Posts Under Tag: Jury Trials

Is That Expert as Great as You Think?

A great deal of work goes into preparing an expert witness for trial. Typically, there are many hours of discussion and preparation before an expert ever sits for a deposition or submits an expert report. But often, most of those hours are spent with only one or two attorneys. And equally as often, those attorneys played a role in “discovering” or “acquiring” the expert. Unfortunately, the resulting relationship can make it difficult to see the expert’s weaknesses until they are exposed in deposition or in trial.

Finding a great expert isn’t easy and no witness is perfect, but for an expert witness to be helpful, they must be persuasive enough to overcome any “issues” they come with. Most of us understand that a multitude of things—from demeanor to financial bias to previous testimony—can undermine an expert’s credibility. But that somehow doesn’t prevent the all-too-common situation of either 1) working up an expert for a very long time before realizing that he/she will never be trial ready or 2) producing an expert at trial only to have his/her testimony go south.

More times than we care to admit, we have heard great things about experts only to meet them close to trial and discover a problem that is insignificant to attorneys, but will be glaring to jurors. And too often, at that point, it is too late in the process to make a change. But why is it so difficult for attorneys to predict an expert’s probability of success early on? Because jurors and attorneys evaluate experts differently.

Attorneys begin their search with an end in mind. And while they may not directly guide the expert’s opinions, they definitely seek out experts who are going to be case-friendly. (Of note, these experts are often found because they’ve had a financial relationship with the defendant previously or they are known to be a big user/prescriber of their products.) Jurors, on the other hand, are starting out with a different—and unfortunately, sometimes opposing—perspective. This makes it is imperative to have someone on the outside cast their eyes on an expert early in the process. Neither we—nor our clients—have ever regretted that we met with an expert early in the process. But on many occasions, we have had to be the bearers of very bad news about an expert’s ability to be an effective witness after countless billable hours were spent preparing him.

Because experts are usually such an integral part of your case and because a great deal of time and money goes into finding and preparing an expert, we’ve rarely seen clients more upset than when they realize that an expert who has been worked up for years cannot be used because of an issue that has previously been discounted. Or even worse, when something in an expert’s background or opinions negatively affects the outcome of a case. While this is not an uncommon problem, it is one that can be resolved by taking the right precautions. Because it’s never too early to learn that an expert will not be a great witness at trial.

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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.

 

Don’t Dismiss Erring Mock Jurors So Quickly

Almost any attorney who has participated in a mock trial can provide an example of a mock juror’s off-the-wall logic or fundamental misunderstanding of the case facts. Unfortunately, a common reaction to such mock jurors can be skepticism of their worth and dismissal of their arguments. But simply dismissing arguments made by mock jurors because they don’t seem reasonable to you is one of the biggest mistakes you can make during trial preparation.

Inevitably, when mock jurors deliberate, attorneys are drawn to the jurors who agree with them and annoyed by the jurors who argue for the opposing side. While this is a natural and unavoidable instinct, it is also an instinct that should be quickly suppressed if you want to learn all that you can from the jury exercise. Commonly, if jurors are confused on a particular issue, they are dismissed as unintelligent or inattentive. And if they adopt the arguments for the other side, it is viewed as a lack of understanding on their part (“if they understood it, they would side with me”). But these biases toward your own case can easily stand in the way of you getting the most value from the mock trial.

The first step in countering those biases is understanding the faulty logic behind them. Once you’ve become familiar with a case, it’s easy to forget how challenging it was to sort out at the beginning, and you can develop tunnel vision. Most legal and case-specific concepts are not notions that jurors encounter in their daily lives. Not only should it not be surprising if jurors don’t immediately understand something, but it should alert us to the things that need to be explained more often or more clearly. Additionally, no matter how strongly you advocate for your side, we should never assume that a reasonable person won’t be persuaded by the opposing side.

In fact, the greatest value of a mock trial comes from understanding the jurors who voted against you. Paying careful attention to the jurors who weren’t persuaded by your case allows you to ask the most important questions for trial preparation: What attracted them to the other side? What made the opposing arguments work? What holes did they see in your arguments? What facts were they legitimately confused by and how can that confusion be cleared up?

So while mock jurors may bring up points that seem illogical or nonsensical to you, be mindful that 1) any points that caused them confusion are likely to confuse real jurors as well, 2) it may not be that they don’t understand your argument; rather, they just don’t buy it, 3) their thought processes may be more widely-held and common that you would like to believe. Taking seriously what opposing jurors have to say allows you to shore up your case’s weaknesses and avoid surprises at trial. And if there is anything we can all agree on, it is that clients hate surprises at trial.

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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 Trump Changing How Juries Think?

