Jury Appeal

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.

Ever watch a great inquisitor tear apart a witness on the stand?  One of their best techniques is breaking down the witnesses testimony to its smallest denominator then starting to chip away at its veracity by calling into question the small things first.  How do you prepare a witness for this strategy?  You arm them with a power phrase that is key to their testimony and instruct them to continue to go back to it.  Repetition is very powerful, especially when it is focused.  The witness answers the opposing counsel’s question and then adds on the end the power phrase.  Example:  Counsel:  Did you ask him if he wanted you to do the work?  Witness:  No….but he told me not to start on the work until he was sure he wanted to go through with the purchase.  Counsel:  Is it your usual behavior to not look into the deal until you get the contract?  Witness:  Yes….and he told me not to start on the work until he was sure he wanted to go through with the purchase.