Wednesday, September 30, 2009

The Jury Expert

The American Society of Trial Consultants, under the direction of editor Rita Handrich, has an outstanding publication: The Jury Expert. Each issue is full of interesting articles that benefits trial lawyers and consultants alike. Check out the current issue at

There is an article on , with commentary by yours truly.

Let Rita know what you think. She can be contacted at
(Rita loves positive reinforcements:-)

Sunday, September 27, 2009


Words. It’s what we use to communicate. Meaning comes from various sources, but words are what we use every day to communicate with each other. However, it’s not what you say, it’s what people hear.

Frank Luntz is a Republican consultant. He was instrumental in developing the Contract with America that Newt Gingress made famous. He has written a book, Words That Work, which is essential reading for any lawyer.

His key point is simple: It’s not what you say, it’s what people hear. And as a lawyer, that is a key concept in communications. I recently was picking a jury in a brain injury case. I asked one of my standard questions, dealing with money. “ At the end of this case, I will be required to ask you for money for my client. How do you feel about that?”

A young man raised his hand. He said “ Let me make sure I understand. At the end of the case, you are going to ask us to give money to your client.” I said “yes.” He replied, “Well, I don’t have a lot of money.”

It was about what he heard, not what I said. He thought it was his money that was going to my client. I didn’t communicate very well to this juror.

There are some rules for effective communications with jurors.

Rule #1: KISS (keep it simple stupid)

Simplicity is good. Small words work better than large ones. We want to talk like lawyers, rather than people. John Kerry included this in one of his speeches while campaigning for President:

“A bold progressive internationalism that stands in stark contrast to the too often belligerent and myopic unilateralism of the Bush Administration.”


Madison Avenue has mastered the use of words in advertising. The following are examples of KISS.

Mac vs Macintosh
Fed Ex vs Federal Express
IBM vs International Business Machines
KFC vs Kentucky Fried Chicken
DQ vs Dairy Queen

So how do we use this in our practice? Well, look at some terms we use.

Preponderance of the evidence. What does that mean to the average juror? Nothing. What does it really mean? More likely right than wrong.

The greater weight of the credible evidence. What does that mean to the average juror? Nothing. What does that really mean? More likely right than wrong.

Deviation from the standard of care. What does that really mean to the average juror? Nothing. What does it really mean? Not following the rules.

We need to use language that connects with jurors on an everyday level. Don’t be lawyer man and lawyer woman. Be every man and every woman.

OK, time for Rule #2: Use Short Sentences

Brevity is good. Sometimes we have a desire to do lawyer speak. Don’t. Think about some of the best slogans of our generation.

“Just Do It”
“I Like Ike”
“JFK, All The Way”
“It’s the real thing.”

These simple phrases say a lot. When we try to convey rules to the jury, we also need keep them brief. Remember, simple is good, complex is bad. One of the keys to cross examination is one fact, one question.
Remember My Cousin Vinny? Vinny crossed the eyewitness about what he saw. Bushes, trees, screens, he walks him through his view, using pictures. And asking one fact/question. Very effective. Our best tool on cross is asking one fact, one question. Watch the scene from the movie, it is very instructive. And funny.

Rule #3: Establish Credibility

I know it seems simple, but we need to create positive messages. So often we spend time tearing down the other side, we lose track of what is really important: establishing the credibility of our client. You can have the best case in the world, but if the jury doesn't like your client, if the jury doesn't believe you client is credible, you will lose. So, how do we do this?

We need to show several things. First of all, we need to show that the plaintiff is deserving. Deserving of the empathy of the jury. Don't seek sympathy, seek empathy. Sympathy is where the jury feels sorry for your client. Empathy is where the jury is motivated to help your client. And that help will only come if your client is deserving of their help.

Personal responsibility is still the dominant juror attitude. Usually the defense uses this against us. Turn the tables and make this your issue, not theirs. Show that your client accepts responsibility for their health. All the therapy visits, all the trips to the doctor. Show she accepts responsibility for the missed appointments because she had to piick up the kids from school. In a recent trial, the defense lawyer attacked my client for missing 6 weeks of therapy. It turns out that she was caring for her grandchildren during that time. She said she knew she needed therapy but her family came first. She accepted responsibility for missing the appointments and the jury understood why.

