How you organize your facts can determine whether or not the jurors listen to your witness.

Too often, lawyers think that they can dump a pile of facts on the jurors and expect them to reach the correct verdict.  In reality, facts by themselves aren’t enough to win your case.  You can’t just dump a pile of random facts on the jurors and hope that return with the right verdict.  How you organize your facts will affect the jurors’ views about your case and can even change the outcome of your trial.

One of the easiest ways to shape the jurors’ views about your case is to take advantage of a theory called “primacy.”  Psychology professor William D. Crano defined a primacy effect as when “the message presented first exerts a disproportionate impact on an individual’s opinion.”

Basically, what you hear first colors the way you view everything else that follows.  Don’t believe me?  To experience how big a role primacy can play in the way jurors view your case, take a look at these two different scenarios:

The first scenario involves a 37 year old man.  Less than an hour ago, his wife told him that (after several years of unsuccessfully trying to start a family), she is pregnant with their first child — a son!  As the man walks past the park on his way to work, he sees a playground filled with young children playing on merry-go-rounds and swinging on the swing sets.  He stops for a moment, standing just outside the perimeter of the playground.  His eyes are drawn to a young boy who is climbing to the top of the slide.  As the boy lands at the bottom of the slide, a large grin man breaks out on the man’s face.

Now compare that to the second scenario:

This scenario also involves a 37 year old man.  Six years ago, he was convicted of child molestation.  As the man walks past the park on his way to work, he sees a playground filled with young children playing on merry-go-rounds and swinging on the swing sets.  He stops for a moment, standing just outside the perimeter of the playground.  His eyes are drawn to a young boy who is climbing to the top of the slide.  As the boy lands at the bottom of the slide, a large grin man breaks out on the man’s face.

Isn’t it amazing how a single fact at the beginning of the story completely changes the way you view the rest of the facts?  In the first scenario, you probably thought to yourself, “What a lucky man!  He’s thinking about the future when he’ll be taking his own son to the playground.”  In the second scenario, you probably thought, “Somebody call the police before that creep abducts the little boy!”

The facts didn’t change — only your perception of the facts changed.  In both scenarios, the men did exactly the same things, but you ascribed completely different intentions to their actions.  What you heard first had a disproportionate impact (positive or negative) on everything else that you heard.

It works the same way in the courtroom.  The primacy principle affects every aspect of your trial, but its impacts can be most apparent during opening statement and direct examination.  Here’s an example of how organizing your presentation of facts can dramatically affect how jurors perceive your direct examination.

Recently, I was critiquing a criminal jury trial where the prosecution was arguing that the defendant acted as an intermediary agent to facilitate a drug deal between an undercover police officer and a drug dealer.  The defense’s theory of the case was that the defendant’s innocent actions and comments were misconstrued, and the drug dealer acted independently when he sold the cocaine to the undercover officer.

During their case-in-chief, the defense called the defendant to testify on his own behalf.  Obviously, they must have felt that his testimony was critical to their case, and they wanted the jury to believe his version of events.  But take a look at the first three questions his lawyer asked him:

Q. Where do you work?
A. I’m disabled — I haven’t worked in more than 10 years.

Q. Have you ever been convicted of a felony?
A. Yes.

Q. How many times?
A. Three times.

Take a moment to think about how these facts will affect everything else the jury hears.  Now that they know he’s an unemployed, 3x convicted felon, do you think that the jurors will be more likely, or less likely, to believe what he says?

While these facts may have been important for the defense to elicit, by bringing them out at the very beginning of his testimony, the attorney corrupted the jurors’ view of her client and destroyed his credibility.  Rather than listening to him from a neutral (or even positive) viewpoint, now they were forced to view all of his testimony through the lens of “The Unemployed, 3x Convicted Felon.”

Rather than hearing, “I was standing on the porch,” the jury will hear, “The Unemployed, 3x Convicted Felon says he was standing on the porch.”

Instead of, “Two people knocked on my door and asked if Archie was home,” they’ll hear, “Two people knocked on The Unemployed, 3x Convicted Felon’s home and asked if Archie was home.”

The jurors won’t hear, “I didn’t do it!”  They’ll hear, “The Unemployed, 3x Convicted Felon says he didn’t do it.”

How do you want jurors to view your witness?  What lens do you want them to look through when they’re viewing your witness’s testimony?  If you want jurors to view your witness’s testimony in a positive light, you need to apply the principle of primacy and avoid developing negative facts at the beginning of the direct examination.

Does that mean you should completely avoid the negative parts of the witness’s testimony?  Of course not.  If you don’t present the negative facts during your direct examination, your witness will get crucified during cross-examination.  But just because you need to bring out bad facts doesn’t mean you need to highlight them.  Ask about the negative facts somewhere in the middle of the witness’s testimony, when the jurors are less likely to focus on them.

