The Legal Intelligencer Blog

The Trouble With Yes and No Answers

By Melissa M. Gomez
Special to the Legal

I have heard it said that there are only four good answers a witness can give in a deposition: “Yes,” “No,” “I don’t know,” and “I don’t remember.” I wholeheartedly disagree with this strategy.

Instructing a witness essentially not to provide any real answers to adverse questions can backfire in multiple ways, not the least of which is the fact that this advice essentially lets opposing counsel testify for our witnesses on the record. Think of it this way: When you read a deposition and the answers only confirm or deny the question, the content of that deposition is coming from the question. The question becomes the evidence. The wording of the question comes from the other side.

So the conundrum is clear: How do we get our witnesses to answer a question and nothing but the question, but still ensure that the language on the record comes from the right side of the case? The answer is one of balance.

I was recently working with some witnesses in a commercial case involving the privatization of a publicly traded company. The witnesses were very intelligent, high-powered people and they were fish out of water in the context of giving testimony. The group of them fell relatively evenly on the poles of the testimony spectrum. Specifically, some would flatly say yes to any question that had an element of truth in them, even if the context of the question was completely off base. Others went off on tangents, engaging in debates and working hard to convince opposing counsel he was wrong. I had my work cut out for me.

While the testifying tendencies of these witnesses were disparate, the foundation behind the preparation was the same. Specifically, there is a balance that every witness needs to understand how to strike. That balance is to find the sweet spot between one-word answers and dissertations of gratuitous information.

The key to this balance is threefold: First, understand the difference between answering and explaining. Second, know that rules are meant to be broken. Third, pick your battles. A witness who is grounded in these three things is on the road to being well prepared.

The first point: Understanding the difference between answering and explaining. There is a difference between adding context and providing an explanation. The first is helpful during cross-examination or deposition; the second is not. Take the following question, for example, in the investment case I referred to:

Question: “Would you agree with me that despite the fact that you were more profitable in 2008 than 2007, you represented to investors a poorer financial report in 2008?”

Explanation: “Well, in 2008, the United States was facing financial difficulties as a result of a crash in the real estate market. The result of that crash affected the entire economy of the country, including the businesses that resided within it…”

Answer: “While we did bring in more profits in 2008 than 2007, that increased profitability was not able to overcome the economic crash of that year; therefore, we did have a poorer financial report, which we communicated to the investors.”

Both answers tell the correct story. But only one begins and ends with an answer to the question as opposed to telling what sounds like an evasive side story.

The second point: Rules are meant to be broken. I have noticed that there are times when I give advice to witnesses and they, so eager for the help, take that advice to be absolute and applicable in every situation. For example, as I typically do, I instructed a witness in a different case to make sure to look at his jury in efforts to develop rapport. During practice cross, he didn’t even glance toward the attorney asking him questions. Instead, he kept staring at me, as I was filling in as his mock juror. I had to explain to him that addressing the jurors does not mean ignoring the questioner or staring the jury down. If it doesn’t feel natural, it doesn’t look natural.

No strategy or rule is absolute. They are tools to be pulled out of the toolbox when they apply. Good preparation is helping witnesses use their good judgment to know when to use a strategy and when to let it go.

Which brings us to the third point: Know when to choose your battles. It can be unhelpful and awkward to restate every single question in a cross-examination or deposition. So, when do you break the rule of making sure the language on the record is your own? When the correct answer really is yes or no or when the subject matter of the question is simply not an important topic to the case.

I have found that with the proper contextual application, most witnesses can understand the middle ground and apply it. In our commercial case described above, this framework brought the witnesses on both ends of the spectrum into that helpful sweet spot. They did a great job. And their testimony stood on its own.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

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, contact Gomez at [email protected] or call 215-292-7956.

Admitting Liability: Trying Cases on Damages Alone

By Melissa M. Gomez
Special to the Legal

In a trucking accident case, there was no question about who caused the collision. A tractor-trailer changed lanes and the truck driver didn’t see a passenger car in his blind spot. He hit the back corner of the car and sent it spinning into a guardrail. So, what caused the accident wasn’t an issue in this case. But the damages certainly were.

In this case, the plaintiff walked away from the accident, refusing medical treatment on the scene. She later claimed that she had sustained a severe head trauma and was rendered almost completely disabled. The defendant trucking company disagreed.

