Year: 2017

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What if There is No Good Answer?

Most of us have been in the dreaded situation where we are facing an allegation or piece of evidence in court that we simply have no good answer for. But what do you do in that situation? We have seen attorneys try to use vague language to evade or gloss over the issue. Or use various analogies or examples to keep from confronting problematic issues directly. Or simply ignore the issue altogether. But are those strategies effective? Does such redirection work with jurors?

In our experience, the answer to those questions is a resounding no. Staying silent on an issue is perceived as an omission—but with a “gotcha” effect. Being vague usually comes across as that—as evasiveness—which unfortunately creates a credibility problem for the attorney throughout the case. And making incongruent analogies has an air of deceptiveness that jurors tend to pick up on rather quickly and react to fairly strongly.

So what is the answer? You must face the issue head-on. Jurors know it exists. You know it exists. So even when you don’t have a good argument on a particular topic, addressing it directly strengthens your stance on other points. But how do you talk about something when there’s nothing good to say? Every set of case facts is different and different clients are comfortable with different things, but some options are sketched out below:

-Concede the point. Admit that X should not have occurred/been said. If there is context that makes it more understandable, provide it, but continue to be clear that it should not have happened. Conceding a point that is indisputable only serves to increase your credibility.

-Provide the true explanation—even if it’s not great. We’ve seen many clients want to shy away from the real reason a memo was written or a mistake was made only to learn that jurors understand—and sympathize with—the motivations of real people (“He was afraid he’d lose his job”; “She had a frustrating day and lashed out in an email.”) if they are directly conveyed to them. But if they are defended without explanation, with a vague explanation, or ignored, jurors don’t have the ability to cut you that slack.

-Bring up to the issue directly, but only to explain why it isn’t important to the case. Sometimes, the backstory of an issue is so egregious/appalling that having someone testify about it can only make it worse, but for whatever reason, you can’t simply concede that it wasn’t handled appropriately. In those cases, the best way to handle the issue it to explain why it isn’t an issue. Ex. Ms. Attorney is spending a lot of time talking about X. She brings it up at every opportunity. And she’s doing that because she wants me to spend all of my time talking about X, because she wishes that’s what this case was about. But it’s not. The case is about Y. But she knows that if you really examine Y, her evidence isn’t that strong, so she tries to deflect by focusing on X. So each time she brings up X, ask yourself, “What is it about Y that she doesn’t want me to focus on? What does she not want me to understand?” because when you look at the verdict form, the issue in this case is clearly Y.

Jurors are naturally drawn to the dramatic and inflammatory aspects of a case. Trying to simply gloss over those issues will pique their interest even further. Without a doubt, jurors are going to talk about the problems in your case. When you have no good answers for those problems, your only paths to success are to give them an explanation they can work with or an explanation as to why it’s not important, along with a roadmap to the things that are. Otherwise, the very issue you choose to ignore could be the deciding issue in the case. And the jurors who are willing to fight for you will be left completely unarmed for the fight.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

Is the Opioid Litigation the New Tobacco?

A recent news story in a Cleveland, Ohio paper described the lawsuit that the state attorney general is launching against five companies that manufacture opioids, saying there were “6 things to know” about this litigation. One of those things was that it draws comparison to the multi-state litigation against tobacco, launched by state attorneys general, nearly 20 years ago. (In fact, the complaint even makes this comparison explicitly.) But is the opioid litigation really the next tobacco?

We agree there are certain similarities between the two litigations:

-There’s a legal product that carries a particular risk with it of addiction.

-The addiction can lead to harm to individuals and, more generally, to public health.

-The costs of that harm are borne by the state—and not just monetary costs of treating people for cancer or opioid addiction, but also public health concerns.

-Many people frame the issue in terms of personal responsibility: individuals make their own decisions to smoke, or to ask their doctor for pain pills. But others, including the plaintiffs, use a frame that places blame on the industry, claiming that ads or misinformation misled both doctors and users to ignore the risks until it was too late.

