It’s an age-old question: what attracts us to the people we admire?  Oftentimes, the answer is a combination of multiple seemingly elusive components – maybe it’s their charm, their warmth or their sense of humor.  However, when identifying what makes a witness appealing to jurors, it’s a little more straightforward.  What affects a juror’s perception of a witness more than anything are two main factors: likability and credibility.

Incorporating witness testimony (typically through deposition videos) into our focus groups is a crucial part of assessing juror opinions about a case.  It’s one thing to read about a case on paper, and something else entirely when jurors are able to put a face and personality to the main players in a case.  It makes the case, and the stakes, more real.

Through our research, we’ve found that likability and credibility are the two most important and factors jurors consider when they’re deciding how much weight to give a particular witness.  People are more willing to value a witness’ testimony if they find them likable or credible – or, ideally, both.

Credibility is an obvious first hurdle every witness has to clear, and it has several parts.  If a juror believes a key fact witness – such as a healthcare provider or workplace supervisor – is lying, that witness can say all the right words but still hurt their side of the case.  Oftentimes, it’s the way a witness conveys information that is most important to jurors.  Our focus group participants will often dock the credibility of a witness who doesn’t come across as confident (failing to make eye contact, mumbling, pausing too long before answering in between thoughts), or if the witness’ body language contains what jurors perceive to be “tells.”  For example, numerous participants over the years have concluded a witness is lying simply because he or she looked up or to the side before answering.  From our perspective, this is more likely because they watch too much televised poker or true crime shows rather than any actual psychological expertise, but the fact remains that jurors develop these opinions within milliseconds and little can be done to shift them from these initial perspectives.

When it comes to expert witnesses, credibility also requires that they come across as competent and knowledgeable.  Their testimonies should instill a sense of confidence in jurors and reaffirm that they are proficient in their job and possess a clear understanding of the case.  Moreover, jurors are usually aware that expert witnesses are paid by the side they are testifying for.  To combat suspicions that the expert’s opinion has been “bought,” it’s important that the witness rely heavily on tangible, third-party sources – such as professional literature or government statistics – to support their claims.  In our experience, the expert who relies more heavily on sources outside their own head are usually judged as being more credible.

Likability is a little trickier to define.  It can be as amorphous as the “gut feeling” or “vibe” we get from a person in the first few minutes we interact with them.  Oftentimes, jurors will find a witness most likable when they feel some sort of personal connection.  This plays into the basic idea that we are attracted to those who are similar to us, or those that we can see some of ourselves in.  This is particularly important for the fact witnesses and parties most involved in the case.  For example, a labor and delivery nurse testifying that she is a mom, too, can help make her more likable to the moms on the jury.  By contrast, a business executive who can’t leave the industry jargon alone for a few minutes will likely fail to connect with jurors at all.

Whether a witness appeals to a jury through their knowledge or charm, there’s no denying the fact that these impressions matter.  Anticipating how a jury is going to react to someone’s testimony is half the battle, which is why we show witness video during focus groups whenever it’s available.  It can be the difference between being confident that regular people find your star witness as likable as you do, or hunkering down for some long prep sessions to work out the rough spots before trial.

If you have witnesses you need a jury’s read on, we can help.  Contact Senior Vice President/Partner Claire Luna at cluna@juryimpact.net to find out how.

Quick! What is Stormy Daniels’ lawsuit against President Donald Trump about?

You’d be forgiven if it takes you a minute, or even if you had to Google it.  Daniels’ attorney, Michael Avenatti, has been so skilled at creating a circus around the case that it’s easy to forget the suit is an attempt to invalidate a nondisclosure agreement the adult film actress signed regarding her alleged affair with the President.

The attorney’s public comments and the news coverage of the Daniels case are about everything but that.  Instead, the talk is about the $130,000 in hush money funneled through a shell corporation, the FBI raid of Trump attorney Michael Cohen’s office, Cohen’s questionable business dealings, a thug threatening Daniels if she didn’t stay quiet, and so forth. 

While none of those salacious details have anything to do with the actual case, Avenatti has succeeded in portraying the entire affair – and Cohen in particular – as undeniably shady, a perception that prospective jurors may bring with them into the courtroom (if it ever gets that far).  

We’ve seen similar tactics in our own, decidedly less titillating cases.  Some skilled attorneys – particularly on the plaintiff side – excel at making trials about something bigger and sexier than the relatively mundane matter at hand.  It’s about race, it’s about a big corporation taking advantage of its employees, it’s about healthcare for the uninsured or for poor single mothers.  Those subjects excite, incense and engage jurors, far more than dry discussions of the standard of care or the statutory definition of an exempt employee.

