Getting up Close and Personal:

Voir dire is often too brief or too constrained by the preferences of the court or the skills of the questioner.  The advantage of revealing and exploring the values and attitudes of venire members to inform deselection choices often is challenged by the limits imposed upon voir dire.  We do know this: Jurors are more candid online then they are in the courtroom. We know from social science research that responses to Supplemental Juror Questionnaires are more revealing and more truthful than responses to oral voir dire. It’s one small step to extrapolate that, in the privacy of your own home typing on your own laptop in your blog or Facebook, such expressions would be more revealing and more likely to be a true reflection of held attitudes, values and opinions. Being able to use Internet searches and Social Networking publicly published is a boon to the trial attorney hoping to select an unbiased and open minded jury.

Reuters quipped that traditional voir dire is being transformed into “Voir Google”.  Both Forbes and the Wall Street Journal Online have addressed what is perceived with some concern the evolving practice of Social Media Analysis. Online juror vetting can serve as a way to bypass court imposed restrictions and other limitations on voir dire which can be especially helpful in state and federal courts where a lawyer conducted voir dire is not permitted.

Scanning Facebook , MySpace and Twitter , and using Google searches to find jurors’ names on the websites of government agencies, school boards, local companies, and sites that contain property and court records can be very revealing. Links to each site can be assembled in a spreadsheet. Results from these searches can be used to compose a profile of the potential jurors’ online persona and a record of salient attitudes and actual behavior which is a gold mine for the juror deselection process.

A study by Acquisti & Gross (2006) noted that while concern for online privacy is high there is no significant relationship between individual’s privacy attitudes (how protective they believed themselves to be) and their likelihood of sharing personal information on-line. Majorities reported providing “complete and accurate” information about their birthday, their political views, and their sexual orientation, among other things.

The federal courts so far have not addressed the issue of online vetting of jurors, and just two states, Missouri and New Jersey, have said it’s acceptable in some forms. But judges and lawyers, even in those states, still seem to be grappling with the practice.

Trolling Twitter, Cable TV and Blogs:

In a ground breaking effort, Amy Singer, with the aid of other professional trial consultants,  during Casey Anthony’s weeks long trial, daily analyzed more than 40,000 highly charged opinions, both negative and positive on social media sites and blogs, and use them to help the defense crafted trial strategy. This pro bono aggregation of trial consultants from all over the country intervened when they became concerned about the volatile nature of television media as well as social media and the impact it would have on seating a reasonably fair and open-minded jury.

Especially in highly publicized cases like the Casey Anthony murder trial, monitoring social media sites like Facebook and Twitter and Blogs can and does revolutionize the way lawyers and trial consultants advocate for their clients.  Scanning tweets, Facebook posts and messages from bloggers, and other media sites can provide trial advocates a means to gauge opinions about the plaintiff, prosecution or defense, trial attorneys, witness testimony, evidence, and the developing focus point of the trial whatever that may be.

In the in the highly publicized case, daily monitoring of the social media becomes an online shadow jury. Naturally, the trial attorney and the trial consultant must decide how and when to adjust trial strategy. This is a tool that opens public postings to tap into people’s minds as gauge of likely juror attitudes as an adjunct to trial strategy.

One thing is clear, attorneys and consultants should be using this information, but only as long as they’re looking for public information and not using techniques to get past privacy walls. Statements, attitudes, and expressions on the potential jurors “wall” is public, and the only way to tell if it could be relevant to the case at hand is by reading it.

Social media analysis, when ethically and properly done amounts to a study of public records (using sites such as KnowX and ZabaSearch ) as well as available social media (Google, Twitter, Facebook, etc.) to identify the evident experiences, attitudes, and beliefs of potential jurors. Based on this research, attorneys receive advice on any potential concerns with prospective jurors. When a jury is seated; the team can also monitor any active social networkers known to be on the jury, to make sure they aren’t blogging about the trial, for example, and risking a mistrial.

Ken Broda-Bahm, a senior trial consultant for Persuasion Strategies has listed a very helpful set of do’s and don’ts as it relates to social media analysis in their great blog, LitigationPS

“This is what I consider responsible social media analysis:

1) Run juror names through a public records database. Most of the information you retrieve will not be especially important, but occasionally you will be surprised. In one of our cases, for example, we found that an attorney who had been disbarred in two states for defrauding clients (but who said in voir dire that he had “never been involved in a legal proceeding”) was potentially sitting in a trial…for a fraud case.

2) Run jurors’ names through the common search engines as well as those sites which are currently vogue (e.g., Facebook and Twitter).

3) Include common variants of juror names, as well as identifying information like hometown and age.

4) Remember there is no substitute for case-relevant questioning in either oral voir dire, a supplemental juror questionnaire or a combination. On-line investigations can give you a good picture of your juror, but you won’t see the full set of attitudes and experiences that bear directly on the issues in your case.

5) Don’t believe everything you read. Something isn’t more “true” because it is on the internet, and we all know that there is a certain level of posturing (or social desirability bias) present in on-line writing.

And this is what I consider over the line:

1) Don’t violate the intent of privacy settings. If a writer makes it public, it is public. If, on the other hand, the writer intends to make it visible to registered members or to those who are “friended,” then it is private. Even if there is a technical way to view the data, don’t do it.

2) Don’t ‘friend’ potential jurors. This seems obvious. However, the Wall Street Journal reported that a Cameron County, Texas District Attorney has supplied iPads to his prosecutors for use during voir dire (not necessarily a bad idea) and is considering ways to get behind potential jurors’ privacy walls in Facebook by offering them free internet in exchange for “friending” his office (definitely a bad idea). I imagine that defense attorneys are a little disturbed at the notion of their entire panel being asked to “friend” the prosecutor. Even without the enticement of free internet access, any access request is a form of contact, and a party’s contact with potential jurors is prohibited for a good reason.

3) Don’t make an enemy of the judge. Whether you or I can defend the practice is one thing, and whether your judge approves of it is another. As one New Jersey attorney found out, it isn’t a good idea to sit in court Googling jurors if the judge finds that practice disturbing. While an appeals court ultimately ruled in favor of the attorney, the best practice is to know and follow the judge’s preferences. When a venire list is available in advance, you should conduct your searches from the safety of your own office.

While the practice of social media analysis is not new, we can expect it to fall under greater scrutiny. The American Society of Trial Consultants has adopted professional standards relating to background checks on potential jurors, which basically track what I’m suggesting above: go ahead and gain the relevant information, but respect potential jurors, be honest, and follow the law. Not so hard when you break it down.”

