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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.

Are You Asking the Right Questions?

Trials are centered around questions and answers. Attorneys have expectations based on their experience questioning witnesses—they ask precise questions and expect honest answers. They can anticipate the witness’ responses and prepare follow-up questions. And they can call attention to a witness’ biases if the witness is being evasive or misleading. But how does all of that experience translate when questioning jurors? Do precisely worded questions necessarily evoke clear and honest answers?

The expectation that the back-and-forth with jurors operates in the same manner as the questioning of witnesses can lead a trial attorney astray during voir dire. Jurors arrive in court with no prior knowledge of the case they will be discussing and therefore, must provide responses with very little time to consider their beliefs and opinions. Because most of our immediate thought processes are inferential and unconscious, jurors then tend to rely on heuristics that produce biases they are not aware of. So when a juror talks at length about how a member of her family has been harmed by, for example, crystal meth, and then assures the Court that she can be fair to the person accused of possessing crystal meth, she’s telling the truth, in her mind. But from the outside, it is clear that her experiences will affect her decision-making in ways that she doesn’t recognize.

This lack of awareness of how and why we think what we do leads to two practical problems: (1) Jurors who don’t recognize their own biases, like the juror in the crystal meth case above, force the trial team to use up their limited preemptories instead of relying on a cause strike; and (2) It creates confusion as to which responses you can trust and which you should be wary of.

So how can you increase jurors’ self-awareness and therefore, elicit more accurate responses?

-Approach sensitive topics indirectly. Don’t assume that straight questions lead to straight answers. Asking questions in a less direct and more unexpected way causes jurors to think through the issue from a different angle and can lead to more thoughtful—and truthful—responses.

-Promote discussion rather than trying to force “yes” and “no” responses. Engaging in a discussion will help jurors move from automatic to intentional processing.

Recognizing that jurors, like most people, are unaware of many of the attitudes, beliefs, and biases that drive their decision-making allows you to understand why they have difficulty responding to questions with clear, coherent and reliable information. This recognition also provides you with the opportunity to develop a unique approach to voir dire that encourages discussion and reflection. Additionally, it underscores the importance of researching the language that best encourages honest, self-aware responses from jurors regarding the sensitive topics specific to your case. Because most jurors want to tell the truth—we just have to create an environment that makes it easy for them to do so.

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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 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.

Are you Focusing Jurors – or Distracting Them?

“It’s not what you say, it’s what they hear” is a useful guide for reminding ourselves that we may not be as clear in our communication as we think we are. We’ve seen attorneys deliver arguments about X, and then found, in post-trial interviews, that jurors reframed it as Y. We’ve also seen attorneys use examples or analogies to make their point that then became the entire focus of the deliberations. Or worse, were turned around by jurors to argue the complete opposite point. Is there a way to find out if this might happen to you? And is it preventable? Yes and yes.

Let’s use the example of a misunderstood argument from public discourse—a recent column in the New York Times by David Brooks. He used the story of Noah to discuss the recent hurricanes, ending with the suggestion that, as powerful as the tradition of individualism is in the US, “strong individuals” must be “willing to yoke themselves to collective institutions.” The NYT reported that this article got more comments than any other article printed on that day (534 comments). What did those comments reveal about what readers understood Brooks to be saying, and how well did they understand it? We sampled the 200 top Readers’ Pick comments, and observed the following:

-The Bible reference opened an argument rather than ending it. As we pointed out in our post on analogies, many analogies serve to distract readers from the main topic. Once some readers read “Bible,” the rest of Brooks’ column was discounted.

-The majority of readers reframed this column as about climate change, a word Brooks never used in his column. That is, readers introduced a completely different topic in their comments and engaged each other on that—a side discussion that didn’t involve Mr. Brooks at all.

-Brooks made an oblique reference to the current polarized political situation (“Many swerve between cheap, antiestablishment cynicism….and a lemming-like partisan obedience”) which readers honed in on and explicitly discussed.

-Only a handful of commenters accepted Brooks’ general point and engaged with it. And only one person defended him.

Clearly, Mr. Brooks wanted to convey a message and he wrote an article that was widely read. Unfortunately for him, most readers didn’t hear what he said.

Are you at risk of this happening? Yes, it can happen any time you use analogies. In today’s climate, the Bible and the current political situation are charged topics that offer too many rabbit trials for your listeners. It can also happen if you spend too much time setting up your point. The more time you spend explaining examples and analogies, the less time you spend making your point—and the more likely the listener is to miss your point altogether.

Can you prevent it? Yes, by choosing your words wisely and testing them in front of mock jurors. Then, listen carefully to the feedback and adjust if you notice jurors generating reframed or off-topic arguments. Because sometimes in trial, well-intentioned, but untested arguments and examples can lead jurors down roads you would never have expected. And the outcome of that rarely works in your favor.

