Need a Clear Roadmap for Successful Trial Strategy?

Jury Selection , Persuasion Add comments

January 13, 2016

By Amy Singer, Ph.D., and Kemberlee Bonnet, M.A.

Part 1

Have you ever conducted a Decision Navigation® research study? It’s an excellent tool that allows researchers to plan a very detailed decision tree for successful litigation strategy. Think of it as a “reverse engineering of the verdict form.” Rather than the attorney questioning the surrogate jurors, these surrogate jurors interrogate the attorney. When the surrogate jurors conclude questioning, they deliberate and reach a verdict. In this type of focus group, surrogate jurors help provide us with the ideas for themes, pivotal points, and “keys” to the case.

We receive startling questions from surrogate jurors that attorneys were not expecting that we found, were in fact, to be important. For example, many years ago I had the privilege of working with Edward Bennett Williams on a tax evasion case. Naturally, our focus was on accounting, appraisals and evaluation. However that was not the focus from our research panels! What did they continuously ask about? The only answers they wanted pertained to the “cast of characters” within and between organizations and the defendant’s physical proximity to people who made the financial decisions. The defendant was “off the hook” because if he was not in “the same office” or did not have any communication with the financial folks, he could not be guilty of tax evasion. The case was about “distancing,” not “accounting.”

We used this data to analyze reactions and decision-making processes in order to brainstorm creative solutions to the problem areas identified. As a result, we scientifically constructed successful trial strategies and voir dire techniques.

Reasons the Decision Navigation® technique works:

1. Unlike traditional “mock trials” the Decision Navigation® data reveal to us what jurors want to know and the order in which they want to know it. This is the most important component of the Decision Navigation® research findings, as it allows us to analyze the trajectory of jurors’ cognitive “mapping” and information processing, thus enabling you, for example, to create your visual aids and series-of-events diagrams at an exceedingly effective level.

For example, we found out just how important “order of information” was in a complex commercial case. We were working for the defense. Surrogate jurors were hopelessly lost and overloaded with information. We switched the order of our presentation of certain facts.

Nothing helped. We turned to the demonstrative evidence folks to explain simple concepts (to us). Nothing worked. Was it too complicated for a jury trial? In our last attempt, we did a reverse engineering of the verdict form to get an idea of “what they wanted to know and when they wanted to know it.” We based our presentation on the order of the questions our surrogate jurors asked. We decided to tell the story from each plaintiff’s point of view. We told the story in this order: who was each plaintiff? What happened to each plaintiff? What did the plaintiffs know and not know? The graphics team went to work based on our revised strategy and we got a defense verdict.

2. Decision Navigation® informs us how jurors will perceive the facts of the case. Perception is of utmost importance, as people operate based on what they already know, grounded in their own experiences. It is vital to make sure that jurors are on the same page. Once we understand surrogate jurors’ perceptions, we can successfully build a strategy for the actual jurors on your panel that best guides them through the evidence, presenting it with an anchor- a life experience in which they can relate.

We worked on a case where the plaintiff was viewed as stoic and had horrible injuries. It was one of the “lucky to be alive” cases. My client, the plaintiff’s attorney, was concerned that folds would not understand the extent of his client’s injuries. The client himself was in denial. Obviously, we relied on the doctor’s testimony to get the seriousness of his injuries to the jury. What did we do? We video streamed “mock” cross examination of the plaintiff to a group of people who could respond anonymously (we know the people in the group, but did not know who was texting what). The technique is known as Simultaneous Reaction to Stimulus (SRS). The simultaneous reactions to the witness from our line SRS group revealed to us that as long as the plaintiff spoke about his high pain tolerance level, we would win over the jurors. Many of the subjects in our online group kept saying, “I have a high pain tolerance level, but I wouldn’t do that.” That was the perception we needed, and gave us some important clues for voir dire.

3. Decision Navigation® is enormously effective in the identification areas of confusion. By identifying areas in which surrogate jurors are confused, you can create effective analogies and metaphors, as we have found these to be the best way to ensure clarity in the trial setting. The analogy and/or metaphor will explain things to jurors in a way that it will make sense and aid in the understanding of a concept of which was initially confusing. When jurors relate to your analogies and the metaphors, they will truly understand your discourse.