Yet you don’t have to cede the narrative ground to your more sensationalist foe.  Just because you’re not going to grandstand about injustice doesn’t mean you can’t frame your case with a story that focuses the jury on what the case is really about.  Above all else, jurors want to be on the side of fairness, and it’s your job to create a narrative in which a verdict favoring your client isn’t just what the law requires – it’s what fairness demands. 

Every case, regardless of the complexity or the client, needs a one-sentence story – your version of an elevator pitch.  Examples: “This is a case about a midwife who has delivered more than 2,000 babies and did everything you would want a midwife to do for Mrs. Doe and her baby.”  “This case is about a man who built his business from the ground up, and the actions of one vindictive, low-level supervisor shouldn’t be allowed to destroy that.” 

We’ve sometimes encountered, during our initial conference call about a case, lawyers who seem at a loss to summarize a case for us because “it’s just so complicated.”  From our perspective, if you can’t distill your case into a one-sentence or one-paragraph story, you have little hope of prevailing at trial.  That story, of course, isn’t going to contain all the important information you’ll present at trial, but it can serve as a framework to keep you focused so you don’t lose sight of the big picture – always a risk in a complicated case with lots of moving parts.

Just as important as presenting your story to the jury is reminding them what the case is not about.  It’s not about race (except when it is, but that’s a different story), it’s not about curing society’s ills and it’s not about fixing “the system.”  Any case is only about these individual plaintiffs and these individual defendants.  Don’t be afraid to challenge the tactics head on and point out to the jury how the opposition is trying to mislead and distract them.  No one likes to be pandered to or misled, and exposing your opponents’ scurrilous strategies could cause them to blow up in their face.

Our focus group process is excellent for helping you test the power of your opponent’s distracting narratives, as well as for honing your own succinct story.  To learn more, contact Senior Vice President/Partner Claire Luna at cluna@juryimpact.net.

Throughout this election season one theme has consistently been in the headlines: bias.  Bias in the form of racism, sexism, classism – but most importantly, bias that is hidden rather than overt.  Implicit bias, as it is known, is largely unintentional and often undetected.

In the news, implicit bias is primarily brought up in the context of race.  The obvious example comes in the wake of recent police shootings, when the question was asked across the nation:  Do law enforcement officers consciously or unconsciously perceive members of some races to be inherently more dangerous or criminal than others?

Although few would assert that all – or even most – law enforcement officers in this country are racist, even the U.S. Department of Justice recognized the existence and validity of implicit bias in its June statement announcing the launch of department-wide implicit bias training.  The DOJ also acknowledged implicit bias can include gender, sexual orientation, religion and socioeconomic status.

Implicit bias is not unique to law enforcement, and what makes it so concerning in the courtroom is that jurors themselves may not realize they carry these prejudices, much less admit to them during jury selection.  Rather than requiring an active choice to discriminate against someone or some group, implicit biases subconsciously frame how we perceive the world and thus are the most difficult biases to detect.  Jurors (and people in general) may not even realize they are being influenced by implicit biases until it is later pointed out.

For example, imagine a doctor.  For many people, the very term “doctor” will conjure images of a white man in his 40s or older.  Does this mean those who immediately assumed the doctor was a white man are sexist or racist?  Not at all.  But the association is still important to note, especially in a case such as we had recently, when all four of the doctors involved in a patient’s care were millennial women.  Implicit biases such as this can be the determining factor in whether a juror leans toward the plaintiff or the defense at least at the beginning of the case, since when a person does not fit the preconceived notion of how they will look or act, a juror may easily start questioning their credibility or, worse, their capability.

Although implicit bias will always be an issue on a jury, regardless of how open-minded they say they are, here are a few steps we suggest taking to lessen the effect of these implicit biases on your jury.

First, be aware such biases exist, and try to filter them out before trial.  Ask questions in voir dire designed to detect these subtle preconceptions, and ask yourself, “Is this juror likely to be truly fair and impartial, even after swearing to do so?”  For example, the juror who swore up and down to God and the judge that he could be fair in a wrongful-death case involving law enforcement, despite the fact police had gunned down his nephew on public transit in another state, either had a motivation to get on the jury to send a message or was innocently optimistic about his ability to see both sides.