In summary, Social Media Analysis supplements and expands the armamentarium the trial advocate has to inform and illuminate the attitudes, values, biases, and behavior of prospective jurors. Like properly conducted oral voir dire and the effective use of Supplemental Juror Questionnaires, knowing what makes your venire panelists tick is the first crucial step in the pursuit of justice for your client. Social Media Analysis is a valuable and expanding means of getting the job done for effective jury selection.

The Middle is the Place to Be

In a recent blog by Ken Broda-Bahm, “When Arguing Damages, “Drop Anchor” Even in Murky Waters“, he discusses Shari Diamond’s recent study derived from the deliberations of Arizona jurors.

“In the real world of trials, is the effect of an anchor as simple and automatic?  Based on a recent analysis of the deliberation content of video-recorded trials in Arizona courts, the answer is “no, not so simple or automatic.”  The research (Diamond et al., 2011) shows while anchoring is a powerful force in deliberations, jurors are also very critical consumers of attorney recommendations, and the supposed biasing effect of damage anchors appears to be overstated.”

Later Ken makes the following recommendation to Plaintiffs:

“1. Plaintiffs, Use Anchors.  It is now common sense among plaintiffs that you should give jurors an anchor number, especially, for the less evidence-grounded general damages categories.  Still it is interesting to note  in one third of the Arizona cases, plaintiffs did not provide an anchor number.  While jurors will not tend to award that number (indeed, the Arizona jurors awarded just 15 percent of plaintiff pain and suffering requests on average), it is still better to begin with a reference point than to leave that to the jurors.  Ironically, the fact jurors will often presume that number to be inflated is a reason to give a higher number to begin with.”

In line with Ken’s Persuasion Strategies blog are some additional recommendations to make your damages case palatable to the typical juror:

A recent study (http://www.eurekalert.org/pub_releases/2011-08/w-lll083011.php) suggests that there is an advantage to anchoring your ad damnum amount to a perceived “middle” point, i.e., express your $$ amount as a range and then emphasize the middle or average of that range as the anchor (expressed as a number). Make sure your “middle” is your opening salvo and that you are prepared to argue damages and present evidence that supports your “middle”. Experience in observing deliberations and discussing damages with focus group jurors shows that this “middling” compromise most often results from the jurors using the opposing damages estimates to compute awards (Solomon’s Gambit). Other research points out that expressing an amount specifically, e.g., $1,699,478.97 conveys legitimacy and a “bargain” over a rounded amount ($1.7M). The specific middle may be the best place to be.

For the Plaintiff, trial is all about conveying persuasive evidence and argument that aids the jurors in coming to a consensus on what amount would fairly and reasonably make restitution. The Trial is About Damages. Packaging your damages in what is eminently digestible is critical to your persuasive success. The Middle is the Place to Be… + .97 cents.

Photo courtesy of http://www.travelblog.org/Photos/5832027

Moralizing Judgment: The Impact of Disgust on Juror Decision Making**

Br’er Rabbit and Tar Baby

” Br’er Fox went ter wuk en got ‘im some tar, en mix it wid some turkentime, en fix up a contrapshun w’at he call a Tar-Baby, en he tuck dish yer Tar-Baby en he sot ‘er in de big road, en den he lay off in de bushes fer to see what de news wuz gwine ter be….

“Brer Rabbit keep on axin’ ‘im, en de Tar-Baby, she keep on sayin’ nothin’, twel present’y Brer Rabbit draw back wid his fis’, he did, en blip he tuck ‘er side er de head. Right dar’s whar he broke his merlasses jug. His fis’ stuck, en he can’t pull loose. De tar hilt ‘im. But Tar-Baby, she stay still, en Brer Fox, he lay low…

`Howdy, Br’er Rabbit,’ sez Br’er Fox, sezee. `You look sorter stuck up dis mawnin’,’ sezee, en den he rolled on de groun’, en laft en laft twel he couldn’t laff no mo’. `I speck you’ll take dinner wid me dis time, Br’er Rabbit. I done laid in some calamus root, en I ain’t gwineter take no skuse,’ sez Br’er Fox, sezee.”

From the Tales of Uncle Remus

Some times you can't wash off the stink...

Disgust is one hot sticky mess. Whether you are Br’er Rabbit or Br’er Fox, should this “tar baby” characterize the emotional moralization response of the jurors to your case, once they swing; you are stuck. Disgust short-circuits reasoning and the mitigating influences of context or situation. You can’t argue with revulsion. Disgust is an emotion made to stick. You might like that; you might not depending upon the way disgust splashes on your case facts and theories.

Prior researchers thought that moral judgments were based on higher order cognitive thought processes. This newer view of moral judgment highlights how certain emotions feed into intuitions or predetermined readiness regarding what’s right and what’s wrong that figure prominently in a moral judgment. Distinct emotions such as anger and disgust, can amplify the importance of different moral domains during moral judgment. This process is known as a moralization.

Researchers in the area of moral judgment have found essential differences between the “other condemning” emotions of anger and disgust as they are expressive of moral disapproval. Anger is driven by contextual factors and environmental cues which influence felt intensity and effects upon behavior and judgment. Conversely, disgust seems devoid of rational or situation specific cognitions which trigger the affect. With apologies to Justice Potter (in his opinion on obscenity, “We know what’s disgusting when we see/smell/hear/feel it”.

For instance, if an individual appraises a negative event (e.g., child sexual abuse) to be controlled by other individuals (e.g., parents), she will experience disgust. If, however, she appraises the event to be controlled by the situation (e.g., drug addicted parents), she will still experience revulsion. There are no appraisals that mitigate the revulsion, even if it is understood rationally that this is a deranged situation. There are no reasoned mitigations. Yuck is yuck; it’s visceral rather than rational. You can’t talk someone out of being revolted.

“The Foundations of Morality”: The theory was first developed from a review of thinking about morality and cross-cultural research on virtues (reported in Haidt & Joseph, 2004) and then later defined by Jonathan Haidt and Jesse Graham of the University of Virginia (Social Justice Research, 2007). They suggest that human beings have five natural tendencies, or intuitions, through which they instinctively develop moral values that drive judgments. These intuitions are the same always and everywhere. However people don’t necessarily possess them in equal doses. What’s more, cultural and other circumstances influence just what kinds of moral values may develop within each of five areas for a given individual.

The Five Foundations:

1) Harm/care, related to our long evolution as mammals with attachment systems and an ability to feel (and dislike) the pain of others. This foundation underlies virtues of kindness, gentleness, and nurturance.

2) Fairness/reciprocity, related to the evolutionary process of reciprocal altruism. This foundation generates ideas of justice, rights, and autonomy.

