What Your Jury or Judge is Saying Without Uttering a Word
As a lawsuit winds its way through the labyrinth that is our judicial system, after the years of legal writing, taking depositions, obtaining and pouring through discovery, sitting through hearings, arguing motions and failed negotiation attempts, the fate of both Plaintiff and Defendant comes to rest with judges, jurors or arbiters. Being able to understand their body language and having the flexibility to react accordingly is of benefit to any litigator, especially when dealing with jurors, who are restricted in speech.
Jurors: Voir Dire
Depending on jurisdiction, attorneys and judges are expected to glean enough to expose potential biases or impartiality and select twelve jurors plus alternates. The average jury voir dire lasts less than an hour, and in that time most talking is done by officers of the court rather than those we entrust with rendering a fair and impartial decision.Cases can be won or lost in jury selection, and how this process is conducted is a hotly debated topic among trial attorneys and jury consultants. Warehouses full of books, articles, and other periodicals have been written on the jury selection process, its many faults, and the benefits of the in-depth examination of prospective jurors that our system affords. Often the only occasions for substantive dialog with members of the jury are during the voir dire process and after the conclusion of juror service. Judges and lawyers are afforded their first and only opportunity to question potential jurors during jury selection, which they do in an effort to determine if there is a reason to exclude them from service by gauging juror personalities, relevant experiences, biases, and opinions on presumption of innocence.
To say selecting a jury is a difficult task would be an understatement. Although jury questionnaires and content of (and answers to) examination questions are extremely helpful in the selection process, identifying personality can be accomplished and corroborated through other means. Concepts gaining traction in the legal industry, such as thin slicing, facial profiling and zero acquaintance, have proven to be strong tools for selecting members of a jury. These concepts focus on making quick assumptions based on all physical aspects of a potential juror’s behavior in order to ascertain personality attributes. Factors such as attire, hygiene, posture, physical presence, facial features, expressions, gestures, the subject’s interaction with those around them, and even hairstyles and manicures are taken into consideration when developing a profile.
While new concepts to the legal world, thin slicing and zero acquaintance theory are widely studied topics in psychology. They are only now gaining traction in the legal field as the validity of such concepts are proven through accuracy of results.
Jurors: During Trial
In a previous white paper, The Applicability of Learning Theory in Litigation, I advocated for the benefits of judge/lawyer-moderated but jury submitted questioning of witnesses. Often such jury questions assist in ferreting out or clarifying information for the jury. Unfortunately not all jurisdictions allow such liberties. Litigators in jury trials often perform the dual role of “advocate for their client” and “teacher to a passive and muted audience.” The key to effective communication in court is doing both well.
So, how does one effectively teach a passive and muted audience? An audience that is unable to give feedback, ask questions, or even let you know they understand your argument?
The good news is that, whether jury questions are allowed or not, it is still possible to glean how arguments register with members of the jury. By monitoring the body language and facial expressions of jury members for subtle cues – such as the nod or turn of the head, crossing of the legs and arms, furrowing of the brows, leaning back in their chair, or touching their forehead – one can tell if a person is confused, agrees, or is put off.
Every litigator cultivates his or her own style over time – how they approach and deliver facts and arguments to a panel of jurors. Watching juror reactions and tailoring how information is presented is extremely important. The best way to illustrate this point is through real world examples.
A Tale of Two Cases: When Information Bites Back
We were hired by the defendants to provide trial consulting services on a personal injury case in Philadelphia at federal court. At trial, a witness deposition transcript was read into the record. This particular witness, a co-worker of the plaintiff, was not especially complimentary towards said plaintiff and had, in fact, insulted his intelligence during the deposition. Of course, defense lead counsel wanted to capitalize on this particular piece of testimony as much as possible.
After the transcript was read in, defending counsel read the insult aloud from the transcript when asking the next live witness if said witness concurred with his co-worker’s assessment of the plaintiff. It was during this particular line of questioning that I noticed squirming in the jury box. Half of the jurors, who had up until then been listening intently with little to no cues either way, began shifting around in their seats when this question was asked. They looked uncomfortable, and the middle-aged woman in the front row momentarily flashed the look of disgust on her face. She had leaned back in her chair, crossed her arms tightly, crossed her legs away from the questioner, and a look of irritation (a raised upper lip and downturned corners of her mouth, facial contractions around the nose, and a furrowing between the eyebrows) crossed her face. I quickly and discretely nodded side to side and made a cutting gesture with my hand to my attorney who had only briefly glanced at me.