I have seen several cases like this in which the cause of an incident is clear, but what the damages are and, especially, what they are worth, are not. In these cases, we often conduct mock trials with surrogate jurors to see how members of the community perceive and value the case. Interestingly, in my experience watching these mock (and real) trials, I have found a central truth that should be considered: Damage awards are generally higher in cases where the defense admits liability than they are when the defense does not, even in those cases in which liability is clear.

It seems counterintuitive. At least it did to me at first. Wouldn’t jurors have more respect for a defendant who owned up to his or her responsibility, especially if that defendant were a company? Wouldn’t a defendant taking proper responsibility for a mistake abate the juror emotion that can serve to increase damages? One would think.

What I have seen in this and other cases is that when jurors only talk about damages and injuries, emotions often run high and damages can skyrocket. When liability is contested, though, jurors are forced to discuss the defendant, becoming more thoughtful of the defense perspective and, perhaps, sympathetic toward said defendant, even with the knowledge that he or she did something wrong.

While this phenomenon is typically stronger when the defendant is an individual, it also applies to corporations. After all, the actions of a corporate defendant are the actions of the individuals within it.

Take our trucking matter, for instance. While the defendant was the trucking corporation, the target of the liability discussion was the individual truck driver. In mock trial deliberations, jurors spoke about the driver and whether his behavior was egregious or whether he simply made a mistake that could “happen to you or me.” Notwithstanding the higher expectations they held of professional drivers than others on the road to avoid accidents, jurors recognized that mistakes happen. Through discussions, they looked through the perspective of the driver and, while they would hold him liable, developed the empathy that counterbalanced their sympathy toward the plaintiff’s injuries. This counterbalance also influenced discussions regarding damages, and jurors were willing to further consider the defense perspective on this topic as well.

Of course, in situations like this, it gives the defense no benefit to deny the manner in which the accident happened. Instead, counsel conceded the facts as they were, and simply told the jurors that they had to determine whether what happened rose to the legal definition of negligence. The defense was realistic in its expectations; we knew that liability would be found. But we also knew that giving jurors the opportunity to discuss and debate the defendant with a generally likable driver could only serve to our benefit when it came to valuing the case. In fact, liability was found, and the jury awarded one-fifth of the award requested by the plaintiff.

Therefore, when it comes to matters in which there is a question of whether to admit liability, the rule of thumb for defendants is to avoid doing so. Of course, that is unless faced with a situation in which admitting liability is considered the better option in order to try to avoid facts of the liability story from being presented to the jurors. Knowing that many jurors will create the story for themselves in the absence of facts, if what they could imagine is actually less damaging than what actually happened, the hope would be that you find a way to resolve the case before it gets into a jury’s hands. In those cases, damages will most likely be high, and, if the behavior is really that bad, the defense is likely facing punitive damages and the story will get out anyway.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

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, contact Gomez at [email protected] or call 215-292-7956.

 

Witnesses Called Adversely: A Conundrum for Both Sides of a Case

By Melissa M. Gomez
Special to the Legal

In a medical negligence trial, a defendant nephrologist was accused of failing to appropriately monitor the raising of a patient’s blood sodium levels, which had been depleted to a life-threatening extent by excessive alcohol consumption. The claim was that, as a result of the doctor raising sodium levels too quickly, instead of having a massive hangover, the plaintiff was left with permanent and severe neurological deficits.

The dilemma for the plaintiff was whether to call the defendant doctor as an adverse witness in the case. The decision to call the doctor would give the plaintiff a chance to present the defendant in an adversarial context, hitting the target issues hard and quickly and letting the jurors form a less than optimal first impression for the doctor. This is a reasonable and wise decision.

The decision not to call the doctor would provide the jury the chance to hear the case facts void of the doctor’s input, especially if he was generally likable, which could make the adverse examination backfire. This also is a reasonable and wise decision.

In this case, the plaintiff did decide to call the doctor adversely. Now the defendant had a dilemma. In this trial venue, defense counsel could perform the entire direct examination during the plaintiff’s case after adverse, or it could do some quick rehabilitation on key issues and then call the doctor again for full direct in the defense case. If the defense performs the full direct examination with the witness during the opposing case, it can stop the plaintiff’s momentum and interject defense themes, while immediately presenting a better image of the defendant early in the case instead of asking jurors to wait until after the plaintiff’s case to hear them. The full direct examination after adverse also denies the plaintiff a second bite at cross-examination during the defense case. This is a reasonable and wise decision.

