Category Archives: COMMUNICATION

DOES THE AMOUNT YOU ASK FOR AS A VERDICT EFFECT THE RESULT?

Nationallly known plaintiff’s trial lawyer Rick Friedman recently called attention to the article from the University of Denver Sturm College law by John Campbell and others entitled: “Countering the plaintiffs anchor: Jury simulations to evaluate damages arguments.” The article deals with an important research project about  the principle of anchoring which has direct application to the plaintiff’s damage arguments. I think plaintiff lawyers should read this article.

Neuro linguistic programming deals extensively with the concept of anchoring and is a good resource for learning techniques of anchoring. What is anchoring? Anchors are stimuli that produce  a state of mind – thoughts and emotions. For example, the smell of bread may take you back to a memory about your childhood. A tune you hear on the radio may remind you of an event or a person. These are anchors that operate automatically and often without your being aware of the triggers. Neuro linguistic programming deals extensively with the concept of anchoring and is a good resource for learning techniques of anchoring.

Anchors can be visual, auditory and kenesthetic. How do you create a personal anchor? The simple formula is:  (A) decide on the state you want to anchor. What feeling or action are you trying to anchor? (B) choose an anchor, or anchors, that you will use to trigger the state. For example, make a fist, or a finger and thumb pressed together or pull on your ear lobe. This will be the trigger or stimulus that will create the state you wish. (C) recall a memory or vividly imagine a situation where you experienced the state you want to anchor. Make the image sharp and bright. Makes sounds clear. Use a word that enhances the feeling for example, “yes!.” And (D) activate the anchor by the trigger you selected. Repeat the process to make it permanent.

Anchors are commonly used in marketing. One of the common applications deals with presenting prices. A high number is used to anchor an impression about a lower price for an article. The real estate agent shows the most expensive house first before showing the less expensive ones. The larger number operates as an anchor affecting the impression of the price of other houses. In 1974 psychologist did a study about the anchoring effect. Participants watched a roulette wheel that, unknowing to them, was rigged to stop at either 10 or 65.  Participants were asked to estimate the number of countries in Africa belonging to the United Nations. For the half of the participants where the roulette wheel stopped on 10, they gave the median estimate of 25 countries. For the other half, where the wheel stopped on 65, their median estimate was 45 countries. The random anchors dramatically affected the judgment of the participants as to their estimates even though the number on the roulette wheel  had nothing at all to do with countries in Africa belonging to the U.N. The number became an anchor that  primed the judgment for the estimate.

In the article from the Sturm College of Law, the researchers studied this concept of anchoring. The issue they studied was the effect of the amount of money the plaintiff asked for on the ultimate verdict. In addition they studied the impact of a defendant who either ignored the number plaintiff suggested or suggested an alternative number.

This important article answers the question of  whether  a plaintiff is better off  not  suggesting any number or should avoid asking for “too much” because it will anger the jury.  In summary, the study found that anchoring effects  were extremely powerful. The plaintiff was able to dramatically increase the potential recovery by simply demanding more money. In the study, damages increased an average of 430% by this tactic and also found it had a small affect on winning. Their conclusion was that the plaintiff should always  asking for a damage figure and should request extremely high damages  unless the concern is maximizing the chance of recovery.

As to the defendant, it is a mistake for the defense attorney to not provide the juries with an alternative to the plaintiff’s damage award generally. When the defendants suggested a lower number in this study the defendant won more cases (defendant prevail 81.7%) and when no alternative number was suggested it decreased by 19.4%. However suggesting an alternative lower figure by the defendant did not prove to have any statistical significant effect on damages. The study concluded that the defendants “lack an effective way to rebut the plaintiff’s outrageously high anchor.”

The article conclusion is significant for plaintiffs attorneys. Anchoring works. Although the plaintiff who shoots for the stars takes a credibility risk that reduces the chances of winning, it is outweighed by the higher damages award if plaintiff win according to this study.  Also, the three strategies available to defendants all failed to overcome the anchoring effect.

This study confirms the most common viewpoint that it is always a mistake for the plaintiff not to suggest a number to the jury and letting the jury  “figure it out for themselves.” More importantly, it reflects on the conventional fear that asking for too much money will cause the jurors to become angry and do the opposite. While there certainly is logic to that view, particularly in thin liability cases  or cases where the injuries are questionable or exaggerated, overal should ask for a large verdict.

Thanks  to Rick for calling  attention to this study as  I believe this is an important article which should be applied with a large measure of common sense when applied to a specific case. However, it confirms what other studies have shown which is that there is a “priming” principle or anchor which is brought into play by asking for a substantial amount from the jury. Let us reevaluate the amount we asked the jury for to ensure that it is consistent with the real injuries and the case with this principle in mind.

 

 

 

BRIEF THOUGHTS ABOUT JURY COMMUNICATION

For many years jury consultants  Starr & Associates,  http://starrandassociates.net/ published  Insights a newsletter with information about communication with jurors. I saved an article from 1991 entitled: “television has changed the way jurors learn.” The points that were made then are still valid today.

