Juryology

Link to KTVU-2 footage of Rich: http://www.ktvu.com/video/9641231/index.html

The murder trial of Scott Dyleski continues in Martinez, California, on the eastern shores of the San Francisco Bay. This link is to some tv commentary I did this morning. Dyleski was 17 years old at the time that he is accused of murdering Pamela Vitale, wife of lawyer Daniel Horowitz. The defendant was a “goth” kid (cultural meme alert: Condition Black Trenchcoat). I make the observation that this plays into certain post-Columbine assumptions that the general public has about kids who go “goth” and talk about violence.

Claudine Wong of KTVU-Channel 2 News is the best court reporter on television in Northern California, without question. She gets court procedure and context, and is able to explain it very succinctly yet accurately for lay audiences.

I also promise that my next blog posting won’t be a video clip or self-referential.

By the way, before any of you who know me asks the obvious question: a few days ago, I had a small cyst removed from my eyelid, so I am forced to wear glasses for a bit, and the bruise is from the needle that delivered the anaesthetic.

I was on television giving commentary on a trial that starts in San Francisco today.

http://www.ktvu.com/video/9527583/index.html

http://www.bloggingvegas.com/lasvegas/opinion/jury_duty_101-11066.html

That link is to a blog posting by someone in Las Vegas who is reporting about his or her service as a juror in a federal criminal trial. If you are a trial practitioner, READ IT. Ladies and gentlemen of the trial bar, I present . . . your jury. This is NOT picking on this person! Rather, this person is obviously an above-average intellect, above-average articulate, above-average thoughtful. But this person is also a person, and is thus susceptible to all the usual prejudices and fallacies that we see as repeated patterns in juries (both real and mock ones).

Read the person’s essay first, then come back here for a few comments.

* See the pop culture references to “Boston Legal” and “CSI”? This is your jurors’ law school and criminal investigation school (along with “Law and Order” and its progeny, and for really discerning jurors of good taste, their police procedure school is FX’s brilliant “The Shield”).

* Note that this person took it upon himself or herself to chat with the prosecutor after the trial. Ask yourself: what sort of person does that? How might you determine what sort of person might do that in voir dire?

* Interesting that the prosecutor admitted to putting on certain evidence just because jurors widely expect it based on viewing “CSI”.

* This juror reports — undoubtedly accurately — an avid desire to convict immediately after hearing the case. This is no doubt aided by the other interesting bit of data the jurors heard: the defendant had a prior criminal record. The psych literature is full of work that confirms the commonsense: knowledge of prior bad acts conditions jurors to think worse of the defendant in the current (and UNrelated) case.

* Um, yeah… a good practice tip for the defense bar: try really hard not to mispronounce your client’s name. It’s good manners. Oh, and jurors notice everything.

* Notice the jury’s decisionmaking process. They pick their foreperson quickly, then the writer suggests a vote… apparently before deliberation. Now, that’s illegal. Right up there with restaurant employees returning to work without washing their hands, and you know that rule is never broken, either.

* The juror reports regret bordering on anger that the jury hung and the defendant went free. We don’t know the evidence and I certainly wouldn’t pass judgment on this person’s opinions. But it is worth noting that this person has open hostility to the notions of the presumption of innocence, the high burden of proof on the government in criminal prosecutions, rules of evidence (“the truth is so darn inadmissible”) and the founders’ notions that an unchecked government is more harmful to society than some number of criminal defendants avoiding conviction. Not unusual at all.

* The writer raises a very intriguing notion that men are more likely to be empathetic to a male criminal defendant and that women are more interested in “getting a bad man off the streets.” I actually don’t think the literature or vast amount of experience of lawyers and trial consultants bears this out, what with defensive attribution and other psych phenomena that make people harder on their own kind. Further, almost without exception, there are no useful conclusions to make about How Men Think or How Women Think as opposed to each other. Still, for reasons I can’t pinpoint, I find this person’s discussion of it really interesting.