If the defense decides to wait and call the defendant for direct examination during the defense’s presentation of evidence, the defense will reap the benefit of hearing all of the plaintiff witnesses, enabling it to fully address the opposing testimony in examination strategy. It also gives more air time to a likable defendant. This is a reasonable and wise decision.

So, what is the advice? The issue that I have seen is that attorneys get comfortable with choosing their strategy based on what has worked in the past and what they are most familiar with, often doing it the same way every time. This is a mistake. Instead, the important thing to do is evaluate the strategy of each case separately, because, while both decisions can be completely reasonable and wise, both strategies can backfire given the wrong case.

So, let’s go back to our nephrology case. The defendant doctor was the kind of person who was very intelligent and literal in his work. On the other hand, he was a terrible communicator as a result of a mixture of both his personality and cultural makeup and so was prone to say unhelpful things during his testimony.

As stated, the plaintiff called him adversely to give the jurors a negative first impression of him, which he was sure to provide as a result of his communicative shortcomings. The defense decided to rip the band-aid off, stopping the plaintiff’s momentum short by examining him fully after adverse, during the plaintiff’s case. Defense themes were introduced, the defense was immediately able to rehabilitate the doctor’s image and the doctor was not presented again during the duration of a several-week trial. I think both sides made the right decision based on this particular case and this particular defendant.

In a different case, though, with a defendant who communicates well, whether a doctor or a manager or a delivery truck driver, the plaintiff may be doing its own case a disservice by calling a defendant adversely that may be likable or sympathetic to a jury. In this instance, it is the plaintiff who is giving the defense two bites at the apple of presenting a witness who will be well received twice during the trial: both in the plaintiff’s case and the defense case as well. On the other hand, in a lengthy trial, calling an unlikable defendant adversely may also mean that the jurors will have lots of time to forget how much they dislike him or her.

For the defense, with such a witness, presenting the entirety of the testimony during the plaintiff’s case presents the defendant’s testimony early in the trial. As a result, memories of likability can diminish with time and the inundation of other information, especially considering that the witness will be sandwiched within adverse testimony.

Getting too comfortable with a mode of how to handle these situations can be dangerous. First, if you go to trial frequently, opposing counsel knows what to expect. Second, while your strategy may work in a case today, it can be detrimental in the one you have next month. There are factors too important to consider for it to be wise to do it the same way every time. Most importantly, the length of trial and tendency for jurors’ memories to fade as well as the likability or potential for a witness to be sympathetic are factors. In cases where a defense witness is important enough to potentially be called adversely, he or she is important enough to make that decision with care.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

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, contact Gomez at [email protected] or call 215-292-7956.

When Enough Is Enough and a Little Is Too Much

By Melissa M. Gomez
Special to the Legal

The Kermit Gosnell abortion clinic trial in Philadelphia made national news with the tagline “House of Horrors.” The tagline was fitting, considering the graphic photographs and testimony that the jury had to endure, describing accusations of babies born alive at the clinic that were later killed by Gosnell and other members of his staff.

As a jury consultant in the region, I received a few calls from reporters asking for commentary about the trial and the fact that, after days upon days of seeing and hearing horrible things, the jurors seemed not to react as strongly to the evidence as they did when the trial began and graphic evidence was first introduced. One reporter wanted to know whether that meant the jurors weren’t being impacted by the evidence anymore and whether the graphic nature of the testimony was, in fact, beginning to backfire on the prosecution. My answer: “The evidence is likely still quite impactful, but it very well may become impactful in a way it was not intended to be.”

Because many of the cases I work on involve personal injuries, I have seen some pretty horrible accidents with unthinkable injuries. The photographic evidence in these cases can be extremely difficult to look at, in general, especially when the accidents involve children.

When trying these kinds of cases, it is critical to stop and consider what the jury really needs to see and how much. Juries don’t want to see horrible and descriptive photos. At all. There are some instances in which the photographs of the injuries are critical evidence to determine what really happened and whether there is blame to be doled out. This was likely the case with several aspects of the Gosnell trial.

