THE MAGIC OF WRITING ON PAPER, RE-FRAMING OBJECTIONS & JOINING THE JURY TRIBE

Today I am reviewing a collection of trial materials that I have collected over the years and which I began by storing in indexed notebooks long before the start of the digital age. Here are three examples.

WRITING ON PAPER

When I first began the practice of law court rooms were virtually devoid of any visual aids, no paper and not even a blackboard. In fact, a blackboard was considered a unique device to use in a trial and one you had to provide yourself. The blackboard was first used by the great Los Angeles trial lawyer Earl Rogers in the early 1900’s. He not only used blackboards, but used anatomy models, demonstrative evidence and re-created entire scenes in the courtroom. By the way, it was Rogers that Clarence Darrow hired to defend him in the famous 1912 bribery charge against Darrow.

But, this was unusual and,  in fact, when easels, with large sheets of white paper, began to be used in courtrooms (originally using crayons) that was considered a cutting-edge idea. Today, while in most courtrooms, the large paper easels have been replaced with more electronic and digital aids, there is a largely unrecognized, unconscious benefit to writing and drawing on these paper pads.  We know that when we write on those pads of paper we have the jurors entire attention. Every time we flip the page over, to write on a new page, there is an anticipation on the part of the jurors about what we are going to write. A sort of curiosity to see what happens next. It is somewhat like turning the page of a book to read the next page. Attention is focused on the process. It has a far more unconscious impact then putting up PowerPoint slides one after the other. The writing and turning process has its own unconscious attraction.

In addition to that, think about the image that’s created when we stand at the paper pad, talk and write. That’s the picture of a teacher; someone who is an authority. We assign credibility to that kind of person. There is an unconscious pupil to teacher relationship. Remember how as students we would often be prepared to write down what the teacher was saying because we regarded it as important. As we know, a trial is a struggle for impression and the unconscious mind assigns the role of leader or teacher to someone who creates that kind of image. They become an authority figure. Witnesses who step to the paper and draw or write while explaining have everyone’s attention and create the same impression. I’m not suggesting that we abandon I-Pads, videos PowerPoint or digital aids in trial. I am suggesting that at particular times during a trial, the use of old-fashioned pads of large paper can have a significant favorable unconscious impact on jurors.

RE-FRAMING OBJECTIONS

Many great trial lawyers believe they create a more favorable impression by avoiding all but the most egregious reasons for objecting during a trial. They also believe that in most jurors minds if an objection is made and it is sustained, the judge has certified that something was done wrong.  These lawyers re-frame the idea of objections to make their reluctance to object a good thing and the opponent’s objections as hiding the truth. One way this is done is by how objections are characterized. For example, one can ask the jurors if they will have an unfavorable view if you only object when you are compelled to do so because you don’t want to have anything hidden from the jury. That you believe in the jury hearing all of it.  If done properly the re-framed impression is that when the other lawyer objects it’s because they are hiding something from the jury, not that you have done something improper.

This idea of objections can be emphasized by the way in which the lawyer deals with an objection that is made and sustained. By artfully restating the question that results in another  objection, the focus is on the lawyer objecting. What is he or she trying to hide? For example suppose a question is asked, an objection is made and the judge sustains it. The lawyer says “well then” and restates the same question in a different way, which results in another objection and is sustained. The lawyer responds  with “let me rephrase the question then,” and again in a different way which is objected to and sustained. The lawyer looks at the jury  knowingly and says “Well OK  let me move on.” I’m not suggesting questions or conduct which will result in a contempt citation nor flagrant ignoring of the judge’s ruling. I’m suggesting that if done correctly, repeated objections to your questions can unconsciously suggest to the jury that your opponent is trying to hide something provided you have previously laid the foundation for that idea with them.