When you start your direct examination with negative facts, you run the risk of destroying your witness’s credibility.  Instead, apply the principle of primacy, and you’ll give jurors the opportunity to view your witness’s testimony in its best possible light.

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If you try enough cases, you’ll eventually get your hands on “It.”   “It” is that amazing piece of evidence that makes or breaks your case.  “It” takes on many different forms:

• The “Are you lying then or are you lying now?” prior inconsistent statement
• The “I did it, and I’d do it again!” confession
• The video of the “disabled” plaintiff easily lifting 50 lb. bags of mulch or participating in semi-professional wrestling matches
• The “smoking gun” email that proves the defendant knew about the potential danger and decided to cover it up rather than recall the product

“It” is that piece of evidence that you can’t wait to show to the jury.  You won’t have “It” in every case, but when you do, it’s a wonderful feeling.  You know that as soon as you show “It” to the jury, the case will be won.

But hold on just a second.  There’s something important you should know before you show “It” to the jury.

No matter how damning that prior inconsistent statement may be, it’s worthless if the jury can’t hear it.  Even if your video completely contradicts the plaintiff’s claims, it’s worthless if the jury can’t see it.  Some jurors are too embarrassed to admit they can’t hear the recording, can’t read your exhibit, or can’t see your video.  You need to be assured that they see and hear “It.”  Here’s how to do it:

1. How to guarantee that the jury hears every word of your recorded statement. As you start playing the audio recording, cup your hand over your ear and make eye contact with each and every juror.  Non-verbally, you’re asking them if they can hear the statement.  If they can hear it, they’ll nod their heads in agreement or give you a “thumbs-up” sign.  If they can’t hear, they’ll give you a non-verbal clue to raise the volume (or maybe even tell you, “Turn it up, I can’t hear!”)

Here’s an added benefit: Making eye contact with each juror forces you to “check in” with them, so you can evaluate how things are going.

2. How to guarantee that the jury sees your video. Get to the courtroom early and set up your video display.  Turn on your video, then climb into the jury box.  Sit in every seat in the jury box so you can see what your jurors will see.  Do you need to crane your neck to see the video?  When you move to the end of each row, does it become difficult to see the video screen?  Is the screen too close?  Too far?  Make any adjustments now, before the jury gets here, so you can be assured that they’ll see your evidence.

Once you start playing the video for the jury, you’ll want to repeat the step outlined above to ensure that they can hear the recording.  While you’re making eye contact with each juror, track their sightline.  Can they actually see the video?  Are they actually looking at it?  If not, make any necessary adjustments so they can view your evidence.

3. How to guarantee that the jury reads your exhibit. If you’re presenting written exhibits to the jury (such as posters of the jury instructions or blow-ups of contract highlights) you want to make sure the jury actually reads your exhibit.  To make sure they have enough time to read it, quietly read through the entire exhibit to yourself twice. You’re already familiar with the exhibit, so you’re going to read through it faster than your jurors will.  After your second read-through, take a moment to make eye contact with every juror.  Look at their eye movement.  If they’re looking at you, they’re ready for you to proceed.  But if you see they’re still reading, don’t say anything yet.  Wait until everyone has finished reading before you or your witness say anything about the exhibit.

If you’ve done your homework, you already know how to make “It” admissible.  You also know when you should publish “It” for maximum persuasive effect.  Now just follow these simple tips, and you’ll guarantee that jurors will see and hear your most important evidence.

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It was a paper-intensive trial, one of those cases where the phrase “Plaintiff’s Exhibit #2,598,124” doesn’t seem to shock anyone.  Because the stakes were high, it was a well-financed operation, and both parties brought a lot of technology with them.

One of the gizmos the plaintiffs brought with them to help present their evidence was a computer projector and a visual display program like Sanction or Trial Director. If you try document-intensive cases, you know the importance of using these programs to help jurors focus on the important elements of your evidence.  Unfortunately, despite all the benefits these programs offer, if you don’t use them correctly, they’ll actually detract from the persuasiveness of your case.  As I was watching the plaintiff’s attorney present his evidence, I saw a few mistakes that negatively impacted his case.  Here are the mistakes I observed and tips to help improve your presentation the next time you’re exhibiting documentary evidence:

1.  Don’t expect jurors to read the entire page when it’s displayed on a computer screen. This case was tried in our courthouse’s ceremonial courtroom.  The ceremonial courtroom uses 42″ plasma screens to display images to the gallery, and smaller LCD displays to present images to the jurors.  It’s a nice system, but if you don’t zoom in to particular parts of the page, it’s impossible to read an entire page of a document.  When you try to view the entire page on those monitors, it looks like this image to the right.  Yes, you can see it, but you can’t actually read it.  Even with a hi-def screen, it’s impossible to focus on the entire page.  The only time you should show the jury the entire page of a document is when you’re trying to give the jurors an overview of the document they’re about to see.  Let them see what the document looks like, but don’t expect them to be able to read it.

