A couple of weeks ago, I sent fellow blogger and trial consultant Rich Matthews an email asking if he would comment on a post I was thinking about writing. It would be called “Avoid These Five Ways Of Alienating The Jury.” I was expecting him to provide a laundry list of “don’t dos” if you want to stay on a jury’s good side, such as wearing a bow tie,† showing up late, interrupting witnesses, etc.

Instead, Rich offered a much shorter list of ways–just two–to give the jury what they want and expect. On reflection, Rich’s list of “dos” made much more sense than my proposed list of “don’ts”. Here’s what Rich said:

“I think jurors want two and only two things from counsel, and get alienated easily when these are violated: help with understanding the material, and not wasting their time. That’s it. As obvious as that might sound, all courtroom lawyers should do a really honest reflection on their own trials and notice how many times they run afoul of either or both of these unconscious demands jurors have. That third witness you put on to say basically the same thing? Wasting jurors’ time, and they will resent you for it. That technical witness who was not understandable to them? Flunked both. A closing argument that didn’t explain [relevant rules, damages, verdict form, whatever] well enough? Didn’t help them with the material. I suggest that as counsel is planning the trial sequence, run everything through that filter; will it help jurors understand the material, and does it waste their time as THEY will judge it? Unless it’s ‘yes’ to the first AND ‘no’ to the second, leave it out. (Bonus hint: the first place to look is your witness list. Most of the time, lawyers would be better served to use fewer witnesses than they do. Wasting time in this manner just frustrates jurors if they don’t perceive each additional witness is adding new information or understanding.)”

Rich’s suggestion that what the jury wants most is help understanding the material echoes a point Professor McElhaney makes in the opening chapter of Litigation, entitled “The Guide.” He writes:

“You are the guide who knows the territory, the one who can be trusted to steer the jury straight throughout the entire trial.

Does it work? Imagine for a moment: Suddenly you find yourself in the middle of an unknown swamp. You don’t know where you are or how you got there. All you know is that somehow you  have to find your way out. You have no compass. There are no roads or trails, no signs or maps, no shadows or guiding stars. As you look around, you see two people, each saying there is only one way out. The problem is, each one is pointing in a different direction.

Which one do you follow–the one who has the suitcase with the collapsible legs, who wants to sell you one of the watches on his wrist; or the one who is pointing out landmarks and is helping you understand the terrain?” (Litigation (ABA 1995), at 4.)

Rich’s point about not offering duplicative testimony which the jurors judge as a waste of their time brings to mind this comment by another notable trial advocacy guru, Professor Thomas Mauet. In his Fundamentals of Trial Techniques, Professor Mauet points out that:

“Whom you call as witnesses to prove your case is frequently not an issue. You simply must call the witnesses you know of to establish a prima facie case, and there is no room for choices. Most of the time, however, you will have choices. . . In deciding to call certain available witnesses, remember the following considerations:

1.  Do not overprove your case. Many lawyers call far too many witnesses, thereby boring the jury or, even worse, creating the impression that the lawyer doesn’t have confidence in her own witnesses. In general, calling a primary witness and one or two corroboration witnesses on any key point is enough. It’s usually best to make your case in chief simple, fast, and then quit while ahead.” (Fundamentals of Trial Techniques (3rd Ed. 1992), at 388-89.)

I think Rich’s approach to giving the jurors what they want–rather than trying to walk on eggshells not to alienate them–is by far the better approach. Thanks, Rich!

†Truth be told, I have no problem with bow ties, and I expect most jurors don’t, either. A bad, porno movie mustache, on the other hand, will not be tolerated (except by jurors with their own bad, porno movie mustaches).

Here are some ideas, courtesy of Professors McElhaney and Mauet, on effectively cross-examining your opponent’s expert witness at trial.

1. Make Him or Her Your Own Expert. Professor McElhaney suggests you look for places where your opponent’s expert agrees with your theories in the case. For example, if, in a personal injury case, both experts mostly agree on the severity of the damages and future treatment, but differ on causation, focus on where there is agreement. He says:

“Note that the defendant’s own doctor admits that the plaintiff will be subject to sudden seizures for the rest of his life; that this form of epilepsy can only be treated, not cured; and that the plaintiff’s condition can put him out of work as a machinist and means he can never drive again.

