JURY CONSULTANT ADVICE: THE TOP 5 FROM THE ADVANTAGE
Thank you to our long time readers of The Advantage Blog and welcome to our new readers. It’s always gratifying when we hear that a piece of advice we offer has stuck in the memory and practice of one of our clients. In this edition of The Advantage, I thought it would be useful to look back at our most popular posts and highlight the advice you’ve told us is worth an encore.
The Advantage went digital in 2011 after its previous 10 years in paper form. I’m listing the top five articles of all time based on readership. I did not rank them in order of #1-#5. I’ll leave that to you.
In this article, Laura Dominic shows us how to use, “the ugly yellow shirt” technique as a way to help jurors learn how to answer questions loaded with mischaracterizing language in the most credible, non-defensive way. Here’s a short excerpt:
Good lawyers love to imbed negative assumptions into the early part of a question and ask the witness to agree that the characterization is fair. “You’d agree that using insufficient backing and screws that are too short could result in faulty installation, correct?” The unprepared witness will usually agree with the statement not realizing that they are leaving the notion on the table that this particular job had insufficient backing and screws that were too short. After several answers where the witness falls prey to negative language, I stop and talk about “the ugly yellow shirt” (or whatever color shirt the witness happens to be wearing). It goes something like this:
Me: “Mr. Jones, that ugly yellow shirt you’re wearing, did you buy it at Nordstrom?”
Me: “Oh, you didn’t. Where did you buy that ugly yellow shirt?”
Me: “Do you think you got a fair price for your ugly shirt?”
Witness: “Yes. I got a great deal.”
Me: “A great deal, huh? How much did you pay for that ugly shirt?”
Witness: “Eighteen dollars.”
Me: “Wow, for such an ugly shirt, that is a great deal.”
Usually by then, the witness is on to me and is laughing at the ridiculousness of his testimony. I stop the simple exercise and ask, “Do you think your shirt is ugly?” Of course not. We talk about reframing the answer, correcting the negative assumption, and/or disagreeing with the characterization. Then we run through the same set of questions again, this time with the empowered witness armed and ready to defend his “lovely yellow shirt.” The exercise demonstrates a frequently used “lawyer trick” and teaches witnesses how to deal with it. But the reason this technique is powerful is because it is such an easy cue to use throughout the rest of the preparation. When a witness slips back into a pattern of agreeing with negative characterizations, we can stop and ask, “What was the ugly yellow shirt in that question?” Or if the mock examiner starts to take the lead in the battle with a series of loaded questions, I’ll simply utter the words “ugly yellow shirt” from my corner of the room, and the witness starts to take control again. It’s simple. It’s time tested. And it works.
In this post, Ted Prosise argues that many litigators are working against their goals to persuade the judge by being overly coercive. He sets up his premise this way:
When pushed about what we must do, shouldn’t do, or cannot do, people react. So stop telling the judge what they cannot do in a decision. I have observed this both in court and in a hearing where I was taking part: the opposing counsel told the judge forcefully and without quarter that she could not decide in any other way but his. My eyebrows rose because, although I am not a lawyer, I was a former professor of communication and persuasion. My internal thought was, “Whoops. That was a mistake.” Why? Well, let’s take a quick and simple look at why.
There is a body of social science work in the psychological reactance framework, a body of work that focuses on the resistance to persuasion. This area of persuasion research notes the inherent human desire for autonomy, freedom, and independence. When there is a perceived threat to such intrinsic desires, the motivation to resist the message increases. This motivational resistance is enhanced when particularly forceful, intense, and absolute demands (restrictions of freedom of choice) are employed.
Prosise goes on to remind us that, “Diplomacy is the art of letting someone else have your way” and closes with this advice:
So, take care when you direct a judge. Don’t give them a human psychological motivation to find a way to prove you wrong – to show you, in essence, that there is a reasoned way to find against you.
The same argument, in essence, can be made, but with rhetorical sensitivity, acumen, and dexterity. Advance an argument that writes their decision for them; give them the roadmap; help them understand not what they must do, but what you hope they will arrive at based on the force of your logic, application/interpretation of the legal standards, and the particulars of the evidence. In short, be persuasive, not directive.
Alexis Knutson and Laura Dominic show us how to teach a witness to rely on a “safe harbor” to express themselves truthfully and non-defensively when faced with questions that attempt to “poke holes” in the testimony. Knutson and Dominic use the Taylor Swift trial as their primary teaching tool. They set up their premise this way:
Taylor Swift did not mince words when she testified in August against DJ David Mueller for allegedly groping her during a photo shoot. During her testimony, she took every opportunity to say Mr. Mueller “grabbed my ass,” artfully incorporating this phrase regardless of the question from opposing counsel. This was her “safe harbor,” the place she could go when the questions were difficult. When opposing counsel attempted to challenge her testimony and her memory of the events from that night, she unequivocally stated her truth. This is what jurors surely remembered – she was unwavering on the stand, and in the end, was awarded the total amount of damages she requested – a symbolic $1.