The solution?  Zoom in.  Focus on one part of the document, and give your jurors a chance to digest that portion before moving on to the next section.  Probably a good recommendation would be to show the jurors just one paragraph at a time.  (A fiction writer’s paragraph — not a lawyer’s paragraph that goes on for 40 lines.)  Look at this example to the right.  It’s not enough to just highlight the important portion — you need to blow it up if you want the jurors to see it.  By blowing up the paragraph you want them to focus on, they can actually read the portion that matters to you.  Make it easy for your jury to absorb the information, and they’ll be more likely to remember it.

2.  Don’t compete with your visual aids. Visual images are usually far more compelling than aural testimony, so your jurors’ attention is usually going to be drawn towards your TV screen, not towards you or your witness.  When you’re no longer referring to the on-screen document and you want the jury to focus on your witness, switch your display screen to a blank screen so the jurors aren’t distracted.  (If you have the option, switch to a black screen rather than white, because the white screen is harsher on the eyes.)

3.  Don’t shine bright lights in your jurors’ eyes. Turn off any distracting lights.  The lawyer wasn’t using an overhead image viewer to display any images, since all of his documents had been scanned into Sanction. But for some reason, he’d turned the overhead projector on, so the projector light was shining brightly.  Every time he moved between the jurors and the bright light, they would go from darkness to bright lights shining in their eyes.  (Ouch!)  That can be distracting.  Be mindful of the projector lights and overhead display lights, so you don’t subject your jurors to a similar experience.

4.  Don’t publish private information. This last tip won’t necessarily make your presentations better, but it might make your clients (or their clients) happier.  As I mentioned earlier, this was a document intensive trial.  The plaintiff’s lawyer was publishing LOTS of documents to the jury using the projection monitors.  That meant that everyone in the courtroom could see the information.  Some of the documents he published contained private information that wasn’t essential to the case.  For example, one of his documents published the names, addresses, dates of birth, and social security numbers for 5 different individuals who weren’t involved in the case.  Hopefully, there wasn’t an identity thief in the courtroom that day, because that’s all the information he’d need to destroy their lives.  Unless it’s essential to your case, consider blacking out social security numbers and other private information from your documents before publishing them to the jury.  (Just make sure you clear it with opposing counsel in advance, and also explain to the jury why the information is blacked out.)

Your ability to persuasively present documentary evidence is essential to the success of your case.  Follow these quick and simple tips, and you’ll make it easy for jurors to focus on your documents and remember the essential details of your case.

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It’s no secret that jurors’ minds can wander.  Just poke your head into any courtroom shortly after lunch and you’ll see jurors mentally “checking out” and letting their brains wander away from the courthouse.

The important question we need to ask is, “How do we keep their minds inside the courtroom?”

One solution is to get your jurors more involved in the case.  When jurors are actively engaged in your case, it’s impossible for their minds to wander away.  One of the best ways you can get them involved is to turn them into demonstrative aids during trial.

Here are a few examples of different ways to get your jurors more involved during the direct examination of your witnesses:

Let’s say you’ve got a doctor who is describing a broken bone.  You could involve the jurors by having the doctor show the jurors how to locate the same bone on their own body:   “The bone that was broken in Johnny’s forearm was the ulna.  If you hold your left arm out in front of you in the ‘thumbs-up’ position, when you touch your left forearm, the bone on the bottom side of your forearm (the pinkie side) is the ulna.”

Maybe you could have them conduct a simple medical test upon themselves:

• “The first thing we do when we find the patient on the ground is check for a pulse to see if he’s alive.  We don’t check the wrist.  Instead, we check the carotid pulse.  It’s easy to do.  Just take your index and your middle finger and place them right here, in the hollow between the windpipe and the large muscle in the neck.  That’s it.  Press lightly until you feel a pulse.  When I placed my fingers against his neck, I couldn’t feel anything, so I knew I had to start CPR…”
• If you were examining the treating physician who conducted a knee jerk reflex test on your client, you could get the doctor to instruct the jurors how their legs should be positioned, how he conducts the test, how and where he strikes the knee, what the expected results should be, what your client’s results were, etc.  Done well, your jury will feel like they’re in the examination room with him when he performs the evaluation.  As he describes the reflex test, some of them will probably even try tapping their own knees.