If you have a strong case on causation, you may decide it is better to make this witness your own on the issue of damages than to try to beat him down on the subject of cause.” (Litigation (ABA 1995) 165.)

2. Attack His or Her Qualifications. “No matter how well-qualified the witness,” McElhaney reminds us, “there is always a higher level he has not reached.” (Id.) Used subtly, this can also serve to bolster your expert’s credibility if he/she has better credentials.

3. Narrow His or Her Expertise. Professor Mauet  points out that, “[o]ften an expert will appear to be highly qualified, yet his actual expertise and experience are in areas different from those involved in the case. The cross-examination technique is to build up the witness’ real expertise, then show that this particular expertise is not directly applicable to the type of case on trial.” (Fundamentals of Trial Techniques (3rd Ed. 1992) at 266.)

4. Attack His or Her Facts. I see two possibilities here. One is if you can establish an opinion rests on a faulty or controversial factual premise, such as a date, measurement or time. The other, highlighted by McElhaney, capitalizes on the fact the expert did not do factual investigation himself, but is relying instead on the reports of others. He gives an example of an effective examination:

“Q. Doctor, can we agree that your opinion can be no better than the information on which it is based?

A. Well, yes, I guess so.

Q. If the information you have is not accurate, then the opinion would have to suffer too?

A. Of course.

Q. Which is why you would rather gather the information yourself than have to trust some source you have not worked with before?

A. Absolutely.

Q. But you were not given an opportunity to do that in this case?

A. Well, not exactly. No, I wasn’t.” (Litigation, 167.)

5. Vary The Hypothetical. McElhaney explains this approach as follows:

“You are permitted to change the facts around to see at which point they alter the expert’s opinion — depending on whether the question on direct examination originally was asked as a hypothetical.

You can insert facts you feel were left out on direct, or take out facts you feel should not have been included.” (Id.)

Let me go on record here that I view this as an advanced technique, and an opportunity to ruin an otherwise solid cross-examination. Ideally, you would have covered this ground with the witness in a pre-trial deposition, so you know what the answer should be and can hold the witness accountable if he/she strays. Otherwise, an experienced expert might hand you your head on a stick if you are not meticulously prepared.

6. Use The Expert To Bolster Your Own Credibility. Mauet suggest it can be “useful to cross-examine an expert to establish your own expertise in the subject. You can do this by defining technical terms or describing technical procedures and having the expert agree that you have defined or described them correctly. Use a treatise to obtain accurate definitions and descriptions. If this expert disagrees, you can impeach him with the treatises.” (Fundamentals, 267.)

7. Establish His or Her Compensation Bias. Mauet writes: “Inquire into professional fees charged and whether they have already been paid.” But he reminds us to “[k]eep in mind . . . that trials are a two-way street. Your opponent can do to you what you contemplate doing to him. Before pursuing this approach, make sure your own experts are less vulnerable than your opponent’s.” (Id., 266.)

8. Identify Additional Steps The Expert Did not Take. Mauet suggests we “[d]emonstrate that the witness did not do all the things a thorough, careful expert should have done. Demonstrate that a variety of tests could and should have been performed to arrive at a reliable opinion in this case.” (Id., 267-68.)

There. Now go get ’em.

It is no accident that Thomas Mauet’s Fundamentals of Trial Techniques is the best regarded textbook for trial advocacy, at least among professors and adjunct professors who use a text at all. I kept a fair number of my law school textbooks, but the only one I’ve consulted more than once in 20 years of practice is Mauet’s Fundamentals.

In his chapter on trial strategy, Professor Mauet introduces us to some basic psychological principles which come into play when presenting evidence and argument to jurors. I’ll highlight five good ones here.

