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Question:
I am trying a construction case that involves various defects in
a newly refurbished building. My opponent has taken approximately
150 pictures and plans to show the jury the pictures as part of
a power point presentation by bring a large screen and computer
devices into the courtroom. I’m afraid that this technique
will sway the jury in his favor. I also have some pictures. Do you
suggest I spend the money to put on a show of my own?
Answer:
Put the pictures in an album, and let the jury see and feel them.
Ask the judge if you can publish the pictures to the jury and let
them physically touch the pictures. Studies have shown that most
cases are won or lost by the time opening statement is over. A juror
has an average attention span of approximately 1 minute before the
boredom starts to set in and the mind starts to wonder. Other studies
have shown that jurors tend to remember more if it is presented
to them in a visual format. I am not a big proponent of power-points,
animations or high- tech aids in a courtroom. A jury needs to feel
as if they are on the same level as the attorney. Technology in
a courtroom is sometimes very off-putting to a jury, most of which
are not computer savvy, may not have enjoyed school as a youngster,
and can not afford the technology themselves. If your opponent’s
client can afford to put on such a show, then perhaps he doesn’t
need the money that he is asking the jury to award. Instead of isolating
and intimidating the jury with the use of technology, I suggest
sticking to the old fashioned boards. For example, drawing on an
easel in front of the jury creates an intimate atmosphere, a trust
or a bond between attorney and jury, and without that interaction,
there is a higher risk that the jury will not be inclined to rule
in your favor.
Question:
I have a case coming up in two weeks and as I was preparing one
of my witnesses, I realized that he constantly looks at me for guidance
before answering a question, even if he knows the answer already.
What kind of impression do you think this will have on a jury, and
how do I stop it?
Answer:
During cross-examination, it is important to impart upon your witness,
that he/she should not look at you prior to answering the question
because that gives the jury the impression that you are looking
for guidance and have something to hide (i.e. What do I say? Should
I make something up?). Conversely, he should also be made aware
not to look at you (i.e. his/her attorney) after answering the opponent’s
question because it subconsciously communicates to the jury that
the witness is seeking affirmation that they have answered the question
correctly (i.e. Did I get that right?). You know the old adage,
practice makes perfect. Try a few mock cross-examinations. Have
your client practice at home in front of a mirror.
Question:
While in deposition with my client, I realized that he tends to
get very nervous and speaks too quickly when questioned by the opposing
attorney. The depo wasn’t videoed, but I know it would look
really bad in front of a jury. How do I help him?
Answer:
For those witnesses that tend to speak fast when they are nervous,
try practicing silently counting to five before answering, especially
during cross. There are a number of reasons for this. First, the
witness must wait until the opponent has finished asking the question
and not assume what the question will be. The witness should only
answer the question that is actually asked, and not get into trouble
by jumping the gun. Second, the witness must learn to wait a few
seconds before answering any question because the attorney needs
to have an opportunity to object if he/she deems it necessary. If
the client/witness has already begun to answer, even if the judge
sustains the objection, it’s too late because the words are
already out there and the jury already heard the answer. Jurors
take everything into account as evidence, regardless of the rules
of law or instructions given them. For example, if you tell a child
not to do something, then he/she will very likely do that very thing
you told them not to do. Thirdly, if a witness or client jumps right
in and answers questions quickly without thinking first, then when
the hard question comes (and it will), and the jury notices the
witness hesitating for the first time, the jury will conclude that
the witness is trying to think of something to say or lying. However,
if the witness has been briefly hesitating before giving each answer
(for a count of 5), then the jury will not notice the “real”
hesitation as much when the hard question comes.
Question:
I have some bad points in my case that I know my opponent will emphasize.
One of my colleagues has suggested I address them only if and when
the other attorney brings them up to the judge or jury. Is she right?
Answer:
Not usually. It is always prudent to inoculate the jury during voir
dire and opening to the problem areas in your case. You don’t
want them to feel betrayed by you when your opponent lets it slip
(and he will).
Question:
I am involved in an Insurance Claim case wherein there is an equal
amount of good and bad on both sides. How do I make the jury more
upset at the other party than my client?
Answer:
You need a theme. Themes are crucial to any case for a number of
reasons, but most importantly to give the jury something to relate
to, to hold on to, to understand and “feel”, and to anchor.
In this particular instance, I would try the “That’s Not
All” Technique. When the plaintiff and the defendant are on
equal ground as far as liability is concerned, and the jury needs
to be convinced one way or another, the way to tip the scales is
to help the jury get more angry at one party. For example, “Not
only did the Insurance Company fail to pay out on the policy, but
they also added insult to injury and sued this man to prove that
he was not disabled at all and in fact committing fraud. That’s
not all the Insurance Company did. They also accepted and kept all
of his premiums, failed to report him to the state for fraud as
is the law, and forged a reparation of rights letter that he never
received when there is no ROR provision in the policy.” As
you can see, this technique can be modified to fit whatever the
facts of your case are.