There is a phenomenon that has shown up in criminal juries for the last several years now: laypeople have very high expectations that technical, exact, and conclusive evidence will be presented to them. Further, the expectations are that this evidence — which can be expensive or highly time-consuming to process — will be offered no matter how important the case, how serious the charges, how expensive it might be to produce the evidence. This overestimation of both the availability of technical, scientifically processed evidence and the advisability of DA offices seeking it has been described as the CSI Effect, after the highly rated CSI series on television. (Although Dick Wolf, creator of the 371 variants of “Law & Order”, believes that this effect showing up in juries actually predates “CSI” and is more properly attributable to his many, many, many, many series.)

Attorneys and trial consultants who work in criminal cases have noticed this for a long time, and it has been documented that prosecutors are offering scientific evidence that they wouldn’t have awhile back — either because it is on a point that isn’t really that important or because managing the resources and priorities of a crime lab would have led to not producing it. They must do it now, lest a jury wonder where the CSI stuff was, and assume that an absence of proof is a proof of absence. And really, in my opinion, that is the linchpin of the danger of the CSI effect; a lack of evidence which is expected by an amateur leads to the assumption that “if that evidence existed anywhere in the universe, the prosecutor would have offered it, which he or she did not, so therefore it doesn’t exist and the claimed event never happened.”

But the “CSI Effect” occurs in civil cases, too, and thus more trial lawyers should be aware of it when working on a case that involves anything technical or technological in the story at all. Here is an example:
In a federal suit in the western U.S., plaintiff alleges sexual discrimination and violations of the Equal Pay Act. Part of the dispute is over who saw which emails and when, and the ability of either side to offer any hard evidence about this is pretty meager. In short, this is a standard, run of the mill civil lawsuit. While the fight is over how much the plaintiff had been paid during certain years, whether others had been paid more for improper reasons, whether her pay had been affected by her complaints about certain things, it had escaped the notice of counsel on both sides that they were handling a technical lawsuit.

Why is a standard issue pay dispute a technical lawsuit? We conducted a focus group of this case to discern how civilians would react to the major issues of the case, how they respond to graphics that one party had created, how they would go about deciding what happened, liability leaning, damages inklings, and so forth. Out of nowhere, one participant said: “What do they mean they can’t tell who got which emails and who didn’t? The FBI can find hard drives from computers that have been blown up or burned, and they can put them under microscopes to see if the individual bit is a one or a zero, and can visually reconstruct the contents of the hard drive. That’s how they’ve caught a bunch of terrorists. So why aren’t we seeing that evidence? Because they don’t want us to see it. Or they aren’t sure of their case.” Or maybe, just maybe, forensic computer coroners don’t see civil lawsuits alleging unequal pay on quite the same level of priority as stopping terrorists. Hence this overestimation of both the availability of crime lab resources and the overestimation of attorney prioritization of scientific evidence on points that aren’t terribly important.

So we learned something very important that day: Anticipate that even in cases that don’t seem to be technical in nature, if there is any transaction that happened by technical means, jurors will have some grandiose ideas about the availability of evidence on that topic… and then mistake an absence of proof as a proof of absence.

I later learned about another case which alleges sexual harrassment in the workplace, some of which allegedly occurred via company email. The plaintiff claims that she deleted it all, and naturally, mock jurors assumed that the internet service provider could simply be subpoenaed and, presto, all the emails could be recovered. Right. And if that fails, the FBI’s al-Qaeda team can get right on her hard drive.

My point isn’t to pick on jurors. That’s never my point and I don’t permit it in my presence! Nope. It’s the attorneys responsibility to tell their story in a way that laypeople will access and process correctly. Now we know that even in civil cases, attorneys must fashion their stories by taking into account the “CSI Effect.”

Antidote: in your story, tell the jurors that they won’t be seeing the evidence that you think ‘CSI’ would lead them to expect. Let them know in voir dire, in opening, during the presentation of your evidence through witnesses, and again in closing.

As you know if you see many trials, some judges try to give a speech about the importance of jury service to venirepersons when they are herded into the courtroom. Some aren’t bad. Some. I mean, some start with “I know you probably don’t want to be here, but let me try to convince you that it’s important.” Really. Exact quote. Not exactly rallying the troops. So in case any judges might like a different speech, I offer this one for anyone’s use. Practitioners can direct their judges to the speech, too– might get some better jurors staying on the panel!

