The Illinois Trial Practice Weblog

A Few Things to Know About Juries

In the April, 2008, issue of the Illinois Bar Journal, you'll find some interesting tidbits about juries in "Lessons from Jury Research," by Sara Parikh and Terrence Lavin.

Some examples--

• Juries care most about the "strength of the evidence" and make decisions on that basis, rather than giving in to pre-conceived biases or emotional appeals.
• Juries try to fit each bit of evidence into a "cohesive story"; if they can't do it, the evidence "tends to get dismissed or serves to reframe the story."
• Juries tend to discount expert testimony unless it is firmly rooted in the factual evidence.
• While lawyers must sometimes "emphasize and even repeat important concepts," juries quickly become frustrated by needless repetition.
• Even if jurors come to a trial with a particular bias in favor of the plaintiff or defense, these feelings are rarely so entrenched that they will predict the juror's decision about a particular case.

To learn more interesting lessons about juries, read the complete article at your nearest law library or online here (ISBA members only).

Communicating with Juries: Introduce Scientific Terms Slowly

I know a lawyer who cites psychological research to say that when people hear new, unfamiliar terms, they become so distracted that they are unlikely to pay attention to the next seven words. That's why at trial, any jargon that might be unfamiliar to jurors must be introduced to them with the utmost care. Here's the wrong way:

Q. Doctor, please explain blood flow to the heart?

A. [In a sonorous tone]. Certainly. The heart is actually a double pump forcing blood along a complex network of 60,000 miles of blood vessels, from which oxygen-poor blood arrives from the body and collects through the superior vena cava into the right atrium, an upper chamber of the heart, while at the same time, oxygen-rich blood is flowing from the pulmonary veins into the left atrium (meaning that, as an aside, the pulmonary veins are the only veins in the body carrying oxygen-rich blood), all of which initiates a contraction in the walls of the heart which force blood simultaneously through the tricuspid valve on the right side on the heart -- which is on the left in this diagram -- and the mitral valve on the left -- here in the diagram, on the right -- which then results in the blood collecting in the right and left ventricle before flowing into the pulmonary arteries (right side) and the aorta (left side).

Q. Thank you very much, doctor. And next, let me ask . . .

In stark contract, here's the right way to introduce new terms drawn from the same jury-sensitive lawyer who claims to introduce unfamiliar scientific words in exactly this way:

Q. That's a model of a heart, doctor?

A. Yes, it is. The blood comes in from the rest of the body here, to the right atrium.

Q. Atrium? What's that?

A. That's a chamber of the heart.

Q. You mean like rooms in a house? The first room of the house you enter when you go through the door--that can be an atrium, right?

A. Right.

Q. Same word?

A. Right.

Q. And where does the blood flow after that?

A. The right ventricle.

Q. What's a ventricle?

A. That's the chamber right below the atrium.

Q. Right below that first room in the heart?

A. Right.

Q. And what does the right ventricle do?

A. It pumps the blood towards the lungs.

Q. Oh, so the blood leaves the heart there through the ventricle, which is like a vent? Same type of thing?

A. Same type of thing.

Q. So the right atrium is where the blood is coming in from the body, and the right ventricle is where it's going out to the lungs?

A. Right.

With this method, things move a little more slowly, but in contrast to the first example, the jury is more likely to understand what's happening and can use the new words they are learning as building blocks for understanding more complex concepts.

How to Dress at Trial

At the Trial Lawyer Resource Center, Ron Miller has a post called "What Should Lawyers Wear for Trial?" The short answer: don't worry aobut it, be yourself. It's advice that applies equally to lawyers for the plaintiff and for the defense.

For more, read the whole post.

Related post: "Connecting with Juries by Frequently Using the Word 'Folks'"

Are Gadgets Replacing Oratory?

From the Tacoma News Tribune: "Fancy gadgets replace oratory in courtrooms," by Adam Lynn--

From PowerPoint presentations to slick graphics flashed on interactive whiteboards, computers are transforming the way justice is delivered to defendants who want their day in court.