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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 Emotions is Your Narrative Evoking?

In most jury selections, attorneys on both sides ask as many questions about jurors’ case-related attitudes as they are allowed to. But how do you get at attitudes that jurors don’t even know are related until the trial starts? Although most attorneys would be sure to exclude any potential jurors who had suffered a fate similar to the plaintiff, they may completely overlook those with more innocuous experiences that can lead them to the belief of “there, but for the grace of God, go I.” Preventing this requires conscientious research into how laypersons view the opposing themes in the case as well as what personal experiences it conjures up in their minds.

One recent example can be seen in a recent New York Times article discussing James Comey’s testimony before the Senate Intelligence Committee. As Mr. Comey described his interactions with President Trump, he referenced feeling “uneasy,” feeling that lines were being blurred, and feeling pressured into situations with his boss that made him uncomfortable. He spoke of staying silent to avoid entering into unsavory agreements and of “freezing” when uncomfortable requests were made. In response, he was asked why he hadn’t been done more to prevent, stop or report the behavior. Unexpectedly, to Nicole Serratore, the NYT writer, as well as many others following the testimony, a familiar and unsettling narrative emerged: that of a woman being sexually harassed in the workplace.

James Comey is not a woman. And the issues at hand had nothing to do with sexual harassment. Which is what makes this an excellent example to underscore the importance of understanding what emotions case-specific themes and testimony will evoke. We have noticed that even though most jurors have not “walked in the shoes” of the plaintiff, they have often had experiences that cause the plaintiff themes to resonate with them. While they may not have suffered an injury, have they ever not been warned of side effects by a doctor? Have they ever left a doctor’s office feeling like they weren’t heard? Have they felt too rushed or intimidated to ask questions?

In most cases, the answer to those questions for at least some jurors will be “Yes.” If specifics of a case parallel a juror’s positive or negative life experiences, then they present you with either an opportunity or a problem. But in order to capitalize on the opportunity or counter the problem, you must first be aware of its existence. To oppose themes that parallel negative juror experiences, you must be prepared to identify and counter those themes, as well as voir dire jurors on those issues. And to capitalize on jurors’ life experiences and prime them to be more receptive to your themes, you must research how to frame the case narrative in a way that feels familiar to them.

Most jurors have endured things in life that will in some way parallel what’s being discussed in the case. And given the effect those experiences have on how jurors frame and respond to the case, we should be highly motivated to learn about those experiences. As always, the more you understand how jurors will react to the specifics of your case, the more knowledgeable you can be during jury selection and the more compelling your case can be 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.

 

Are Jury Questionnaires Biasing the Jury?

Many lawyers are unfamiliar with the use of supplemental jury questionnaires, and this unfamiliarity makes them skeptical of the questionnaire’s contents. The strong tendency of attorneys new to juror questionnaires is to resist questions that contain statements that are negative about their client (e.g., “Do you believe pharmaceutical companies are money-hungry?”). We recently observed an example of this on the reality television show, Reasonable Doubt, which neatly illustrated the problem with this approach. In this series, a retired police detective and a criminal defense attorney investigate actual adjudicated cases to determine whether the appropriate person was convicted. In one episode, the incarcerated person was a lesbian accused of killing a romantic rival. One issue in her case was whether information in the jury questionnaire biased the jury panel.

The criminal defense attorney checked into the questionnaire and found questions such as, “Do you believe lesbians are more aggressive than other women?” and “Do you believe lesbians are more likely to exhibit violence in their romantic relationships?” Upon reviewing the questionnaire, she concluded that the questionnaire was indeed biasing for jurors and stated that she would never allow such a questionnaire if the defendant in this case had been her client.

What is the problem with this position? Everything. Given the time period that this crime took place and the rural location of the trial, there were probably a great number of people who would’ve had pre-existing opinions about the defendant based on her sexual preference. Without questions such as those in the questionnaire, the defense would have no way of highlighting and eliminating those prospective jurors. In this case, the questionnaire being condemned from a defense perspective had exactly the type of questions that a defense attorney would need to do a thorough voir dire for this defendant. Unfortunately, unfamiliarity with the purpose and structure of jury questionnaires can lead attorneys to resist the very thing that is most beneficial to their client.

So how should jury questionnaires be approached? With this knowledge: Jury questionnaires do not create biases. They allow jurors to express them. Avoiding inflammatory questions on a jury questionnaire does not prevent jurors from being exposed to negative ideas and including inflammatory questions does not indoctrinate jurors with those attitudes. Jurors’ belief systems are formed based on a lifetime of experiences and are not fundamentally altered in any way by questions asked of them in voir dire – whether in written or oral form.

So rather than shying away from the hard questions, we would suggest that those are, in fact, the most important questions. Because when jurors in your panel are against you, you definitely want to give them every opportunity to alert you to that fact.