There are other instances in which horrible graphic evidence does not tell the story of liability, but is purposed to show the terrible nature of the injuries for the purpose of damages. Take a case in which there was a leak in a boiler that caused carbon monoxide to leak into the apartment above, killing the inhabitants. The bodies were found several weeks later in a scene akin to a horror movie. Did the jurors need to see those bodies in varying states of decomposition to determine who was at fault for a leak in the boiler? No, they didn’t.

At times, especially for plaintiffs, there is the urge to show the jury the gruesome aftermath of an accident to bring into the courtroom the true horror of what was experienced. An angry and upset jury may be more likely to award higher damages, after all.

There are times in which doing so is ill advised, though. When such upsetting images don’t help a jury make its decision, jurors can become angry at whoever is forcing them to look at such horrible things. I have heard jurors complain that images and testimony were simply purposed to manipulate their emotions so the plaintiffs could get what they wanted. In those instances, the jurors did get upset, but not in the way the plaintiffs intended.

If such images are indeed important to show in the case, it also may be unwise to show them repeatedly. First, jurors will become desensitized and, while the images will continue to be disturbing, the shock value will abate, which was likely the issue in the Gosnell trial. Showing these kinds of images repeatedly may also, again, cross that line in jurors’ minds from important evidence to emotional manipulation.

If you are going to show photos of a terrible injury, give jurors a warning that you are about to show an upsetting image before you introduce it and show it only as many times as absolutely needed – just once, if possible. If you need to refer to it again, do so orally. If the image were truly that disturbing, the jurors wouldn’t have forgotten about it. To the contrary, it would likely be seared in their brains.

My advice when showing graphic images not absolutely critical to the case is not to show them at trial. In more than one trial, I have had attorneys put the images in an envelope, instead, and tell the jurors that the pictures are there if they feel the images are important to see, but that viewing them is their choice in deliberations. In truth, the jurors usually can’t help themselves. They look anyway.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

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, contact Gomez at [email protected] or call 215-292-7956.

Setting the Right Foundation for Your Witness Testimony

By Melissa M. Gomez
Special to the Legal

While every witness preparation session I conduct is different depending on the needs, communicative issues and messages of a particular witness, there is one thing that I do with just about every witness. I ask the following question: “If I were a juror in your case, what are the three main things I need to learn from you and your testimony.” The answers are often astonishing.

I have seen defendant doctors answer this question with statements that have nothing to do with the medical treatment they provided, plaintiffs who answer with expert opinions about a product’s liability, and corporate executives who just stare at me blankly, completely floored by the question. The best part is that when I turn to the attorneys to ask what they think are the main messages, the answers are usually better, but it is often clear that they have not thought about these basics for the witness either.

While it is a witness’ primary job to listen to a question and answer that question with literal truth, witnesses must have clear in their minds a foundation of their core messages. This is not to say that we feed them their messages void of their input. Instead, as we talk through their story in their way, we get to their overarching points. It is helping our witnesses get their own thoughts organized in an important way.

When witnesses go into testimony with a point and a perspective of what is truly important, they feel more prepared. When they feel more prepared, they feel more confident. When they feel more confident, they are focused on the question and not on their discomfort. When they are focused on the question, you get better, cleaner and more accurate testimony.

Importantly, discussion of a witness’ core message includes the limitations of witnesses’ messages and what they should leave to the testimony of others. The best examples of this typically concern knowledgeable fact witnesses who don’t know where their fact testimony ends and the expert’s testimony should begin. This is particularly an issue I see with doctor defendants in medical malpractice cases. Take the cardiothoracic surgeon being accused of malpractice in open-heart surgery. Of course he is an expert in the field. In the case of his defense, though (assuming that he is not acting as his own expert, which is quite inadvisable), he must speak solely to what he saw, what he heard, what he thought and what he did in that operating room on that day, based on the foundation of his experience and education. The message of the standard professional practice at that time and what other reasonable physicians would have done should be left for the person counsel has hired as the expert. That is what experts are for.

Do your witnesses a favor. Throw them a life preserver before they have to testify by discussing their core messages. Without a basic foundation of their messages as they fit into the entire case, witnesses flounder and flail in the rough seas of cross-examination.

When preparing for depositions or trial, have a sense of the three specific messages you believe need to come from each witness. During preparation, ask the witness the question above and see if it comports with your perspective. If it does, great. If it doesn’t, discussion needs to ensue to make sure both you and your witness are on the same page and that the messages you are considering for your case really comport with the evidence that will come in through testimony. Again, this is not telling the witness what to say. It is making sure you are presenting your case in a manner that is true to your witness messages and then helping the witness relay that message clearly.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

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, contact Gomez at [email protected] or call 215-292-7956.

