Written by NITA guest blogger Melissa M. Gomez and excerpted from her book Jury Trials Outside In: Leveraging Psychology from Discovery to Decision
One persuasive person can make all the difference. That is why, in jury selection, I not only focus on those characteristics that will make jurors biased against my client, but also those that give a person the kind of charisma that will make her a persuasive thought leader in deliberations.
Leadership is a topic that has been studied and discussed extensively in business journals and academic research. In 2010, for example, de Vries, Bakker-Pieper, and Oostenveld conducted a study that evaluated different leadership styles. In their research, they surveyed 279 employees of a governmental organization. They then categorized their leadership findings into six communication styles: verbal aggressiveness, expressiveness, preciseness, assuredness, supportiveness, and argumentativeness.
In the jury context, one of the main goals of voir dire is to get a sense of who the leaders may be on a panel. Who will be the foreperson, and what kind of impact will that person have on the other members of the panel? In that and other contexts, we often perceive leaders as those who are outwardly talkative, dynamic, and forceful with their opinions. In other words, we associate leaders as those who act in line with de Vries et al.’s verbal aggressiveness and argumentativeness. In doing so, we focus on the wrong characteristics. What these scholars found is that the strongest leaders are not always the loudest—other qualities abound that make someone the kind of person others will actually want to follow.
The research suggested that preciseness is the characteristic that most clearly indicates perceived leader performance and satisfaction with the leader, and this is above and beyond other leadership style variables. It isn’t about being loud. It is about being clear. Precision makes it easy for others to know what to do and where to go. It is the comfort of organization and clarity as opposed to leadership by volume, which can feel like chaos.
In Malcom Gladwell’s book, The Tipping Point, he discusses the precision type leaders and their power to bring other people to act, to adopt an idea or to purchase a product. He calls them “salesmen.” In your jury, these are the panel members that sell a case idea or concept in such an effective manner that the other jurors will follow. Having a person like this on your jury can be like having a jury of one person. You convince her, she will convince everyone else with precision. If she is against you, she will turn everyone else against you. All I have to say is that if voir dire reveals someone who appears to have that kind of strong leadership potential, you need to be pretty darn confident she is going to be on your side to keep her on the jury. For me, if I am not confident about which side she will support, she will be my number one strike (or, more likely, my final strike if I decide to play chicken with opposing counsel, hoping they strike her first).
A Pennsylvania focus group in which one of these powerful salesmen participated comes to mind. The case at issue involved an emotionally charged story about an injury to a child. Deliberations were heavy with debate. As the other panel members argued, the salesman did not jump out of the box, yelling his opinions. He was too effective for that. Instead, he sat. He watched. He listened. He didn’t say a word. He didn’t volunteer to be the foreperson. Once the rest of the jurors became exhausted and frustrated with one another, he spoke—not only from his own perspective, but using what he had gained from the other jurors’ opinions. He spoke with a certain grace and sophistication that drew people in. He didn’t say much, but after he did, no other juror voiced an opinion independent from his interpretation. The salesman was selling, and the rest of the jurors were buying.
At the end of their deliberation, I sat down and discussed the case with the group, actively trying to get opinions from the other jurors. They repeatedly referred back to what the salesman had said, repeating his words and starting sentences with “well, I just agree with Bob” or “As Bob said . . . .”
Therefore, when assessing leadership, you must ask not only if there is a person who has the confidence and assertiveness to lead. You also must consider whether that person has the kind of charisma that will make others want to follow and the precise clarity so they can follow.
The good news is that a powerful salesman will more likely than not make him or herself known in jury selection if given a chance. She will speak with confidence in voir dire and happily provide opinion with clarity and precision. For this reason, if the court process allows, ask questions that are open-ended. Getting a sense of communication styles by letting jurors speak freely will give you a better picture of confidence, charisma, and eloquence—the telltale signs of a salesman. Getting just the facts in voir dire may help you identify basic characteristics in your juror profile, but hearing the manner in which someone speaks lets you know more about the interpersonal style or skills of that person.
After all, the power of one can make all the difference.
