JUROR PERCEPTIONS OF YOU by Harry Plotkin

Jury consultant, Harry Plotkin, just came out with a marvelous article for trial lawyers about jury perception. It’s one of the best we’ve read on this subject and as such, we wanted to share Mr. Plotkin’s entire article with you. We’ve included all of Mr. Plotkin’s contact information so please make sure to give him a call if you’d like his assistance with your next trial.

JUROR PERCEPTIONS OF YOU
by Harry Plotkin

I have no doubt that each one of you takes great pains to present your case as perfectly as you can to a jury. You probably even make every effort to present YOURSELF perfectly to the jury. Keep in mind when you’re preparing for trial and thinking about all the strategies that go into presenting yourself, your client, and your case that the most challenging thing about a perfect presentation is that YOU are not the judge that matters. A case presented perfectly to you, a judge, or any lawyer is probably NOT a perfect case to a jury. So if you’re taking a case to a jury trial, remember that only their opinions matter. And while you’re at it, realize that your jurors’ opinions about you and your case aren’t always logical or fair.

This month, I’m going to discuss your jurors’ perceptions of you, the lawyer. Not their perceptions of your client or your case, but of you. Even though you didn’t have anything to do with the events surrounding the facts and parties at trial, you are the most important figure the jurors have to trust in order to trust your client and your case. If the jurors trust you, they’ll trust what you have to say. If the jurors don’t trust the messenger, they won’t trust the message. To make matters worse, jurors seem to distrust lawyers more these days. They each come into the courtroom with an idea of the stereotypical dishonest lawyer seared into their brains, and for many jurors, you are guilty of being that stereotypical lawyer until proven innocent. So this month, let’s discuss how jurors go about figuring out if you’re one of the cliché, dishonest lawyers they distrust.

Let’s start with a simple one. Jurors expect that a stereotypical lawyer will dress to impress, in a suit with a Rolex. Jurors trust you when you dress to look more approachable. “Approachable” means something different depending on your personality and where you practice, but it may mean wearing less expensive, less formal attire. Perhaps a lighter suit, or a blouse or sport coat instead of a two- or three-piece. Dressing to be more approachable is especially important on those days in which you’re making your first impression and interacting with the jury: jury selection, opening statements, and closing arguments.

Jurors expect the stereotypical lawyer to force their own point-of-view down the jurors’ throats in trial, and too often lawyers do just that at the worst possible time—in voir dire, when you should be letting the jurors express themselves. Few things offend the jurors more than a lawyer who asks them questions but then cuts them off, tells them what to think, and doesn’t let them be entitled to their own opinions. Voir dire is NOT the time to tell your jurors how they should think, but many lawyers are unknowingly guilty of doing just that. Anytime you ask the jurors “wouldn’t you agree that...” you are forcing your point-of-view on them. Even when they claim to agree, many really don’t, so it’s a waste of your time. Your jurors have opinions, some very strong ones, and many do NOT agree with you, no matter what you lecture to them in voir dire. So never ask a juror a question like “wouldn’t you agree that...” or “can you all promise me you’ll follow the court’s instruction that...” If a juror doesn’t agree, or doesn’t really think the jury instruction is fair, they won’t be persuaded, no matter what they say, and they’ll resent you for asking.

Jurors trust you when you listen to them. Voir dire is your only opportunity to show them that you want to listen to them. And even though there are ways to subtly persuade jurors in voir dire, a large part of voir dire should involve shutting up and letting the jurors tell you how they feel. You can kill two birds with one stone during jury selection—by asking open-ended questions and asking lots of “how do you feel about that?” questions, you’ll not only identify hostile jurors to de-select and learn how your remaining jurors feel about the issues of your case, but just as importantly you’ll show your jurors that you care enough to listen. Jurors trust lawyers who listen, and voir dire is your best and only chance to show your jurors that you accept and understand every point-of-view. Invite disagreements, listen carefully and understandingly to jurors who are completely hostile to your case issues, and show even the craziest jurors that you understand what they’re saying and how they feel.