For years, attorneys have questioned jurors about their political affiliation and tried to intuit how that affiliation would color their view of the case at hand. But political preference alone has never been a good indicator of juror leanings. Despite the persistent belief that a jurors’ political party must be a strong verdict predictor, no research has borne out that belief. Instead, studies have always shown jurors to be much more defined by their long-standing attitudes and experiences than by their party affiliation. But are times changing in that regard? Has the current political climate created a shift in juror thinking?

In some ways, the answer to those questions is “yes.” Although juror value systems and life experiences remain the best predictors of their verdict decisions, jurors aren’t making those decisions in a vacuum. Because verdict decisions are made within a group, we must pay special attention to factors that groups will be especially sensitive to or find particularly divisive—and currently, there are few topics more divisive and pervasive than President Trump. If you go to any news story that is not about President Trump—hip implants, the opioid epidemic, the #MeToo movement, or even the birth of Kim and Kanye’s new baby—and look in the comments section, you will find explicit references to President Trump, sometimes in the first few comments, with others joining in on either side in a loud and uncivil chorus.

As a result of the political polarity in our country and the constant inundation of political accusations, President Trump has come to represent certain things to certain people—supporting or denouncing him is shorthand for a person’s political identity. That kind of shorthand is very accessible to jurors as schemas or heuristics when processing information. And because politics are currently such a hot topic, they may be the first thing that will come to many jurors’ minds as they generate examples or analogies. Once politics enter the discussion, it is easy for jurors to fall back on their political prisms, divide along those lines and become entrenched in that thinking. This not only prevents them from processing and analyzing the case as they normally would, but it makes juror behavior more unpredictable and jury selection much more difficult.

So how do we deal with the fact that while political beliefs don’t inform jurors’ decisions on the case, they are notions that jurors are so heavily invested in right now that they control where their alliances fall and therefore, potentially affect case outcomes? Below are some recommendations:

-Don’t make any political references regardless of how harmless they may seem.

-Be wary of any juror who spontaneously mentions Trump or politics in jury selection in response to non-political questions.

-Research whether the case has aspects that draw political comparisons and see how those comparisons affect deliberations.

-Appeal to jurors’ fundamental—not political—beliefs and focus on how the opposing side’s behavior violated those beliefs. This will encourage jurors to make decisions based on their sense of justice—not based on political allegiances.

While political affiliation was previously an ineffective shortcut used by attorneys to categorize jurors, it has now become a minefield that must be trod with great care. As the country has become more divided along political lines, those topics have the power to derail almost any discussion. Because deliberations involve a group of diverse and unfamiliar people, they are particularly susceptible to this phenomenon—and we must take deliberate steps to keep those discussions on track.

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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.

Fighting The Battle in Front of You

Anyone with extensive trial experience understands the value of calling on that experience when entering into a new litigation or trying a new case. Good attorneys see patterns and commonalities across cases and recognize the benefits those patterns provide. Seeing patterns allows an attorney to quickly assess a new case, to figure out a good place to start researching, and to identify issues that are likely to be problematic. Because such experience eliminates the need to reinvent the wheel for each case that comes along, it’s not surprising that both attorneys and trial consultants often draw comparisons between the current litigation and past litigations. And while those comparisons are largely beneficial, they also contain pitfalls.

Unfortunately, such extensive experience can cause you to close your mind too early on a case. By assuming that this case will fit into the same pattern as previous, similar cases, you can miss vital differences—some of which can completely change the trajectory of the case. Overlooking those differences—the unique challenges present in this case—can leave you blindsided by how differently jurors react to it than they have to cases you have tried before. But how can attorneys and trial consultants keep their minds open? How can you manage to look at a case with fresh eyes when you can’t un-know what you know?

A method that we find useful is contemplating this story: A fire chief with decades of experience tells an interviewer: “The next fire I walk into, I won’t know anything.” Surprised, the interviewer pointed out his position as fire chief and his decades of experience. But the chief explains: “When I arrive on scene with that mind-set, I glean more new, specific information from others. By affirming uncertainty, I get more people to own what they see and to communicate it. Because while we have all seen a lot of fires, none of us has ever seen this fire.”

Adopting the mantra, “I’ve never seen this fire before” reminds us that each case—with all of it nuances and concrete details—strikes jurors differently. Cases may have commonalities but nonetheless, the themes and arguments that worked in the past will not necessarily work here. The jurors who responded so favorably to you before may not be the jurors you want now. Different hot button issues will be present and different emotions will be evoked. Being mindful of those things allows us to balance our previous experiences and successes with discovering what makes this case different. And those differences must be investigated in order to find the optimal strategy for this litigation.

So while it’s wise to remember the lessons you’ve learned from the past, it’s also important to remember that each new case/litigation is its own fire—with its own flashpoints, its own patterns, and its own dangers. And the best way to be successful in this case, is to make sure you aren’t still trying the last case.

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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 were those jurors thinking? Ask them.