[Nationally known jury consultant and the President of MMG Jury Consulting, LLC, Dr. Melissa M. Gomez holds a PhD in Psychology and a Master of Science in Education from the University of Pennsylvania. She has worked on over 500 jury trials across the United States with a focus on the psychology of learning, behavior, and decision-making. She is the author of Jury Trials Outside In: Leveraging Psychology from Discovery to Decision, published by NITA.]
. Reinout E. de Vries, Angelique Bakker-Pieper & Wyneke Oostenveld, Leadership = Communication? The Relations of Leaders’ Communication Styles with Leadership Styles, Knowledge Sharing and Leadership Outcomes, 25 Journal of Business and Psychology 367 (2010).
. Malcom Gladwell, The Tipping Point: How Little Things Can Make a Big Difference (2000).
Practice, Practice, Practice
Written by NITA guest blogger: Richard Schoenberger
Most cases involve two trials, the first one in the court room and the second one in the jury deliberation room. Pre-trial studies that identify top demographic trends of participants who would most help your case and that gather feedback in the form of surveys and multiple focus groups can obviously help develop themes and find the right jurors for you. But, at some point, you will be standing there – naked and alone – charged with the task of finding the right jurors for your client’s case or, much more accurately, “de-selecting” the wrong ones. This article makes the case for the notion that the best voir dires are those that have been practiced in advance. Huh, you say?
This we know for sure: At a minimum, one can lose the opportunity to win a trial in voir dire. Therefore, isn’t jury selection the most important part of the trial? For me, it is hard to argue otherwise. After all, these are the folks who will be making the decision that affects your client’s future. Get the wrong mix, and you may have yourselves a problem. Get the wrong leader? Forget about it! An individual’s occupation/vocation, whether for compensation or volunteer, really matters. Are they in leadership positions? Do they supervise, terminate, manage, make difficult upper level decisions? If so, they are probably a leader and you need to pay particular attention. Are they a leader who values personal responsibility over social responsibility? If yes, more likely a good defense juror in a civil case. If not, probably a good plaintiff juror. But, get them talking to find out! Easier said than done?
And remember, your goal is not to uncover those folks who are likely to agree with your case, but the exact opposite. You are in search of those whose belief systems are directly counter to some of the weaknesses in your case. So, your focus during selection is on the bad stuff in your case, not the good stuff. You are out there trying to gauge reaction to the things you are worried about, not the things that make your case strong. The last thing you want to do is highlight your good jurors.
Getting people to be brutally honest and speak openly in front of a room full of strangers on topics that concern you and that they never before considered can be, to put it mildly, a tad difficult. How do you make jurors feel comfortable enough to talk and really open up? How do you bounce from juror to juror? How do you reveal and “de-select” those jurors who are wrong for your case? This is hard enough for the most experienced lawyers, but can be particularly challenging for those just starting out.
Despite this, it seems that new trial lawyers don’t spend enough time preparing for all-important jury selection, and as such, it becomes the scariest part of the trial for them. If conventional wisdom supports the notion that lawyers should practice/rehearse opening statements, why isn’t it equally important that lawyers practice/rehearse voir dire? You would be amazed at how much better you will feel with the real thing when you have already spent an hour or two with a group of people asking open-ended questions about your concerns in your upcoming case – i.e. when you have emptied your “worry basket” with vulnerability and candor; when you have worked out your first 1-2 minutes in front of them; where you can learn to listen and react instead of simply trying to educate; when you have practiced converting from open-ended questions to leading-type questions to establish a cause challenge.
A focus group specifically devoted to jury selection can be done on the cheap. Systems exist for recruiting local residents to come in for a few hours for a fairly low sum, certainly less than $1,000. Or, you can simply grab a group from your firm or a group of trusted family/friends and force them to assume the role of pretend jurors. This can be done even more cheaply! By practicing this way, you develop the muscle memory for themes you wish to advance, for problems you want to voice. Do it more than once if you can. These dress-rehearsals make the real thing so much better…and dare I say, more enjoyable!
Remember, first impressions matter. Jury selection is the first time that you will have the jurors’ undivided attention. This is the time that you can establish rapport; that you are able to show yourself as the trustworthy lawyer who will lead the jury down the path of truth and justice. To do this correctly, you will not be taking copious notes, but instead standing before them, razor-focused and attentive to the verbal and non-verbal cues that they will be offering up. How uncomfortable is that? Much less so when you practice. You and your clients will benefit tremendously.