For the remainder of the trial, no one on the defense team mentioned the insult, nor did they ask another question regarding the plaintiff’s intelligence or general competence. The plaintiff’s attorney, however, could not let the insult go and chose to pick up this line of questioning where defense counsel had left off. While I can only assume plaintiff counsel was hoping to garner sympathy for his client, as I expected, this line of inquiry (no matter who was actually doing the questioning) did the questioner no favors.
Result: 50-50% shared fault, $0 judgment
A Tale of Two Cases: When Information Bites Back
Often attorneys are focused on facts, issues, arguments, and weaving them all together in a neat story for the jury to consume, but sometimes it isn’t the facts that turn off a jury. How an attorney presents his or her case can overshadow facts and the attorney’s ability to persuade members of the jury.
We were hired by the plaintiff’s counsel to provide trial consulting services on a breach of contract matter in Philadelphia at federal court. The material was complex but the attorneys representing the plaintiff were seasoned, top-notch litigators. Adverse counsel, while capable, was not nearly as seasoned in front of a jury.
The problem became immediately and abundantly apparent to me upon completion of jury selection. My client, who is a well-spoken, perfectly pitched, clear communicator of ordinary height and build, had taken his seat after delivering a compelling opening statement. Defense counsel, who was of imposing stature, walked to the podium, laid several pages on its top before gripping both sides of the lectern and leaning forward in preparation to speak. It was an overtly aggressive posture.
“YOUR HONOR, MEMBERS OF THE JURY…” Opposing counsel’s voice boomed through the court audio system, taking everyone aback with the volume. The jury literally leaned back in their chairs. He wasn’t shouting at the jury, but it certainly sounded like it. After the opening arguments and the first plaintiff witness had been crossed examined by this same attorney I noticed a hysterical pattern with jury body language. I leaned over and whispered the attorney closest to me, “Watch the jury body language the next time that guy gets up to cross.”
Half way through the proceedings, the attorney finally dumped the microphone attached to the speaker system and even apologized for his naturally thunderous voice. It had become apparent, even to him, that his presentation style was impeding on his ability to persuade the jury. Alas, even sans the audio assistance this attorney’s voice carried and he was at a loss on to how to correct the problem; so was everyone else on his team.
Result: Judgment entered in favor of Plaintiff
Obviously, no one can catch everything, especially the body language and facial expressions of multiple jury members, while also focusing on evidence, witnesses, the judge or panel, adverse counsel, and winning your case. Having an experienced and dedicated observer at trial is an asset.
This article is based on the KT Designs’ white paper “Body Language, Technology and their Application in the Legal Industry.”To access the whitepaper in its entirety for free, please visit the whitepaper section of our website: http://www.kt-designs.org/white-papers/
KT Designs is a privately owned company that operates on the ideals of honesty, integrity and transparency. We are experienced in working on cases and projects of all sizes and in most jurisdictions, including internationally. We are devoted to the personal and intellectual growth of our employees and clients, and to facilitating continued learning in our audiences on the most complicated of topics. We consider our clients’ satisfaction and confidentiality above all else.
Creating Successful Demonstratives:
The Synergy of Psychology and Art in Litigation
Knowing that people learn through varying methods and that the culmination of their unique experiences assists them in forming their decisions is important. One of the more effective ways to impress information upon judges and juries is through the use of demonstratives. Applying psychology and artistic principles to visually communicated information is the strongest way to create compelling demonstratives.
The Use of Art as a Communication Tool
Art can tell stories, evoke emotions, hide secrets, persuade people to act, and transcend language barriers. Throughout human history, beginning in the days of cavemen grounding pigments and fashioning paintbrushes out of a harsh environment to commemorate important events on cave walls, visual art has been a preferred medium for communication. As human societies evolved, the technical execution and layering of information to reinforce the story or message through visual means became more sophisticated. Great masters such as Jan Van Eyck, Leonardo da Vinci and Caravaggio supplied humanity with more than just breathtaking imagery. Their works elevated the understanding of a story for their viewers through the use of generally recognized visual symbols. Some symbols, such as those contained in the Mona Lisa, are still being discovered and decoded to this day.