 

What Does It Mean to Have a Fair Trial?

By Melissa M. Gomez
Special to the Legal

In my career as a jury consultant, I have been confronted repeatedly with the concept of what it means to have a fair trial. The criminal child-molestation trial of Jerry Sandusky was quite a headline-maker for 2012 and I received calls from several newspapers and news stations alike to provide commentary from a jury perspective. Each reporter was concerned with the jurors’ connections to Penn State University, for whom Sandusky was the former assistant football coach. Each reporter asked about the implications of jurors’ Penn State connections and, considering those connections, whether it was possible Sandusky could have a fair trial. It all got me thinking about what it means to have a “fair” trial as a general concept.

Anais Nin wisely said, “We don’t see things as they are. We see things as we are.” So, if we consider the concept of fairness as having jurors who come in as blank slates upon whom the trial evidence is placed and weighed, then no one can have a fair trial. Ever. It is just not the way that people work. It is human nature that people will look at the evidence and arguments in any case through the spectacles of their own experience. Having experience or opinion with a particular subject matter will give that person a perspective before hearing any case facts, but does that mean that person can’t be fair? It depends on the relevance of that experience to the person, the strength of their opinion and how that opinion comports with the evidence that will be provided to them at trial. The question comes down to whether their experience outside of the courtroom will take priority over the evidence or will the evidence take priority over their experience, not whether we can eliminate that experience from their minds. In other words, it is not just the experience in and of itself that is relevant. It is the perspective about that experience and the strength of the beliefs that resulted from it.

Preconceived opinions in your jury pool can’t be eliminated completely, no matter how good you think you are at jury selection. Instead, you can hope to take out the people who are completely closed to your story through the voir dire process. What you have left are people who still may be skeptical. Is this fair? I can’t say that it is or is not, but it is the system we have and the issue applies to both sides. Admittedly, though, they often can be more troubling to one side over the other depending on the case and the venue.

As a result, it is imperative to understand, as much as possible, the mindset of the jurors and their community before you go to trial and be sure to tell a story that accounts for it. If your arguments are contrary to a widely held belief, you are unlikely to succeed. You must make sure that your strategy accounts for the people who are hearing it. Don’t expect them to change their perspectives for you and your case. They won’t.

Let’s go back to Sandusky’s case. Did a connection with Penn State automatically render jurors incapable of being fair and impartial? The judge didn’t think so, and neither do I. The issue here was really whether a juror, given his or her background and experience, regardless of whether or not he or she resides in or has connections to the Penn State community, was willing to listen to both sides and carefully consider the evidence. For the Sandusky trial, the jurors took two days to deliberate, requesting some of the trial testimony be read back to them. To me, that seems to pass for careful consideration of the evidence. As for the result, after having read the synopsis of trial testimony provided to me by one of the news stations, a couple hundred years behind bars for this particular fellow sounds pretty fair to me.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

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, contact Gomez at [email protected] or call 215-292-7956.

 

Why Haven’t I Gotten on the Online Jury Research Bandwagon?

By Melissa M. Gomez
Special to the Legal

It’s all the rage. It is pretty darn cool and it is much less expensive than the old, archaic way of doing things. Online mock trials. The technology now even has avatars that look like jurors sitting around a discussion table talking about your case. Really, how cool is that? There are myriad new and interesting ways to get juror feedback about your case and you don’t even have to leave the comforts of your office. Sorry to say, I am not yet convinced.

I am open to having my mind changed. Really, I am, but I haven’t heard anything yet that will make me think that conducting a mock trial with a group of people in different rooms and different houses and different towns is a good idea. I am uncomfortable relying on the feedback of people I can’t see, so I can’t be sure whether they are really there and paying attention or went to get a snack or are checking their email or playing Sudoku or letting their teenaged son take their place because they need to run to the grocery store. Call me old-fashioned.

So, let’s say we can get those identity things under control and there are ways to make sure that the person providing the feedback is there and paying attention and is the same person as the person who is supposed to be providing the feedback. Sorry, still not convinced.