Good morning, ladies and gentlemen. My name is Judge Simon Dickens [feel free to use your own name, of course] and I welcome you to your courtroom. I say “your courtroom” because all the courts belong to you, the citizens of this state. There’s a reason we have courtrooms: we need a civilized way to resolve disputes that arise in our community, and having good citizens like yourselves come in and hear a dispute in our community and give a verdict… well, that’s about as civilized as it can get. Today, these parties at these tables in front here are asking for a jury to resolve something.

Let me put it this way. There’s a lot of talk in America these days about our core values and fundamental principles. Maybe we would all agree that anything in the Bill of Rights is a basic, core American principle. Foundation. Bedrock. You know the First Amendment guarantees freedom of speech and the Fifth Amendment says you can’t be forced to testify against yourself, and other things you might recall. Well, the Bill of Rights also gives us the Seventh Amendment, and it relates to civil trials like this one, not criminal ones; those are covered in other amendments. The Seventh is just about civil trials. And you know what it says? It says, “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”

Well, I can pretty much guarantee that these parties are fighting over more than $20. [Pause for puddles of laughter.] So that means that our fundamental American values are that we want them to have a jury if they want one. Why? Because we don’t want people in our community settling their scores in other ways, like old duels or just breaking in and stealing what you think is yours.

And notice what the Amendment tells us– it says that the right to a jury shall be preserved. Preserved. That means it already existed before the 1790’s in America, and the founders just wanted to make sure it was continued. It’s our basic values, folks. Been around for centuries.

But why should folks care, folks like yourselves who have taken time out of your life because you were summoned by the court for jury duty? Well, I can think of at least two reasons. One is that I hope you will agree that it is good for democracy and for civilization to have regular citizens from the community come in and solve disputes rather than leaving it to people to fight it out in other ways. Second, someday you might have a dispute and need some good people to come in and resolve it. Think of it as donating blood: it’s not fun, but you do it once in awhile because it’s important and because you want there to be others who will help out when you might need it.

And there’s something else: most people never serve on a jury, and most people who have been a juror have only done it once or twice in their whole adulthoods. That’s a pretty small price to pay to live in a society that resolves problems this way. Your country calls on you for three things: vote a couple times a year, pay your taxes every year, and come in and be on a jury once or twice in your life. (They used to ask you to go to war for your country, but that’s all volunteer now, so these are the three things your country asks you to do.) It should be an honor to do all three, because that price is small compared to what it took to get these rights and to keep them for 220 years.

Now, I appreciate the fact that nobody woke up today and really wanted to come in, take an oath to tell the truth, and then get asked a bunch of personal questions and have to answer them in front of strangers. Please understand that the lawyers and I don’t want to make you uncomfortable and certainly don’t want to embarrass anyone. But I can tell you right now: if you are a human, you have some biases and attitudes, and I specifically asked the jury commissioner to send up only humans this time. [Pause for chuckles.] So we expect folks who have attitudes, experiences, and biases about things. But we have to find out whether some of those biases and attitudes are about some of the subjects in this case. Because then you won’t be the right juror for this case. Wouldn’t be fair. You’d be a great juror on another case, but maybe not this one. So that’s why we will ask you lots of questions. This same process is happening in probably about 4000 courthouses across America this week, so you are in big company.

Many of you will be asked to leave, and you won’t really get an explanation as to why. Please understand that it’s nothing personal; you are a fine person in many ways, but maybe just have something in your background or in your mind that would make you a great juror on some other case, but maybe not this one. We thank you for your good citizenship for coming in here anyway.

We have lists of your names, both random and alphabetical. We follow the random list when we’re putting you into the jury box, but you’ll see the lawyers and the clerk jumping around between lists; that’s why. Don’t worry about it. I always think it looks funny myself, so that’s why I mention it.

[Handle hardships and the more obvious cause challenges here. Then:]

So we will call the first 18 of you from the random list, and we will get to know you first. The rest of you in the back, please pay attention because many of you will get up here, too, and we can save each other’s time by just asking you, “Did you hear the earlier questions? What answers did you think of for them?”