So, yes, there are some similarities, but in what ways are they different? Joe Rice, a plaintiff attorney from Motley Rice, recently spoke about some of the differences in an NPR interview. He discussed the fact that 1) opioids are FDA approved, 2) they are prescription drugs, so they require a doctor who acts as a learned intermediary, and 3) they offer an actual benefit. Each of those is a definitive difference that will undoubtedly play a role at trial, but we would like to note an additional difference between these litigations: Back in the late 90s, no one had experience with litigation like the tobacco litigation, whereas prospective jurors today will be very familiar with this type of litigation—the tobacco litigation itself.

What could this mean? This means that jurors will be walking into jury selection with attitudes and beliefs about such litigations and how they should be handled. They will have knowledge of previous verdicts and opinions on whether litigation is an effective remedy to the public health issues we are facing. And they will have strong ideas—based on their personal experience and often, developed over decades—about who is at fault in these cases.

So while the opioid litigation may look like the next tobacco litigation, it actually comes with much more baggage. We would recommend unpacking and examining that baggage carefully, because in this litigation, preparing for what jurors think about the current case isn’t enough. You will also have to be prepared for the cases it reminds them of.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

Expect the Unexpected

Experienced attorneys, as soon as they begin hearing about a new case, begin analyzing it and planning that opening statement, “This is a case about…” Being able to provide jurors with a concise explanation of the case is vitally important, but what is that explanation based on? Typically, it is based on the attorney’s experience and schema of what will be important in this type of case. While that is a reasonable place to start, we would suggest exploring how potential jurors view the issues in the case before going too far down that road.

Time and again, we have seen jurors take the facts of a case, a case where both sides expected them to argue over the merits of X, and instead go with a ϕ—a letter from a completely different alphabet. For example:

-In a case involving the efficacy of sunscreen, or whether a drug makes users more susceptible to skin cancer, you’d expect an argument over the efficacy of sunscreen. But would you expect the belief that skin cancer is actually caused by sunscreen?

-In a case involving drugs for diabetes, you might expect jurors to focus on the risks and benefits of those drugs. But would you expect some of them to argue that diabetes isn’t actually a disease, but a lifestyle condition?

-In a case involving a drug increasing the probability of a type of cancer, you’d expect to argue probabilities. But would you expect someone to argue that none of this matters because drug companies actually have a cure for cancer (and for AIDS), but won’t release it because they make more money treating rather than curing. The proof? Magic Johnson is still alive.

Many attorneys find watching focus groups and mock jury deliberations extremely frustrating for this very reason. After presenting a clear, logical, and linear case, they find it disheartening to hear jurors being swayed by previously held beliefs or tangential facts. This frustration arises most frequently from the assumption that those factors are beyond their control and influence. But is that really the case? We would assert that you can prepare for such unexpected and often illogical arguments.

As strange as some of these “left field” arguments may seem, they are commonly held beliefs among a certain subset of individuals—and those individuals tend to discuss their opinions freely. For this reason, both the left field arguments, and the type of jurors who will respond to them, can be identified with proper research. Doing juror research early can save you time and money by highlighting such attitudes, allowing you evaluate how they benefit/harm your case, and helping you prepare for the unexpected ways that jurors may react to the case facts. It also reduces some of the uncertainty and unpredictability associated with jurors’ attempts to make sense of complex cases.

So in addition to evaluating your case based on your experience, we would advise you to always prepare for the arguments from left field. Because when you presume to know how jurors are going to think, they tend to seize the opportunity to prove you wrong.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions. 

Are Your Denials Believable?

When someone says something false or misleading about us—You’re against broccoli—we’re very likely to deny it—No, I’m not! In court, where more than broccoli-hating is involved, attorneys are especially likely to respond with a strong denial, because there is a lot on the line and they don’t want the jury to conclude something is true, because “They never even denied it!” It’s human nature, it’s reasonable, and it’s good trial practice to deny falsehoods. But what makes a denial believable?