[Richard H. Schoenberger is one of the most highly respected trial lawyers in California. In 2011, he was selected as the Trial Layer of the Year by the San Francisco Trial Lawyers Association. It was his second nomination for this prestigious award. Rich joined the Walkup Melodia office in August of 1987 and became a partner in 1995. He has served as program director at NITA’s Advanced Advocacy program since 2014.]
Voir Dire for Storytellers: From Restive to Receptive
Written by NITA guest blogger: Richard L. Murray, Jr.
Trials are competitive story telling: you tell one, your opponent another. A jury is an audience.
Lawyers’ goals for voir dire vary: Some try to ferret out “enemies” of their client’s cause. Some seek a “psychological profile” predisposed to their side. Others try to establish their power, or chattily try to make new friends.
I do mostly health care defense work, telling stories about disability, disease, and death. My goal is to turn the potential jurors into a receptive audience for a hard story.
Voir dire is a hard place to start, for it’s usually an awkward social interaction between you and a menagerie of unfamiliar people in a box, numbered like newly incarcerated prisoners, each frustrated that they’ve been pulled from their daily routine. A restive gallery at the outset.
First impressions matter, especially for storytellers. So how will the strangers in the box see me when I first speak? How will I introduce them to key elements of my client’s story? Can I do anything about that initial awkwardness and frustration?
Speech is a big part of a first impression. Jurors don’t trust lawyers, and talking like one just affirms their bias. Resist the lawyer’s penchant for “prior to” and “subsequent to;” before and after do just fine. Nobody wants to listen to a story from one whose speech is unsure, unfocused, or passionless. And surely no one listens long to an angry man.
My step in front of the jury box for voir dire begins my introduction. I try to treat jurors like they are new neighbors gathered for a meeting in my living room. I should be courteous and welcoming, and should speak simply and conversationally. My introduction goes better if I’m comfortable. I like important ideas, and struggle with small talk, so I ask about important things, which seems to go with the setting. We are all different. The trick is to talk about things that reflect your character, as well as your case.
What about introducing the elements of the story? Don’t pull punches. If the injured plaintiff is an elderly woman with COPD, Parkinson’s and dementia, I will ask about experience with progressive, debilitating neurologic disease. I may ask about “struggling for breath,” or endless falls that leave a frail, elderly person’s legs back and blue from their knees to their ankles (as falls from Parkinson’s left my mother’s), or the tyranny of being robbed of memory (as happened to my mother-in-law). These things are important. I may ask about how disease affected a parent, a close friend, a loved one. I ask how it made “you feel.” I try to do this in an empathetic, but forthright way. I try to get the tone right by reflecting on how those things made me feel. I hope to establish that I, like those in the box, can see suffering. And, I want them to know that if they are selected, we will all be in it together – wrestling with tuff stuff.
Address the elephant in the room: “No matter how injured the plaintiff is, no matter how heartfelt your sympathy, if the evidence does not support her claim, can you turn her away from the courtroom with nothing? I tell them there should be no misunderstanding, at the end of the case, that’s what the evidence may compel them to do. And, this may just pique their curiosity as to what story might justify this.
Your voir dire must have a positive side, some idea that will make the jury feel that, if they deny recovery to the injured plaintiff, they will have done the right thing. Maybe it’s affirming that the health care provider provided great care, maybe it’ll be just the satisfaction of knowing they followed the law.
Similarly, there must be a counterweight to the heft of the plaintiff’s injuries. I may ask, for example, assuming this will be part of the evidence, whether they know anything about the tremendous resources that go in to finding treatments for disease, the frustration for health care providers in not having discovered a cure yet, or something like that.
People are flattered if asked to do something important. Frame questions to emphasize the importance of determining if someone is truthful, the importance of determining what really happened, the importance of assessing whether a provider’s care was reasonable notwithstanding an undesirable outcome, and, yes, the importance of judging fairly. Jurors should know and feel that they are entrusted with hard work and that their job is respected. Elevating their role is a good tonic to all their awkwardness and frustration. If I can establish my credibility and bolster the importance of their work, I just may transition them from being a reluctant audience to a receptive one.