3) In-group/loyalty, related to our long history as tribal creatures able to form shifting coalitions. This foundation underlies virtues of patriotism and self-sacrifice for the group. It is active anytime people feel that it’s “one for all, and all for one.”

4) Authority/respect, shaped by our long primate history of hierarchical social interactions. This foundation underlies virtues of leadership and followership, including deference to legitimate authority and respect for traditions.

5) Purity/sanctity, shaped by the psychology of disgust and contamination. This foundation underlies religious notions of striving to live in an elevated, less carnal, nobler way. It underlies the widespread idea that the body is a temple which can be desecrated by immoral activities and contaminants (an idea not unique to religious traditions).

Link to YourMorals.org for a self rating on the Five Foundations http://www.yourmorals.org/

Cultural and genetic traits have some impact on an individual’s expression of the Five Foundations. For example, having a Liberal or Conservative bent seems to determine which of the moral tools are emphasized and how they are applied. People who identified themselves as liberals attached great weight to the two moral systems protective of individuals — those of Harm and Justice. But liberals assigned much less importance to the three moral systems that protect the group, Loyalty, Authority and Purity. Conservatives typically place value on all five moral systems but they assigned less weight than liberals to the moralities protective of individuals.

For a revealing discussion of the moral reasoning difference between Liberals and Conservatives useful for case conception as well as voir dire/jury selection see: Haidt, J., & Graham, J. (2007) “When morality opposes justice: Conservatives have moral intuitions that liberals may not recognize.” See also: TED video, Haidt: http://www.ted.com/talks/view/lang/eng//id/341.

Disgust arises as a specific visceral moral evaluation that indicates a violation of Purity, the fifth of the Five Foundations. The kinds of things that arouse disgust are appraisals of contamination, impurity, or potential degradation. Emerging from an ancient protective distaste for the eating or touching things likely to make you sick or die; disgust evolved into an emotion that functions to guard the body and soul from contamination, impurity and degradation. Disgust is extremely easy to elicit. All you really have to do is to show a picture of a pool of vomit or a zombie eating living human flesh and you will see and hear a full-blown disgust reaction from the audience. Just like the flight or flight syndrome (see a wolf;run like hell), the ability to make an adaptive and immediate non-cognitive determination that that something could contaminate you has a lot going for it.

Lakoff has written about embodied cognition and embodied mind theory (Lakoff & Johnson (1980), Lakoff (1987), Lakoff & Turner (1989), Lakoff & Johnson (1999), Lakoff & Nunez 2000), and that the nature of the human mind is largely determined by the form/function of the human body; that all aspects of cognition, such as ideas, thoughts, concepts and categories are shaped by aspects of the body. Visceral aversion involves to visceral moralization.

Core disgust is revulsion elicited by noxious objects, such as soft body products or offensive odors. Characterized predominantly by unpleasant sensory experiences, core disgust elicitors bear a minimal explicit association with conceptions of morality (good versus bad).

Animal nature disgust is triggered by activities that remind people of their animal origins, such as certain sexual or eating habits. Interpersonal disgust is elicited by the prospect of contact with strangers, evildoers, or diseased persons. Finally, socio-moral disgust is revulsion evoked by people who commit vulgar violations against others, such as child abuse or incest. However elicited, disgust motivates people to reject anything perceived as likely to contaminate the self physically or spiritually or to threaten their status as civilized human beings. In this way, disgust signals the “badness” of impurity and, by extension, the “goodness” of purity.

Implications of Moral Disgust in the Courtroom

Pretrial Jury Research

1) Test the case elements, narrative, facts, relationships, character descriptions of the parties and witnesses for mock juror reactions and characterization consistent with disgust.

2) Listen for metaphors and analogies describing violation of norms of purity. Observe to see if there’s any consistency the demographic or values based trends among the jurors in expressing disgust.

3) Experiment with sequencing of disgust features within your case for optimal outcome. Prime disgust by the use of suggestion, metaphors, analogies and framing prior to carrying out the required moral judgment. Olfactory language, metaphors or analogies are particularly powerful. Mitigate the effects of disgust by emphasizing the similarities between the plaintiff/defendant in the jurors.

4) Assess how “same as” or “different from” your client or witnesses are perceived from the prevalent cultural group.

5) Assess whether a behavior was seen as morally right or wrong by looking at the characterizations of the actor’s intentions.

6) Assess compensation/punishment by noting the mock jurors’ interest in and characterization of outcomes, even if an outcome was accidental. Outcome drives compensation and punishment.

7) Explore with mock jurors, after their verdict and deliberation, which scenarios they imagine may assist them in mitigating the effects of disgust.

Voir Dire/ Jury Selection

1) Use a short juror questionnaire to assess disgust sensitivity. If you can’t do that then at least apply the variables below.

2) Demographic variables may be used, as conservatives are, on average, more disgust sensitive as are lower income individuals. The demographic predictions are statistically reliable but caution should be used when inferring disgust sensitivity from any demographics.

3) Listen for language, analogies and metaphors as well as facial expression and nonverbal behavior consistent with disgust.

4) Ask open-ended questions regarding social issues of the day, e.g., illegal immigration, abortion, same-sex marriage, taxes, social programs, labor unions, the U.S. debt limit, etc. depending on the side of your advocacy you may want or not want people who are particularly prone to disgust.

5) Listen for people who claim to be disgusted with lawyers, the legal system, defendants, criminals, or plaintiffs in general, such as implications of greediness or being somehow immoral simply for filing a lawsuit.

Witness Preparation

1) For the plaintiff or criminal defendant: Emphasize the similarities between the individual, their personal, family and cultural practices and values and the members of the jury and their American culture and values.

2) For the civil defendant or prosecution: Emphasize the risk of contagion, chaos and calamity should this foreign, exotic, norm violating, greedy, grasping, dirty, wild, outlaw behavior or individual prevail or profit.

In Trial

1) If you want jurors to judge innocuous actions harshly or you want to drive home the point about ‘bad’ behavior—use subtly disgusting analogies, metaphors or expressions. You want to tie ‘disgust’ to the other side. Quietly. Subtly. Let jurors think it was their own reaction.

2) Disgust may not be where you want your jurors to land. An angry juror is more likely to take action to fix the situation.

3) Maybe you do want them to be disgusted. A disgusted juror/jury is more likely to entrench and stay stuck. A disgusted juror is less likely to consider context or circumstances that could mitigate. Consider the quality of the mitigating circumstances.

4) Once disgusted you are not prone to become tolerant. If, on the other hand, your disgust morphs into anger over that disgusting behavior—you are likely primed to act in the deliberation room.