The evidence:

• The Internet is filled with tip sheets for lawyers looking to get the most out of computer technology during trial.
• Professional legal conferences include sessions on using technology in the courtroom. A conference Friday in Tacoma was titled, “Using Courtroom Technology in Thurston County and Pierce County,” and featured speakers from both counties’ prosecuting attorney’s offices.
• Pierce County prosecutors recently debuted an interactive whiteboard that allows them to introduce evidence and re-create crime scenes for a jury with the click of a mouse.

“I certainly think it’s going in that direction,” said Michael Kawamura, who supervises Pierce County’s public defenders. Legal consultants agree.

“At a presentation I recently gave to a room of 150 to 200 lawyers, almost every one raised his hand in response to my question: ‘How many of you have used PowerPoint or an electronic presentation program in a closing?’” said Todd Flaming, an Illinois attorney and adjunct law professor who recently served as chairman of the Illinois State Bar Association’s standing committee on legal technology.

Some legal consultants tout interactive media as a way to better connect with jurors who increasingly are immersed in a gadget-filled world.

The quoted article is an example of the way lawyers are perceived in the lay press. But it's not really true that gadgets are replacing oratory; rather, gadgets are enabling a new kind of oratory. It's one that all lawyers should be familiar with. Though some lawyers with lesser-damage cases think that the use of technology might result in "over-trying" a case, one could argue that even if juries don't expect or demand technology in every case, they certainly won't object to it in a way that would be harmful to the client. The quoted article proves the point.

Related posts:

1. "Plaintiffs' Lawyer Mark Lanier Received Special Powerpoint Training Before First Vioxx Trial"

2. "Just Say No to Speaking Without Visual Aids"

When Others Are Watching, Treat Your Staff with Kindness . . .

. . .  And treat them with kindness even when others aren't watching. But especially when they're watching, like, say, at trial, when you should always be on your best behavior when it comes to your staff, which includes the person helping you with the computers, as we're reminded in a weblog post by Monica Bay.

Of course, I should already know that the correct way to direct your computer-working assistant is by saying "next slide, please." The last time I had someone helping me with a Powerpoint presentation, she made this point to me explicitly after I was finished.

"'Please' would have been nice," she said.

Although I had thought my appreciation for my assistant's computer-working skills was already implied by my especially pleasing tone of voice, it turned out my tone wasn't as pleasing as I'd thought. "In fact, you sounded a little rushed," she said.

A lesson to remember. Treat your staff with kindness, even when others aren't watching . . . but especially when they are.

Communicating with Juries: Demonstrating the Order in Chaos

For suggestions about the use of tables, charts, glossaries, and timelines at trial, take a look at "How to Uncomplicate the Complicated," by Michael A. Geibelson and Roman M. Silberfeld (pdf link). Although the articles focuses on California law, most of the suggestions are applicable to any jurisdiction. Link from MyTrialBlog.com.

Communicating with Juries by Acting Like a Regular Person: Is It Even Possible?

When lawyers try to communicate with jurors, they risk condescending to them. It's easy to do. Just think of the way lawyers are always setting up a dichotomy between "lawyers" and "people who aren't lawyers." It's exactly what I'm doing in this post. If a prospective juror were to read it, I'd expect him to respond, "How condescending!"

If you don't understand why that would be a proper response, let me tell you a story. I was reminded what it felt like to be a "person who isn't a lawyer" just the other day. I was cleaning up some old notebooks from the basement. I found one that I'd filled up in July 1987. It happened to be the summer before law school and I was reading Karl Llewellyn's Bramble Bush. On a page titled "Words I've Looked Up," I'd written out long definitions to terms like "tort," "strict liability," "negligence," and "demurrer."

When I reread this page the other day, I was a little shocked. There was a time I didn't know what a tort was? Not only that, but it wasn't that long ago. It was so recently, in fact, that I remember lots of details about that summer. Most pertinent to this post, I remember what it felt like to be just a regular person--one of those "people who's not a lawyer."

