Jury Appeal

Some interesting research has begun to give us some very troubling answers on how we make decisions between competing parties.  It seems that people, as young as 5 years old, can pick the winners in political contests simply by comparing pictures of their faces.  These pictures are creating competency profiles and warmth versus cold profiles in our brain that allow us to choose who we want to govern us within a few seconds of looking at the pictures.  Our brains have demonstrated that it uses heuristics (shortcuts) for a variety of decision making operations, but the emerging research points out that not only is the decision making structure largely emotion based, but it is also visually based.  Note, that the actual rational policy differences of the politicians are no where to be found in this decision making model!

This is troubling because actual competency or even honesty have little correlation to these visual clues.  So in a lot of ways we remain mired in high school decision making mode, voting for the “good looking” people for homecoming queen and king!

What this means to your case is that no matter how the fact pattern is laid out to your advantage, if your chief witness comes up short in comparison with the opposition witness, then you are likely to have a poorer result.  And it is possible that your witness will come up short for no other reason than what they look like!

Psychological research has indicated speakers that use powerful language are more persuasive than speakers using powerless language forms.  Powerful language is short and direct, while powerless language uses hedges, is overly polite, and uses both verbal and non-verbal hesitations.  Other research indicates that there is no improvement in persuasion for victims when they use powerless language.  In short, using powerful language leads to higher ratings of competence and higher levels of persuasiveness.

This research forms the background for our work with witness testimony [Focus, Focus, Focus].  Helping a witness focus their testimony so they  use powerful language forms goes a long way in helping them be a persuasive witness.  However, using powerful language forms is not sufficient for convincing testimony.  The witness must also connect emotionally to the audience.

The dominant view of decision making has remained fully in the rational choice camp for the last 50 years.  That is, decisions are made after weighing options (utility theory) and thinking through the possible outcomes.  However, the tide is starting to turn as technology has allowed us to see what part of the brain is being used and when it is used in the decision making process.

First, using fMRI imagery A. Bechara has demonstrated that the more ambiguity or uncertainty of outcome in a decision the more the parts of the brain that our emotions arise from are used.  Other research indicates that decision making initiates in the sub-conscious.  Literally, it is the sub-conscious driving the bus and the sub-conscious is intimately connected to emotions.  The technical term is called anticipatory bias.

Although the research is far from complete, what is emerging is a much more nuanced version of decision making which includes emotions as a dominant feature.

This points out that your jury or any other decision maker that is exposed to your case, will be making decisions based on their emotional response to your case, not just the elegant arguments on the “facts” of the case.  Add in that jurors/decision makers want to see and hear from the witnesses that have the most first hand knowledge of the event(s) leading to the litigation and you have the perfect ‘decision making’ storm with your witnesses testimony.

The bottom line is the single most important factor for any case is the emotional reaction decision makers have to your witnesses, be it the plaintiff or the fact witnesses.  Litigators do themselves a favor in keeping this fact at the top of their thinking, whether the decision maker is an insurance adjuster, mediator(s), or a jury.

Consider the following facts:

People tend to marry folks from similar socio-economic backgrounds;

People tend to attribute negative values to those from different ethnic backgrounds, especially those who strongly identify with that different ethnicity;

People discern facial differences of those from their own ethnicity better than those from other ethnicities; and

People stand physically closer to others who they feel are similar to them.

We like people who we think are like us.  And because of this unconscious effect we are more easily persuaded by people who we think are like us.

For attorneys it is clear that when in front of juries they need to come off as “just like” the jurors.  And even more important, for witnesses to be widely believed, they must also come off as similar to jurors.

Statements like, “like a lot of you, I have my doubts about people who claim back injuries, but in this case the evidence will show…..” or “like you, I don’t think just because someone is injured they deserve the winning lottery ticket, but this is not about winning anything… ” or  “like you I want to believe doctors do everything in their power to heal, but sometimes….” might seem to be strange statements for a plaintiff attorney to make to jurors, but they work in allowing jurors to feel you do think like them and ultimately make you more likeable.  Getting jurors to like you and your witnesses is critical to persuading them on your client’s behalf.

Jurors are using the internet and their smart phones to communicate their jury experience, research the cases they are sitting on, even communicating with each other.  Judges are getting frustrated trying to stop it. Lawyers are attempting to use this set of events to obtain new trials when the decision goes against them.  Can it be stopped?

Personally, I think the cat is out of the bag.  Modern communication has reached a point where only a madman would think they could shut it down.  Appealing to the authority of the court might work on the older crowd, but the average juror doesn’t feel the need to curtail their behavior no matter what the judge tells them.

I think it is reasonable for lawyers to assume that someone on their jury is going to go to the internet to look up the principals in the case, any publicity about the case and even the experts testifying.  The last trial we were in, I have a very strong suspicion that one juror googled the plaintiff’s expert because of the very peculiar questions this juror asked.

I believe the answer is it can’t be stopped and lawyers need to be vigilant on what is out there on the internet that can be searched.  But the more interesting question for us is how will it effect jury trials?  I think the answer is not much at all.  If you look at the trajectory of social discourse over the last 50 years, it is one of more openness, more communication, more information.  This is just the next logical step.  Once, jurors were tightly controlled. Now they ask questions of witnesses, go out to restaurants to eat together, build camaraderie during the long down times at trial, etc.  Does anyone really believe that in a multiple day trial, sometimes weeks and months long, that jurors don’t discuss what they are experiencing among themselves?

It’s probably time to throw off the 19th century legal fictions of isolated jurors listening to all the “facts” and argument before making a decision.  At least from the practical standpoint of how do I communicate to these jurors, one needs to assume no such social isolation if one is to find success ongoing.  Here are a couple of articles on the subject.

Washington Post Article

Florida Bar Journal

Guardian [British] Article

Like that familiar real estate ditty; location, location, location, for witness preparation it is focus, focus, focus.  We have yet to do a witness preparation session where the first question, tell us what this case is about, doesn’t result in a rambling, inarticulate conglomeration of words from the person who will be responsible for telling the story [the chief witness] to the jury.  Most attorneys think they can guide the witness by the questions they ask, but this comes off as inauthentic at best.  Better is to work with the witness to focus their story using their own words.  We have found the more we work with witnesses, the more focused their testimony becomes and the more authentic it appears to others, because by focusing the testimony, confidence is created.