5) Show the jurors that the harm caused was unavoidable or even better was brought on by the irresponsibility of the plaintiff. On the other hand, show the jurors that the pain inflicted on your client was ‘intentional’, jurors may have a stronger moralizing response to it.

6) Your goal may be to simply light the fire of moral indignation in the minds of the jurors.

i) For the plaintiff, you want to answer both aspects of the common juror refrain “it may be legal but it sure isn’t right”. Show them it isn’t right. Show them it isn’t legal. Lead them beyond contempt… to disgust.

ii) For the defendant, you want to answer both aspects of the common juror refrain “it may be legal but it sure isn’t right”. Show them that you follow the rules and that this at worst was an accident, but you shouldn’t be held responsible for the unforeseeable consequences of what happened to this strange person who was irresponsible themselves. Suits like this hurt everyone, cost everyone money and are part of the defiled and broken system. Anyone who would do something like this is gaming the system and wants to be unjustly enriched. They should never prevail. Help them beyond contempt… to disgust.

Disgust is one hot sticky mess. From its biological survival value to its modern day evocation as the emotional driver of moralization in judgment; disgust presents as a human preset that resists all efforts to clean up the mess. As certain as was B’rer Fox that B’rer Rabbit could not resist responding to Tar Baby; the “clever as a fox” advocate should recognize disgust’s impact on fact pattern, parties and jurors. This is the true “reptile” emotion. It’s the mammalian way.

**Reprinted from “The Jury Expert”,  July 2011 — Volume 23, Issue #4: http://www.thejuryexpert.com/2011/07/the-dangers-of-disgust-in-the-courtroom/

What medical malpractice defense attorney hasn’t struggled with the characterizations of the harms and losses claimed by the plaintiff? The lore from the defense side is that the defense advocate would be foolish confronting damages claims as it would make him/her and the client look heartless, cold and only concerned about the money. The plaintiff’s counsel is not so constrained. Prominent plaintiff’s trial consultant David Ball rightly asserts in the first few pages of his well read book, Ball on Damages, that, “The only goal of trial is to get money for your client.” Not so shy, right? In the face of such unabashed enthusiasm, is it right for defense counsel to abdicate the damages portion of the case? It’s all about the money in the end, isn’t it?

In the latest issue of The Jury Expert, Jeri Kagel addressed this well known civil defense counsel avoidance of talking money or damages to a jury. Her article is available here “Damages: The Defense Attorney’s Dilemma.” Kagel provides a nice survey of the background research and trial advocacy lore associated with pervaying a persuasive case to the panel as well as some useful general tips on handling damages in each element of the trial from the defense perspective. Responding to Kagel’s article with blog posts on damages and the defense are Edward Schwartz  Edward’s blog post and Sean Overland  Sean’s blog post both esteemed trial consultants and members of ASTC. Each of the these article brings concordance to their advice to “Run at the Ghost, Not From It”. Also of interest is a fine small study by Jury Behavior Research on whether jurors “split the difference” when considering competing damages arguments. They don’t.

Repeatedly defense counsel will swing for the fences mounting a robust negligence and causation defense, banking on the jury simply never getting to damages. Most of case preparation time is spent gathering intelligence on the plaintiff’s evidentiary and testimony proof and then setting up SOC and Causation experts to shoot it down, or at least poke some big doubt holes in plaintiff’s theory of the case.  The plaintiff will be devoting a significant plurality of his/her time developing their damages case, you should too. Don’t drop the ball.

For the defense, the fault case lays a foundation for questioning damages. Jurors’ tend to award higher damages when there is a dovetailing of proven egregious acts or omissions on the part of the defendant AND the jury is moved to alleviate the suffering, harms & losses of a “worthy” plaintiff. Conversely, damages are denied, mitigated or decreased when the alleged acts are either exaggerated, venial, accidental, unintended or are the result of genuinely reasonable behavior & choices. Damages are also deflated or denied when it becomes apparent to the jurors that the plaintiff has not behaved rationally or reasonably in the situation and contributed to the outcome.  Character, plaintiff conduct and “personal responsibility” counts as every trial is essentially a referendum on the character and choices of the parties. During your examination of witnesses, make sure you elucidate each opportunity the plaintiff had to make a choice or take an action that either facilitated or failed to mitigate the outcome.

When jurors have to make numerical estimates on the basis of uncertain or incomplete information, they tend to adopt a reference point or initial estimate, an anchor, and then adjust the initial figure up or down to reach their judgment. The plaintiff benefits from setting the money anchor. The smart plaintiff will test for damages ceilings in voir dire, announce the damages demand in opening (if allowed), repeated the anchor amount as often as possible in his damages case in chief, and ring the money bell repeatedly in closing arguments. What should you do as defense counsel?

In each phase of the trial, defense counsel should establish and anchor a damages position. This need not be a dollar amount, per se. In voir dire, queries such as this can be helpful, “Some folks feel so moved when hearing and seeing the losses and hurts experience by another that they look for ways to do something to help them. How many of you are like that kind of person, even if only a little bit?” And now the first suggestion of an anchor, “Some folks would feel so bad about turning another person away and awarding them no money, that it would be hard to overcome that deeply held value to be charitable and compassionate to others no matter what. How many of you would find yourself struggling, even if just a little, when told by the Judge that unless you find my client, Dr.X medically negligent, you must not award any money to the plaintiff to help them out?” The anchor? “No money.”

In the  opening statement and case in chief, using expert testimony on damages can have an anchoring or adjusting affect. The avenue of merit for the defense is to emphasize the adjustment from the plaintiff’s anchor. If you allow that number to stand unconfronted, it’s likely to be the fulcrum point for pro-plaintiff jurors during deliberations.  Your life care planner, economist, and the cross examination of the plaintiff and plaintiff’s damages witnesses, etc., should emphasize variance from the anchor numerically with a foundation of lack of necessity, inflation of costs and ability of the plaintiff to make a recovery and thus a contribution to their own self sufficiency. Framing damages in such a manner that suggests the plaintiff is asking for amounts beyond restoration is effective because it suggests the plaintiff is asking for undue and unnecessary enrichment.

Jurors want their damage awards to accomplish something that achieves the pre loss status quo of the plaintiff. Any suggestion that the anchored damages amount represents a gain from the status quo may result in adjustment by the jurors. When it comes to tangible expenses, use references to costs and essentials that are available to the jurors’ day to day life. Availability means these examples can come readily to their mind as a reference  point. Costs and expenses that are outside their daily experience must be illuminated and the jurors should be made aware of less costly or alternative means to the same end.  Alternatives allow the jurors to adjust from the plaintiff’s anchor.