To put it another way, I remember what it was like to be a typical juror. Here's the key: I wasn't stupid. Despite my lack of legal education, I happened to be damn smart--smarter that I am today, I'm pretty sure. My only failing was that I hadn't yet been indoctrinated into that cozy group of professionals who knew the meaning of words like tort, strict liability, negligence, and demurrer, and who sometimes looked down at those who didn't.

I think you get the point. Try it yourself. By thinking back to a time before law school, you too might be able to get in touch with your inner regular person. I'm certain you'll find that he was smart, articulate, and intellectually engaged. He probably had a wealth of personal experience. If a snotty lawyer had stood up in front of him and said that he was going to "attempt to keep things simple" so that "even a non-lawyer could understand"--well, your inner regular person probably would have been a tad offended. He'd probably have asked the lawyer to get the hell off his pedestal and start acting like a regular person.

And he would have been right. The next time you're talking to a jury, remember that.

Phil Beck's Trial Style on Display at New Orleans Vioxx Trial

In the Vioxx trial that began last week in New Orleans, it was Chicago defense lawyer Phil Beck who presented Merck's opening statement. Here's how a reporter for the Chicago Tribune described his style:

Beck comes across in the courtroom as careful and calming in his approach, giving explanations of complex drug industry research in words a sixth grade science class would understand. He also played to the all-male eight-member jury, countering the plaintiff counsel's depiction of Barnett as a physically fit 62-year-old who worked out regularly. Beck said all men have higher risks for heart attacks. And although he talked about what a nice couple Barnett and his wife were for being married for more than three decades, he pointed to Barnett's wife's smoking habit as a risk factor for her husband.

Here's part of Beck's opening, as reported by the Tribune:

[Barnett attorney Mark] Robinson talked to you for about 90 minutes and during that 90 minutes 200 people in the United States had heart attacks . . . most of them had heart attacks that were much more serious than the one that Mr. Barnett had.

Over 1.2 million people a year have heart attacks in America and that was true before Vioxx ever came on the market and it's true now that Vioxx has not been on the market for a couple of years.

This is Beck's second Vioxx trial. He won the first. You can read more about him in the Chicago Tribune profile, "Marchin' for Merck in New Orleans," by Bruce Japsen.

Is There Anything Lawyers Can Learn from the Success of Mark Lanier?

There's a flattering profile of asbestos-lawyer-turned-Vioxx-specialist Mark Lanier at Law.com: "Lanier Tactic Shows There's 'Desperate' -- and There's Successful."

It's entertaining reading, but trial lawyers won't be able to draw too many lessons from it, especially those who follow the common advice to "be yourself" at trial. After all, Mark Lanier has one of those unique, one-of-a-kind personalities that's impossible to imitate. Even if you could, there's more to Lanier's success than just his personality. It's something that's not emphasized very much in the article--all the behind-the-scenes preparation that goes into producing the typical Mark-Lanier-style trial presentation.

Of course, being successful at anything requires hard work. But I get the sense that Lanier works extra hard, that he's the plaintiff-side equivalent of, say, Dan Webb.

Indeed, when asked about the keys to his success, Lanier's first answer was "hard work." His second was "creativity."

Even lawyers trying to be themselves can take those two qualities to heart.

Do You Believe in Your Case?

At DennisKennedy.blog, a post by Dennis Kennedy titled "Great Advice on Public Speaking" suggests that a speaker's performance improves in proportion to how passionate he or she is about the topic.

It's definitely true. A little passion goes a long way towards ensuring an audience will listen to a message. Throw in some enthusiasm and they may even embrace it.

That these principles apply to a lawyer's performance at trial or motion hearings is obvious. How can you expect a judge or jury to believe in your cause unless you believe in it first?

Admittedly, not every lawyer has the luxury of working exclusively on causes in which they believe. If you happen to lack enthusiasm for your cause, what can you do about it? First, try to make sure it's not too obvious. Second, think about how it affects the settlement equation. Your own lack of enthusiasm often says a great deal about the merits of a case.