During trial, jurors expect the stereotypically dishonest, defensive lawyer to OBJECT a lot. They expect you to object every time the other side says something damaging to your case that worries you. In fact, most jurors believe that every time a lawyer objects, it’s BECAUSE they are nervous, guilty, or worried about what the other side is going to share with the jury. Jurors ALWAYS want to know the whole story, so they don’t like it when they feel that you’re trying to hide interesting information from them. When a lawyer objects early and often in trial, the jurors do NOT get the impression that the other side is crossing a line, even if the judge sustains the objections. Having talked with jurors after trials, with shadow jurors during trials, and having overheard actual jurors during trials, believe me—-the jurors usually believe that objections are lawyers’ ways of hiding the whole story and the truth from the jury.

As painful as it may be to hold back an objection when the other side says something inappropriate, weigh the benefits of objecting with the risk of making your jurors’ suspicious. Usually their imaginations conjure up much more damaging assumptions than what the other side would have said. In most situations, it may be better to hold your objection and remain calm. Jurors trust you when you appear calm and unfazed by everything the other side says. And if you have to object, as much as judges hate this, explain your objection out loud in terms the jury can understand. Instead of “objection, calls for speculation!” you might say “objection, the witness is guessing, not giving facts!”

Jurors expect the stereotypical, dishonest lawyer to avoid talking about the most glaring weaknesses in their case. Jurors don’t just expect dishonest lawyers to object when it comes up; they also expect you to actively ignore the topic in hopes that the jurors won’t notice. The jurors may be right. Too many lawyers don’t know what to do with the most worrisome issues in their case and become paralyzed in their ability to talk about it to the jury. But unless the other side does you a favor and doesn’t mention the issue, it’s going to come up, and the jurors WILL notice if you avoid it. Even worse, your jurors will get the impression that you’re HIDING the issue from them, even when you’re only ignoring or avoiding it because you can’t figure out what to say about it.

Believe it or not, jurors trust you when you talk about your worst issues and make honest admissions that seem to be detrimental to your case. Jurors are always surprised when lawyers openly admit concerns in voir dire, and they find it refreshingly honest. You’d be amazed at how much credibility you build simply by asking the question. And as I’ve said in past jury tips, jurors get the impression that if you’re not worried about talking about a challenging issue, then it must not be that damaging an issue for you. Take great pains to identify the elephant in the room and talk about it, especially if the other side is going to bring it up.

Jurors expect the stereotypical lawyer to be biased and subjective toward their side of the case, which brings up a strange phenomenon. You and I know that subjectivity and advocacy is how the system is SUPPOSED to work, but jurors miss this point. Jurors believe that honest lawyers are objective and honest—-even to their own client’s detriment, perhaps—-and that subjective, biased lawyers are dishonest. In a recent case I was involved in, we asked jurors if they believed a lawyer representing his or her spouse would be more or less objective than any other lawyer. The judge was incredulous-—“why are you asking such a ridiculous question? Lawyers aren’t supposed to be objective!” But when the jurors returned their questionnaires, their responses told a different story—-some felt that lawyers representing spouses could be “objective,” while others believe they couldn’t be trusted if they were “subjective.” So your jurors’ trust depends largely on a concept that isn’t part of our system of justice—-impressions of your honesty and objectivity.

When you start your opening statement on the attack, aggressively advocating a position before your jurors have had a chance to make their minds up about what happened, your jurors get the impression that you’re the stereotypical, SUBJECTIVE lawyer. Your jurors don’t really think about the fact that you’ve studied the case for months or years and are ready to make critical judgments. To them, taking a position too early in your opening shows that you jump to conclusions too quickly, that you’ll argue for your client no matter what the evidence shows, and that you’re once again going to force your point-of-view on the jurors instead of letting them make up their own minds.

Jurors trust you when you tell them what happened in your opening statement before you start taking a position and pressuring them with arguments. When you tell the story of what happened objectively and stay off your soap box for the first half of your opening statement, the impression the jurors get is that YOU are being careful about making up your mind and that YOU needed to know the whole story before drawing reasonable conclusions.

Not to give you nightmares, but jurors have many more subtle, unfair reasons and cues to distrust you and shoehorn you into their definition of the cliché, dishonest lawyer—more than I could ever list out and many more that even I can’t imagine. The point of telling you this isn’t to scare you into a state of paralysis or make you self-conscious, but rather to make you comfortably aware of the things, big and little, that lawyers sometimes do (inadvertently) to offend and alienate jurors. The irony of course is that none of the offending signals you might be sending the jury are fair or logical; they’re all normal, reasonable parts of representing your clients and dealing with the challenges of litigating a jury trial. But no matter how unfair, your jurors’ perceptions and criticisms of you shape how they trust you, your client, and your case, and once you’ve done something seemingly harmless to turn a juror off, you may have lost them (and your case) in the process. So as foolish as it may sound to worry about how you’re dressed, how you talk to the jurors, and the style with which you try your case, everything that matters to the jury should matter to you.