There are two important aspects of communication. There is the central message of words being said, and then there is the peripheral message of everything that happens around the words. Is the person raising his or her voice? Has she crossed her arms and pushed back from the table? Is he watching the presentations intently or snoozing? How are people reacting to one another across the table in deliberations? The human dynamic is an enormous part of the courtroom – not only for witnesses and their communications but for jurors as well. While we do our best to capture a high-level idea of how humans react in a human way to a case, I think these important dynamics are truncated quite enough in the context of a traditional mock trial in which we present the case without live witnesses (usually) and in a much shorter period of time. It is one thing to ask someone to rate his or her anger toward a party on a scale from zero to 10 and quite another seeing how people speak with emotion (or not) about their feelings toward that party and the relevant experiences that impact those feelings.

So, I ask, what are we gaining from taking so much of the human element out of these exercises by conducting them online with a group of folks who haven’t met or seen each other? Will we really be able to understand how participants are really reacting? Why are we limiting the feedback they can give by only asking for what they can type? People tend to say more when they can talk through their thoughts and when they can tell a story as opposed to when they type. What happened to the ability for people to engage in a real debate in the same manner in which they will debate at trial?

Not every case and every client can afford a live mock trial or focus group, of course, but I believe that we have to take a close look at what is helpful and truly useful information from a reliable source and what is just marketing. While I risk losing some competitive edge in my industry by staying “old school,” I believe that, currently, online focus groups lose too much of what is real about people in the courtroom to be something I would use as a resource to make decisions about important cases. I am ready and willing to be convinced otherwise. It just hasn’t happened yet.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

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, contact Gomez at [email protected] or call 215-292-7956.

Understanding Juror Emotion: The Power of Mad

By Melissa M. Gomez
Special to the Legal

Sympathy is a central part of any injury case, but from what I have seen in jury research and in trial, the true damage accelerator for defendants is anger.

In essence, jurors tend to look at damages in two ways: what the plaintiff deserves to receive and what the defendant deserves to pay. When looking simply at what a plaintiff deserves to receive, sure, sympathy plays a role, but so do other factors. Jurors are critical of and naturally curious about the plaintiff’s own role in what happened to her and the extent to which she has done what she needs to do to mitigate her damages. They question why this plaintiff deserves millions of dollars for her injuries when the jurors themselves may have experienced their own injuries (or those of loved ones) and have not received nor asked for a dime.

When dealing with what a defendant deserves to pay, though, jurors who find behavior blatant or egregious, or who find a defendant arrogant or dismissive of the plaintiff and her injuries will often make that defendant pay through the nose, despite what the plaintiff “deserves.” This can be true whether or not there is a line on the verdict sheet for punitive damages.

It is also important to note that there is more work involved in managing juror anger than sympathy in trials. Sympathy is natural and automatic. It tends to hit immediately and jurors marinate in it throughout trial. It also tends to fade as jurors become used to the idea of what happened. They get desensitized. Anger, on the other hand, grows.

In a case in which a child was killed in an appliance fire, jurors struggled with what his mother deserved in compensation. The case was horrible, and the natural sympathy toward this mother, experiencing the death of her child in the way she did, was automatic and strong. There was evidence, though, that she had left the child in the room with a burning appliance to get some water, only to find the child trapped by fire in that room by the time she returned. Jurors struggled with enriching a mother when she had a clear opportunity to get her child out of harm’s way.

On the other hand, as the evidence was presented against the defendant, the appliance manufacturer, it became clear to the jurors that the company knew that this appliance had some issues with causing fatal fires, yet the corporate witnesses could not provide any information regarding what the company did with that information. The witnesses were arrogant and unlikable and, in the piece de resistance, the defense pointed to a photographed and unidentified object as the alternative cause. That object turned out to be a simple black bag that the plaintiff was able to obtain and hold up for the jurors in the courtroom.

By the time they went into deliberations, the jurors were angry. Not only were jurors angered by what the corporation did in regard to its knowledge of its product’s safety concern via the evidence, but this perceived bad behavior was illustrated and exacerbated by what was seen as bad behavior in the courtroom via misleading arguments and unlikable corporate representatives. In deliberations, anger pervaded the decisions. The mother’s failings no longer mattered and the damage award was well over $10 million dollars.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than 15 years of expertise in research design and methodology, as well as in behavioral and communication skills training.

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 Dr. Gomez at [email protected] or call 215-292-7956.