Jurors have the greatest angst when it comes to the non-economic damages. We frequently hear jurors say, “No amount of money will bring him back.”, or, “What good will money do when she misses her husband?”.  Research has found that many jurors struggle with or even outright oppose awards for loss of consortium, pain & suffering, anxiety, humiliation and other subjective harms. This predisposition makes these elements of damages ripe for opposition.

There are some general areas to broach in confronting the plaintiff’s damages:

• Point out the plaintiff’s unreasonable choices and irresponsible actions/omissions
• Emphasize how the plaintiff did not act the way any sensible person would have in the situation
• Confront elements of the medical and life care plan that are unnecessary and exorbitant
• Point out the unclear and dubious purpose and efficacy of extraordinary treatments, adjuncts, services, etc.
• Show how the plaintiff already has personal and community resources to deal with their problems.
• Throwing money at a problem is a shotgun approach and unwise and ineffective. Point out what (if anything) is strictly necessary.
• Point out to them that if they don’t see what purpose money would serve in the damages claim, they should never award money that serves no clear purpose.
• Remind them that sympathy and empathy for the plaintiff must not determine the award and that fairness to all parties requires they stick to the rules and only consider the evidence.
• Start and finish in closing by telling the jury that you have provided them with all the tools they will need to determine that your client’s actions were competent and reasonable under the circumstances, so you doubt they will even have to consider awarding money to the plaintiff. But, should they find a discussion begins about money, you want to provide them some talking points to consider during that discussion. “No matter how sad or troubled a person may be; it is not right to force another to pay for what they did not do and did not cause.”

Jurors struggle with the hard task of damages determination. You do yourself and your defendant client a disservice by shying away from a quietly confident contradiction of the premises, promises and posturing of the plaintiff’s damages case.

Picture credit: http://www.flickr.com/photos/daviddmuir/2125697998/

There’s this legend that persists about pretrial jury research. No one knows how it started. Those who first told the tale have probably litigated their last and have gone on to emeritus status. The legend persists and it begins with, “There is a tool so fearsome and dear that only the rich and the brave ever even inquire about using it. It’s called the “Focus Group” and is so lethal that one must only use it  just before trial and then only when the consequences of failure are dire.”  Except for a few folks, almost every trial attorney I know has at one time or other either heard the legend or retold it to the clinking of ice and rising smoke of a sacred Cohiba.  Partners, Stake Holders and Acolytes nod their heads in silent and knowing agreement. The legend persists mythically, for like the dragon’s lair, most knights avoid confirming weather the Lizard King actually breathes fire.

Jury research is a valuable tool for understanding and developing your case in every stage of preparation. Below are a few benefits of conducting  jury research in preparation for settlement conferences and mediation. The core benefit of such preparation is to identify in advance how the elements and narrative of the case will play with the fact finders rather than to float your case out merely on the strength of your ardent advocacy. Here are some more arrows for the pre mediation quiver:

• Doing the research early in discovery and ongoing allows you to find and fix problems in the case long before it’s crunch time.
• You’ll learn just what jurors want to know and what they make of what they learn.
• You’ll find out how to target discovery in a manner that addresses what the jurors want to know.
• You’ll develop congruent and persuasive case themes and narratives that bind your facts and evidence into a readily digestible story.
• Disclosing the fact of your research during mediation shows your superior level of preparation and that can provide a psychological advantage from the start.
• The research results will pre-arm you with a clear understanding of the strengths and weakness of your opponents case which can aid you in countering issues in the mediation.
• Use your research to let the opponent know that you have discovered and targeted their vulnerabilities.
• Your research can survey prevalent attitudes and expectations that will play out in the juror deliberations.  You can use that information to persuade your opponent that you have learned from your research how to take best advantage of what helps you and best advantage of what hurts him.
• Use what you’ve learned about the jurors sentiments regarding damages to drive higher settlements or stick a pin into grandiose dollar demands.
• Rely upon professionally designed and valid litigation research rather than your “gut feeling” or the strength of your chest pounding.

Jury research, in order to be reliable and valid, needs to be carefully designed with an eye to the standards of social science research. Validity can be adversely affected by poor sampling of the venire in recruitment and sample size, disclosures to the jurors that result in “satisficing” responses intended to give the attorneys what they apparently want, poorly conceived and conducted presentations (especially of the opponent’s case), and the inherent bias of the sponsoring attorney who is never able to give equal shrift to both sides of the case.

The “talking points” that emerge from pre trial/mediation research are powerful adjuncts to your case preparation and take your advocacy to higher levels of proficiency and preparedness for your clients. Sponsor pre trial/mediation research early in case development. It is an investment that pays off in efficiency, relevance and the horsepower of your case advocacy.

Photo: http://www.flickr.com/photos/myrfsphotos/2654992300/in/photostream

Between micro-blogging on Twitter and consulting in litigation and settlement preparation at LSI, the blogging has lagged. In the near future, I’ll start blogging again, but aim for briefer, denser and more useable off the shelf information for trial advocates. For those of you who want a clear glimpse of the trial advocacy content from  JuryVox Blog and Micro-Blog on Twitter, a picture is worth a thousand words. Use this link…  http://www.wordle.net/gallery/wrdl/1011161/JuryVox%3A_A_pallet_of_trial_advocacy

It’s not enough to review the facts. The fact is your witness can’t listen or learn if they are twisted up inside with worry, fear and misapprehension.

Witness preparation is primarily an educational process. From the very first, give your witness information about the context of testimony, the overview narrative of their testimony, the “job” they have within their testimony,etc.  Education and context can relieve much of their concerns, but in many cases it’s not enough.

Clients enter into the threatening world of litigation filled with anxieties and misconceptions about the process. The prospect of testimony under oath can be frightening and stressful. This anxiety and uncertainty alone can impair the preparation process as well as effectiveness during testimony. Dealing with the witness’s subjective reaction is job one for the trial advocate. Before you engage them in dealing with the content of their testimony, spend time with them to discover the concerns, fears and other emotional/subjective reactions that will affect their preparation, expectations, cooperation, and success in learning the skills necessary for successful testimony.