Again, folks, we all thank you for putting aside whatever is going on in your life this week and coming in and being part of resolving a dispute in our community. It’s what good citizens do in a good democracy. Thanks for taking part here today. I’m honored to have you in our courtroom.

This blog will have lots of material on voir dire, but here are some things that I happen to have been discussing with clients in the last couple of weeks.

1. Be more likeable. This is for lots of reasons, starting with the fact that trust tracks likeability. People trust who they like. While you are picking a jury, they are picking a lawyer.

Another key reason to be more likeable is that you need these uncomfortable and inconvenienced folks to open up to you about some occasionally sensitive, personal stuff. And asking them to do it under oath in front of a bunch of cranky strangers. They’ll do it more easily if you are appropriately warm and inviting.

Sometimes, lawyers ask me “How does one become more likeable?” And I suppress the urge to scream, “Ah ha! You are making my point!” But part of that answer is…

2. Be more curious. Not just act more curious about people, their lives, their experiences, their mental processes, their quirks, their filters, their biases, their tastes… but actually BE more curious.

3. Hear yourself as you really talk & sound– hire some strangers if necessary. Two suggestions here. One, get an unobstrusive recorder and use it during your next voir dire. Do you sound open and inviting? Do you sound like you are trying to suggest answers? What do you sound like and what notes do you have for yourself?

Second, if you are uncomfortable with voir dire and consider jury questioning to be a weak part of your game, hire a handful of temps from a temp agency for 2 hours and do a mock voir dire at your office. (This is the ONLY time you will hear me recommend hiring citizens from a temp agency! Please don’t use temps in your focus groups unless you don’t care that you are hiring people who are uniformly highly unlikely to be able to serve as jurors, and further, are alike in other ways that will skew your research. But they are great for certain narrowly defined purposes, and this is sure one of them.) Just talk to them. Stand in front of them and ask questions. Ask OPEN questions. Record this session and then listen to yourself. Do you find yourself annoying? Warm? Welcoming? Off-putting? Approachable? Too enamored of legal prolixity? Saying ‘ambulating’ instead of ‘walking’? Saying ‘damages’ instead of ‘harms’ (if plaintiff)? Best few hundred bucks you can spend.

3. Disclose something about yourself early. As discussed in the previous post about voir dire conducted by lawyers (yay!) or judges (um, well, thanks, Your Honor), all research on eliciting honest answers from strangers shows that it works better if the questioner discloses something about himself or herself first. So be ready with your standard intro pitch, whatever it might be. It can be anything from “I’m worried about how to go about asking some of these questions, folks” to an elaboration on “None of us are the right juror for every case. Take me, for example. I could do fine as a juror on lots of cases, but boy, if there were a case with allegations of animal abuse or mistreatment, I couldn’t do it. I’d be a terrible juror. I couldn’t hang in there and listen and do my sworn duty as a juror and keep an open mind and really process the evidence. Flat. Out. Couldn’t. Do. It. So we are all here to find out who in this group would be great for this trial and who might be better on other trials. I’m the first to tell you: I would be terrible on some trials, and that’s probably true of all of us.”

4. Three questions. There probably aren’t more than three things your jurors have to believe in order to hold in your favor. So let’s get right to those things. No proxies, like what bumper stickers they have on their car or who their heroes are (not that those aren’t telling in some ways, but, really, what am I supposed to DO with those answers when I’m sitting at the table in the courtroom and everyone’s looking at me and waiting for my next challenge?) In an employment case, get to your point: “What are your thoughts about whether there is a glass ceiling in business, and what kind of things would you want to look at to decide if there is one?” Get right to it.

5. Master a process for cementing cause challenges. A future post will focus just on eliciting answers to support cause challenges, but be mindful of this. GETTING answers that show bias or prejudice are not enough! We have to get an answer that reveals bias, AND that this is a view that is unlikely to change, AND that it has been held for awhile. And we have to ask a sequence of questions that will get this information in such a way that the judge can’t just sprinkle the Magic Borax of Citizen Attiutudinal Hygiene that would wash away the taint: “Nevertheless, Mr./Ms. Juror, you would put that aside and follow the law and the instructions I give you, wouldn’t you?” (As my dear friend and colleague, Richard Gabriel, says, “To where do judges expect jurors to put their feelings aside? They are in your mind and aren’t going to leave. If you put them from one part of your mind to another part of your mind – assuming that’s even possible – it’s still in your mind.”)