You may contact Mr. Plotkin at:

Harry Plotkin
Jury Consultant
892 Connors Court
Claremont, CA 91711
(626)975-4457
harry@yournextjury.com
www.yournextjury.com

California trial attorneys- Two "must follow" social media sites...

The Consumer Attorneys of California (CAOC) have two excellent social media sites that all trial lawyers should be linked to...

Facebook: http://www.facebook.com/ConsumerAttorneys

Twitter: http://twitter.com/ConsumerAttysCA

Have a great weekend everyone!

During Voir Dire in a Personal Injury or Wrongful Death Case, Ask These Questions and Then LISTEN to the Answers

After developing rapport with your jury, you can ascertain jury bias and also emphasize your client’s pain or loss by asking your jury panel the following types of questions. Because I want each of my jurors to be comfortable with the voir dire process, I normally don’t get to these types of questions until about mid-way through my voir dire.

In a catastrophic injury case, I might raise my hand (to help prompt a response) and then ask,

“Have any of you ever experienced a serious injury such as (injury similar to your client)?” If not, modify the question to “any serious or catastrophic injury?” Again, if not, expand the question as follows, “Do any of you know anyone such as a family member or friend, who was severely injured or the victim of a wrongful death?”

“Tell me about it.” Ask who, what, when, where, why, and how follow-up questions.

“How did (the injury) affect your everyday life with your family?” “What about at work?” “Did you incur medical bills?” Did you loose time from work?” “Do you still have problems from your injury as you sit here today?” “Did your injury affect your relationship with your husband?” “Your children?” “Were you able to sleep at night?” “Were you able to hold your baby in your arms?”

Because I always want to know how my jurors feel, I ask questions like, “How did (the injury) make you FEEL?” “Why do you think you felt this way?” "How did your husband feel about you not being able to take walks with him?"

“Anyone else?” (followed by the same types of follow-up questions).

By doing this, you can get a very good sense as to whether the jury understands the true nature and extent of your client’s injuries. You’ll also be able to use proper follow-up questions to educate the jury as to your client’s unique situation.

As an example, “Mrs. Smith. You told us about your broken leg and surgery. Did this ever keep you from coaching your children in youth soccer and baseball?”

Or, “The evidence in this case will show that Mr. Jones (my client) was fired from his job because of his leg and surgery. Were you fired from your job after breaking your leg and being out for six weeks to recover from surgery?” “How did that make you feel?” “Did the loss of income affect your family?” “How?” Do you believe you should have been fired?” And in a honest, polite and caring fashion, ask similar probing questions.

Pay attention and listen to the answers. Don’t read from your notes. This approach has helped me successfully voir dire many a jury panel and hopefully it will help you too.

The Three Cs of a Good Witness

Always prepare your witnesses for cross-examination. Remind them that if the other attorney causes them to get angry or mad, the other side will have won the battle.

Tell your witnesses about the three Cs of being a good witness: Your witness should remain courteous, calm and considerate.

Let them know that while sitting in the witness stand, the more hostile and angry the other attorney gets, the more courteous, calm, and considerate your witness should be. By using this approach, your witnesses will be much more effective and likable.

Credible Lawyers Win Cases!

This weekend I was asked the question, "What do you think is the most important quality all successful trial lawyers share?" After giving it some thought, my response was as follows...

Every successful trial attorney I've ever met has the ability to build and earn credibility with his or her jury.

You see, good trial lawyers understand that at all times, they need to be truthful and honest with their jurors. They never try to hide a harmful or embarrassing fact.

This process starts with what you say and do during your voir dire and opening statement. It continues with how you deal with objections and rulings in front of the jury. Your credibility will grow when you walk your talk before the jury during each and every day of trial.

I'm always honest and upfront with my jurors. If there are problems with my client's case, we talk about it during voir dire and we visit these problems again during my opening statement. I welcome the juror's comments and questions about any issues and we talk about our respective feelings on the subject.

Read that last sentence again.