Research demonstrates that denials alone are not persuasive. So in trial—where denials are commonplace and persuasion is the primary goal—what gives a denial more traction? Replacing the falsehood with a truth—and specifically, a truth that bears some relation to the original statement. Such truth replacements provide counter-information for the listener to hold on to and provide a competing statement, rather than a conflicting one.

An example from the 2008 campaign trail is the allegation, Obama is a Muslim. While Obama is not a Muslim was an oft-repeated refrain, it was a less effective denial than Actually, Obama is a Christian. Because trials involve an intricate and complicated set of facts and occur in a context where the claims you make are regulated, finding a truthful replacement won’t always be as easy and crisp as saying, Actually, Obama is a Christian. But shifting from a straight denial strategy to a deny-and-replace strategy will allow you to debunk the opposing claims while promoting your themes instead of merely repeating theirs in the negative.

Finding the right denial requires you to retrain your thinking about trial preparation and to examine documents and depositions with this focus in mind. It also requires an additional investment of time and resources to test and discover the most believable alternative statements for each falsehood. For each falsehood you identify, you will need to develop a truth statement that is: 1) consistent with the evidence and 2) resonates with the listener. If your client is being accused of “being greedy,” the truth statement will need to be a concise counter-statement that reflects the facts of the case: Actually, that design was less profitable than other designs, but was developed in response to consumer requests.

Although this denial method is more difficult to employ than the traditional “did too/did not” method, the payoff—presenting the most persuasive case to the jury—is also much greater. In every trial, you will face inaccurate information about your client that you wish to deny and correct, so it is imperative that when you deny something, the jury believes you.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

 

What’s Your Story?

Trial consultants often emphasize the importance of a clear and persuasive narrative. Stories have long been told as a way to explain why things happened as they did (Homer’s Iliad, e.g.) and psychologists have long understood the role stories play in processing and understanding events. Trial lawyers frequently study the science of storytelling and typically recognize and embrace the value of strong narratives. Plaintiff attorneys, in particular, have honed their storytelling skills and become experts at fleshing out stories with villains, victims, motivations, and plot twists. But how narratives should be used by the defense has always been less clear.

Does the defense need to have a competing story? Previous research has been split on this issue. While some researchers have advocated for a competing story, others have suggested that the defense needn’t offer a competing story to prevail—it just had to shoot holes in the plaintiff’s story. This latter view is consistent with the way that logical and legal argumentation work—when Person A argues for X, and Person B simply has to prove that X is not correct. And likely due to its logical appeal, this is the approach most often adopted by defense attorneys at trial. However, because juror decision-making is not as clean or linear as a point-by-point tally, we would encourage attorneys to focus on a competing story approach instead.

A recent study of scientists using narratives in their research articles confirms the power of stories. Scientists are accustomed to the standards of objectivity and rationality, able to focus on the facts alone to construct their own causal relations. But this study demonstrated that scientists who used narrative elements in their articles were much more likely to be cited by other scientists. In the academic community, citation is a reflection of influence and acceptance—and even accounting for other factors known to influence citation, stories facilitated the uptake of information and influence.

Of particular interest to us was the description of the problem scientists faced as they wrote up research: the volume of scholarly publications is increasing at a tremendous rate, sometimes doubling within 5-6 years. This makes it difficult for the reader to make sense of so much information and for the writer to be heard amongst so many voices. Similarly, jurors are expected to organize and make sense of a huge volume of information and attorneys are working diligently to be heard in the midst of competing information. This research demonstrates the superiority of narrative presentations over expository presentations in such circumstances.

So rather than trying to pick apart the plaintiff’s story, we suggest that you have your own story—and not simply bullet point themes, but a well-considered narrative that explains the parties, the series of events leading to the lawsuit, and the motivations of all involved. Such narratives not only provide context and meaning for the evidence, but they increase juror recall and provide reasons for a juror to hold firm in deliberation. Jurors, like all of us, process information in the form of a narrative, and therefore, will describe the case to others as if it’s a story. When deliberations begin, be certain that you’ve given them a powerful and memorable story to tell.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

 

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