Are there jurors you believe are always risky picks? Is there a strategy you used before, but now avoid? Attorneys often tell us about a type of juror they’ve been burned by or a strategy they used that jurors hated, but in most cases, those conclusions are based on the results of the trial—and on their feelings of uncertainty surrounding that juror or strategy. Rather than guessing about what went wrong or assuming you know which jurors were for/against you, we would recommend going straight to the source—the jurors. Although some judges balk at juror interviews, we would argue that their value makes it an issue that is well worth raising.

Making assumptions about jurors, strategies, and witnesses happens naturally and understandably. When you are trying a case, you view every aspect of that case—the jurors you want, how the case should be presented, how the evidence comes in—through the prism of your life and trial experiences. And when a verdict is reached, it is impossible to remove the filter borne of those experiences, including any doubts and uncertainties, when trying to decipher the verdict. So it’s easy to attribute a loss to that witness you were unsure about or a win to that juror you loved. But those attributions—while deeply held—may be completely inaccurate.

Unfortunately, such inaccurate attributions don’t simply color how you view cases in the past. They become integrated into your “trial filter” and begin to inform future trial decisions. As you try more cases, your speculative post-trial analyses start to have a cumulative effect: there is an ever-growing list of jurors you don’t trust, strategies you reject, and arguments you avoid. But there is no assurance that your trial choices are based on accurate information. Should all elementary school teachers really be avoided? Or was there something about that teacher’s life experience that made her resistant to your arguments? Did jurors really hate that witness you were so unsure about? Or did the case turn on a piece of evidence that you thought was insignificant?

Post-Trial Interviews answer those questions. They allow us to draw accurate conclusions about what went right/wrong and make sound adjustments to our strategy. And we have never done Post-Trial Interviews where we did not learn something unexpected and valuable. They provide insight into (1) what actually influenced the jury’s verdict, (2) how many/which jurors were receptive to your arguments, and (3) the tenor and dynamics of the deliberations. This is obviously helpful information if the trial team lost, but even with a win, you may find out that jurors responded to evidence you discounted and ignored evidence you were sure would sway them.

Post-Trial Interviews often inform your future trial techniques in more global ways as well. It is not uncommon to find out information about jurors that you would have loved to know during jury selection—which can lead to changes in how you phrase, order, and ask voir dire questions. And regularly, attorneys are surprised and irritated to learn that jurors seem to have no recollection or an improper recollection of the jury instructions that they were hanging their case on. Such juror revelations can lead to a better understanding of how jurors analyze and process information and what legal arguments they do/do not find meaningful.

It is natural to want to avoid things that have not worked for you in the past. But that inclination is only helpful if you are avoiding those things based on accurate information. So talk to that elementary school teacher before you decide that you find teachers risky as jurors. She may have been terrible for you…or she may have been the one person who kept damages in check.

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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.

Be willing to lose the mock to win the trial.

Mock trials are often a key part of preparation for trial. Although mocks can never exactly replicate a trial, they do provide valuable information about themes, arguments, and key pieces of evidence and witness testimony. The goal of any mock trial should be to learn as much as possible – both about your case and about the opposing case. And the stronger the opposingcase presentation, the more you will learn.

Carpenter Trial Consulting: Expert Consultants, Expert Advice

Carpenter Trial Consulting: Expert Consultants, Expert Advice

But we’ve found that trial attorneys, accustomed to a “if you win, I lose” context, are better able to embrace this concept in theory than in practice. Over time, they become invested in their position and their arguments. And knowing their client is going to be watching and judging their performance produces, understandably, a desire to win. We’ve seen that desire manifest itself in many ways, both subtle and obvious.

Whether it’s assigning the opposing case to more junior, inexperienced attorneys, stacking the deck by excluding inflammatory evidence, or presenting evidence or arguments that would not be allowed at trial (or in some cases, aren’t even true), shifting the balance of the mock in their favor may boost an attorney’s confidence and performance in the mock trial, but it will reduce the amount of valuable information gleaned from participants. Even more concerning, it can give the client false expectations about the hurdles awaiting them at trial.

Ideally, the mock trial is approached like an experiment where we test the worst-case scenario, give the other side the strongest, best-case representation, and see how jurors evaluate the case. And the results will be gleaned not just from how jurors vote, but from what they say: What arguments did they adopt/reject? What arguments did they generate on their own? What arguments stirred emotions? Which points did jurors really dig in on? What were they confused by? This information is what guides changes to themes and strategies, and ultimately, influences trial outcomes.

When approached correctly, mock trials can add enormous value. But realizing that value requires the following:

-Attorneys must be able to adopt an experimental, not a performative, mindset. They have to be willing to face losing the mock.

-Attorneys must trust the trial consultant designing and assisting with the mock trial to educate and remind the client that a trial team that loses a balanced mock is providing more value than a trial team that stacks the deck and wins the mock.