Much of the potential negative emotion arises from  perceptions of the litigation process as a dangerous and threatening endeavor, resulting in the witness responding to threat in ineffective and habitual schemes that adversely affect thinking, behavior, and physiological responses. Problem thinking responses include exagerated attention to threat cues, negative images and worrisome thinking, and avoidance of some aspects of anxiety provoking experience such as reviewing documents and paying attention during meetings. Problem behavioral responses include subtle behavioral avoidance (delaying completion of key tasks, skipping appointments, arriving late, etc.) and slowed decision-making . The physical responses can entail excessive muscle tension, sweating, dry mouth, agitation, repetitive movements, rapid breathing, lightheadedness, dry mouth and frantic efforts to escape.  Only a minority of witnesses will manifest most or all of these unfortunate reactions, but most witnesses will develop a few or more of these reactions. The interaction of these maladaptive responses leads to a process of spiraling intensification in anxiety, distraction and incompetent testimony. Comprehensive witness preparation seeks to replace these maladaptive reactions with better coping responses that allow for better thinking, quietly confident and cooperative behavior, and a sense of reasonable ease and relaxation.

It’s important that you are patient and non-judgmental with your witness. Help your witness to identify the behaviors, thoughts and fears that are impeding the preparation effort. Encourage them to pay attention to any subtle shift in their stress level and to note times of worrisome thinking, catastrophic imagery, physiological activity, behavioral avoidance, and the external cues that may trigger these responses.  Allow them to give voice to their uncertainty and fears and show them that you have the information and experiences available in the preparation process to over come their worries and provide them with better means to handle the issues and concerns. As the witness becomes aware of their stress cues during the preparation process, they are encouraged to practice their coping strategies as early as possible, using newly learned responses.

Working with the problem feeling, thoughts and behaviors from the beginning of witness preparation and replacing them with more adaptive ones creates two benefits. First, because the stress spiral is weaker when it first begins, coping responses have a greater chance of managing the stress and of preventing it from getting worse. Second, each time the stress spiral occurs, its sequence of interacting responses is strengthened in memory. Therefore, early substitution of adaptive responses for maladaptive ones heads off such strengthening and instead reinforces more successful approaches to handling the testimony and the stress. As your witness practices better testimony skills and stress management  in response to previously identified internal and external triggers, the triggers lose their threatening meaning and become cues for the use of effective coping and testimony methods. Instead of becoming habituated to stress, they become confident of their ability to cope.

Teach your witness to apply some basic relaxation skills right from the beginning. One very effective and simple procedures is slow, deep, diaphramatic breathing. Another is to have your witness use Progressive Relaxation Techniques that use muscle tensing (to increase awareness) and have them increase the tension for a few moments and then let go.  Practice and repetition are the key to success. The repeated exposure to the previously threatening questions, issues and challenges now using the coping and testimony skills will allow your witness to become used to and more relaxed in the stressful situation. The application of relaxation techniques will increase confidence in managing the stress and actually reduce the anticipatory images and fears associated with testimony.

Another useful technique is to give your witness homework. Have them use the relaxation techniques and then imagine a scene where they are confident, alert, responsive and successful during questioning. Frequent rehearsals with the application of relaxation skills to eliminate imagery-induced anxiety cues and worrisome thinking is most helpful.  Homework assignments aim at encouraging frequent applications of all of the techniques to increasingly early detections of anxious responding.

Witness preparation is a “whole person” process. In order to prepare your witness to do an effective, credible, likable and competent job during their testimony, you must begin with their fears.

Picture: http://www.flickr.com/photos/steveleenow/387725964/

When Uncertainty and Anxiety Rocks a Person’s Life, Everything is a Threat

In a prior blog (Are National Events Affecting Jurors?) we surveyed the impact of pervasive National and Regional events have upon the psyche and sentiment of jurors. The crucible of significant societal and cultural events can and does create a sea change in experiences and attitudes in the day to day lives of our jurors.  We have experienced The Enron Effect, The 9/11 Effect, and The Recession Effect within the last 10 years. These ubiquitous national experiences touched the lives and opinions of many millions of potential jurors. Perhaps more than anything else in recent history, the one-two punch of the threat of terrorism within our borders and the devastation of job losses, tight credit, “upside down” mortgages and defaults has created an environment deeply colored with uncertainty and daily concern.

“What is known is this: There is a predominant direct and personal experience of financial hardship and economic uncertainty extending to all socio-economic levels. The working poor, working class and lower to middle class are hit hard and likely most dispirited. The upper middle have seen their investments and pensions evaporate before their eyes, creating distrust and anger. Even Donald Trump has been forced to file for Chapter 11 bankruptcy in his Vegas gambling hotels. GM and Chrysler are on the chopping block and nobody, not even the Japanese are making any money selling cars.

Expression of angst, anxiety, uncertainty and anger are replete in national polls, op/ed pages, and talk around the water cooler. Anxiety and depression levels are rising and are associated with the financial stresses currently increasing. Daily national media reports ra-ta-tat like hail on a tin roof and are inescapable. The political rancor and debate seems effete and ineffective as our political leaders and political parties fail to lead or have any vision. Huge “bailout” numbers are bandied about making the reference points of Bob and Mary Sixpack’s pay check seem like nickles and dimes. People feel small, ineffective, overwhelmed, helpless and stuck. Uncertainty pervades and the opportunities for the individual to effect any change or improvements, even in their own lot, seemingly pales to the immensity of the economic situation.”

Voir dire is the time to invite your venire panelists to talk to you about how these compelling life events are affecting them. Attorney, Jury Consultant and blogger Anne Reed solidly addressed the basics of voir dire questions in her article “Back To Basics: Nine Things To Look For In Voir Dire”.  Reed’s blog highlights issues surrounding “Sense of Control” and “Identification with the status quo”. Expanding within her categories below, there are some useful and focused questions that can reveal the jurors’ experiences and attitudes regarding the financial meltdown and recession. The more uncertain and aware jurors are about a threat, the more frightened they will be.   Being helpless and out of control of a threat makes it even worse.  Jurors experiencing negative moods and stress tend to be quick to judgment. Jurors who are intolerant of uncertainty can become anxious, inflexible, dogmatic and judgmental. They can become black and white in the way they address conflicts.

Uncertainty tolerant jurors can live with gray areas and tend to be less rattled, more able to comfortable with ambiguity and able to weigh and measures facts and features of a story before coming to a judgment. They have the emotional reserves to take the time to do the work of consideration and evaluation of the facts and narrative content.

As anxiety and uncertainty drive attitudinal and behavioral changes in the lives of jurors, we want to explore just who is most uncertain and how they have changed their behaviors as a way of evaluating their temperament and likelihood of imposing the results of their uncertainty on the parties to the litigation:

“6.  Sense of control. Does this juror tend to believe that others and external forces control life events, or that people control their own destiny?”

The questions below are presented in questionnaire form. To use these in voir dire you should convert them to a relaxed conversational quality that invites discussion. There is no need to use all of these questions during voir dire, but selecting the form and content of the question to address either the case theory or fact pattern is always a good idea. Some of these questions would be best addressed to younger venirepersons who are just getting their financial lives started, others for retirees and folks in the later stages of their careers. These are ice breakers, not end points. Follow ups are necessary in each case.