Too often, we see lawyers get some information that could probably be developed into a solid cause challenge, only to fail to ask those final couple of questions that really get the person to commit to their belief/attitude, admit that it’s not going to change, say that it has been held for a long time, and say that there are better cases in the courthouse for them to serve upon. (Gratifying personal/professional moment: in picking a jury in Ohio last December, my client used my “couldn’t serve on a trial where there are allegations of animal abuse” speech. The suit alleged failure to diagnose breast cancer. After dozens of people had been questioned and the day dragged on, one prospective juror talked about her husband being a surgeon who had been sued for malpractice for no legitimate reason. Finally, without prompting, she said, “Maybe this is my animal abuse case, you know?”)

Bonus Tip #6. Whatever it takes, don’t have anything in your hands when you are questioning the potential jurors. Have someone take notes for you; write a note to yourself to remind you not to hold your pen (which, if it’s fancy, you shouldn’t have in the courtroom at all); dip your hands in Vaseline before the call to order. Whatever it takes, hold nothing in your hands. It’s distracting to jurors and it gets in the way of your doing what you must: focus just on them and relate to them.

Let’s stipulate that the whole point of voir dire is to elicit honest, candid responses on issues that bear on the case, so that lawyers can exercise challenges effectively. If we aren’t getting the most candid responses from jurors, then the point is thwarted, and the whole exercise is rendered useless, and fairness suffers.

Well, it turns out that in the modern world of increasing judge-conducted voir dire, that is exactly what’s happening. When judges conduct voir dire, prospective jurors are TWICE as likely to change their answers to please the questioner than when attorneys do the voir dire. TWICE. It’s not because judges are not necessarily skillful at conducting the voir dire– some are and some aren’t, just like lawyers. Rather, a study showed that it’s because jurors are more inclined to alter their answers to conform to their perceptions of the judge’s standards than they were inclined to alter their answers for attorneys. (The cite for the article is at the end of this post; though it’s from 1987, there is no reason to think that the psychological mechanisms of this phenomenon aren’t still good; humans haven’t evolved much (nor been more intelligently designed, if you prefer) in the intervening years.)

The study actually tested two things: (1) effects of whether the attorney or the judge does the voir dire, and (2) style of the questioner, no matter which person does the questioning.

We can dispense with the second one quickly: To the surprise of nobody, a warmer style elicits more honest disclosure from jurors, ESPECIALLY WHEN ACCOMPANIED BY AN APPROPRIATE AMOUNT OF SELF-DISCLOSURE FROM THE QUESTIONER. Obviously, lawyers shouldn’t be doing an impromptu ‘Oprah’ show in which they divulge everything about themselves, but it’s critical that the questioner disclose something about his or her background, life, values, beliefs, thoughts about the legal system, SOMEthing. (Note for later: Who doesn’t do this when conducting voir dire? Yep. Judges. But we’ll see that it wouldn’t matter if they did; the robe still gets in the way of honest disclosure from laypeople.)

It’s also worth noting that attorneys actually have an interest in putting forth effort to be warm and engaging with jurors, as they are trying to become more liked by them for strategic reasons. That right there puts lawyers in a better position to elicit honest disclosure from jurors than are judges.

But the first part of the question — which party gets more truth/conformity — turns out to be at least as powerful in affecting jurors’ forthrightness.

Methodology: Researchers hired a bunch of jury-eligible folks to come to the courthouse, gave them questionnaires, and had actors play the lawyers and judge. They conducted eight voir dires (or as I call that, a fun weekend). The participants filled out part of the questionnaire, then either the judge or the attorney would conduct the voir dire, then an interruption would be invented (e.g., judge got an emergency phone call) so that participants would fill in more of the questionnaire. After that break, the questioner would return, and other conditions might be changed (such as the interpersonal level of the questioner). The written answers were compared with the verbal answers, and then the differences were compared with differences observed with different types of questioners. (The formal methodology in the study is discussed in the article cited at the end of the post, and I am simplifying it greatly… for MY benefit!) Participants found the setting highly realistic; they thought the judges and attorneys were authentic.