The article pointed out that jurors learn the great majority  of their information from TV. Roughly 80% of all Americans get 90% of their information from television. The problem is that communication in the court room and communication through television are vastly different and in fact in some cases conflicting. The differences are illustrated by the examples of trials on  television where the examination of the witness is two or three minutes long and final argument is about the same length. A very different situation from the  courtroom where there are long delays without anything happening involving the jurors and the information is lengthy, complex and boring.

The article says: “television has four primary axioms of communication: brevity, simplicity, entertainment and visualization. An attorney who applies these axioms to the court room will be a more effective teacher and thus more persuasive.” It goes  on to discuss these.

Brevity: Most news stories last no longer than 25 seconds without interruption and the news broadcast itself is interrupted every 7 to 9 minutes with a commercial break. This rhythm changes the attention span of the TV watcher. As noted in the article by contrast the Lincoln – Douglas debates lasted, on average, seven hours per debate. Lawyers like Clarence Darrow would argue for as much as eight or more hours to a jury. Today’s jurors do not tolerate repetition and boredom on the part of the lawyer and reflect this by turning off as well as by adverse verdicts against the offender.

Simplicity:  Complex issues and big words result in a perplexed receiver of the information. If it happens on television they change the stations. In the courtroom they simply stop listening and begin thinking about other things. Furthermore almost everything on television is already reduced to its most basic form without argument or the need to think about it. Television results in people who don’t want to explore issues in depth. They want the bottom line and they wanted simply as well as briefly.

Entertainment: When a program is dull on television people stop watching and change channels. They expect entertainment. The television journalist looks for compelling story lines and visuals that are entertaining and captivating. Networks are aware of pace and tempo as well as action and suspense. The presentation needs to be entertaining if  you want the jurors  to listen.

Visualization: Television has taught the viewer to expect  proof and not have to take anyone’s word for it. They want pictures and they want document proof. That’s what they get on television and they expect it  in court. That’s why documents, visuals and compelling witnesses are so critical.

The publication also notes that their findings on survey which showed that as jurors people have certain expectations about how to establish facts in a lawsuit. It turns out that they want it  in “black-and-white.”  For example, 94% expected proof to be by documents and eye witnesses. 79% expected the proof to be by pictures or hard evidence.

Let’s consider some of the other basics of communication. We know that communication is not what we say, but rather what is heard. President Franklin Roosevelt sent ambassador Winant to meet with Russia’s Molotov during World War II. In presenting Roosevelt’s message he opened with a few words of his own. He said he was going to “talk turkey on this issue.” Molotov interrupted with: “Turkey? What does Turkey have to do with the Baltic states?” The ambassador tried to explain patiently that “talking turkey” was merely an American expression meaning to talk seriously, but the suspicious Molotov could not or would not understand, and the meeting ended without any useful discussion of the presidents message. The ambassador never regained Roosevelt’s confidence after that. Communication is not what is said, it  is what is heard. We need to employ the most fundamental principle of advocacy which is simplicity and clarity and brevity.

The use of metaphors or analogies is often a persuasive communication tool. In a trial which was then America’s longest civil trial, the issue involved whether or not dioxin which had spilled from a railroad car in Belleville Illinois was the cause of injury to people in the nearby town. Closing arguments took 6 1/2 days. The plaintiffs asked for $35 million in actual damages and 100 million in punitive damages.

The defense was simple and brief: there was not enough dioxin to hurt anyone and no one was really hurt. The defense used this as their key point about this issue during argument  by saying:  “ladies and gentlemen of the jury, if you had one ticket and sat in one seat in  Bush Stadium that is one part per 50,000. So, what is one part per trillion? Well, one part per trillion would be if you had one seat in 20 million Bush stadiums. That’s one part per trillion.”

There was a defense verdict. When jurors were interviewed afterwards they said the one thing they remembered from the arguments was the comparison involving the baseball stadium that proved to us there wasn’t enough dioxin to hurt anyone. Analogies and metaphors are powerful. 

To remind me of  these communication principles I prepared a one page sheet which I kept in front of me during trial. There is an example following, but I would also add to this sheet three principles or themes I wanted to emphasize throughout the trial. Striving to put on another single letter size sheet all of  the themes, defenses and issues in your case is a great way  to force you to see the case as a big picture and simplify the issues.

BE BRIEF, BE SIMPLE & GET TO THE POINT

1.       Be Calm –   Stay calm & confident

2.    Be Slow  –  Pace & timing: “One thought per juror”

3.   Be Nice    -  Always professionally

David’s advice to Solomon:

“Be strong and courageous, and do the work. Do not be afraid or discouraged”     Chron 28:20

   

 

         

 

 

 

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  1. 1.       Be Calm –   Stay calm & confident
  2. 2.    Be Slow  –  Pace & timing: “One thought per juror”
  3. 3.     Be Nice    -  Always professionally

STAND STRAIGHT           SLOW DOWN           SMILE

SOME THOUGHTS ABOUT GOOD COMMUNICATION

Good clear communication involves a great deal of factors. Here is a refresher of ten primary rules of high-quality communication.