Second, leave nothing to the jury’s imagination.  We have written several times on this topic in the past and cannot stress it enough: Make arguments and evidence as clear and easily digestible as possible for the jury.  Gambling on whether a juror will construe confusing information in your favor is never a good bet.  If a juror is confused, he or she is likely to fill in any gaps with personal experiences and beliefs, i.e., implicit biases.  The less that is left to juror imagination, the less likely implicit bias will significantly sway a juror’s verdict.  As in the case above with the four young female doctors, the trial team will stress at trial their qualifications, education and experience in order to combat the implicit bias we know jurors will have against them.

To discuss other strategies to lessen the effects of implicit juror bias, contact Senior Vice President Claire Luna at cluna@juryimpct.net or 714.754.1010.

This article is the eighth in a series based on the results of a recent Jury Impact survey conducted in conjunction with our sister company, MFour Mobile Research.  This survey was fielded in July with 543 jury-eligible respondents throughout the United States.  “Millennials” include all respondents 34 and younger.

“If you’re getting tried, you’re probably guilty.”

When it comes to civil law, this common snap judgment could be construed as, “If somebody gets sued, there must be something to it.”  Although a judge may tell a jury to listen to all of the evidence before forming a conclusion, our research has consistently shown a high percentage of potential civil case jurors may enter the courtroom already favoring the plaintiff.

We have frequently asked over the years whether people believe that if a lawsuit makes it to a courtroom, it must have some merit. The number has remained steady at around two-thirds favoring the plaintiff’s case from the get-go. 

For our most recent survey, we also broke down the responses by age.  When we consider only millennial responses, those who believe the plaintiff’s case must have some merit if it gets to the trial stage soars to nearly 80 percent.

As much as millennials may distrust institutions such as the legal system, they appear to be even more sure than those 35 and older that there is some mechanism that “authenticates” cases before they get to the trial stage.  We have heard this misconception during focus groups around the country, and many jurors are truly surprised to learn the only requirement for a case to be filed is an ability to pay a nominal fee and a willingness to see it through to trial.

Given that millennials are going to be in your jury pool, and statistically more than three out of four will likely enter the courtroom already believing the plaintiff’s side has at least some merit, it is worth exploring this attitude during jury selection to ensure the defense has the fairest possible venire.  To discuss further how to detect those potential jurors most likely to share plaintiff-leaning attitudes from the outset, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

This article is the seventh in a series based on the results of a recent Jury Impact survey conducted in conjunction with our sister company, MFour Mobile Research.  This survey was fielded in July with 543 jury-eligible respondents throughout the United States.  “Millennials” include all respondents 34 and younger.

Given the strong words both presidential candidates have had about immigration, the topic promises to produce even more contention during the next debates.  But does everyone believe immigration is as big a problem as these contenders do?

During our recent survey, we asked participants to characterize a number of different issues as a “major” or “minor” problem, or not a problem at all.  Opinions on illegal immigration created by far the largest spread in perspectives.  Although 63 percent – nearly two-thirds of 35-plus respondents believe illegal immigration is a major problem, just 30 percent of millennials said so.  Nearly 20 percent of millennials don’t see illegal immigration as a problem at all, compared to only 6 percent of those 35 and older. 

These numbers beg the question about the reason for this huge difference in perspective.  Could it be the assimilation of immigrants into America, the growing number of mixed-race Americans or millennials’ mindset of universal acceptance?  A Pew Research poll conducted in March of this year showed the major factor in the acceptance of immigrants, revealing that 76 percent of millennials say they “strengthen the country because of their hard work and talents,” whereas only 48 percent of baby boomers agreed with this statement.

During our focus groups, we have noticed correlating outlooks among age ranges.  From our master data file of hundreds of cases from the past nine years, we have found those older than 40 are 1.7 times more likely than younger jurors to believe U.S. immigration laws should be tightened. 

These findings can have clear implications for some of our cases.  For example, in one 2014 case, jurors were asked if they prefer a doctor trained in the United States or India, where 100 percent of those younger than 20 years of age answered “it doesn’t matter” compared to the majority of those older than 50 responding “United States.”  Although it may not be a direct correlation to immigration views, it still shows that to the younger generation, countries of origin are less of a concern. 

We have also observed a clear difference when focus group participants of different ages are asked their opinions on a case involving immigrant plaintiffs.  Older participants are much more likely to ask if these plaintiffs are here legally, whereas millennials rarely if ever ask and, more importantly, rarely if ever care about the answer.

If you have a case where immigration status may be a factor – whether for the plaintiff, defendant or both – contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 to find out how we can help.

This article is the sixth in a series based on the results of a recent Jury Impact survey conducted in conjunction with our sister company, MFour Mobile Research.  This survey was fielded in July with 543 jury-eligible respondents throughout the United States.  “Millennials” include all respondents 34 and younger.