Results: So it turns out that jurors were more consistent with their attitude reports (the written stuff) when questioned by attorneys. As indicated at the outset, they were twice as likely to change their answers when questioned by a judge. And please do note: according to the researchers, in NO case were judges more effective than attorneys. This is important to note because there is a widely held belief that judge-conducted voir dire elicits greater candor from jurors than when lawyers do their voir dire. Demonstrably untrue– again, not because judges aren’t skilled and fine people, but that damn robe and high seat…

Jurors were most honest when it was the attorney doing the questioning, and doing so in a personal manner. Next most honest was attorney questioning in a formal manner. Note that even with a judge questioning in a personal manner, it elicits less candor than the attorney acting all stiff-like. And let’s face it: when was the last time you saw a judge conduct voir dire in a way that approaches warm and personable?

Again, I’m not criticizing judges’ questioning skills or intentions in conducting voir dire. However, one of the reasons given for increasing judge-conducted voir dire is that it gets more honest responses out of the venirepersons. This is demonstrably false. Judge-conducted voir dire saves time for reasons that are mostly just maddening to people who really understand bias. But if we all agree that the point of voir dire is to get candid input from jurors in order to assess their probable ability to serve fairly on THIS case, then we should all agree that proveably inferior methods of achieving that should be abandoned.

If you have a judge that insists on doing all voir dire, the cited article could serve as a basis for a motion to permit at least some attorney-conducted voir dire… and the rationale would not be a slight to the judge’s skills, but a recognition of the effects of being the one person in the room in a black robe and elevated desk. “Your Honor, it’s not that we don’t think you would be an incisive and moving interviewer. Lordy, no. It’s actually that you are TOO much of a legal hottie, that everyone wants to please you. It’s not your fault you are so magnetic, Your Honor…”

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Source: “Judge- Versus Attorney-Conducted Voir Dire: An Empirical Investigation of Juror Candor” by Susan E. Jones, Journal of Law & Human Behavior, Vol. 11, No. 2 (1987). Law & Human Behavior is the bimonthly journal for the American Psychology-Law Society, a division of the American Psychological Association. Lawyers can join the AP-LS and receive the journal; best 60 bucks you’ll spend this year. I find that it leans somewhat more toward criminal work, but there is a great deal of useful research for civil practitioners. For more information and for (paid) access to journal archives, see http://www.ap-ls.org/.

Facts don’t persuade.

Sorry, but they don’t. I have counseled Fortune 100 companies in their sales negotiations, and salespeople often think that if they just told the prospective customer more features and functions (i.e., facts), then the prospect would have an epiphany and see things Our Way, and be persuaded to buy.

It doesn’t work. It doesn’t work in trying cases to juries, either. (For that matter, facts don’t persuade your opponent to settle closer to your figure, but we’ll come to that.) Why?

In negotiation, people make decisions on whether to agree to a deal with the other side for one reason exactly: perceived value. Yes, I perceive this as a valuable outcome, so I will agree; or, No, I don’t see this as valuable, so I will not agree. “Value” is an amalgam of subjective factors, mainly a feeling of satisfaction of needs that the deal will provide, which needs would go unsatisfied in the absence of said deal. (Sometime when we are having drinks, I’ll give you my spiel that There Is No Such Thing As Objective Value, that All Value Is Subjective. But please take that as read for the moment.)

As is widely discussed in political circles, George Lakoff, the Berkeley linguist, published Don’t Think of An Elephant: Know Your Values and Frame the Debate in 2004, calling it, “The Essential Guide for Progressives.” Lakoff makes some important points about the hard-wired psychological structures we all have and with which we adopt/reject ideas. And what he says has great import for both sides in a jury trial.

