The Legal Intelligencer Blog

Choosing Corporate Representatives for Trial — More Than Appearances Alone

By Jocelyn Cinquino
Special to the Legal

When it comes to a jury trial, no detail gets overlooked by those sitting on the panel. Generally speaking, jurors do a decent job of paying attention to the evidence and testimony offered, but much more goes into their ultimate decision than those factors alone. In an effort to have control and ownership over their verdict, jurors routinely attempt to make sense of the case by relying on their own abilities to sniff out the truth. They zero in on your behavior as counsel, how the judge reacts to the case being made and how their fellow jurors seem to be managing. Your corporate representative will be held to the same scrutiny, so your choice for the face of the company rightly becomes a key consideration for trial.

So how do you make that choice? Here are some strategies that work:

• Make sure the corporate representative is relevant. For jurors to accept your corporate representative as legitimate, that person should have something to do with the case or some easily identifiable stake in the company if at all possible. Otherwise, you run the risk of jurors thinking that your representative is staged. Case in point: Jurors in an employment discrimination case took exception to the presence of a “random”—in their words—female minority from the company being sued seated at the defense counsel table. She did not hold a key role at the company and was not involved in the claims at hand. Consequently, she had nothing to testify to, so her presence as the company’s representative seemed contrived. Even if that is not the actual case, it’s not worth running the risk that jurors will make that assumption. You’ll do better to choose someone who has a discernible connection to the case rather than one that seems like a good fit based on appearances alone.
• Make sure he or she has something to say. The importance of the representative’s relevance to the case and his or her involvement as a witness go hand in hand. He or she can’t be the mysterious stranger that sits in silence throughout the trial. That can make it seem more like the representative is some kind of mole for the company, tasked with reporting back to corporate what was going on at trial, rather than a real player who should be there to witness the trial firsthand. When a corporate representative is also an actual witness at trial, he or she can take advantage of that opportunity to build rapport with jurors and help expand the jurors’ understanding of the case from the company’s overall view. Having that connection to jurors is essential to establish not only the representative’s own credibility, but the corporation’s credibility as well.
• Make sure he or she is available throughout trial. Coming in and out suggests to jurors that the company isn’t as invested in the case as it should be and underscores claims that the company operated with disregard for the complaining party or that the claims the party brings are not as important to the company as it says they are. Depending on the length of the trial, jurors’ expectation for how consistently the representative attends trial can vary, but you can only benefit if your representative makes the effort to be at trial for as long as the jurors are made to be there.
• Make sure he or she knows he or she is on display and is comfortable with that. Just as they pay attention to counsel, jurors will be watching the corporate representative like a hawk. Laughing or joking during breaks and making audible reactions to testimony and evidence during the proceedings will only be met with criticism by jurors. There are many opportunities for jurors to turn their attention to counsel’s table during the trial, and if they perceive for a moment that the representative does not demonstrate the requisite seriousness and concentration for someone in that role, it can have a significant impact on the outcome. It is a lot easier for jurors to be swayed by the way someone is behaving rather than have to make sense out of complicated evidence. Your corporate representative has to be able to keep his or her emotions in check and be prepared to put his or her game face on until he or she is well beyond the courthouse steps.

Jurors make judgment calls in the case based on the totality of what they hear presented, what they know from what life has taught them and from what they observe of those present at trial. Your choice of a corporate representative is no exception to that rule. Ensuring that representative meets jurors’ expectations will be just as important as ensuring the overall case itself meets their expectations in the end.

Jocelyn Cinquino is a jury consultant with MMG Jury Consulting. She holds a J.D. from Suffolk University Law School and an M.A. in forensic psychology from John Jay College of Criminal Justice. For more than 10 years, her expertise in forensic psychology and law has been applied to civil and criminal cases throughout the country. Her work includes a specialization in complex jury research design and analysis, case development and advanced trial preparation including witness communication training, voir dire consultation and jury selection strategy.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Cinquino at jocelyn@mmgjury.com or call 917-733-0770.

Getting to Know You: Why Witness Preparation Should Start With the Basics

By Jocelyn Cinquino
Special to the Legal

All too often we are presented with the challenge of a difficult witness who seems intent on doing more damage than good for the case. It’s the corporate executive impatient with being on the receiving end of a question. It’s the medical professional personally offended by having his or her care criticized. It’s the person scared to the point of anger who doesn’t understand why he or she is involved in the case and is afraid of the outcome. So talk in trial prep goes along the lines of, “How can we make sure this person does the least damage to our case?” instead of, “How can we use them to support our case?”

But what if the witness is actually much different than he or she first lets on? It doesn’t happen all the time, but often enough that it’s worth the effort it takes to find out. Remembering to ask about the witness’ background before you get too far into the case claims can explain a lot of negative attitudes and behaviors.

A great example of this came from a recent medical malpractice case. Dr. X was deposed and even he admitted he had a bad attitude. He was less than cordial, acted too smart for his own good and was disinterested in the process – characteristics that only served to back the plaintiff’s assertion that he provided substandard care. It became questionable how he could support his own defense at trial. Good thing the team gave preparation with him one last try. He communicated so well on the stand that he ran out of business cards at the end of trial from jurors looking to schedule appointments.

So, how did he get there? From the team asking him all the right questions that didn’t have anything to do with what the case was about — or so it seemed. Turns out this doctor was extremely compassionate and as a result was so personally connected to his patients that he could not even begin to imagine being “accused” of doing his patients wrong. The claim made him sad and rather than appear hurt, he went in the opposite direction and made it appear he felt nothing.

Recognizing there had to be a reason for this behavior, the team took a few minutes to step back from the claims and ask him, “Why did you get into this area of specialization?” and “What’s special about your practice in particular?” Such basic questions allowed him to step outside the negativity of the case and reconnect to what made him feel positive about his practice and confident in his care. It also helped clue the trial team into how effective it would be to position themselves as part of the witness’ team in the effort to overcome the claim. This helped build enough rapport so that the witness could let go of anxiety, trust them when testifying and let his true personality become evident.

It’s also important to stay alert for any personal issues a witness might be experiencing that impact how he or she manages his or her testimony. Maybe he or she is going through a divorce, change in job or some other life event that starts to make its way into how he or she feels about the present case. It is OK if you can’t (and often times you shouldn’t) ask about such issues directly right off the bat. If they are important enough factors that they are clouding your witness’ ability to testify, he or she will drop hints for you along the way.

It can be uncomfortable and take some patience to start with these kinds of questions in prep rather than just jump into the reason why you are all there. But unless you do, you could miss out on something great in your witness and something valuable for your case.

Jocelyn Cinquino is a jury consultant with MMG Jury Consulting. She holds a J.D. from Suffolk University Law School and an M.A. in forensic psychology from John Jay College of Criminal Justice. For more than 10 years, her expertise in forensic psychology and law has been applied to civil and criminal cases throughout the country. Her work includes a specialization in complex jury research design and analysis, case development and advanced trial preparation including witness communication training, voir dire consultation and jury selection strategy.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Cinquino at jocelyn@mmgjury.com or call 917-733-0770.