When it comes to peremptory challenges, certainly I’ll excuse those sympathetic to the plaintiff or with antipathy to my client, but I also jettison those with whom I don’t think I connected. I want listeners my story will touch.
[Richard L. Murray, Jr. is an attorney at Hall & Evans, LLC, a frequent faculty member of NITA’s trial practice programs, a lecturer for the University of Colorado Law and Medicine class, and an occasional lecturer at the Colorado Defense Lawyer’s Association and elsewhere. He is a member of the American Board of Trial Advocates.]
The University of San Diego Law School – Experiential Advocacy Practicum
Written by NITA guest blogger Linda Lane
The University of San Diego Law School has just completed the first semester of the second year of its new, Experiential Advocacy Practicum course, a required first-year class where law students get to experience “learning by doing” in the context of a piece of litigation in the Fall semester and a transactional deal in the Spring. The course has proven a success and comments from students that have completed the course include ones like the following:
“I am interning at a small civil litigation firm this summer…and have put many of the skills learned during the first semester of EAP to good use. I have been conducting client interviews by myself and writing complaints based off those interviews. They have also had me sift through numerous depositions for pertinent information and summarize them. The background EAP provided made an enormous difference in the quality of my work and made what would have been a steep learning curve a smooth plateau.”
In the Fall, when students begin the course, they are immediately assigned the role of defense counsel or plaintiff’s counsel in a filed negligence case. Students are issued NITA case materials in three installments, to mimic the way practicing attorneys receive case information during the life of a case. Initially, students are presented with the complaint, answer, jury instructions, and newspaper articles regarding the event in question. Midway through the course, the students are provided discovery responses, both to interrogatories and requests for documents. Finally, at the end of the semester, students are given deposition transcripts from witnesses in the case. The skills taught to the students and practiced by them in their small breakout sections include client interviews, depositions and oral advocacy through the presentation of a closing argument. The students also practice informal but common legal communications by drafting email summaries of their tasks and findings to their law partners.
In the Spring, students are immersed in the world of transactional law and are tasked with negotiating a deal and creating a term sheet for that deal. Students are assigned roles of buyer’s counsel or seller’s counsel, and they are given side-specific instructions from their fictional partner on the case as to what their tasks will be. During the course of the semester, students conduct a client interview, engage in brainstorming and drafting sessions, and conduct a final negotiation of their deal with the other side’s counsel. The end result is a term sheet drafted by the parties.
The Experiential Advocacy Practicum was designed, in part, as a response to the ABA’s new requirement that students graduate from law school with six (6) credits of experiential learning. Students at USD School of Law now have two of these credits completed by the time they finish their first year of law school. But, perhaps more importantly, this course is also a direct response to the cry of future employers that law students receive more practical skills training from the early days of their law school careers. This course gives students invaluable insights in to the daily lives of a litigation attorney and a transactional attorney so that students can begin to articulate what area of law they are interested in and why –a critical skill during interviews where many times students do not have enough information to make an informed decision about what type of law interests them.
The highlight of USD’s Experiential Advocacy Practicum is the close involvement in the course of adjunct professors, local practicing litigators and business attorneys. Throughout the semester, students break in to small groups of 8-12 to perform their tasks, whether this be the client interview, deposition, closing argument, negotiation, or drafting session. Each small section is taught and led by an experienced lawyer specializing in that area of law. Students rotate between different adjuncts for each small section meeting so that by the end of the year, they have been exposed to as many as seven practicing attorneys in this small section format. Adjunct professors for the course are meant to represent a variety of practices to expose students to possible careers in the law. USD is fortunate enough to have a team of highly successful practicing attorneys teaching the students. This team includes representatives from the public sector (Assistant U.S. Attorneys, District Attorneys, Public Defenders, City Attorneys), large international litigation firms, boutique specialty firms, solo practitioners, and in-house counsel. These lawyers provide the students with structured critique and tips for improvement. Moreover, these lawyers provide the students with an opportunity to network and learn about life in various careers after law school.
