Jury Appeal

One of the critical factors we are finding about witness performance is that there are questions that the witness fears being asked and this fear creates much stress and ultimately inconsistent behavior on the stand.  Since stress induced, inconsistent testimony is probably the greatest threat to cases, it has become a top priority to understand what these feared questions are.  We ask outright, but sometimes we don’t get the real answers.  This is where some understanding of body language comes into play.

Recently, we were prepping a witness that was very nervous about her testimony.   We were able to alleviate much of that nervousness by helping her focus her testimony and giving her a clear understanding of what place her testimony had within the trajectory of the case.  However, I sensed there was still something else we hadn’t discussed that was bothering her.  Perhaps it was unconscious?  So I started to ask some tangential questions and low and behold when I approached one subject there was a definitive tell.  I approached this area several more times and as I did each time she reached for her neck with her hand.  This was the only time she made that movement.  This is clear body language that indicates nervousness or lack of confidence.  This area of inquiry was about living arrangement between her son and his girlfriend as well as between the client and her live in boyfriend.  Because of this body language I confronted the area directly and we were able to alleviate her nervousness that the opposition would exploit these “moral deficits.” [Note, the moral deficits were in her head, not mine].

I tell attorneys that what we do with witnesses is very sophisticated, but often the lay person won’t notice some of the key things we do.  This is an example of that at play.  I doubt the attorney realized the reason why I circled around to that area of inquiry was body language.  I have found that knowing how to identify the basic “tells” of body language is very helpful in working with witnesses.

A new study, just published in Neuron magazine, tells us something we suspected but had no previous scientific backing.  We remember items that surprise us more readily than the mundane or expected. During our witness preparation sessions we thought finding surprising pieces of testimony would make the testimony more easily remembered, now we have some proof of this process.

When you are talking to your witnesses, it is easy to simply reject some things they remember as not relevant to the case, but you shouldn’t do that automatically.  If this part of the testimony is surprising or non-intuitive you might want to keep it in to help jurors remember the testimony.  If you really want to add sophistication to the testimony, design it to have a key point occur right after a surprising piece of testimony.

Critical point analysis is a concept, first developed by David Hawkins, which starts from the idea that any complex system has a specific, critical point at which the smallest input will result in the greatest change.  If one could both identify that specific point and spend their time improving that specific area, a maximized improvement would result.

Applying this concept to litigation would result in finding the most efficient place to put your litigation resources.

Critical Point Analysis is exactly what we did at Best Evidence to come up with Jury Appeal.   We believe the evidence is clear that witness performance is the critical point at which litigators should aim their resources.  Witnesses are going to tell your story to the jury.  The perception of your witnesses are going to direct the trajectory of your opponent when it comes to settlement talks because they will either be emboldened or fearful once they take a look at your witnesses.  Imagine the glee of plaintiff attorneys when they take a deposition of a defensive, incoherent nurse in a medical malpractice case.  Or the fear of a plaintiff attorney when they see a focused, well spoken likeable fact witness for the defense.

You can bet those emotions carry over to settlement talks.  Attorneys should put this critical point analysis to work for them by making sure their witnesses are fully prepared before deposition/trial to give a commanding performance.

Recently, the idea of using the reptilian brain has gotten much interest in law circles.  The reptilian brain is the part of the unconscious that represents our basic survival instincts, and the latest research demonstrates it controls our behavior first over the higher order parts of the brain [rational].  I believe you can apply this understanding of decision making to your cases, and should always think through how to make your case “reptilian brain friendly.”  I wrote previously about the issue here.

Perhaps the most important area you need to make sure the jurors reptilian brain is dominant is for your witnesses.  This critical area is ripe for jurors to make fast, early decisions concerning the authenticity of your witness.  Complexity is the enemy for the reptilian brain as research has demonstrated the more complexity required in the thinking process the more the higher order thinking [rational] takes over.  This means that your witness should testify with a tight focus.  It also means that under cross-examination the witness should be prepared to fend off any complexity as well as reinforcing the focused case themes.

I mentioned in earlier posts that a large part of the work we do with witnesses is to focus the testimony on case themes and to “bullet proof” the witness.  We do this based on our understanding of the reptilian nature of decision making by jurors.

Modern neuroscience research continues to point to the brain as a highly social organ.  But what does that mean?  The brain needs interaction to develop, to learn how to be a brain!  It learns how to modulate emotions, solve problems, and guide behavior, through experience with the environment.  Now for some of you this will be obvious, but the repercussions of this when applied to witnesses testifying are not.  How a witness is prepared to testify needs to take into account this fact.  The truth is that most witnesses have little experience with any part of the specific legal role they are going to be asked to assume.  Even more concerning is that many times the witness is being asked to relive stressful or painful events in their past.  Just the anticipatory stress of this is enough to have manifestation of all types of inappropriate behavior.

The witness preparation protocol must incorporate the opportunity for interactions that will allow the witness’s brain to learn how to be an effective witness, how to handle the stress of testifying, and how to tell a story on the witness stand.  Our advantage is the human brain is a remarkable organ that adapts quickly.  We use that remarkable adaptation function by creating a protocol that quickly brings to bear the important interactions needed to create the best, most authentic, witness testimony possible.

