Posts Under Tag: Trial Preparation

  • Home
  • TagTrial Preparation

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.

______________________

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.

______________________

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.

______________________

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.

______________________

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.

______________________

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.

______________________

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.

______________________

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.

______________________

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.

______________________

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.

Know Your Opponent’s Strengths

During trial preparation, it is easy, and tempting, to hone in on the weaknesses in your opponent’s case and discount their strengths. Easy, because the weaknesses often highlight themselves and tempting, because developing arguments to expose such weaknesses comes quickly to experienced trial lawyers. While we would absolutely encourage you to capitalize on those weaknesses, we would also recommend 1) garnering feedback from multiple perspectives to develop a detailed understanding of the opposing cases’ strengths and 2) focusing the majority of your trial preparation on analyzing and responding to those strengths.

In spite of the intense satisfaction that comes with unequivocally proving an adversary wrong, dismantling their weak arguments may not be enough to discredit their strong arguments. Oftentimes, cases are assessed using a formulaic approach—which tends to conceive of trials as a set of building blocks that will collapse if you knock out some of the blocks. Unfortunately, juror decision-making isn’t that regimented or linear. Instead, we would recommend an approach similar to that of a football team scouting out their rival or a boxer preparing for a specific opponent. In both cases, exploiting their opponents’ weaknesses is only a part of the plan. They recognize that the key to victory is appreciating and preparing for their opponent’s strengths.

Because our belief systems and perspectives seem so right to us, it can make it difficult to appreciate that a rational person, upon hearing our explanation of the facts, could draw a different conclusion. And since we tend to surround ourselves with people who share our perspectives, it is not unusual for us to work with trial teams where almost every member shares a specific view on the case. In those circumstances, it is extremely common for different perspectives—whether that’s from a trial consultant, other members of trial team, or mock jurors—to be dismissed or attributed to a lack of a full understanding of the facts.

We would encourage you to intentionally resist that type of “groupthink.” Much in the same way that football teams have practice squads that mimic the strengths of the opposing team and boxers enlist sparring partners who are strong in the same areas as their opponent, we would suggest surrounding yourself with people who have different—and conflicting—perspectives as you prepare for trial. While this structure does force you to confront the hard truths associated with your case, it allows you to hear them from a team member prior to trial, rather than from a juror after the trial.

One of the most valuable things you can do during trial preparation is to create an environment where an appreciation for the opposing arguments is welcomed and encouraged—not dismissed or frowned upon. So seek out trial consultants who will point out strong aspects of the opposing case. Encourage that type of thinking in your trial team. And be receptive to it when you hear it from mock jurors. They aren’t simply playing devil’s advocate, not being a team player, or misunderstanding the facts. They’re giving you a scouting report—and in turn, you’ll be prepared for whatever is coming.

______________________

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 d

Recent Posts

Recent Comments

    Archives

    Categories

    Meta