  1. It has been said that the eyes are the windows to a person’s soul. When we like things, our pupils dilate. When we dislike things, our pupils contract. Eye contact is one of the most important parts, if not the most essential, part of communication. In ordinary conversation it’s been determined that we maintain eye contact about 50% of the time while we are speaking and about 80% of the time when we are listening. If we are attempting to dominate the conversation or the individual we maintain eye contact 100% of the time. Jurors determine if we are listening to them on the basis off whether we maintain eye contact with them while they are speaking. We share, during trial, with the jury by involving them with eye contact. We show by eye contact that we are always aware of them and their  involvement in the case. They are made part of our  team through eye contact.
  2. Every person has  zones of social space that have psychological importance. These include public, social and  personal space zones. The space zones vary from culture to culture. Someone in Great Britain probably has a larger zone of privacy than someone in Mediterranean countries. The person from London expects you to stay further away than the Spaniard in our normal conversations.  This zone, in which we allow our closest friends people and those close to us, is up close at 1 to 3 feet.The social zone includes people we shake hands with and are carrying on conversations. It is generally 3 to 4 feet. The public zone for strangers is around 4 feet.This fact is important when considering where to place yourself in relationship to jurors and with respect to witnesses. When first dealing with juries a distance of 10 to 12 feet is probably advisable at least until the jury has become comfortable with you. Putting material on the jury rail and leaning over the jury while talking to them  is obviously offensive unless there are special circumstances which would permit it. On the other  hand, avoid using a  podium in trial if you can because it is a barrier to personal connections. Being conscious of these zones is important in communication.
  3. Image and impression are of great importance in most affairs of life but especially in trials. Trial is a battle of impression and not one of intellect. Small things enter into an impression we create of someone else. For example before the advent of I-iPads and  digital equipment court, I always used a pencil to take notes in the courtroom instead of an expensive pen or even a ballpoint pen. I wanted to show I was an ordinary person like they were. We all know the importance of first impressions. However, first impressions are long-lasting and will influence future perceptions about the individual. As a general rule conservative and professional images should be maintained with neutral clothes with  moderate hairstyles and lack of jewelry.It is not surprising that research shows jurors increased their identification and liking of both client and attorney who project and appealing image to them and vice versa.
  4. Max Lusher was a famous Swiss psychologist who studies involved color psychology and have been employed around the world. He found that each color had the same psychological effect on people generally. Colors had a direct effect on the on the anatomic nervous system. In general dark colors, blue and green,  slow down our heart as well as lower your blood pressure. Lighter colors have the opposite effect. The four primary colors are a basic primitive part of the brain’s evolutionary development. They are important in visual presentations.  Lusher found that the color red promoted activity and excitement. Yellow is the most active, free and liberating color. Blue i calm and orderly activity. Green is a darker calming color  but has more rigidity and less compromise than blue. People who prefer green tend to be independent. Colors have been shown by research to be important in visual presentations. Advertisers and human factors experts know that colors like yellow, black and red when used in signs correctly have a significantly different impact than other colors.
  5. Americans of today are the most visually oriented people in our history. They tend to rely more on what they see rather than what they hear. Since trials are visually  oriented visual aids should be utilized whenever possible. The use of video, PowerPoint, pictures and other visual exhibits are the  essential parts of every trial.
  6. Opening statements for most jurors should be organized around three main issues which you want the jury to remember throughout trial. We know that after 20 minutes memory recall drops significantly. Television has used this fact for years in deciding when to insert commercials during a program. The first 20 to 30 minutes therefore are essential learning periods that should not be wasted.
  7. We have known about the principles of  primacy and recency for years. Primacy means that the facts we hear first will tend to influence our interpretation of future facts. Recency means of facts we hear last are remembered the best. When we organize our case around three key points and talk about them both at the beginning of our opening statement and at the end we have used principles of  good psychology. Referencing them throughout the trial and repeating again and argument satisfies the rule of recency.
  8. Some of the basics of an opening statement are: (1) speak plain English (2) be brief and concise (3) summarize the main ideas  and (4) Under state rather than overstate your case.
  9. Remember that a person’s demeanor typically represents at least 60% of the total message communicated to others. When the verbal message is in conflict with the message given by demeanor credibility is greatly impaired. You must be congruent in both  words and deneanor
  10. If you want to make a favorable impression don’t quarrel with your opponent. The jurors find legal disputes tedious and boring. They tune out and resend. When there is  quarreling between counsel the jury regards it as unprofessional. When opposing counsel objects don’t look at them. When you do you give too much importance to what is being said. Look only at the judge. When you respond do not talk to the other lawyer, only speak to the judge. Make the response professional and not whining.