Criminal history, lax healthcare compliance, Facebook party photos of bongs and booze – it can be easy to identify ill-advised life choices by plaintiffs and be tempted to trot out these items in front of a jury if you think it might produce a negative bias.  

But it’s crucial to consider your jury composition before you do so, as it might backfire among younger jurors.  Our recent survey included a question about whether it would be fair to introduce information about a plaintiff’s history of drug use or criminal activity.  That answer – 55 percent believe such information is fair game, and the other 45 percent said they would be offended – was consistent across all age groups.Similarly, about two-thirds of participants indicated it is appropriate to use the plaintiff’s social media postings as evidence.

Respondents were also asked how learning such information would affect their opinion about a case if they were “on the fence” about their verdict.  Overall, 55 percent of the respondents said it wouldn’t matter (47 percent of millennials and 59 percent of those 35 and older).  The number who said it would make them more likely to side with the defense was even more consistent (27 percent overall, 24 percent of millennials and 28 percent of 35-plus respondents).

Where the age divide manifested itself was in responses about whether the defense’s decision to include supposedly damaging personal information would make jurors more likely to find for the plaintiff.  Just 13 percent of 35-plus participants chose that option, in contrast with a full 29 percent of millennials.  This seems to echo the fallout we have observed in coverage of the police shootings of civilians – the civilian’s background doesn’t matter, especially when it wouldn’t have been known to the officer.  All that matters is that the civilians, or in the cases of our lawsuits, the plaintiffs, were treated unfairly.

These findings may give you pause when you decide how much to dig into the plaintiff’s background – and whether to use what you find.  To discuss with us how jurors in one of your upcoming cases might respond to information about a plaintiff’s lifestyle choices, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 to find out how we can help.

This article is the fifth in a series based on the results of a recent Jury Impact survey conducted in conjunction with our sister company, MFour Mobile Research.  This survey was fielded in July with 543 jury-eligible respondents throughout the United States.  “Millennials” include all respondents 34 and younger.

Nothing gives attorneys and their clients more heartburn than the decision about whether to apologize for mistakes.  Many worry that eating a little crow is tantamount to admitting liability and giving up on the case.

That’s not our view.  Although we believe only a small percentage of cases call for an apology, our experience during focus groups and trials has taught us that in certain cases, admitting to a mistake and apologizing is exactly the right thing to do.

Take the case of a surgeon who has operated at the wrong site.  No matter how many expert witnesses you have who will testify that “it happens” and there are reasonable explanations for how it happened, our experience has taught us you cannot convince a jury operating at the wrong site is anything but negligent.  

In such as case, admitting to the mistake and apologizing isn’t just the “right thing” to do in the moral sense – it’s the right thing to do in the strategic sense.

If the defense attorney stands in front of the jury and makes negligence arguments that even their own jury consultant thinks are a stretch, you stand the very real chance of angering the jury and eroding the credibility of what may be a very strong causation case.  The jury might conclude your client needs to be “taught a lesson” with a big verdict, whereas a sincere apology might convince them the lesson has already been learned and to take a long, hard look at the merits of causation.  At the very least, the jury might be less likely to take out its anger by adding an extra zero to the damages award.

From our perspective, if your chances of prevailing on negligence depend on the stars aligning and everything breaking your way, it might be time to consider an apology.

Of course, only in the rarest circumstances would we recommend admitting a mistake actually caused the alleged harm.  Most of the time, you’ll simply acknowledge a mistake was made and the defendant has learned from it.  By making that acknowledgement from the outset instead of fighting a losing battle, you can credibly dispute the remaining liability questions on more favorable ground.

However, this advice comes with one very important caveat: If your jury is stacked with millennials (those younger than 35), apologies carry extra risk.  Our recent survey of potential jurors nationwide found millennials were several percentage points more likely than older jurors to say that if a defendant apologized, they would be more likely to side with the plaintiff and award more money.  Thirty percent of millennial jurors said an apology would make them more likely to side with the plaintiff, compared to only 23 percent of jurors 35 and older.  Similarly, 21 percent of millennials said an apology would make them award more money, compared to only 11 percent of older jurors.  (It is worth noting, however, that solid majorities of all age groups said an apology would not influence their decisions).

Whether an apology is a good idea and exactly how to deliver it are delicate matters that vary greatly from case to case.  That’s what we’re here for.  If you have a case where you need to explore the possibility and impact of apologizing, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 to find out how we can help.