In short, learning to fail in a mock always beats failing to learn in a mock.

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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.

 

Yes, you really should respond to that inane argument.

In any disagreement, it’s incredibly tempting to only respond to the arguments that you think are persuasive and simply dismiss those that you find absurd. Unfortunately, as can be easily seen in any political debate, that often leaves both sides talking past each other – and never actually addressing the other side’s concerns. Unless and until you actually address the opposing arguments directly – even those you think are ridiculous – you are simply “preaching to the choir.” And while it is important to provide ammunition to those who are on your side, ideally, you would like to persuade those who are on the fence or against you.

To highlight this issue, think about a political issue you feel strongly about. Now consider the opposing arguments on that issue. Do they actually address your concerns? Or do you feel they are missing the point entirely? Are you persuaded by arguments that don’t address your concerns?

This same dynamic surrounds practically every sensitive issue that people have a vested interest in. Consider vaccines, for example. Vaccine resisters believe that there are real and widespread risks of vaccines that outweigh the risks of childhood diseases. They fear that vaccines will cause permanent injuries and changes to their child. Vaccine advocates emphasize the seriousness of those childhood diseases and our social responsibility in protecting vulnerable populations who cannot be vaccinated. The advocates’ approach is typically to scoff at anti-vaxxers or to focus on educating them. However, their arguments are rarely persuasive to those who oppose vaccines, because they dismiss the fundamental force driving their position – fear of causing harm to their child – instead of addressing it.

In fact, studies designed to examine what arguments actually influence anti-vaxxers’ thoughts about vaccines have found that parents’ vivid and detailed descriptions of their child actually getting those diseases (measles, whooping cough, etc.) are most effective. This is likely because those personal accounts speak to the fear in vaccine resisters – and elevate their level of fear concerning childhood diseases to a point that balances out the scales a bit more.

Every time you go to trial, you are introducing new topics to jurors and asking them to become invested in the issues – which they do. But to create the greatest chance that they will become invested in your position, you can’t simply hope they think like you and will be persuaded by the same arguments you are persuaded by. You should consider that some jurors may have a different perspective – one that you would like to change. So next time you don’t want to bother addressing an opposing argument because “no one will ever believe that,” remind yourself that someone will. And he/she may be on your jury.

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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.

Using an analogy at trial is like…oh, just don’t do it.

When teachers want to explain a new concept to students, they often offer analogies: teaching fractions in terms of pieces of a pie or likening the brain to a computer for the body. Scientists rely on analogy to help themselves think: for example, Robert Boyle, the founder of modern chemistry, used analogy to conceptualize and explain “local motion,” the movement of invisible particles. Analogy, and its relatives the metaphor and the simile, is a powerful tool for explaining new and complex concepts and facts to a lay audience. It’s not surprising that lawyers turn to analogy in the courtroom to explain causation or complicated facts.

But using an analogy in the courtroom is like having a gun in your house: it can protect you, but a burglar could take it by stealth or force and use it against you. And that analogy highlights the problem with analogies. Analogies are never 100% fitted to the new situation, and that difference between analogy and situation, especially if the analogy makes use of a politically or emotionally charged example, can distract jurors and derail the discussion. The gun analogy likely caused most readers to react to that statement and thus, distracted them from our main point: be very cautious when using analogies.

You can see the distracting power of analogies in almost any conversation or discussion, including the example below. In our research on lay attitudes towards vaccinations, we analyzed reader responses to a blog post by Maria Konnikova, a writer for the New Yorker. Konnikova was writing about a study that explored the effectiveness of particular ways of communicating information about childhood vaccines to parents; the benefit of childhood vaccination was not up for discussion. In the course of her post, Konnikova made two analogies: one to the use and regulation of raw milk and another to Galileo as a pioneer in science. There were over 340 comments and of those, only a handful directly addressed the topic of the post, communicating with parents. Of the remaining comments,

1) 124 argued the pros and cons of childhood vaccines

2) 83 argued the pros and cons of raw milk

3) 46 commented on Galileo.

It’s tempting to want to explain complexity with an analogy, but “likeness is a most slippery tribe,” says the Stranger in Plato’s Sophist, and we agree. Whatever analogy you’re contemplating, we bet it can be turned inside out, and you can be sure the opposing attorneys will try their hardest to do so. And if they can’t, they can always fall back on dismissing it: “Opposing counsel likened this X to a Y, which is totally wrong and demeans X.” It’s a rare analogy that can hold up under that scrutiny.

And it’s a rare juror who is persuaded by an attorney-generated analogy (they can be persuaded by their own analogies, but that’s another post). So instead of spending all of your time trying to come up with the perfect analogy, spend that time focused on what you want the jurors to focus on: your case.

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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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