1.  Jurors are primarily affective, not cognitive, thinkers. This is probably a huge generalization, but a useful one. Mauet writes: “People have two significantly different decision-making styles. Most people are primarily affective, not cognitive, thinkers. Affective persons are emotional, creative, impulsive, symbol oriented, selective perceivers of information and base decisions largely on previously held attitudes about people and events.” (Id. at 376.)†

2.  Jurors use attitudes to filter information and reach decisions they believe are sensible and fair. We rely on attitudes, values and believes “to filter conflicting information. Our attitudes subconsciously filter information by accepting and remembering consistent information, by ignoring, minimizing, or rejecting inconsistent information, and by distorting inconsistent information to make it consistent with our attitudes.” (Id. at 377.)

3.  Jurors reach decisions quickly, base them on relatively little information, and then resist changing their minds. Just when you thought a jury trial was the perfect forum to resolve a technically complex dispute, such as a patent fight or generally accepted principles of accounting, it turns out that “[j]urors cannot absorb, understand, and retain most of the information they receive during a trial, particularly if most of that information comes through oral testimony. Sensory overload occurs quickly. To relieve the internal stress this problem causes, jurors reach decisions quickly by basing them on relatively little information that their attitudes have subconsciously filtered and received.” (Id. at 377.)

The key for a trial lawyer, then, is to identify the jurors’ “psychological anchors” and “state them in a short, attractive, memorable way that is consistent with jurors’ attitudes and beliefs, and incorporate them into each stage of the trial.” (Id. at 377-78.) For more on this, see my discussions of the Rules of the Road here. This is also consistent with the underpinnings of the Reptile strategy, discussed here.

Why do jurors resist changing their minds? Just as the rush to judgment is fueled by the desire to reduce internal stress caused by sensory overload, the steadfast adherence to their initial decision also helps reduce internal stress. “[I]nconsistent information causes cognitive dissonance–internal conflict and stress. Jurors subconsciously solve this problem by rejecting new information.” (Id. at 378.)

4.  Jury decision-making is influenced by the personality characteristics of individual jurors and how they will interact as a group. Mauet describes three types of jurors: leaders, followers and loners. Recognizing the leaders is key. “Opinion leaders usually have a higher education level and have positions of authority or expertise in their work. Leaders may be authoritarian personalities and often dominate jury discussions; the three most vocal jurors typically control more than 50 percent of the deliberation discussion. Particularly in longer trials, jurors form subgroups around opinion leaders.” (Id.)

Followers  . . . well, they follow the leaders. But loners are worth worrying about. “Loners . . . have no particular interest in either interacting or agreeing with other jurors. Loners who seem withdrawn because of recent traumatic experiences frequently become punitive jurors.” (Id.) Yikes!

5.  Jurors are influenced by medium variables. The message here is that jurors absorb what they see exponentially better than what they simply hear. Mauet writes, “When the medium is oral testimony, clear, simple common English with a smooth, confident delivery and reinforcing kinesic and paralinguistic cues significantly affect how jurors receive, accept, and retain the communication. . . Since communication is approximately 60 percent kinetic (appearance, gestures, body movement), 30 percent paralinguistic (voice inflection), and only 10 percent word content, trial lawyers must learn to read the kinesic and paralinguistic cues that jurors send during voir dire, witnesses send while testifying, and lawyers send throughout a trial.” (Id. at 380.)

Visual exhibits are hugely important. “Visual exhibits also have extraordinary retention properties. People retain about 85 percent of what they learn visually; retention of aural information is only about 10 percent. Hence, exhibits that pass the ‘billboard test’ — clear, immediate, and attractive — have an extraordinary impact on jurors.” (Id.)

With these psychological principles in mind, we can see why voir dire is so important, as is the packaging of messages, particularly anything that is complex or likely to trigger jurors’ long and closely held attitudes and beliefs. Good luck.

†All citations are to the Third Edition.

In his chapter on Jury Selection, Thomas Mauet suggests we put ourselves in the shoes of the prospective jurors in order to identify with them and maximize the opportunities that come from voir dire. This is what he says:

“Put yourself in the shoes of a prospective juror. You recently received your notice to appear for jury duty. This morning you arrived at the courthouse, waited in the jury room most of the morning, read a pamphlet about jury service, and were finally called, with about 30 other persons, and brought to a courtroom. You just entered the courtroom and sat down. You can see the judge on the bench, and various other persons in the front of the courtroom. And then you wait some more.”(Fundamentals of Trial Techniques, (3d. ed.) p.23.)