We were working on a defective products case where we are alleging manufacturing as opposed to design defect. We needed an analogy. Maybe you already have a great analogy, but we didn’t. My client, Ervin Gonzalez, after interaction with our live Decision Navigation® group, came up with a great analogy. The analogy was to a hamburger. “There was nothing wrong with the recipe, but that particular hamburger was made incorrectly.” The analogy worked.

4. Decision Navigation® methodology allows us to identify what is irrelevant to surrogate jurors in their decision-making process. You do not want to increase jurors’ “cognitive load” with information that they do not need- this will impose unnecessary mental effort. The cognitive load can be reduced by quickly identifying the relevant stimuli so that you can methodically organize it into meaningful subsets.

It will come as no surprise to my personal injury defense attorneys that causation is king. While plaintiff attorneys focus on negligence, the defense bar focuses on cause. Here’s the trick question: what is relevant when raising a causation defense? My client and I decided to work chronologically to show there was no causation in a medical malpractice case.

The damages were horrific in this psychiatric malpractice case. Leading with our best punch, we did not want to work backwards from the consequential to the antecedent even. It didn’t work. Nothing worked. Angry about falling below the standard of care and the sympathy of slaughtering many innocent people were “killing us.” We even had some surrogate jurors tell us afterwards that they would never participate in another one of these exercises again.

An even trickier question: what would be relevant in raising a causation defense in this particular high-publicity case? We conducted 10 Decision Navigation® studies focusing solely on causation. Surrogate jurors were told up front what the negligence and damages were, just to make things more difficult form my client. We kept focusing on the plaintiff and defense experts who testified exactly as you would expect. What we didn’t expect is that our surrogate jurors could not care less about what these experts had to say about the plaintiff- it was the type of mental illness he had and the odds of stopping him once he was hell-bent on his homicidal/suicidal spree.

What they were least interested in was what other psychiatrists’ success rates would be if our client followed the standard of care and treatment plan. There was only one thing our research groups focused on: the decedent’s family. Without hearing any evidence, everyone agreed that if this lunatic could be stopped, he could only be stopped by certain actions of his family. We studied what actions jurors would expect and the likelihood of those actions stopping the decedent. We relayed our intel to the demonstrative evidence department and once surrogate jurors saw the exhibits, they could not be convinced that the psychiatrist caused the injuries. I bet you haven’t heard about his case. You would have heard about it if the plaintiffs won.

5. Decision Navigation® data allows us to identify the best way to present (channel) the testimony and evidence (perception). The methodology shows us how to identify the best technique to anchor jurors’ existing attitudes into a different or similar direction, rather than trying to create new attitudes (change attitudes that are not value-based).

Decision Navigation® methodology enables us to identify factors that will enhance learning and memory. After identifying the important evidence and word associations through the Decision Navigation® study, you can use the appropriate psychological tool to facilitate and solidify learning. This includes the use of repetition to expedite memory and call attention to selective stimuli and also foster elaboration on those stimuli for memory enhancement.

One of my clients, Chris Searcy, had an auto case in which he had a computer animation of what happened according to the accident reconstruction experts. In our Decision Navigation® study, we learned that sometimes things are better left to the imagination. Just like the book is usually better than the movie, we discovered that Chris’ storytelling ability was better than the animation to maximize jurors’ perception, learning and memory of how the collision occurred.

The case was bifurcated between liability and damages.  At trial the first jury found 93% liability on the solvent defendant, a construction company, 7% on the uninsured defendant driver, and 0% on the plaintiff.  The second jury resulted in a verdict totaling $256 million dollars ($145 million for the plaintiff quadriplegic child, $66 million for the plaintiff hemiplegic child, and $50 million for the wrongful death of 6 year-old). A true testament to Chris and his ability to draw pictures with words.

6. Decision Navigation® methodology enables us to identify factors that will enhance learning and memory. After identifying the important evidence and word association through the Decision Navigation® study, you can use those to facilitate and solidify learning. This includes the use of repetition to expedite memory and call attention to selective stimuli and also foster elaboration on those stimuli for memory enhancement.

Conclusion

As you can see from the aforementioned examples, the Decision Navigation® has worked time and again. This methodology and design is based on scientifically-acceptable principles that have proved to hold up in court. This technique is unique, and our scientific jury research delivers reliable and valid direction; finding the most powerful and persuasive arguments while testing for and eliminating problem areas. When there is zero room for error, our jury-driven, psychologically-based testing provides a platform for creativity and effective construction of your paradigm.

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