Symbolic art is in landmarks, currency, flags, and every other government insignia. Art is on the packaging of the products we use, the television shows we watch, the magazines we read, and can even tell us where the bathroom is.
The Psychology of Communication
The discipline of psychology, when used in visuals, is an effective tool in persuasive communication. The psychology of learning theory, art theory, and comprehension are important considerations for information designers. Using such techniques to reinforce your message can facilitate audience understanding and even evoke an emotional response.
Attributes to consider when designing informational graphics are color, eye flow and readability. Choices in fonts, spacing, and thickness of letters – also known as typography – can reduce eyestrain, increase viewer attention span, and promote comprehension of presented information. The proper setting of visual elements can reinforce a message and assist the viewer’s eye in following the natural flow of information throughout a demonstrative graphic. The fonts you use, the colors you pick, even the choice of line thickness and style, can attract eye flow to information or reduce that same information’s visual impact. It is best to think of a demonstrative graphic as the whole that is greater than the sum of its parts. The effect of any element is enhanced exponentially when combined with others.
The Application of Information Design in Litigation
The intent of using visuals is to enhance viewer understanding; they should be relevant to the information being presented. Imagery explains what words fail to impress. Information is everywhere and how it is presented viewers, especially a passive audience such as a jury, can mean the difference between reinforcing your message and confusing it.
The legal industry has come to realize the value of visual interpretation of the information at the core of their legal cases. Understanding how to effectively create clear demonstratives for judges and juries is now given serious consideration as early as the pleadings and motions stage. Great litigation graphics consultants execute the visual arm of your legal arguments and, in that vein, are an extension of the trial team. They are able to analyze case materials and raw information to develop accurate and compelling visual aids that further the comprehension of the arguments at issue. Though cases differ in their set of facts and the parties involved, there are two categories of demonstratives that effectively translate to a wide array of legal disputes.
- Case-Framing Demonstratives
These informational graphics give the audience an overall picture of the case and aid in recognizing patterns that would be otherwise impossible to discern from examining pieces of information individually. These demonstratives are frames of reference and can take the form of timelines of events, diagrams that explain processes, illustrations that provide a generalized view of concrete objects, and graphs depicting increases and decreases.
- Fact-Specific Demonstratives
Another category of demonstrative, heavily utilized across most practice areas, is the fact-specific demonstrative. Graphics that focus on a specific piece of evidence, such as call outs, or explains foundational facts or information, such as informational tables and comparison charts, are all fact-specific demonstratives. These graphics best serve to help explain and reinforce specific facts related to your argument.
Example: The ULLICO/Global Crossing Scandal
The two images show charts with similar data sets. Both charts show the Global Crossing’s share price juxtaposed with the ULLICO’s share price. It was alleged that ULLICO officers were able to sell their shares of ULLICO stock based on the value of Global Crossing’s share price from six months ago.
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The graphic on the left was prepared for a congressional hearing on the ULLICO-Global Crossing scandal. |
| The graphic on the right was created for the ULLICO v. LeBoeuf Lamb legal malpractice case. |  |
While still staying true to the initial graphic admitted as evidence, the graphics consultant added two additional years to the timeline to include important events and then dramatically modified the overall look and feel to facilitate viewer comprehension. The result is the successful execution of an easy-to-understand; graphically designed demonstrative.
Final Thoughts
The most effective visual demonstratives are those that are able to explain complex subjects and abstract concepts while revealing patterns in data that words alone do not adequately capture.
Start by asking yourself:
Will a demonstrative here add value?
Develop and refine demonstratives to answer three additional questions:</ br>
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- Will this demonstrative visually and mentally connect with the decision-maker?
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- Does this demonstrative efficaciously illustrate the narrative of this case or a specific argument at issue?
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- Does the overall design of my demonstrative effectively explain information presented and reinforce the message being portrayed?
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Working through these questions to develop demonstratives will promote the creation of less ambiguous and more persuasive visuals.
This article is based on the KT Designs’ white paper “The Anatomy of Successful Demonstratives.” To access the whitepaper in its entirety for free, please visit the whitepaper section of our website: http://www.kt-designs.org/white-papers/
KT Designs is a privately owned company that operates on the ideals of honesty, integrity and transparency. We are experienced in working on cases and projects of all sizes and in most jurisdictions, including internationally. We are devoted to the personal and intellectual growth of our employees and clients, and to facilitating continued learning in our audiences on the most complicated of topics. We consider our clients’ satisfaction and confidentiality above all else.