As we were designing the practicum, we knew we wanted to provide the students with a balanced, fictional case file which was simple enough to allow them, as junior law students, to sink their teeth in to the facts and not be overwhelmed by legal analysis, yet allow for a meaningful application of law to the facts of a specific case. NITA case files presented this perfect balance. We have been working directly with NITA’s publication department to modify negligence case files to present them to the students in our specific, desired way. NITA allowed us to tailor the case file to our exact course needs and provided a platform for meaningful learning and doing by our students. Although NITA is better known for its litigation case files, we were also able to utilize the platform from one of its rarer, transactional case files to update and modify the facts for our purposes. True to form, NITA was a responsive and creative partner in this process.
[San Diego practitioner Linda Lane, a certified NITA faculty member, is the Annsley and George Strong Professor in Residence for Trial Advocacy at USD School of Law. She designs and oversees the course as well as lectures to the students on various litigation-related topics. Lane is also overseeing the 26 small sections, led by experienced practitioners who, as adjunct professors, work with our students, in teams and individually, to teach these important practice skills.]
TEACHING TRIAL SKILLS AT LAW SCHOOLS: SOME OPENING THOUGHTS
written by NITA guest blogger Judge McGahey
I’ve been teaching trial advocacy classes at the University of Denver’s Sturm College of Law since the early ‘80’s; I’ve been teaching for NITA about as long. I’ve seen ups and downs in how – and why – we teach trial skills. Since I know this month’s blog topic is about the conjunction of trial skills and law schools, I’d like to share some thoughts, in the hope that people wiser than I will weigh in.
First, let’s talk about the “why.” I think having – or at least understanding — trial skills are inherently valuable to every lawyer, even those who never plan to set foot in a courtroom. A transactional lawyer is likely at some point in his or her career to have a client who has to go to court on an important issue. Wouldn’t it be a good idea to understand the best way to present the client’s case, even if you aren’t going to do it yourself? And if you have to find a good trial lawyer for your client, wouldn’t it be a good idea to understand what makes that chosen lawyer the right person to present your client’s case to a judge or jury? I’ve had students over the years who took my advocacy classes for exactly these reasons. Interestingly, most were caught up in the process and demonstrated excellent advocacy skills.
Secondly, let’s consider the “how.” Most law schools offer some kind of advocacy training, whether it be classes, clinics, competitive trial teams, or some combination of all of these. Many schools offer their training in a highly organized, highly directed fashion, with each piece of the program tied to all of the others. But many do not. Even schools with active programs rarely have more than one or two full-time faculty teaching advocacy. Most schools have to depend on adjuncts (like me) as the backbone of their programs. This is a place where NITA-trained people can be particularly useful, as long as the law school is willing to use them. But the quality of the adjuncts can be outweighed by a lack of co-ordination at the academic level.
Next, let’s talk about “where.” By that, I mean where lawyers get their initial training in trial skills. One reason that law schools began focusing on “skills” courses as opposed to focusing only on “doctrinal” courses was the way the legal profession changed how lawyers were trained. For generations, graduates came out of law schools not knowing doodly-squat about how to actually practice law. Law firms assumed that new associates didn’t know anything and that the firm/organization/agency would have to train the newbies on how to do their job. But that’s an expensive proposition and more and more of that necessary training got pushed down to the law school level; notice the emphasis at many schools on producing “practice-ready” lawyers. As a consequence, “skills” courses and “experiential learning” became part of the core curriculum at many schools.
But I’ve recently been seeing some slippage of the perceived value of teaching advocacy skills at law schools. Classes don’t fill up automatically like they did in the past. This may be because schools are accepting fewer students, coupled with lower enrollments. But students seem to struggle with paying for classes that they don’t think will help them with bar passage. I suspect that this has something to do with the link between bar passage, getting a job and beginning to pay off the frequently crushing debt many students have at graduation. There is also the cost to schools of teaching advocacy; as noted many – if not most – advocacy programs rely on adjuncts rather than full-time faculty, to teach advocacy classes. Reduced enrollment equals reduced revenue which equals hard choices on where to spend those dollars.
What does this mean for law schools, law students and advocacy teachers? I’d suggest that those of us who see the value of advocacy teaching must renew our conviction on the value of these skills to the health of the legal system and the citizens of this country. No one thinks they need a lawyer until they need one. We must make sure that trial skills don’t fade away in the future and that the trial lawyers who come after us know what to do, how to do it – and why doing it is important.
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