial skills toolbox. This article will give you tips for improving your presentations, both inside and outside the courtroom. . . . .

Why Isn’t The Judge Listening?

16 Wednesday Apr 2014

Posted by in Closing Argument, Experts, Jury Persuasion, Legal Analysis, Legal Argument, Opening Argument, Trial Tips and Techniques

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Experts: Keep It Comparative, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/n3hovpy

The expert has prepared thoroughly for her testimony before the judge. She knows each opinion and every foundation. The outline that counsel developed is all but memorized. But then, as she is about an hour into describing the detailed methods and conclusions, the judge’s eyes are drifting down to the table and the nods of understanding have stopped: He isn’t getting it. In itself, there is nothing in the testimony that is impossible to understand – on the contrary, it is organized and clear. But the judge seems to have disengaged. Instead of tracking with the testimony at each step, he is just hearing detail after detail and letting it wash over him.  And if there were a jury in the room, the problem would be even worse.

What went wrong?  . . . .

Using Animation At Trial.

12 Saturday Apr 2014

Posted by in Evidence, Exhibits, Jury Persuasion, Legal Technology, Litigation, Presentations, Trial Tips and Techniques

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Animate: Give Your Jurors Three Dimensions, or More, by Dr. Ken Broda-Bahm, The Persasive Litigator

http://tinyurl.com/m75du78

[I]In trial, we know that demonstrative exhibits are often seen as playing a secondary role: second to evidence and second to the verbal explanation. The higher-end animations, however, are often an even more distant second (or third, or fourth) to exhibits that can be created more simply or more cheaply. Understanding that not all, or even most, cases will be able to afford or to merit the higher-end demonstrative animations, it is still worth it to pay attention to the state of the art and to think about how this technology can be brought to bear when it matters most. The good news is that creating sophisticated graphics is easier and cheaper than it has ever been before. Laptops now surpass what the best production workstations could have created in earlier times. A skilled computer animator can take an idea from design to execution in less time and expense than you might think. . . .

Apologizing Even When It’s Not Your Client’s Fault.

30 Sunday Mar 2014

Posted by in Closing Argument, Cross-Examination, Damages, Defense Counsel, Direct Examination, Jury Instructions, Jury Persuasion, Litigation, Making Objections, Opening Argument, Settlement, Trial Tips and Techniques

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Show You’re Sorry, Even When You’re Not at Fault, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/ntvjm5r

[A]s we’ve noted before, letting jurors, judges, and opposing parties hear an apology can be effective when you are responsible, or are likely to be found responsible, for at least part of the damage at issue in the case. But what about when you’re not? Does that second kind of “sorry,” meaning “I recognize your loss, but without accepting responsibility for it” create a persuasive advantage as well?

According to some new research, yes, it does. . . .

Jury Verdit in Synthetic Marijuana Case.

21 Friday Mar 2014

Posted by in Criminal Law, Drug Possession, Jury Persuasion, Trial Tips and Techniques

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Jury Returns Guilty Verdicts in Synthetic Marijuana Case. by Mary Drier, Tuscaloa Today, Forensic News Daily

“A year-long investigation by several law enforcement agencies and a five-day trial results in guilty verdicts against two Michigan residents from incidents involving the sale of synthetic cannabinoids.. . .”

Jury Nullification Secret Sneaking Out Of The Bag.

16 Sunday Mar 2014

Posted by in Jury Instructions, Jury Persuasion, Jury Selection, Litigation, Trial Tips and Techniques

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Treat Nullification as a Known Option, by Dr. Ken Broda-Bahm, Persuasive Litigator

http://perma.cc/HWG4-PKHK

Jury nullification is treated as a deep and dangerous secret. The idea that a jury can decide to follow its own moral guidance instead of following the law, is the legal doctrine that dare not speak its name, at least not anywhere near a courtroom. It’s been used as ammo in the war against the drug war, led to accusations of jury tampering, and even served as the basis for a criminal indictment of a retired professor who made it a practice to hand out pamphlets about nullification in front of courthouses. As stories like these become more well-known, the official secret of jury nullification might be turning into something more like an open secret. Based on the viral success of a recent video by CPG Grey — more than 1.5 million viewers in the first month it’s been up — the knowledge of nullification might be well on the way to becoming more common than ever. . . .

