Tag Archives: Jury Persuasion

Testimony Mode: Note the Tradeoff Between Information Density and Juror Sensitivity, by Dr.  Ken Broda-Bahm, Persuasive Litigator™

24 Sunday Oct 2021

Posted by in Jury Persuasion, Trial Tips and Techniques

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No one must tell us that Covid has changed our society in multiple ways that continue to evolve.  Attitudes and attention spans are not the same.

Given these changes, how does a trial lawyer decide what information must be impressed upon a jury and what is the best way to do it? How do you avoid juror boredom? I have seen jurors fall asleep while an attorney questioned a witness using extensive legalese. By the time the lawyer asked the question, he had lost the jury’s attention. He mentally wore them out.

Dr. Broda-Bahm is an experienced litigation consultant. I admit that I am a fan of his blog.  When I saw this post, it reminded me of my experiences watching the jury’s reactions throughout trial. What causes jury information overload? What is a clear and concise way to present complex or unfamiliar legal issues to a jury? What changes should you make to trial strategy to address changes in jury’s attitudes and reactions?

This post addresses those questions. I encourage you to note the “Other Posts on Testimony” at the end of his post, which reference more posts on this topic. – CCE

Testimony Mode: Note the Tradeoff Between Information Density and Juror Sensitivity

Why The Jury Blamed The Injured Plaintiff.

24 Tuesday Apr 2018

Posted by in Jury Persuasion, Plaintiff's Counsel, Trial Tips and Techniques

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Understanding Why Jurors Want To Blame The Injured Plaintiff, by Paul Luvera, Plaintiff Trial Lawyer Tips

http://plaintifftriallawyertips.com/understanding-why-jurors-want-to-blame-the-injured-plaintiff

There are times when it simply does not make sense that the jury did not sympathize with the plaintiff. Yes, there can be legal reasons for the outcome, but there are certain psychological motives as well. This post does an excellent job of identifying and explaining them. -CCE

You Never Know What A Jury Is Going To Do.

29 Saturday Jul 2017

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Consider What Drives Resistance to Your Message, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://www.persuasivelitigator.com/2017/07/consider-what-will-drive-resistance-to-your-message.html

When clients ask whether their case will win at jury trial, the standard answer is that we never know what a jury is going to do.

There are times during trial when it may become obvious the jury is bored or highly engaged. Even then, do you know which way the jury will flop? Well, sometimes. Voir dire has given you some insight, as well as your own research. With the country presently divided, you may think people are easily pigeon-holed.

You’re feeling confident about your opening argument.  You may even think you have the jury eating out of your hand. But do you? Really?

Knowing your case well is a two-edged sword. You may believe that the story of your client’s case is so convincing – so right – that it is hard to imagine the jury will not see it just as you do.  Are you prepared to address a jury’s resistance to your client’s case?  Here are some excellent insights on what makes a jury tick. Please note more posts on this subject at the bottom of Dr. Broda-Brahm’s post. -CCE

Litigation Tip – Balancing Emotion and Logic.

14 Friday Apr 2017

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

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Human Nature: “Facts are White Noise & Emotions Rule” & Why We Continue to Believe Objectively False Things, by Paul Luvera, Plaintiff Trial Lawyer Tips

http://bit.ly/2oVw6P5

Does your head or your heart make your decisions? Are you sure? While your argument, evidence, and testimony may be perfectly reasoned and logical, how does it rank on a positive or negative on an emotional scale or preconceived beliefs? -CCE

 

Communication Tactics and Jury Persuasion.

03 Sunday Apr 2016

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

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What Trial Lawyers Can Learn From Donald Trump, by Paul Luvera, Plaintiff Trial Lawyer Tips Blog

http://plaintifftriallawyertips.com/what-trial-lawyers-can-learn-from-donald-trump

No, I’m not talking about politics. I’m talking about communication tactics employed by Donald Trump.

Omaha Nebraska jury consultant David Clark and I have engaged in an exchange of emails over a  long period of time about the general subject of communication and in particular techniques taught at the Spence Trial College. However, since the presidential campaign has become active, our communications have focused upon Donald Trump and his communication style. Not because we are particularly interested in his political positions but because we both recognized that he employed significant communication techniques most people ignored. While most people regard him with intellectual disdain and are appalled by his verbal conduct, we believe there is a substantial amount of unrecognized communication tactics being used either knowingly or not. These are some significant techniques that we all should evaluate. . . .

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Want The Jury to Pay Attention? Use Good Storytelling Skills.

17 Thursday Mar 2016

Posted by in Employment Law, Jury Persuasion, Litigation, Race Discrimination, Trial Tips and Techniques

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25 Million Reasons To Tell A Good Story, by John Hyman, Ohio Employer’s Law Blog

http://www.ohioemployerlawblog.com/2012/06/25-million-reasons-to-tell-good-story.html

Trying an employment case to a jury is an art. You are limited by a jury’s attention span (which, by the way, is getting worse as a result of 1,000 channel cable systems and 140 character tweets) to convey your message as quickly and as simply as possible. Complex legal arguments are out; creative storytelling built around a unified theme is in. . . .

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Understand Group Psychology Patterns for Winning Trial Strategy.

21 Wednesday Oct 2015

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

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Group Psychology, Voir Dire, Jury Selection and Jury Deliberations, by Ken Lopez, The Litigation Consulting Report

http://tinyurl.com/nugn68v

Since first being exposed to the group psychology work of Wilfred Bion 15 years ago, I’ve been completely fascinated by it. I think his theories perfectly explain the behavior of every group that I’ve ever encountered. From boards that I sit on to groups on reality TV shows, they all behave in the same predictable ways, especially when placed under pressure. . . . [Emphasis added.]