Another way you can engage the jurors is to have them envision sizes or distances:

• “How big was the rock that he threw at the car?  If you were to make a fist with your right hand, that’s about the same size.”
• “How close was I when he pointed the gun at me?  Pretty close, just a few feet away.  The distance between me and the juror in the third seat over there — that’s about how close we were when I saw the gun.”
• “The child was delivered 16 weeks early, so she was incredibly small.  Cup your hands together to form a bowl – she could have fit right there in your hands.”

Or you could help them understand an unknown object by comparing it to something they already understand:

• “The material was soft and spongy, but it had a dense core underneath.  If you touch your forefinger against the tip of your nose and press until you feel the cartilage, you’ll get an idea what it feels like.”
• “There were two different types of hinges we were talking about.  The first one was like your knee — it could bend or straighten, but it wasn’t designed to rotate. The other type of hinge was more like your shoulder joint — it was more flexible and could rotate around.”

An additional benefit of turning your jurors into visual aids or demonstrative aids is that your aids will definitely be allowed back into the jury room.  Start thinking of ways that you can actively involve your jurors, and their minds won’t wander out of the courtroom any more.

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How many notes do you use during trial?

It’s a delicate balancing act.  Too few notes, and you run the risk of forgetting to address an important element of your case.  Too many notes, and you risk sounding scripted.

Here are a couple of quick tips for improving your use of notes during trial.

When Speaking Directly to the Jury

The importance of eye contact in the courtroom can’t be overstated.  The visible (sometimes barely visible) reactions of your jurors can help you decide whether or not to pursue an argument, whether to follow up on a line of questioning, and whether you need to return to a line of questioning to clear up potential misunderstandings.  You’ll need to pick up on the small non-verbal clues that they’re sending you, and you can’t do that if your head is buried in your notes.  Are they telling you to speed up?  To slow down?  Are they confused?  Bored?  Do they need part of the testimony repeated?  If you don’t look at them and read those clues, you’ll never know.

Make sure that you’re making eye contact with who you want to persuade.  Since you’re trying to persuade the jurors, rather than your legal pad, try to minimize how much time you spend looking at your notes.

When Speaking to a Witness

Jurors take their clues from you about how they should treat witnesses.  If you act like a witness is important, jurors are more likely to think the witness is important.  If you act as if the witness’s testimony doesn’t matter, they’re more likely to dismiss what he says, regardless of its actual importance.

When you look at your notes instead of making eye contact with the witness, it’s not only rude, it sends a message that you don’t care what he has to say and that his answers don’t matter.  To avoid sending the wrong message to your jury, look up from your notes and make eye contact with the witness before asking your question, and finish listening to his answer before you look down at your notes for your next question.  You can even hold eye contact with the witness for an additional moment after he finishes answering, to show that you’re paying close attention to what he’s saying and encourage the jury to pay more attention, too.  Just don’t stare at him, because it will make him feel uncomfortable and he’ll look uneasy on the stand.

Minimizing Your Notes

It’s okay to write out your arguments or questions word-for-word when you’re preparing for trial, so that you know what you want to accomplish.  But don’t make the mistake of bringing those scripts up to the lectern.  Those notes will become a mental crutch, and your eyes will never leave the page.

Anyone can read from a script.  With a well-scripted direct or cross-examination, you could pick someone off the street, send him into court with the script, and let him conduct the examination.  He’d do fine, right up until the point when one of the witness’s answers went off-script.  Then he’d be completely lost, and would have no idea what to do next.

Unlike trials on TV or in the movies, real trials don’t stick to a script.  Trial lawyers who depend on scripted examinations don’t always react very well when the unexpected happens.  That’s why, the fewer notes you bring to the lectern, the more freedom you enjoy.

When preparing the notes that you’ll bring to court, instead of writing out a word-for-word script, write down only what you need.  Rather than full sentences, use brief phrases or single words.  Besides, when you’re in the heat of trial, your eyes won’t easily focus on full sentences like “Mrs. Johnson, would you please tell us how you know the defendant?”  All you’ll really need is a quick reminder, like “RELATIONSHIP?” or “KNOWS DEFENDANT?” to prompt the correct question.

Make it Easy on the Eyes

Finally, if you want to minimize your time spent looking at the page and maximize your eye contact with the jury, it will help if your notes are easy to read.  To reduce how much time you need to look at the page, don’t rely on your chicken scratch handwriting.  Instead, type up your notes (preferably in 18pt or 24pt type) with a simple sans serif font.  You’ll be able to glance down at your notes for an instant, absorb the idea, and then immediately return to making eye contact with your jurors or your witness.  With a little practice and preparation, the jurors won’t even notice your use of notes, they’ll just focus on the strength of your case!

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