Question:
I feel that I am a pretty good litigator, but my one weakness is
in conducting voir dire. I just don’t feel that I make that
connection and I am never sure about the people that I select from
the panel. What do you suggest?
Answer:
Voir Dire is certainly the time to make the connection with the
jury considering many cases are won or lost on voir dire. A jury
puts a lot of stock into which attorney they like better and sometimes
base their decision on that criteria alone. Try some self-disclosure,
some humor, some humility. Remember to show respect to everyone,
no matter their occupation or station in life because they all have
their own story to tell. Call them by name, repeat back their answer
to let them know they’ve been heard, practice active listening,
apologize for prying, admit that you are nervous too because you
don’t like having to ask such personal questions, explain the
process so they know what to expect and don’t feel left out
or excluded, continuously thank them for their time, opening up,
and honesty. Establishing rapport is essential for preconditioning.
Remember to ask about hobbies and spouses to gain insight to the
person. Do not ask the prospective juror yes/no questions (which
will tell you nothing about the type of person they are).
Question:
I have a case about a african-american man was beat up by a white
cop. I obviously want african-american men on my jury, but what
about people who are in law enforcement, the military, or work for
a state agency? My guess is no way.
Answer:
I do not believe in selecting jurors based on demographics alone.
If you select your jury according to generalizations or stereotypes,
you are setting yourself up to fail. Of course, you could gamble,
and win, but you could also lose. Wouldn’t it be better to
learn about that person’s history, life experiences, personal
background, and value beliefs, and base your selection on that criteria
instead? Stereotypes and reality don’t always match up. For
example, do you think the hispanic juror would rule in favor of
a hispanic client? Maybe you do. But what if that hispanic juror
was abandoned by his/her hispanic parents, and adopted by a loving
asian family? My point is that you need to “deselect”
based on more than just demographics, and place your focus on the
inner person instead. Is the person an introvert or extrovert, a
follower or leader, a believer in fate or responsibility, a business
man or an artist, etc. etc. etc.
Question:
I just got retained on what I think could be a big case. I know
it is important to have a trial consultant pick the jury, but I
don’t feel I need any psychological help before that. It’s
a big expense, and I don’t really see what a trial consultant
can tell me that I don’ t already know considering that I have
been doing this for over 20 years.
Answer:
Trial Consultants or Litigation Strategists do not just help injury
selection or jury trials. A trial consultant should be hired in
the beginning of a case for many reasons. First of all, it is helpful
to determine whether or not a case should be taken on contingency,
what types of information should be gleaned during the discovery
phase, what the damage potential of a case is, basic strategy for
mediation or settlement, etc. Bringing a trial consultant in at
the very last minute is a disservice to yourself and your client,
and is not beneficial to anyone. Yes, the consultant can pick a
jury that he/she thinks would be favorable to you, but wouldn’t
it make more sense to test the various theories on some jurors beforehand
to get a analysis of exactly what type of people you want to look
for on your jury? Psychology is not an exact science, but every
little edge helps. A trial consultant or litigation strategist offers
a different perspective when quite often the attorney is enmeshed
in his reality of the case. The trial consultant is trained to apply
psychology to delve into the psyche of the potential jurors and
help implement various strategies before or during trial in order
to structure and hopefully win the case. As for the cost, it can
quite often be passed along to the client who can be convinced by
the attorney’s vast skills in the art of persuasion that a
consultant is a necessary tool in the arsenal that could help win
the case, just as the attorney would for the cost of an expert witness.
Question:
I am designing a timeline that I would like to blow-up for trial.
I am not really sure if color matters at all for any particular
reason. I was thinking of doing it in black and white because it
is so much cheaper. Please advise.
Answer:
Demonstrative evidence and/or trial exhibits are important because
most people tend to learn visually rather than verbally. Our feelings
are invariably influenced by the colors and shapes that we see.
Certain colors can elicit a positive or negative reaction, and although
we may not remember which color was associated with which statement
or incident, we nevertheless will recall said statement or incident
from the recesses of our subconscious because of the association
of color. It is always prudent to use contrast because just as the
human eye sees warm colors before cool colors, it is also attracted
to “out of place” usage of color. Here are a few example
of the emotional effects that color has on the human psyche: Red
is internalized as excitement, passion, or danger. Yellow signifies
enlightenment and energy. The human eye will notice yellow before
any other color on a display or board. Purple makes people feel
regal, spiritual, and contemplative. Shades of colors are also important
because while bright purple makes us this of the future and new
technology, pale purple or lavender can impart feelings of nostalgia
or deep thought,
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