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Voir Dire and Racism.

03 Friday Jul 2015

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

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Don’t Treat Racism as Just a Belief, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/pkphfl6

As of posting time, seven African-American churches have burned down since the racially motivated murders in Emanuel African Methodist Church in Charleston, South Carolina two weeks ago. One of those fires may have been caused by lightning, but there’s a concern that others may have been caused by a belief – namely, racism toward African-Americans. But that understanding of racism as a conscious and pointed belief can limit our understanding of the full spectrum of the bias. . . .

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“How To” On Preparing And Using Timelines In Court.

09 Thursday Apr 2015

Posted by in Exhibits, Jury Persuasion, Timelines, Trial Tips and Techniques

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Timelines: The Jury’s Roadmap to Your Case, by Adam Bloomberg, Director, Visual Communications, Litigation Insights Blog

http://www.litigationinsights.com/trial-graphics/timelines-jury-roadmap/

You and your attorney have worked on this complicated case for months – maybe years. You both know every nuance and the meaning of every exhibit and which witness will say what. To you, it all makes sense but you have had months to learn all about the case.

The jury does not have that luxury – they have to “get it” and absorb all the evidence and testimony from both sides presenting the case. You and your attorney are positive that, if only the jury understands your client’s case, it will return a verdict in your client’s favor.

Some people are more visual than auditory. Would a timeline as part of your trial presentation help the jury understand the details it took you months to piece together? Maybe – read this and then decide whether this tool would indeed work as a jury’s roadmap to navigate the intricacies of your case. -CCE

‘You can’t miss this event!’ your friend exclaims. ’It’s simple. The event is on the left-hand side of the street, two blocks down Lincoln Avenue. You’ll hang a right onto Third, before the gas station. Third is a few miles straight ahead once you exit – when you’re on the freeway, just keep your eyes open for exit 42. Alright, then just continue down Third for a few blocks and hang another right on Lincoln. Don’t forget to grab a bottle of wine, too…. There should be a supermarket near the freeway entrance.’

Confused? Tempted to skip the event and stay home for the evening?

Then consider how a jury must feel when a complicated story gets told in bits and pieces, out of order, and is still expected to find its way to the proper destination (i.e., a verdict for your client). Now include a second attorney who provides a different set of directions altogether!

Timelines, by nature, are often the perfect graphic to solve this problem. They’re the jury’s navigation app. That may be why they’re the most widely used trial graphic of the last 20 years. . . .

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Hey Jurors — Look This Way!

30 Monday Mar 2015

Posted by in Exhibits, Jury Persuasion, Trial Tips and Techniques

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Simple Jury Persuasion: “Hey, Look Over Here For A Second!” posted by Douglas Keene, The Jury Room Blog

http://tinyurl.com/p83amyh

This is sort of scary research. We all like to think our views on moral issues are pretty consistent and not easily shaken. That would be incorrect. They are not consistent and they are easily shaken. At least these are the conclusions reached by this research.

We’ve written before about on which side of the courtroom you want to place your exhibits (it’s on the left), but this is far above and beyond that. According to these researchers, you can actually change someone’s mind about an ethical issue by where you have them looking. And, this is the worst part: it takes less than a second! Here is what they did. . . .

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What’s The Purpose Of The Opening Statement Anyway?

18 Wednesday Mar 2015

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

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How Long Should Opening Statements In a Trial Last? by Robert Gerchen – Senior Consultant, Litigation Insights

http://www.litigationinsights.com/case-strategies/opening-statements-length/

In a recent article, we explored how long closing arguments should be (hint: the shorter the better). Yet almost just as often as we are asked how long a closing should be, we are asked how long an opening statement should last. This answer is a little different. First, though, let’s take a look at the true purpose of an opening statement.

The Purpose of the Opening Statement – It’s More Than a Road Map

‘Tell ‘em what you’re going to tell ‘em.’

‘The opening is a ‘road map’ of what is going to be presented in the case.’

So goes conventional wisdom, which says that the opening isn’t intended to persuade, but rather just to foreshadow – a preview, as it were. Like a trailer to a movie.

Have you ever noticed how we often (read: almost always) determine whether we’re going to like a movie based on viewing the trailer? If the trailer is bland, or evokes no emotion within us, do we want to see the movie? If it’s loaded with action and humor and characters we can already tell we’re going to like, don’t we want to see the movie? How often in a theatre have you turned to a friend after viewing a trailer and whispered, ‘I want to see that,’ or, ‘I think I’ll pass.’ Pretty much every time, right? . . . .

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Dueling Experts – Which One Will The Jury Believe?

25 Saturday Oct 2014

Posted by in Experts, Jury Persuasion, Trial Tips and Techniques

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What Happens When A Juror Agrees [Or Disagrees] With Your Expert Witness?, by Douglas Keene, The Jury Room Blog

http://tinyurl.com/nl3tpto

Mock jurors love to hate dueling experts who give them conflicting information regarding causation, liability, reasonableness, damages, etc. They also don’t appreciate expert witnesses who use jargon or speak so simply that jurors feel ‘talked down to’—but you already know that. What jurors want is to learn what is reliable and useful to resolve the dispute. And attorneys watching mock jurors deliberate often indignantly retort, ‘That is not what the witness said!’—as though the juror simply needed to have the testimony repeated. The research we’re about to describe explains why jurors hear what they hear instead of hearing what the expert actually said. . . .

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

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. . . .

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. . . .

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

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).