There are several places that we note improvement when we work with witnesses.  Generally the improvement is based upon creating a new set of expectations for the witness.  What we teach is a mindfulness technique, that sometimes for the first time, allows the witness to tell their story from beginning to end.  We then help the witness understand which parts of their story corresponds well with the overall case themes, are appealing to jurors, and creates a intelligible narrative.  Basically, we are helping the witness become a better story teller.  Now here is the important part, witnesses learn to become mindful of the way they talk and this creates a positive expectations inside their own heads.  They walk out of the sessions much more confident and relaxed.

Last week we worked with a witness that was extremely nervous to the point she didn’t want to leave her partners side.  Yet, in a few short hours of working with her, she was transformed and gave a commanding performance at her deposition the next day.  You could literally see in her body language a releasing of tension during the session.

Another advantage is that astute attorneys use this opportunity to define their understanding of the witness and the case.  It is not unusual for attorneys to take copious notes which we are told is extremely helpful.  I always give the attorney some signal words to communicate to the witness before their testimony that elicits mindfulness for their testimony.  These words act as anchoring mechanisms to the positive feelings that come out of our sessions.

I just read a fascinating study on how the public accepts or doesn’t accept scientific consensus in contested areas like global warming or nuclear energy.  It turns out that certain personality types are unwilling to believe there is scientific consensus on any issues that can cast doubt on their overall world view.  This supports what we see at trial, which is wholesale disregard for expert testimony by many jurors.  One theory on jurors and expert testimony is that jurors, when forced to choose between battling experts, made their decisions based on how compelling the actual testimony presents.  However, what this study points out is that, at least in part, jurors might reject experts because their testimony breaches pre-existing juror beliefs no matter how compelling the actual testimony was presented.

This is yet another example of how our unconscious rules the mind and keeps rational weighing of the evidence from occurring.  It also points out that just because your expert is from Harvard and the opposition expert is from Southwest State, the academic pedigree won’t have much bearing on which expert will be believed!  Better to build the emotional appeal of your case to a point where your expert will be believed no matter what s/he says!  Better yet to have your fact witnesses demonstrate credibility and authenticity on the witness stand.  If the doctor you are defending comes off as caring, competent and likeable you are well on your way to winning no matter what the plaintiff’s expert testifies to!

There is none more famous psychological experiment than Solomon Asch’s demonstration of the strong pull of conformity.  Faced with an obviously wrong answer from five other people, half the respondents agreed the majority of the time with the wrong answer while only a quarter of the people held to the obvious truth.  Half the people ignored the truth right in front of their eyes!

Now if this is not enough to break out in a sweat it gets worse.  We have no way of identifying definitively which people will fall in this category of strong group conformity.  I see this group-think happening to some degree every mock jury I watch.

However, there is a silver lining for litigators.  It takes a strong consensus to create this conformity.  Therefore, litigators can dampen this effect by gaining the favor of only a minority of jurors.  The best place to accomplish this is with your witnesses.  If your witness comes off as credible, honest, and authentic you will gain some advocates that can create doubt to dampen the conformity process.

Much research has pointed out that the order one receives information can change how one makes a decision.  The first information received gains the most currency for making a decision.  Each subsequent piece of information receives smaller amounts of consideration.  Combine this with the issue of framing and you have the recipe for designing persuasive testimony.  As a practical matter this might mean breaking the chronological order that witnesses usually testify with.  Instead of asking a question like “Take me through the accident from the beginning?,”   you might start with “Were you in pain when they strapped you to the back board in order to take you to the hospital?,”  or “when did you first notice the pain running down your leg?  You have at this point framed the case around the plaintiffs pain and put the idea of pain to the forefront of decision making for the jury.

The first item jurors should hear from your witness is the item you want them to most use for their decision.  For the defense, you might want to use for your fact witness, “What was the plaintiff doing when you first saw her after the accident?” Especially, if the answer is “she was standing next to her car calmly talking into her cell phone!”  The image you leave for the jurors with this question is a direct contradiction to the plaintiffs claim of injury from the accident.  This re-framing image will have a powerful emotional component for jurors who are “doubting” the veracity of the injuries.

Research published by Dan Ariely, et al.  of Predictably Irrational fame, provides another strike to the theory of rational decision making.  When making decisions we suffer from two distinct biases.  The first is that we give more weight to our own experience than to observation.  This suggests a heavy emotional component to decision making.

The second is recency bias.  Things we experience and observe in our immediate past have more currency than those that happened in the distant past.  This is why we are so bad at understanding risk.  When the stock market is going up, we can’t imagine it will go down and when it is going down we can’t imagine it going up.

When your witness is on the stand testifying, jurors will judge their credibility first by looking at their own immediate experiences.  This will evoke either a positive or negative emotional reaction that will override the actual words of the testimony or put differently they will judge the witnesses words based on an emotional reaction from their own immediate experience.

That is why it is so critical that your witness connect emotionally with jurors.  Even if the jurors has no direct experience that is similar to the witness, they will find a recent experience that in their mind correlates and use the emotional valence from that to make judgments of credibility and likeability.