Sadly, during all of the years I have reported for jury duty, I’ve never even made it into a courtroom as a prospective juror. So for now I have to try to imagine what goes through the minds of prospective jurors as they get seated and are questioned by the judge and the attorneys. Mauet helps us along:

“Most jurors have little or no experience in the courtroom. They are in the midst of strangers. They are apprehensive and intimidated. They are worried that their ignorance about the jury trial system will show. They are concerned about their life’s secrets being exposed.” (Id.)

It would never have occurred to me that prospective jurors worry about secrets being exposed. If I reflect on it, though, some people are very uncomfortable revealing, even to one other person, the most basic information, such as their occupation, education level, etc. Of course, voir dire questions often get more personal, including your past experience with the civil or criminal justice system, whether you’ve been a victim or sued. Knowing most of the jurors are uncomfortable, and some even petrified, what’s a trial lawyer to do? Mauet suggests we “turn it around.”

“Change from being a stranger to being the jurors’ friend. If they feel intimidated, reassure them. If they are among strangers, make them feel comfortable. If they are worried about their ignorance, help them become informed. If they are concerned that secrets in their past will be exposed, reassure them. In short, the jury selection process is an opportunity for a trial lawyer to become the jurors’ friend and guide by helping them understand the trial system, by reassuring that they do belong here, and by letting hem know that their participation is important to you and  your party.” (Id.)

Making strangers feel comfortable, reassuring them that publicly sharing their personal and family history is necessary and appropriate, is a pretty tall order. Is it possible? In some cases probably not. But Mauet’s point is well-taken. Recognizing the feelings and emotions of potential jurors, and attempting to connect with them in a way that is both human and humane, is surely the first step toward gaining their trust.

From Day One it is hammered into the head of every lawyer headed for trial: Ask Only Leading Questions. But is this truly gospel?

McElhaney, quoting Mauet and others, doesn’t think so. Not only does the repetition of “Isn’t it true that . . .” become tedious and tiring, it limits the examiner’s ability to expose the witness as a braggart or someone giving well-rehearsed testimony.

He also offers an excellent illustration of a circumstance in which use of non-leading questions can actually produce a more powerful result. He describes a lawyer trying a medical malpractice case involving a brain-damaged newborn. At deposition, the doctor was asked who had the duty in the particular hospital to resuscitate a child who wasn’t breathing: the doctor, nurse, anesthesiologist–who? The doctor responded: “We really don’t have any rules. It’s kind of a grab bag.” (McElhaney, Litigation, 183.)

McElhaney points out that the lawyer could have covered the while point during cross-examination at trial with one leading question:

“Q.  Doctor, you really don’t have any rules for who is in charge of infant resuscitation. It’s kind of a ‘grab bag,’ isn’t it?

A.  I guess so.”  (Id.)

Instead, he advocates a series of questions calculated to make the admission and use of the unfortunate term “grab bag” more powerful.

“Doctor, explain the hospital’s rules about who has the duty to resuscitate a newborn child who is not breathing.

(The doctor tries to sugarcoat it a little.)

A.  Well, of course, it’s a concern that everybody has, so there is not exactly a precise set of guidelines.

Q.  Pardon me, Doctor, but we’ve talked about this before?

A.  Yes.

Q.  And that’s not what you told me then, is it?

A.  No.

Q.  What did you tell me then?

A.  It’s kind of a grab bag.

Q.  A ‘grab bag’?

A.  Yes.” (Id.)

Something McElhaney does not highlight, but I think is hugely important, is that, because of the doctor’s prior deposition testimony, the examiner never lost control of the witness. Regardless how the doctor may have tried to squirm around and potentially offer a new hierarchy of responsibility for resuscitating a child (perhaps he had misspoken in his deposition and, on reflection, concluded that the duty falls to the anesthesiologist), the examiner had crisp prior deposition testimony available to keep the doctor in line.

“Ask only leading questions” is definitely one of the ten commandments of cross-examination, but it’s a rule that can be broken when the examination is handled carefully and where the resulting testimony is expected to be more powerful.