How would you rate economic conditions in this country today?

Would you say that you are financially better off now than you were a year ago, or are you financially worse off now?

Did you worry about money yesterday?

Did you worry yesterday that you or somebody close to you might lose your/their job?

How worried are you about not having enough money for retirement?

How worried are you about not being able to maintain the standard of living you enjoy?

How worried are you about not having enough to pay your normal monthly bills?

How worried are you about not being able to make the minimum payments on your credit cards?

How worried are you about not being able to get a loan for a mortgage, car, business or tuition?

Looking ahead, do you expect that at this time next year you will be financially better off than now, or worse off than now?

“8.  Identification with status quo. Does this juror feel she is a part of the “system,” or estranged from the “system”?”

A fundamental difference between jurors with Democratic party or Republican party affiliation is the notion of the proper role of the government. An over simplified but useful way to look at this political philosophy differences is that jurors who see the role of the government is to provide opportunity and a level playing field may be more likely to see their role as a juror in that light. A juror who is strongly attached to the notions of the primacy of the individual and “personal responsibility” tends to evaluate others’ choices in terms of moral or personal failure and a deservingness for the outcome wrought by that failure.

Do you think the Country is going in the right direction to solve the employment and financial situation we are in?

Voir dire is your opportunity to identify the angry, disenfranchised, financially anxious and uncertain juror who is prone to quick judgments, blaming, reliance upon experts, conformity to a “position”, emotional rather than rational processing, and values laden decisions.

The trial advocate should consistently weigh the prevailing biases wrought by the times and temperments. There are some times that you can make these biases work for you rather than against you.  The juror most affected by the recession financially or occupationally is much more likely to be angry and looking for someone to blame. It’s up to you to decide if that presentiment helps or hurts your case.

Picture: http://www.flickr.com/photos/elizabethsarah/3189723706/in/photostream/

Much of what you need to know about your venire is out there. It’s reliable. It’s enlightening. It’s free.

Preparing your case for trial involves packaging, that is, arranging your case fact pattern, exhibits, and witnesses within a framework and narrative that is readily understandable and readily merges with the values and expectations of your jurors. Any case can enormously profit from the qualitative results from pre trial jury research. The very best approach is professionally conducted focus group/mock trial research, but not every case can support the resources required for this effort.  In this entry, I’ll suggest a readily available, reliable and utilitarian alternative: National and Regional Polls.

Demographic profiles alone are dismally inaccurate in predicting the behavior or attitudes of any one particular individual. Such is the credo of jury consultants, marketing mavens, political pollsters, etc. Survey and polling data as analyzed according to demographic features cannot and will not predict how Joe Sixpack will vote on your jury. Polling has decent reliability and predictive validity when predicting the behavior or values of large populations, but not any single individual within the population.

Does that mean that attending to the patterns in the national or regional polling data is a waste of time? Far from it. Polling data is useful in imagining venire values and attitudes and in preparing a general deselection template based upon polling results from the general population. What national and regional polling data can prepare you to do is to make probabilistic determinations of what will be readily accepted, or not accepted within the venire and also aid in composing your voir dire and making  jury strike profile determinations.

You can generally rely upon the survey experts of national and university polling groups to apply the standard of care in population sampling, question design and measurement metrics. These polls can generally be accepted as reliable and valid measures of the issues being examined.

Survey professionals create reliable measurement metrics that reflect the relative weight of knowledge or attitudes of interest  that are further broken into demographic categories of Age, Gender, Income, Education, Political Affiliation, etc. That is, the demographics reflect a generalizable inference regarding the relative personal interest (values & motivations), knowledge base (education and occupation), and attention (application of time and knowledge resources) that accomplish better or poorer scores in the areas of interest to the researcher and to the trial attorney.

There are hundreds of useful polls and surveys readily available for free and on line.  In addition to the Pew Polls, there are the Harris Poll, the Gallup Poll, the Rasmussen Report,  just to name a few.  Major broadcasters like CNN  and major publishers like the Washington Post will sponsor or conduct polling. Many Universities regularly engage in regional or even national polling relevant to the trial attorney.

How to best use polling data?  Think profiles. Here are two examples.

In the most recent Pew Research Center News IQ survey the survey mavens of Pew take the “current events awareness” pulse of a representative sample of the adult American population. A survey such as this provides a very rich source of useful deselection profiling information for the trial attorney.

In an older, but very useful survey, the Pew Research Center Survey on Luxuries and Necessities reveals just what folks think they must have and what they won’t live without.  In polling such as this, trial attorneys can get a read on tangible elements of day to day life that can inform and guide the framing of damages arguments.

This News IQ survey provides the attentive user with some patterns and  indications about ‘what kind’ of juror is attending to, understanding and retaining information about the current economic events, for example. Individuals attend to those things that are personally or professionally salient, have some utility, advance or express their interests, and reflect their abilities and aptitudes. The relative scores of each demographic category reflect the success of individuals within these categories to apply their attributes and successfully absorb, comprehend and apply their acquired knowledge.

Information like the Pew Research Poll on Luxuries and Necessities is hugely valuable. The research shows that the public has absorbed technological conveniences into their day to day life and now considers them necessities to live an average life. These findings serve as a reminder that the opposite of that old saying about the Mother of Invention, is also true: invention is the mother of necessity.

Arguing the present and future needs of a harmed and disabled plaintiff, this data presents a solid picture of what is tangible and necessary for now and provides for a great example of how technology that has yet to be developed should be accommodated in the damages as it will be necessity in the future.

Polling data can be used to infer and extrapolate underlying values, attitudes, preferences and the like as they differentially apply to different demographic cohorts. For example, the News IQ data above shows that males, over 50, college grads, earning over $75K annually and affiliated with the Republican Party have the highest scores on the News IQ.  One can infer a greater attention to current economic and political events, economic self interest, application of more developed reasoning skills, etc. The trial attorney would then consider how these features might facilitate or frustrate your case theory and verdict.

The astute trial attorney is also always cognizant of cognitive errors such as the representativeness heuristic: where you wrongly assume commonality between a person and a group they appear to fit into. Knowing that the data does not predict the behavior or attitudes of any one individual, even if within the group defined, further voir dire is critical, of course.