 

Understanding Juror Emotion: When Sympathy Can Backfire

By Melissa M. Gomez
Special to the Legal

In my experience with injury cases, I have seen an all-too-common error of plaintiffs counsel in jury trials. The error is an over-emphasis on sympathy in an effort to accelerate damages. I remember one such example of a horrible case involving the death of a child. For the first two days of trial, plaintiffs counsel put family member after family member on the stand, talking about the horrendous accident at issue in the case and its impact on the child’s family. By the end of those two days, everyone in the courtroom, especially the jurors, were emotionally drained. The problem for the plaintiff was that no one yet understood why this was the defendant’s fault. Sympathy for the plaintiff was high. The verdict was for the defense.

Sympathy is a natural emotion and a powerful one. The problem is that when sympathy is overplayed, jurors feel manipulated and they become angry at whoever is making them feel so terrible. Despite the defense mantra “beware of the crying juror,” I have seen jurors in mock trials weep at the case story and then become strong advocates for the defense. Unfortunately for defendants, there is not much to be done in a case like the one above to mitigate sympathy except to accept and join with it. Rather, remind jurors that the plaintiff’s burden is not to prove how horrible the injuries are, but to provide the proof that will cause those jurors to look at the defendant and be able to say: “You caused this.”

The power of the sympathetic aspect of the case is in the hands of the plaintiff and it is a dangerous power to control. There is a balance between presenting the full story of the plaintiff’s injuries and turning jurors off by playing too strongly on emotion. It is more powerful to pepper the damage information with liability witnesses so jurors make a real connection between what happened and who is to blame. Sympathy can be a great asset to a plaintiff’s case, but if it becomes the focus, it can harm your case, being perceived as a smokescreen for a weak liability story.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than 15 years of expertise in research design and methodology, as well as in behavioral and communication skills training.

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 Dr. Gomez at [email protected] or call 215-292-7956.

 

Are You Looking Carefully Enough at Your Verdict Form?

By Melissa M. Gomez
Special to the Legal

In jury trials, semantics can be critical, especially on the verdict form. A question that can be interpreted in multiple ways, as many can, can very easily be misinterpreted to the detriment of your case.

Take, for example, a medical malpractice case involving facial plastic surgery. The plaintiff, a man in his 60s, had received a facelift from his plastic surgeon. While aesthetically, the results of the surgery were quite good, the plaintiff complained of facial pain, and there was no physiological reason for that pain that could be found. The plaintiff claimed that there was negligence in the manner in which the surgeon conducted the surgery, and also made a claim of failure to provide informed consent. He claimed that, if he had known that permanent pain was a risk of the surgery, he would not have had the procedure done.

In the end, the jury found that the doctor was not negligent regarding the manner in which he conducted the surgery. They did, though, find for the plaintiff on the issue of informed consent, which, for an elective procedure like plastic surgery, they felt as though a higher standard of informed consent should apply.

The tricky part of the verdict form for the defense came with the causation question. The question, as read on the verdict form, asked whether a “reasonable person” would have refused the surgery had more information been given. Interestingly, as we learned in post-trial interviews, jurors felt that the plaintiff would have had the surgery anyway, because, they felt, he was an unreasonable person in his quest for the fountain of youth. But that wasn’t the question. The question was about a “reasonable” person.

Therefore, this jury, comprised of one male and the rest female, put the standard of being “reasonable” on the male juror. That is, they decided that their male counterpart was a reasonable person and they asked if he would have had the surgery. His answer was no. He, a male in his 20s, personally would not. He simply found getting a facelift unreasonable, in general. Regardless, in the manner in which these jurors interpreted the question, the answer stuck and the verdict was for the plaintiff. When it came to damages, though, they only reimbursed plaintiff for the cost of the surgery.

I have seen several examples of cases in which verdicts are won or lost on the way the question on a verdict form is worded. Because they are in unfamiliar legal territory, jurors tend to look at the semantics of questions and interpret them quite literally. Therefore, it is critical to look closely at the wording on the verdict form. Where you can argue for needed change, argue for it. If you can’t, make sure you take the jurors through the verdict form in closings. Provide the road map to the issues to consider when answering each question. Without that road map, folks are more apt to get lost.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than 15 years of expertise in research design and methodology, as well as in behavioral and communication skills training.

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 Dr. Gomez at [email protected] or call 215-292-7956.