First, the definitions. Frames are part of our “cognitive unconscious,” as Lakoff explains; they are “mental structures that shape how we see the world.” He points out that “All words are defined relative to conceptual frames. When you hear a word, its frame (or collection of frames) is activated in your brain.” Examples:

* The phrase “tax relief,” used routinely by Republicans, implies that taxes are an affliction. “Tax reduction” is objectively the same thing, but it does not tap into the frame of affliction, and specifically the frame that afflictions should be relieved. A different frame might position taxes as “investments in future economic strength” or “the fees for living in a high standard of living with great infrastructure.” But to tap into the frame of afflictions (which, of course, cry out for relief) accomplishes what proponents of “tax relief” want: lower taxes, for a host of reasons having little to do with “relief.” So the casual use of the phrase “tax relief” accomplishes in two words what endless recitation of supposed facts could not: getting people to start feeling favorably about what you want. You are tapping into their worldview that afflictions should be relieved.

* In the 2004 State of the Union address, as Lakoff points out, President Bush said, “We do not need a permission slip to defend America.” (Italics added.) The phrase “permission slip” immediately taps into an adult-child mindset, and of course we don’t fancy ourselves the child in that frame, so that must mean we are the adult. Of course, nobody was suggesting that the United States of America needs anyone’s permission before acting in what it perceives to be its self-interest. But invoking this adult-child frame gets people unconsciously chafing at functioning with the United Nations to investigate threats and contain them if found.

“Framing is about getting language that fits your worldview [or "caseview," for our purposes]. … People think in frames. … To be accepted, the truth must fit people’s frames. If the facts do not fit a frame, the frame stays and the facts bounce off. Why?

“Neuroscience tells us that each of the concepts we have – the long-term concepts that structure how we think – is instantiated in the synapses of our brains. Concepts are not things that can be changed by someone telling us a fact.” (Pp. 3, 17, emphasis added.)

Then Lakoff says something that is also relevant to our purposes: “We may be presented with facts, but for us to make sense of them, they have to fit what is already in the synapses of the brain. Otherwise, facts go in and they go right back out. They are not heard, or they are not accepted as facts, or they mystify us…” (P. 17.)

We have all had this experience in court. For that matter, we more frequently have had this experience at the negotiation table with opposing counsel and even occasionally with our own clients. We tell the jury/opposing lawyer/client all the relevant case facts, and arrange these facts so logically that Aristotle would say “boy howdy.” (Bad example; he probably said that often.) Doesn’t persuade. It’s what I call the I’m Obviously Right So Why Aren’t I Getting What I Want paradox. Damn that paradox.

So we have to be more conscious of framing our cases in ways that tap into pre-existing mental structures. The adult-child frame is one such frame; it speaks of who gets to make decisions, freedom, responsibility, power, beholdenness, protection. Think of a case you have (or have had) in which you might want to use any of these constructs. A franchisee-franchisor dispute? A contract dispute? Commerical case?

“Friends” is a frame. It speaks of expectations of loyalty, maybe genuine concern, duty, expectations of understanding.

Likewise the frame of “The Handshake,” which invokes the personal obligation, the sacred commitment to the contract, the putting of ones honor at stake. You know, all that “my word is my bond” stuff.

But as Lakoff points out, ideas come first. THEN language. And if the language isn’t coming to you, that’s a signal that the idea hasn’t really formed yet. So it’s not about coming up with the one magic theme; it’s about conceiving of our cases in ways that tap into folks’ unconscious mental structures, then finding the language to convey that.

I’m for anything that gets us away from the old model of providing volumes of facts to jurors, as if pouring our facts into juror heads would – presto! – make them see the world just as we do. The first wave of getting away from that was the school of themes, which said that you must compose a short phrase that summarizes your facts (e.g., “This is the story of a dream that became a nightmare.”) This was an improvement, as far as it went. But developing and using themes hasn’t been taught very well, and the result is themes that are mediocre (e.g., “This is the story of a dream that became a nightmare”), often focus on the wrong thing (namely, the conduct of one’s own client rather than the other side, such as the dream-turned-nightmare thing), and that only one theme is enough. (A future post will deal with themes. They ARE important.)

But it could be that the next wave for lawyers is figuring out framing and metaphor and really touching these built-in mental structures jurors all have. And not just appealing to those underlying schema to be manipulative, but recognizing that we MUST present our cases in recognition of these structures, or else not be as successful as we could be if our concept of the case were different. As I point out a lot, one of the few biggest jury verdicts in history was Exxon v. Texaco, which took a year and several hundred witnesses to put on. The entire case came down to this sentence put forth by the plaintiff: “What does a handshake mean anymore?” That’s more than a theme; that’s a frame because it touches a whole pre-existing set of beliefs about right conduct. We have to get there in our own practices.