JOINING THE TRIBE

Lastly I want to share some research about  creating favorable impressions with the jury in jury selection. The jurors  are immediately evaluating the lawyers to decide how credible and trustworthy they are and have a large amount of cynicism about it. With our limited time for jury selection, in those jurisdictions where it is allowed, we don’t have the leisure of creating a favorable impression by our words and conduct in a lengthy voir dire. The process of creating a favorable begins immediately. We do that by creating with the jury a common bond or rapport through talking about our mutual values, and mutual concerns. We have to step completely out of the jurors stereotype view of what they expect a plaintiff’s lawyer to be and act like. We do that in part by making it clear that we will sincerely listen to what they have to say no matter how negative their views might be. We create discussions with the jurors, not lecturing or advocating our case, but by good eye contact and total listening. We are not judgmental about their views but understanding and confirming many other people agree. We communicate about how “we” should go about doing the right thing, and important thing and something they will be proud about doing. That favorable impression has to be maintained throughout the trial. We cannot present one impression of who we are and then turn around and show that it wasn’t genuine throughout the rest of the trial. We need to be totally authentic open and truthful. We also need to involve the jury through eye contact throughout the trial, not just in jury selection, opening statement or summation. We need to create a bond and rapport with them; to join them and become one with them.

As an example of creating a bond with jurors values or beliefs, Gerry Spence, in a civil trial involving a claim of civil rights violations by the police detectives, first started out identifying with them. He was confident they all supported the police generally. So, he began with “I am a law and order guy, always have been and because of this I have a bias in favor of the police. When I was a small child in my hometown of Laramie, I was taught by my parents that the police were my friends, and that has stayed with me to this day. I trust them. So, I’d like to ask: How do you feel about the police – do you trust them?” He then had a discussion about the police, trusting the police and the role of the police. This created a bond of belief in favor of the police.

Next he asked “Can you make room for the possibility that in this world of good and honest cops, there are a few that aren’t honest, that abuse the great power we gave them? Can you make room for that possibility? That was then followed by a discussion of the fact there are some bad cops who abuse civil rights and aren’t part of the general population  of good cops. By then he had created a bond with their beliefs and values about the police. As Gerry puts it he had  “joined their tribe.” In addition, they all agreed there was a large group of “good cops”, but there was also a small minority group of outsiders who were “bad cops.” This resulted in a situation where jurors may be reluctant to punish the good cops who are members of their own tribe, they are predisposed to attack those who have betrayed the values of the tribe of good cops. The same concept can be applied in lawsuits involving other defendants including corporations.

Nothing profound in this discussion, but some thoughts to reflect upon.

Posted in COMMUNICATION | Leave a comment

BETRAYAL, NOT MISTAKE, IS THE ESSENTIAL MESSAGE FOR WINNING NEGLIGENCE CASES

I have written frequently about the importance of a message of betrayal in negligence cases, especially medical malpractice. But, I continually see lawyers presenting their cases as a mistake. They present a case involving an error, a mistake or a negligent act and then expect the jury to follow the law. But, jurors are driven by their value systems irrespective of the jury instructions. When a case of negligence is tried to a jury of conservative people, too often the result is a compromise verdict or a defense verdict.

When trying cases to conservative juries successfully, the story must be one of wrong motive and resulting harm. A  story of decisions that violate a duty owed and therefore a breach of trust.  A story of trust and betrayal motivates punishment. A story about mistake motivates Biblical forgiveness. Stories about betrayal have punishment attached to them. Stories about mistakes have forgiveness attached to them. A story of betrayal makes the defenses appear to be lame excuses and a refusal to accept responsibility for one’s wrongful actions. Look for the betrayal evidence in your cases.

There are two primary kinds of betrayal: (1) a situation where two honest people enter into a trusting relationship and then one betrays the other and (2) a situation where one person in good faith enters into a trusting relationship with  someone who is dishonest and uses deception to win trust but then betrays it. Both situations will stimulate an inducement to punish the action. However, of the two, the most egregious breach of trust involves the second situation and produces the greatest need to punish by the jury verdict amount.