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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 Makes an Expert?

Selecting experts for trial has always been a challenging task. The list of considerations—solid credentials, the ability to provide clear explanations and form strong connections with jurors, prior history of testifying, financial biases—is extensive. But once selected, their role as an expert was clear: to educate jurors about complicated subject matter and to convince jurors that they can adopt his/her opinions in the case, because the expert knows best.

Until recently, that approach worked. Experts were regarded as such and jurors would evaluate the experts and decide whom they believed. In post-trial interviews, jurors would explain why they preferred one expert over another, but few jurors, in our experience, would blithely dismiss an expert as lacking expertise. Because of this, you could find the most credible, likable, and persuasive expert possible and trust them to carry a great deal of your case.

Unfortunately, jurors’ notions on experts appear to be changing. Although the U.S. has a history of anti-intellectualism, that has previously meant that laypersons were suspicious of intellectuals, including scientists, but didn’t doubt that these experts were indeed experts. Over the past several years, however, we’ve noticed a trend for laypersons to treat experts as just another layperson with an opinion.

For example, in our research on vaccines, one layperson stated that the issue was complex, then commented: I’m not a scientist. I’m going to bet that most of you are not, either. I just prefer to procede [sic] on the side of caution and not blindly agree with the CDC, federal government, and medical industry. That is, she’s not a scientist, and she’s not going to agree with the scientists.

While this attitude is easy to recognize in issues such as vaccines or climate change, we have not found one science/medical area where laypersons don’t question or doubt the expertise of the experts. Sociologists believe this change probably has to do with the evolution of how society views and discusses science and technology. In addition to recent questions about the objectivity and “purity” of science, the ability to instantly access information on any topic allows laypersons to minimize the importance of another’s expertise and to push back against such expertise based on minimal information or education.

Because jurors’ evaluation and acceptance of experts is changing—our research indicates that jurors are less impressed by credentials than they were in the past and value other experiential factors instead—it is critical that you understand what criteria jurors are using currently to evaluate experts. Such up-to-date research is imperative both in choosing an expert for trial and in deciding how much of your case to entrust to them.

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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.

 

Examining Brain Models Used in Trial

Given our line of work, we find that people frequently reference brain models in conversation with us. Having heard about right/left brain thinking, some attorneys want to choose predominately left- (or predominately right-) brained jurors. Or they want to ensure that their presentations appeal to the appropriate side of the brain. Others, responding to fears concerning the Reptile Brain approach, are looking for ways to draw jurors back into conscious and deliberate decision-making.  But is this focus well-placed? Do these brain models accurately describe how jurors make decisions?

The right/left brain theory relies on the understanding that the different sides of the brain control different functions (logical/mathematical vs. creative/emotional). The Reptile Brain approach claims to be using cues about safety and harm to trigger primal, instinctive decision-making. In truth, brain science has evolved from the left brain/right brain theory. And unless jurors are put into actual and immediate physical danger, they are not accessing their primal instincts or their “reptile brain” when making decisions – no matter how many safety cues they are given. So while fully adopting either of these approaches will cause you to miss the mark, the use of such strategies does raise legitimate concerns that must be considered and addressed.

Both of these approaches are actually designed to exploit the role of emotion in decision-making. What has typically been called a right-brained approach is really an emotional approach – one that tugs at the heartstrings of jurors and appeals to their sympathy. The Reptile Brain approach also appeals to emotions, but rather than relying on sympathy, it strives to evoke the stronger and more reactionary emotions of fear and anger. Although the theory may be scientifically incorrect – even baseless – an approach that evokes strong sympathy for the plaintiff, or even worse, fear of or anger at the defendant is likely to be effective.

So how should these approaches be countered?

-Recognize the fallacy in what they are claiming to do. They are not engaging a side of the mind that your presentation cannot reach, nor are they creating a path for jurors to make decisions on a primal, subconscious level. They are simply inciting inflammatory emotions. And inflammatory emotions can be quelled.

-Attack the veracity of their claims. Such emotion-evoking strategies tend to rely on hyperbole and exaggeration that when exposed, annoys jurors.

-Build your own persuasive and competing narrative rather than simply trying to shoot holes in their narrative.

-Illuminate their strategy. Such strategies are designed to blatantly manipulate the emotions of jurors and manipulation is much less effective if the subjects of that manipulation are alerted to it.

While these brain models appear as frequent topics of discussion at legal conferences, they are not accepted as current or legitimate in brain science or psychology. But those who utilize these strategies are skilled at tapping into strong emotions in a way that can be compelling. For this reason, we would recommend ignoring the questionable theory behind the strategy and focusing on what makes the strategy work. Once you understand that the sole strength of these strategies lies in on evoking and manipulating emotions, you can learn to counter them effectively.

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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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