For more articles and applications of framing on public issues, see Lakoff’s website, http://www.rockridgeinstitute.org. I recommend it to all lawyers who practice in front of juries to develop these crucial framing skills. I recommend Don’t Think of An Elephant only to people who are interested in politics, as that is the book’s only focus. However, I have recently purchased Lakoff’s Metaphors We Live By, as metaphors are directly relevant to powerful and effective case presentation; I’ll discuss it in future posts.

It happens periodically: there is someone in the venire who has key similarities to your client. You might be representing the plaintiff who lost a leg in a workplace injury, or a corporate defendant being sued for breach of contract and fraud. And we have all felt that tug on our consciousness: “Cool! This person will understand my client; this person will sympathize with my client; this person will get our story.” And, of course, we have all watched what happens. It’s not pretty.

So the rule of practice is that if you can avoid it, stay away from potential jurors who are too much like your client or have had experiences similar to your client’s experience in whatever gave rise to the suit. Many lawyers have already figured this out, but many others still say, “Alright! This person lost a leg at work, just like my client!” That person will probably kill your client in deliberations.

Part of the reason for that is the Fundamental Attribution Error, which holds that people tend to attribute conduct to the other person’s character rather than to circumstances… even though circumstances explain it perfectly, and even though we tend to view our own behavior as driven by circumstances. Examples: He is disorganized; I’ve been asked to do too much at once. He’s lazy; I’m conserving my time and energy for something else. He’s dangerous; I have received conflicting signals from management about safety versus speed of operations. Thus, someone on the panel who is similar to your client will automatically jump to thinking, “Hey, you were a reckless idiot; I was truly victimized by circumstances.” And this is true whether they are similar to your plaintiff client or defendant client. (“I would never, ever, ever get a 12b-5 filing wrong, because I am careful and alert. You, by logical deduction, must not be careful or alert.”)

Another reason the similar juror will kill your client is what might be called False Normalization, the unconscious process by which our own experience becomes the norm by which we gauge everyone else’s. One deadly example for the hypothetical plaintiff with a broken leg: “You only broke your leg in one place; MY leg was broken in TWO places, so yours isn’t so bad.” Or, “When I suffered MY injury, my medical care and rehab was just fine; so if you are still having problems, it must be something unusual about you.“

A final reason worth mentioning is the phenomenon of the Self-Professed “Expert” in the Deliberation Room. Anyone with some life experience that is even remotely connected to the events of the case (and you might be shocked/horrified at just how remote) will likely become the jury’s in-house expert on that topic. And this will likely kill your client. This person will announce authoritatively How Rehab Works (you can almost hear the capital letters highlighting their authority), or How Corporate Recordkeeping Works, or How Insurance/WorkComp Works, or How Police Use of Force Really Works, and on and on. This would be great if this person could be counted upon to be correct, but that almost never happens. They are reporting their experience, idiosyncratic as it might be, and sincerely believing that that’s the norm. In any case, it almost never helps your client.

So what to do? GET AGGRESSIVE ABOUT DEVELOPING CAUSE CHALLENGES! There is a choregraphy to coaxing out responses that will show that this person holds views and opinions based on their experiences that will be unfairly prejudicial. I’ll cover this more later in some posting to this blog, but it’s something our firm is quite committed to– preserving peremptories by pursuing cause challenges effectively and fearlessly. And frequently.

Still, if you’ve tried your best at cementing a cause challenge and the judge still doesn’t grant it, then consider spending a peremptory. Of course, whether to strike the person is driven by many factors that dictate whether this person’s harsh judgmentalism toward your client or his or her faux “expertise” is a bigger risk to you than leaving on someone else whom you might otherwise excuse. There might be reasons that someone else is worse for you and you don’t have enough bullets left to dismiss the really horrible jurors. But consider similarity to your client as a pretty bad factor, likely worth kicking that juror off unless you simply cannot.