Like Us, Judges and Juries Get the “Munchies.”

08 Saturday Mar 2014

Posted by in Appellate Judges, Closing Argument, Cross-Examination, Defense Counsel, Direct Examination, Exhibits, Experts, Federal Judges, Judges, Jury Persuasion, Law Clerks, Litigation, Making Objections, Opening Argument, Oral Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witnesses

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Time Your Arguments to the Judge’s Lunch Breaks (and Adapt to All Decision Makers’ “Cognitive Load”), by  Dr. Ken Broda-Bahm, Persuasive Litigator  Blog

http://tinyurl.com/lebleml

It comes as no surprise that a hungry person, be it the judge or members of a jury, find it difficult to concentrate and focus on your client’s case. Long stretches of testimony and argument are hard enough to follow, especially if the case is complex with numerous exhibits and witnesses. Regardless how comfortable the chair, sitting for long periods trying to listen carefully to a case is hard work.

There is more than one way to consider your audience at a trial or hearing. Persuasive argument is one. Excellent trial preparation using technology is another. Considerate and well-timed rest and meal breaks are another tool that can be used to your advantage.

The Rocket Science Blog mentioned in this post can be found at http://tinyurl.com/3dg5e8n. – CCE

Anyone who argues in front of judges knows that human factors can weigh as heavily as the law in determining your judge’s decisions.  But it is still possible at times to be surprised at the degree of influence, as well as the banality of those human factors.  Case in point: lunch and snack breaks.  Recent research discussed in the excellent Not Exactly Rocket Science blog appears to show that judges’ decisions vary as a direct effect of the proximity of their morning snack or lunch break.  In case you are using your morning break or lunch hour to read this post, I’d like to make it worth your while by applying the study findings to the more general issue of your decision-makers’ mental work load and offering some recommendations for anyone who needs to make arguments to a potentially fatigued audience. . . .

Lawyers — First Impressions Stick!

02 Sunday Mar 2014

Posted by in Closing Argument, Cross-Examination, Direct Examination, Exhibits, Experts, Jury Persuasion, Jury Selection, Litigation, Making Objections, Mock Trials, Opening Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witnesses

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Expect First Impressions to be Carved in Stone, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/org7why

Please note additional links on first impressions, overcoming bad impressions, and using visual images to create a first impression at the bottom of this post at the Persuasive Litigator website. -CCE

We’ve all heard the old saying: You never get a second chance to make a first impression. It is true that when meeting someone new, our brain is quickly putting them into a number of categories. Their background, intelligence, friendliness, attitudes, trustworthiness, and a myriad of other aspects of character are all on their way to being locked into some pretty durable assumptions. In a legal setting, where a juror is reacting to a witness on the stand for example, we might want those credibility determinations to be made over time, informed by the full scope of the testimony. But don’t count on it. . . . 

Interesting Theory of Jury Persuasion.

22 Saturday Feb 2014

Posted by in Jury Persuasion, Trial Tips and Techniques

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Simple Jury Persuasion: The “Tainted Altruism Effect,” posted by Douglas Keene, The Jury Room Blog

http://tinyurl.com/knnu6as

People will actually see you more positively when you raise no money for charity at all than they will when you raise $1,000,000 (but skim $100,000 for yourself). Even if you said you were going to keep 10% up front and the charity really did get the $900,000! When you benefit (in any way) from your charitable activities, your altruistic acts are likely to be seen as somehow tainted by your self-interest.

There is a really nice write-up of this article at Time Magazine and therefore, we won’t focus on what the researchers did, but rather on the reason they thought tainted altruism worth investigating. It’s all about access to counter-factual information!

Interested related posts at the end of this post by Mr. Keene. -CCE

Intolerance Is A Door That Swings Both Ways When Presenting Your Case.