While Swift was technically the defendant in a case brought by the DJ that was fired after he inappropriately touched Swift, you wouldn’t know that from her testimony.
The art of staying in control and not falling prey to attorney tactics is achieved, in part, by sticking to your themes. Taylor Swift did this masterfully. She used her theme – “your client’s hand was on my ass” – once, twice, three times, and more during her cross-examination. When asked about being closer to the DJ’s girlfriend than the DJ himself, Swift replied, “Yes, she did not have her hand on my ass.” When asked if she was critical of her bodyguard not intervening, Swift replied, “I’m critical of your client sticking his hand under my skirt and grabbing my ass” (arguably non-responsive, but effective nonetheless). When asked why her skirt did not seem disrupted in the photo, Swift replied, “Because my ass is located in the back of my body.” When asked why the photo did not show anything visibly inappropriate, Swift responded, “…this is a photo of him with his hand up my skirt—with his hand on my ass. You can ask me a million questions—I’m never going to say anything different. I never have said anything different.”
Alternative facts splashed our headlines in 2016. It did not take Glenn Kuper long to respond with this post about ways to arm and motivate jurors to fight against attempts to push an agenda unsupported by evidence in the case.
One way to inoculate jurors from letting these facts play a role is to visually depict a box with the key facts inside during closing and emphasize that these are the only facts to be considered in the case. Remind jurors that this is what was established in the evidence and they should not allow other facts to penetrate this box. It is helpful to establish for jurors that it is appropriate for them to reject asserted facts from other jurors, so they will be armed to consider only the evidence in the case in their decision.
Kuper supports this tactic with another that can be used in closing.
The propriety of ignoring facts brought into deliberations by other jurors can also be reinforced by displaying and referring to jury instructions. For example, one of the Washington Pattern Jury Instructions reads, “It is your duty to decide the facts in this case based upon the evidence presented to you during this trial…The evidence that you are to consider during your deliberations consists of the testimony that you have heard from witnesses, and the exhibits that I have admitted, during the trial.” If the judge allows, it can be emphasized in closing that only the evidence presented in trial should be considered, and not “alternative facts” offered by other jurors.
I’ve noticed over the years that lawyer writing is constantly critiqued, lauded, and complained about. Clearly it’s valued. I know from my thousands of hours talking to clients that speaking is valued among lawyers as well, but for whatever reason it seems to take a back seat to writing. That’s why I addressed this topic in this post. It is still as true today as it was when I wrote the article that, “A good speech can make my day, and a bad speech can sour a couple of them.” Here’s how I suggested attorneys stop talking and start speaking.
Think of yourself as a professional speaker. As I write this, the 2017 Major League Baseball World Series is tied 2-2. My impetus for this article was thinking last night watching the game, “Does Jose Altuve just think about the mechanics behind his glorious swing? Quite to the contrary. He has taken thousands of cuts and received professional feedback from a hitting coach with the aid of video technology. Would Clayton Kershaw be able to deliver that ridiculous curve ball by just giving it some thought? No. He practices. And practices. And practices.
Practice speaking as you would to your audience. Do not just think of your speech in your head. Do not just write words on paper. Don’t just type an outline. Practice out loud. Exercise your lungs, your vocal cords, and your tongue. Stand up in front of a mirror, your spouse, or your cat. It doesn’t matter if they listen, just practice out loud.
Ask for feedback. Depending on budget, time constraints, and the importance of your speech, ask for feedback from a professional, your co-workers, or your friends. A professional speech coach can improve your speech in the same way a professional hitting coach can improve Altuve’s swing. But if the budget isn’t there, your co-workers or friends may be able to offer good feedback as to how credible you look and sound, and if your intended message is getting across. One caution though, feedback on content from people who are different from your intended audience should be taken with a grain of salt – sometimes a pound.
Videotape yourself. I know, I know. The thought of videotaping yourself sends chills up most people’s spines. But the payoff is very high. When you watch yourself on video, you will see yourself as your audience does. You will notice that your hands are fixed behind your back. You will notice that you are randomly pacing. You’ll hear the overuse of “ums and “ahs.” Just becoming aware of these things is the first step to improvement. You don’t need a fancy video camera. Your smart phone, tablet, or laptop will do just fine.
The Jury Consultant Top 5 has had its encore and taken their bows. This article was written to help some of this good advice go further and I hope it helps you.