I have a hard and fast rule: I will not represent anyone who doesn't have a job. Paraplegics and quadraplegics have jobs and contribute to society in many ways. Certainly someone with a back injury can as well. It can be a part time job, it doesn't matter. But the plaintiff needs to have a job. That shows that the plaintiff is accepting responsibilty and is trying to help his family as best as he can. Again, it establishes the credibility of your client.

The case isn't about money for nothing. Instead, frame the case as money in exchange for health, The plaintiff has already paid with her health. Now it's time for both sides to pay.

Rule #4: Be Consistent

It's important to create a trial theme and stick with it. Jurors develop a trial story early on and based on what you give them. There is something called the Availability Bias. Information made available early frames how the evidence is received. You want the jury to create a favorable trial story, so you need to make the bad conduct of the defendant available to them first. It used to be that we would talk about the plaintiff first. Bad idea. Start with the bad conduct of the defendant, the choices he made and how those choices led to the harm. The Availability Bias is powerful. Use it to create a consistent story that is adopted by the jury.

Rule #5: Be Novel, Be Different.

Words frame our message. Death tax vs. estate tax. Gaming vs. gambling. The words we use are important. For example:
Its not chiropractic and massage therapy, its complementary medicine

Its not doctor shopping, its a second opinion
Its not an accident, its a collision

Its not compensation, its payment for health

Its not defenses, its excuses

Its not a soft tissue injury, its a non-surgical back/neck injury

Its not failures, its choices

Its not pain and suffering, its harms & losses

Use words to frame your case. Remember, its YOUR case, not the defendants case. Framing the case helps establish the trial story that you want the jury to adopt as theirs.

Rule #6: Sound and Texture Matter
There are certain rules regarding sound and texture that have to be kept in mind when communicating. Katherine James and Alan Blumenthal are actors and trial consultants in California. They help lawyers talk. Yes, that sounds odd, lawyers talk too much, but Katherine and Alan emphasize inflections. Rising and falling inflections at the end of a question. A lot of meaning can be delivered by a rising or falling inflection.
The Rule of Threes.This is a long recognized method of conveying sound and texture. It is used often in songs. I was driving today and happened upon a Kinks song (yes Im dating myself), All Day and All of the Night. Classic example of the rule of threes. The refrain was sung 3 times, several times.

In speech, we see it as well. "We came, we saw, we conquered." " By land, by sea and by air." And my favorites, "Yabba, Dabba, Doo" and "Snap, Crackle and Pop." Use words that convey texture and sound.

Rule #7: Make the Case Bigger

It's not this case where this rule was broken. It's bigger than this case. A broken safety rule can affect anyone, even a juror or her family. Make the case bigger than just your client so the jury feels they are deciding something important. Make the case bigger than just your client so the jury understands that breaking a safety rule can impact them next time. Focus on the industry, not the event. It’s about big medicine, big business, big nursing home chains. Framing the case around the industry makes jurors think it can happen to them. And they don't want to be next in line. The tentacles of danger can spread far and wide. Let the jurors know they can spread to them and their families and the only wasy to stop it from happening is to bring in a verdict for the plaintiff. Use words to create the frame for that concept.

Friday, September 18, 2009


We all have jobs. Whether it's work, being a parent, teaching Sunday School, coaching sports, we all have jobs. That's why I ask about jobs at depositions. One of my favorite deposition questions is "What qualifies you to do your job?" Most of the time, you will find that the person is at least marginally qualified to do the job that they are doing. But sometimes, they are not.
Check out the deposition clip of the safety director at a major manufacturer here in Wisconsin. My client, a delivery man, was hurt due to unsafe practices at the plant. This is one of Eric Oliver's favorite deposition clips. Watch the non-verbal aspects of the clip, they are almost better than the answers.
Remember, ask about jobs.

Stuff does happen after all.

Last night, I thought I posted an entry, complete with video. Clearly it is no longer here. So, stuff does happen after all. Now, if I can only remember what I thought I had posted...