17 Monday Feb 2014

Posted by in Appellate Judges, Closing Argument, Cross-Examination, Direct Examination, Federal Judges, Judges, Jury Instructions, Jury Persuasion, Jury Selection, Making Objections, Opening Argument, Oral Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witness Preparation, Witnesses

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Account for Ideological Intolerance, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://tinyurl.com/kovy8wo

It’s Valentine’s time again. It’s a holiday of love, but in the political world, we’re moving out of yet another debt ceiling standoff and there is no love lost between the two sides of the spectrum. Liberals point to yet another, albeit failed, attempt to hold the country’s full faith and credit hostage, while conservatives point to yet another increase in an already staggering national debt. Neither side can understand the values, arguments, and priorities of the other. And that’s just the debt. Add in social welfare programs, marriage equality, and — as the actual sign from an Arizona gun shop above testifies — gun control, and you’ve got a pretty bitter divide. Polling shows that we are politically more ‘tribal’ than ever before. As we’ve noted in earlier posts, liberals and conservatives appear to use their brains differently when assessing risk, and are resistant to applying basic empathy across the political aisles. . . .

Jury Consultant’s Voir Dire Tips.

10 Monday Feb 2014

Posted by in Jury Instructions, Jury Persuasion, Jury Selection, Peremptory Challenges, Trial Tips and Techniques, Voir Dire

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Indirect Questions Reap Most Information in Oral Voir Dire, by Edward P. Schwartz, THE JURY BOX

http://tinyurl.com/lvbx2pz

In reviewing the traffic on my website recently, I was struck by how much more often one particular article was accessed than any other. I used to write a column on trial strategy for Lawyers USA (formerly Lawyers Weekly USA), and this particular article on voir dire strategy from 2006 seems to be very popular, even today. So, in the spirit of giving the public what it wants, here is that article in its entirety.

Oh Happy Day for Pennsylvania Personal Injury Plaintiffs.

10 Monday Feb 2014

Posted by in Appellate Law, Case of First Impression, Damages, Evidence, Jury Persuasion, Litigation, Pennsylvania Superior Court, Personal Injury, State Appellate Courts, Trial Tips and Techniques

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Appellate Case of First Impression – Future Medical Expenses Are To Be Included in Delay Damages Calculation, by Daniel E. Cummins, TORT TALK

http://www.torttalk.com/2014/02/appellate-case-of-first-impression.html

In a case of first impression, the Pennsylvania Superior Court recently ruled in Roth v. Ross and Erie Insurance Group, 977 MDA 2013, 2014 Pa. Super. 20 (Pa. Super. Feb. 7, 2014 Donohue, Ott, J.J., Platt, S.J.)(Opinion by Donohue, J.), that an award of future medical expenses in a personal injury case should be included in the calculation of delay damages due to the Plaintiff on a verdict. . . .

How Do Jurors In A Recession Really Feel About The Financial Industry?

09 Sunday Feb 2014

Posted by in Class Actions, Corporate Law, Finance and Banking Law, Jury Persuasion, Jury Selection, Litigation, Trial Tips and Techniques, Voir Dire, White Collar Crime

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Take This To The Bank: Jurors’ Evaluations Of Financial Industry Defendants During A Recession, by Jill Leibold Ph.D., Director, Jury Research, Elizabeth Babbitt, M.A., Consultant, and Louis A. Huber III, of Schlee, Huber, McMullen and Krause, LITIGATION INSIGHTS

http://tinyurl.com/nx84u56

[I]n the following article, published in DRI’s, For the Defense magazine, we wanted to evaluate biases in the way jurors would view banking or finance defendants. Given that almost all of Americans have felt they’ve been affected by the most recent recession, we conducted a study to gauge those positive or negative attitudes toward the financial industry as well as piece together how these issues could shape jurors’ perceptions toward banking and finance defendants come trial. . . .

Moral Outrage and Jury Persuasion.

15 Wednesday Jan 2014

Posted by in Closing Argument, Jury Persuasion, Trial Tips and Techniques

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Simple Jury Persuasion: Anger + Disgust = Moral Outrage, by Douglas Keene, The Jury Room

 http://tinyurl.com/mmuh8fq

[N]ew research shines a light on why moral outrage reactions occur and (just maybe) how one might try to elicit them (if one were wanting to do that sort of thing).