This concept is particularly important in cases involving conservative jurors. With jurors who have a Biblical frame of values, the concept of punishment and forgiveness is inherent  in their unconscious thinking. They have a Biblical like belief that we are obligated to  forgive mistakes and a strong belief in punishment for sin or wrongdoing. Betrayal is completely different than mistake. Betrayal is a deliberate choice and not an accidental negligent act. Betrayal, therefore requires punishment. Mistakes on the other hand  are seen as something that can happen to anyone and  call for  forgiveness. While some remedy for the harm caused by a mistake may be called for, it must not be a punishment, but an act of  forgiveness.  That’s why framing a case as an act of betrayal has a completely different unconscious impact  then one presented as a negligent mistake.

The formula for motivating the jury to feel anger about the situation, is to show that the actor knew there was a danger of harm to another, but they did it anyway. If they did it to make money or for selfish motives there is an even more powerful inducement to punish. The company that produces a defective product while knowing of the danger,  but continues  to sell it anyway, in order to make a profit has committed a breach of trust to the buying public as a betrayal of the duty to act safely. There is no forgiveness for that conduct. Punishment is required. The most compelling story involving a betrayal of trust is one that involves “they knew it was dangerous and they intentionally hid it so they could make money.” Finding the betrayal in actions is the key to compelling cases.

The Seattle daily newspaper ran articles, earlier this year, regarding the practice at one major hospital where a surgeon  had double booked surgeries. He had surrogates doing surgeries on his patients without telling them and falsifying records as if he had done the entire surgery. He did it in order to make more money. The paper claimed the hospital knew about it, but said nothing because of the profit they enjoyed. That’s a classic betrayal story. It is a story of a gross betrayal of trust between doctor and patient and between hospital and patient because of greed. That is a completely different situation than a slip of the knife which results in injury during surgery because that is an accidental mistake. On the other hand, if you show the slip of the knife was because the doctor was hurrying for some selfish or financial reason, it becomes a betrayal of trust. That’s the difference between mistake and betrayal and the reason why framing cases as betrayal makes such an important difference in the thinking of the jury about the right verdict.

We create a story of betrayal when we focus on the decision and not the event.  When we have an event such as a product that injures there us also a story about why the product was sold even though defective. It’s the story behind the event which explains the reasons why something happened where betrayal is exposed. When we focus only on  the negligent act we are focusing on a mistake that was made. When we focus on why the mistake was made, we are focusing on motives and that’s where betrayal is found. For that reason, in our discovery and depositions, it is important to learn the reasons behind actions and explanations for conduct rather than only prove the negligent act. The reason for the mistake is more important than the mistake alone.

Another important aspect of framing actions as betrayal is the fact that it impacts the primitive brain which is primarily concerned with survival. Actions which represent a potential threat automatically and unconsciously activate the primitive brain into action. It immediately begins a “fight or flight” analysis of self protection and  all done unconsciously.  Betrayal which injures or damages another, almost always has implications for the public generally. Actions which have potential consequences for the jurors or their  families or community represent a threat to the primitive brain. It unconsciously reacts to protect and to stop the potential harm by punishing  the act to deter it from occurring again.

The idea of preventing a  threat to the rest of the “tribe” in addition to the plaintiff is a strong unconscious jury motivator.  As a result, when we tell a story of betrayal of trust there is an unconscious reaction of anger and punishment. If it is perceived as a potential threat to the jury, their families or community there is an additional unconscious reaction to prevent it from happening again through the punishment imposed by the jury verdict.  As the lawyer for your client, remember that leaders are people who don’t stand up in order to tell stories of mistakes. Leaders  are people who tell stories of betrayal and offer a way to punish the wrong as well as deter it from happening again.