We discuss our feelings. Not simply what the law says or what the evidence will be. I want to know why my jurors feel the way that they do. I want them to know that I too have certain feelings about the facts and issues and so we talk.

I really want to know who is sitting in the jury box and I use this type of casual dialog during voir dire to discuss and share thoughts about the issues and evidence. We have an open and honest discussion about the issues and the magic of bonding between people begins during voir dire and is cemented during my opening statement. We develop similar feelings about the importance of the trial and the personal and unique nature of our facts and situation.

Be professional and be prepared but at the same time, always be real and be yourself with your jury. Be honest, afraid and have sincere feelings about your client and case. Full and honest disclosure about the facts and evidence will help you build credibility with your jury and with the right amount of preparation and technique, this credibility will help you win your case.

Get Gerry Spence's book entitled, "Win Your Case"

Everyone of us is unique. The best trial lawyers in the world understand who they are and appreciate the feelings of others. They know how to listen and welcome fear. Anger is used as a tool and power is controlled. Last but not least, the very best trial lawyers care about their clients and cases.

Is this you? Don't feel bad. Most of us simply were never taught how to understand and apply the above. But it can be learned.

The problem is that in law school, most of us were exposed to a legal education that anesthetized us against our feelings and emotions in an attempt to reduce the law to a type of science. We were not taught how to be ourselves and how to win cases by believing in our clients.

In my humble opinion, every trial lawyer needs to read and re-read Gerry Spence's book entitled, "Win Your Case". You will not come close to ever achieving your true potential in court until you master this approach to litigation, trials and life. This book is an indispensable guide to success in every walk of life, in and out of the courtroom.

It's Time to Expose "Tort Reform" for the Fraud That it is!

In this month's edition of The Advocate Magazine (February 2010), CAALA President, Garo Mardirossian, shares a powerful article about why it’s time for all of us to expose “tort reform” for the fraud that it is. He also explains why we need to continue fighting back on a daily basis.

Garo talks about the massive efforts of big corporations to use the media to influence tens of millions of people on a daily basis. People who receive summons for jury duty and people our clients count on to be fair and impartial when it comes to listening to the facts of their cases.

Garo was kind enough to give us permission to share his article with you. Read it and discuss this information with your clients, family and friends.

http://bit.ly/garo-article

Judges- Don't Place Artificial Time Limits on Voir Dire and Opening Statements...

Thomas Jefferson once wrote in a letter that trial by jury is "the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution...."

Powerful words that define the balance of powers in this country. An important equalizing concept that for the past 30 years, some judges have allowed to erode away because of congested courtrooms and fiscal concerns.

Well, I'm tired of judges who artificially place time limits on voir dire and opening statements. I'm also fed up with judges telling counsel before a trial starts how many days the court is going to "allow" for jury trial.

If you're a trial lawyer, you need to feel the same way. If you haven't already taken action, then you need to start doing something about it right away!

Isn't the point of our justice system to get to the truth? A tool or process intended to be equally available to all of us whether we're rich or poor, black or white, brown or purple or, a combination thereof?

For many, trial by jury is someone's last chance and opportunity to right a wrong? A civilized way to level the playing field allowing a single citizen to hold another person, corporation or government accountable for their wrongs.

As trial lawyers, we need to let judges know that our clients have been harmed and have been forced to endure years of time and expense and, in many cases, a great deal of stress and sacrifice, to finally get their day in court. Judges need to be reminded that there is nothing wrong with lawyers conducting voir dire at a pace that the lawyer feels is necessary and proper, under the law and rules of court, so that a fair and impartial jury can be impaneled in your case.

When a judge tells you he will only allow two hours to conduct voir dire, you need to ask that judge, on the record, what goal is being achieve by artificially limiting the time for voir dire? Who's best interest is being served? How is this fair to your client who has waited years to have his case finally go to trial before a jury of his peers?

Lawyers should also be allowed to spend as much time as they feel they need to give their opening statement to the jury. In my opinion, randomly limiting a lawyer's opening statement to 30 or 45 minutes is tantamount to a judge standing up and shouting out to the world, "I don't care what this case is about, how many witnesses will be called or, how important it is to the parties or society as a whole". Explain to me any other reasonable interpretation of such a random order.

Look, crowded courts shouldn't diminish the civil, criminal and constitutional rights every individual is suppose to have in the United States of America. The lack of public funds should not result in the rights of American citizens being minimized or otherwise stepped on inside the courtroom doors.