In summary, national and regional polling on the full spectrum of attitudes, behaviors and beliefs representative of the population and therefore the venire panel is a virtual gold mine of pre trial jury information useful in framing your case and defining your deselection profile. Make yourselves familiar with the larger polls. Follow the jury consultants on Twitter (JuryVox, Anne Reed, and TheJuryExpert) that post jury related polling data and commentary on a regular basis. Become an educated consumer of this service that aids you in your pursuit of justice and a just verdict in trial.

Picture: http://www.flickr.com/photos/roboppy/9625780/sizes/m/

It’s your room. Work it. They are your guests. Welcome them. Smile….

In the courtroom setting, the venire panelists have most recently been herded about by the court staff and filled out some form and watched some civics class video on jury service and mostly looked around at their fellows and shuddered to themselves about “This is a jury of MY peers? Oh, gawd! What am I doing here and when can I go home?”

Your first job is to tell them you will tell them about their job and help them do it. Once they have entered the courtroom for jury selection, they are disgruntled, impatient and also curious about what is going to happen next. To get a feel for the typical panelist’s experience, one only needs to click over to JuryExperiences.org and read the scores of commentary from folks who did their time for the common good. It isn’t pretty.

Trial attorney and advocacy skills teacher, Keith Evans writes, “Although they are obliged to sit there, they are not obliged to listen to you. Since you have a captive audience, you owe it to them to make the trial and entertaining as you possibly can.”  Yes, entertain them. Interest and participation are captured when you surprise them and pique their curiosity. Make ‘em laugh. Make ‘em crane their necks to see what’s going on. It’s your room and your spotlight. If you make it entertaining they will listen and they will speak.

You have to be relaxed yourself to make this happen. You will need a calmness and a ready smile. There is nothing that makes a panelist detach quicker than watching a “suit” sweat and stammer. While it is a subject for another day, you must have your script of issues for exploration written out and memorized. Don’t read your questions, you must know your lines by heart. The current media blasts regarding President Obama’s “reliance” upon a teleprompter is instructive. Look spontaneous and prepared and your perceived competence and credibility will be enhanced. Reading from notes at the podium makes you look like a lox. Cold fish isn’t something most jurors are excited about, or particularly want to talk to.

In this public setting panelists are struck by a couple of things: 1) You attorney’s are better dressed then they are, 2) The judge really does wear a robe and sits above everyone else, 3) It might be better to allow everyone to think them a fool, rather than opening their mouths and proving it; 4) Conversely, others will follow the old wisdom of “fools rush in where wisemen fear to tread” perhaps wearing a Princess Leia costume and wig spouting about the Force; 5) Oh my gawd! They want me to speak in public?!; 6) I hope they don’t ask my about my marijuana bust back in 1986, and finally, 7) What kind of stupid question is that!?

People asked to answer personal questions aloud in a group of strangers and also in a court of law will tend to not know exactly what to say or how far to go. They don’t want to look stupid, weird or bad. They don’t want to appear foolish any more than you do. Most will probably want to be PC. You can help them feel right at home.

An effective and engaging way to bring panelists to their ease in disclosing their beliefs and experiences is to practice using a normalizing preface to each line of questioning.

For example, using the issue of Damages:

“Many good folks have spoken up in the news and in politics about their concerns and discomfort regarding the amount of money paid to people who’ve been injured and win a lawsuit. It can get reasonable people pretty riled up.”

In this statement you’ve identified the area you want to discuss and you’ve set a behavioral standard that says that ‘good and reasonable people’  have those opinions.  The statement “normalizes” the attitude and creates a context that invites them to be like these other good folks and tell us all how you feel just like they do.

Next you move to the particular issue: “How do you feel about whether there should be upper limits on the amount of money jurors can give? Follow up, ‘tell me more’ or ‘what else?’. Then, “On the other side of the coin, how do you feel about whether there should be lower limits on the amount of money jurors can give?” Follow up. Keep the ball rolling and harvest as many folks as you can who will comment on these issues. If you are short on time, ask folks who feel the same as the initial juror to raise their hands and keep them up until you can identify them for later.

You are conducting a “town hall” meeting and you genuinely want each and every one of these citizens to make their values and purposes known. Smile, appreciate, thank them and identify those who have the strongest expressions of fervor for your later strikes for cause approach, but not right away.

Now move in, they are warmed to the task. “What problems would you have with being on a jury that’s asked for a verdict of $XM or $XXM? (If you can’t specify an amount for intangibles, try, “medical bills and lost wages are $X.XM, but the human losses are many times greater.)  What problems will you have being a juror if that the kind of money we’re talking about? Head off a staking out objection by this framing, “I’m not asking if you’d give it, but only what problems you’ll have if you decide it’s the right amount. Some people have problems giving that much. Mr. Juror, how do you feel about it?

Focus on the good folks who balk to give any “big” amount. Draw them out. Find out just how strong their objections are and just how much of a problem it would be giving that much.

Don’t worry about poisoning the jury by having them hear the opinions or attitudes that are more likely than not unhelpful to your case. Nobody’s empassioned statements are going to change anyone’s mind, but they might give another like minded panelist the impetuous to indicate agreement and speak up themselves.

Now further narrow the funnel and focus in: “During the trial, we’ll tell you about John’s pain and suffering. But there’s nothing on paper with prices attached, like there are with his medical bills. What trouble would you have including money in your verdict for pain and suffering? I’m asking you this because my own father thinks money for pain and suffering should never be given, because it does not make the pain and suffering go away. (Normalizing statement) Other people think money for pain and suffering is ok. How many of you are a little closer to people who think money for pain and suffering is ok? (Wait for hand raise and then…) How many of you are closer to my father who would have a little trouble giving money for pain and suffering because it can’t make the pain and suffering go away? Follow up, open ended e.g., “tell me about that” and get the cause strike.

Create a welcoming and open “town hall” space (tell them that what you want to do is do a townhall experience like Mr’s Obama and McCain.) Think that you are the moderator and your job is to create a dialogue. Encourage strong voices to disclose and set the mark high, so that folks who feel the same way but aren’t as willing or able will have a spokesperson, and then count the folks who would get in line behind your most extreme panelist. Follow up with each one and elicit the recognition admission from each that it would be difficult, if only a little, to step around their strongly held beliefs and values. Set the pick for the cause strike or at least red flag your peremptory strikes.

Repeat on each significant voir dire issue.

It’s about normalizing the attitudes and the act of disclosing it “among like minded, good people”. We like folks who are like us and expect fair treatment from them. Create an environment of open forum and encourage pertinent disclosures on issues and attitudes of concern. Smile, as they are your guests and you are simply making a seating chart for the table.

A good host will quickly learn who to seat and who to invite to the red car/blue car trial down the hall.

picture credits: http://www.flickr.com/search/?q=jury+selection&page=2