Posted in Advocacy | Leave a comment

JURY SELECTION AND THEME IDEAS FROM ERIC OLIVER

Eric Oliver is a long time friend and a very experienced jury consultant. http://www.eric-oliver.com/  He wrote an article about communications  “Heard Mentality.” Some of the observations Eric made are important to remember in our practice and are summarized below:

  • Jurors begin their understanding of our story with a theme. We all make sense of case stories by starting at the most general level and working down to details. A theme provides a general direction. If you do not provide a theme,  the jurors will provide one for you.
  • “Waiting until we get our strong evidence in” before providing a theme or fundamental direction is a mistake  because  the listeners will not wait and will begin as soon as the story is started. That’s human nature.
  • “Hindsight bias” is the tendency for individuals who already know the outcome to exaggerate their ability to have seen what was coming and to have avoided the outcome. People overestimate both the likelihood of the known outcome and their ability to see it happening. It is important to deal with this  bias in jury selection.
  • The key factors involved when jurors are evaluating a trial story involve life experiences and values.  Beliefs, biases, sympathy and prejudice influence people when evaluating information. These are often the product of  deeply held values. Learning significant life experiences and deeply held values tells us the likelihood of how a juror will evaluate the facts of the case.Value beliefs are indicated when jurors make statements that begin “doctors should; people must; the manufacturer ought to; the company could have; everybody knows that; or anyone could’ve seen.”
  • In jury selection he recommends rapport through mirroring verbal and nonverbal communication with the jurors. Active listening involves showing and acting as if you were interested in the answer.
  • He suggests keeping the subject more general than specific, especially at the start of each new topic to encourage discussion. He admonishes that we should listen at least twice as much as we talk. He cautions that we should detail only as many specific case facts as are absolutely necessary. Most of all, he says, that the real voir dire doesn’t start until the second follow-up question of the juror. He believes it’s usually the second follow-up question which has the best chance of revealing the most about the actual feeling of the person.
  • Eric quotes Houston attorney Howard Nations in referring to the start of the questioning through the end of the first witness in the case as the “primacy portion” of the case. That’s because by that point, each juror has formed their basic theme, selected the primary and less important actions and characters as well as beginning to assign meanings and motives. The process is not consciously done however.
  • The selection of the theme is important. One case of malpractice used the overall theme of “preventing harm.” The rhetorical question was “did he really do all he could to keep his patient safe from harm?”Other examples include “David and Goliath” or “arrogance” and Proverbs such as “an ounce of prevention is worth a pound of cure” or “covering all the bases.”
  • Potential jurors bring to the jury selection process beliefs, attitudes and biases about negative defense ideas like inevitable accidents, hindsight, personal responsibility and other bias or beliefs. Exploring to expose these attitudes is an important part of jury selection through questioning. Questions should be general as possible and free from implied expected responses.
  • Questions beginning with “what, how, what about that stands out for you and how do you see that for yourself?” are helpful in exploring attitudes and values. Eric believes that “why” questions result in the juror defending a bias and having them harden rather than giving open answers.
  • Eric says that he would eliminate the use of the word “any” in all of its forms in jury selection: “Does anybody here think; is there anyone here who feels; would you have any problem;” are all questions which do not lead to any meaningful answer but signal an expected response. Instead you should start questions with phrases like “who thinks; what do you feel; how many of you agree that; or who here has a similar feeling” encourage accurate responses. Questions like “what is important about; why do we need; what do you expect when; how do you know when; or how can you decide if?” are good value questions as well. Follow up with “who here has similar or slightly similar views? rather than “who agrees with Mr. Casey?”
  • We can encourage discussion by  giving approval by telling jurors “since the subject matter is your own opinion, every answer is right, as long as it’s honest and complete. The only wrong answers are “I don’t know” or “I agree with her” since your opinions are your own and known only to you.”

In most jurisdictions where lawyer questioning is allowed of the jury,  the time allowed for jury selection is very limited. We no long have the leisure of wasting time in the process. We need to carefully plan our approach, determine the priority issues and give thoughtful consideration to the language we use in asking. We need to be mindful of our nonverbal posture, language and our listening skills. We need to learn proper mirroring for repport and the techniques of good communication. We only have one chance to make a good first impression and a lasting one.

Posted in Advocacy | Leave a comment