While it's true that a judge and jury can potentially have all of the power the law bestows, without all the facts and without a full and complete intelligent process, neither a judge or jury can deliver justice. Because of this, when it comes to our legal rights and civil liberties, we all need to stand up and make sure the judges do their job and enforce the Constitution.

We also need to make sure that judges who are appointed or elected to the bench continue to place the rights of citizens ahead of the court's "schedule" or artificially self-imposed time restrictions to voir dire, opening statements and length of jury trials.

Trial Lawyers Can Be "Jacks of all Trades" and Masters of ALL!

I'm convinced that handling different types of hearings and trying different types of cases will, over time, make you be a better trial lawyer.

Many years ago before my first civil trial, I travelled to Chino State Prison almost every other week and represented prisoners in parole revocation hearings. The attorney who hired me to appear at these hearings would sometimes give me the file less than 24 hours before the actual hearing.

Half the time I'd show up at Chino and after speaking with my client over the phone through a glass window, I'd learn for the first time about new facts that were not in the file. Sometimes this would happen only minutes before the actual hearing started.

People's lives and liberty were at stake during these hearings. When you're representing inmates accused of doing very bad things, it's extremely challenging to present a persuasive argument when your client is in ankle and wrist shackles and the parole board has his 20 year-old rap sheet in front of them on the conference table. At first it was difficult digesting the phonebook size prisoner rights manual. It was also sometimes difficult to make, with a straight face, some of the ridiculous arguments the inmates demanded that I make.

But then something happened. As I got more familiar with the process, the hearing officers, available arguments and defenses, I started to win. I got so comfortable and so good at doing parole revocation hearings that I started to win all the time.

And then came my first civil jury trial on a breach of contract case. I had months to prepare and with all the civil discovery and pre-trial motions, there were no surprises. Frankly, after handling the last minute parole revocation hearings, the civil jury trial was an easy process to get comfortable with.

Sure, being in a civil courtroom was awkward but after the first day or two of trial, everything fell into place. The jury eventually came back with a verdict in favor of my client and even sent a note out to the judge asking if they could award more than we were asking for (the judge told them they couldn't).

Three weeks later my next trial was in Federal District Court in Los Angeles on a labor matter involving the Teamsters. Talk about feeling like a duck out of water. But guess what, after learning how to think on my feet during parole revocation hearings and having a civil jury trial under my belt, the labor trial actually was a rather comfortable experience which resulted in my client obtaining the relief he was seeking.

Over the years I've litigated and tried personal injury cases, wrongful death cases, breach of contract cases, labor law cases, criminal cases (misdemeanors and felonies), malpractice cases, defective product cases, estate litigation cases and wide assortment of many other types of legal hearings, arbitrations, mediations, and motions. With each experience, I've become a better trial lawyer.

You see, with each experience you learn something new. A different approach to handling a legal issue or difficult judge. A new way to conduct a cross examination or emphasize a fact during your closing argument.

I can't tell you how many times I've taken a technique I used in a criminal trial, modified it slightly, and then used it again to help me win a civil case. On probably more than two dozen occasions, I've taken trial approaches I use in wrongful death trials to help make a point or prevail on an issue in business litigation cases and issues.

I'm all for specializing and now focus my attention to helping individuals and their families in matters involving serious personal injury and wrongful death caused by another person or company's wrongful or illegal conduct. If time allows, I also enjoy handling business litigation matters and trials. Most everything else I'll refer to other lawyers around the state.

If you want to feel comfortable in court and be the best trial lawyer you can be, handle as many different types of cases that you can during the first ten years of practice. Make sure the client's best interest is always protected and associate an experienced attorney into your case if needed. But, make sure to get as much experience as you can in as many different types of cases, hearings, and trials as possible.

Approach your first decade of law with this concept in mind and make sure to always step up and volunteer for cases outside your comfort zone. If that's not an option, ask other lawyers if you can sit second chair during their hearings or trials. Do what you need to do to get exposure to other types of hearings and trials.

Be a litigation sponge and soak in as much as you can. In the long-run, you'll become a legal renaissance man and a better trial lawyer.

California Trial Lawyers- "Must Watch" CAOC Video...

California Trial Attorneys- Watch this video from the Consumer Attorneys of California and take action!