The Use of Learning Theory in Litigation
“If one of our goals in jury trials is to send into a jury room a jury well equipped to render a fair and impartial verdict, then in my view, we are shortchanging all litigants if we are not providing our jurors with all the necessary aids and tools to enable them to perform the critical tasks we ask them to undertake.”
— Hon. Michael F. McKeon, Jury Trial Project in New York
The key to being successful in litigation is clear, concise, effective and persuasive communication. In effect, a lawyer is an educator – disseminating facts and evidence about a case to fact-finders. How those facts and evidence are presented to a jury, judge or panel can mean the difference between comprehension of said information and confusion, boredom and apathy. Properly educating the fact-finder on complex information without overwhelming them while effectively rebutting adverse counsel’s points are the litigators’ main objectives. During demonstrative development and argument preparation, it is important to understand how to distill and accurately represent case facts in a persuasive manner for maximum comprehension.
Bold research in the fields of neuroscience and brain imaging at the University of Birmingham, UK, has provided interesting new data that is applicable to the field of learning. Dr. Doe Kourtzi, Chair of Brain Imaging at UAB, explains, “What we have found is that learning from past experience actually rewires our brains so that we can categorize the things we are looking at, and respond appropriately to them in any context.” People learn, process, retain and recall information differently. The majority of learning theory experts agree that whether you are teaching a class of high school students or arguing your case in front of a jury, utilizing more than one teaching method increases the fact-finders’ level of comprehension.
US educationist Edgar Dale pioneered the “Cone of Experience” theory, holding that using various types of learning strategies increases comprehension and retention. Dale’s hypothesis incorporates different types of teaching methods, including utilizing symbolism, audio, imagery, video and direct participation. For litigators, Dale’s theory has practical applications in the courtroom. Over the past two decades, the method by which evidence is presented has changed. Law firms have taken a measured approach to embracing the use of technology in every stage of the litigation life cycle. Litigation graphics are now commonplace in courtrooms and are being included as early as the motions and pleadings phases, as opposed to limited graphics like the obligatory graph or chart during trial. This technology facilitates the litigator’s ability to persuasively present their evidence verbally while reinforcing their message with supplemental visual and auditory evidence.
Until deliberation, juries have a passive role in court proceedings, impartially considering the evidence presented and rendering a verdict based upon that evidence and the rule of law. Within the past few decades, courts have experimented with various changes to procedure; this has led to controversy because some procedures encourage jurors to take a more active role during the evidentiary presentation of trial or have the potential to distract jurors from listening to the evidence being presented. Two controversial procedures, allowing jurors to take notes and juror questions, are being tested at a measured pace in various jurisdictions across the country.
For many, taking notes assists in processing and retaining the information being presented and then facilitates the recall of that information. Allowing juries to take notes during the course of a trial has only developed over the past few decades. As this experimental procedure is implemented across the country, extensive studies continue to be conducted and relevant data collected. One study found that of jurors who were not permitted to take notes, 76% of jurors on civil trials and 50% of jurors on criminal cases communicated that they would prefer the opportunity to take notes in future trials.
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Another procedure being experimented with in courts is juror questions. According to the findings of the Arizona Filming Project, over 28% of juror questions gravitated towards clarifying factual information and over 61% of juror questions were evaluating questions focused on discrepancies in testimony or disputed facts being presented. |
How people best understand, internalize, and then retain information for later recollection varies. By utilizing multiple teaching methods in the courtroom, explaining evidence, assisting in processing information and facilitating memory retention and recall, courts assure that jurors are better prepared to carry out the duties with which they are charged.
This article is based on the KT Designs’ white paper “The Applicability of Learning Theory in Litigation.” To access the whitepaper in its entirety for free, please visit the whitepaper section of our website: http://www.kt-designs.org/white-papers/
KT Designs is a privately owned company that operates on the ideals of honesty, integrity and transparency. We are experienced in working on cases and projects of all sizes and in most jurisdictions, including internationally. We are devoted to the personal and intellectual growth of our employees and clients, and to facilitating continued learning in our audiences on the most complicated of topics. We consider our clients’ satisfaction and confidentiality above all else.