2. 1/17/2006www.EPS-Consulting.com1 Clarity, Comprehension and Coherence: Keys to persuading a jury Presented to the Massachusetts Defense Lawyers Association January 17, 2006 Edward P. Schwartz www.EPS-Consulting.com

3. 1/17/2006www.EPS-Consulting.com2 Advice on Trial Strategy 1.What do we know? Statistical Verdict Studies Surveys Mock Jury Experiments 2.What can we extrapolate from what we know? Related Studies Experience with Similar Cases 3.What do we need to study? Run our own survey, focus group or mock trial

4. 1/17/2006www.EPS-Consulting.com3 Information Aggregation Meter Readers (Lopes, 1986, Hogarth and Einhorn, 1992) –Algebraic –Balancing –Anchoring and Adjustment Story Tellers (Pennington and Hastie, 1991) –Narrative Construction –Seek Coherence –More prevalent

5. 1/17/2006www.EPS-Consulting.com4 Walk a Mile in My (Client’s) Shoes It is important (but hard) to get a jury to identify with your client. 1.Let the client tell a personal story 2.Make the case about a person, not a company 3.Medical personnel make good defendants 4.A witness who teaches the jury something useful gains credibility 5.Keep the client on a positive message

6. 1/17/2006www.EPS-Consulting.com5 Hindsight Bias Jurors tend to treat low a probability event that actually occurs as much more likely than it is. –Jurors will believe it to have been more easily anticipated and will assign greater urgency to guarding against it. –Jurors often conclude that manufacturers, utilities and doctors should have anticipated every contingency. –Jurors can be quick to blame victims who engage in intrinsically risky behavior, regardless of who might have been negligent A second order effect is that the more bizarre the circumstances, the more jurors tend to believe that it must have been “somebody’s fault.” One strategy for overcoming hindsight bias is to argue by analogy to something familiar to jurors.

7. 1/17/2006www.EPS-Consulting.com6 Jurors HATE cost-benefit analysis!!! Beware!

8. 1/17/2006www.EPS-Consulting.com7 Factors Affecting Jury Performance Give Instructions First. –Improves Jury Recollection of Relevant Information (Elwork, Sales, and Alfini, 1977) Defanging –Offering bad news yourself allows jurors to provide counter-arguments. –Example: The “Hired Gun” effect.

9. 1/17/2006www.EPS-Consulting.com8 Deliberation Effects Defense Bias (Good!) –Pro-defense jurors tend to stick to their guns more than pro-plaintiff ones. –An initially split jury rarely goes for the plaintiff. –Try to get pro-defense jurors to commit early Aggregation Bias (Bad!) –Damage awards almost always exceed the mean of individual juror evaluations. –Awards often exceed the amount initially proposed by any juror.

10. 1/17/2006www.EPS-Consulting.com9 Damage Calculations A variety of strategies are employed (Goodman, Greene, and Loftus, 1989) “Ad damnum” is often used as anchor for award. (Zuehl, 1982). Also, expert’s testimony. A “counter-anchor” can affect the jury’s calculations. (Raitz, et al., 1990) Itemized verdict forms can reduce excessive damage awards. (Zuehl, 1982) Damage caps can increase average awards by providing the jury with a high anchor

11. 1/17/2006www.EPS-Consulting.com10 Zuehl’s Ad damnum Study (1982) Ad Damnum Ever Exceeded? Awarded Exactly Average Award $10,0003 times70%$18,000 $75,000no51%$62,800 $150,000no29%$101,400 Substantial Compensation N/a $74,600

12. 1/17/2006www.EPS-Consulting.com11 Punitive Damages 1.Punitive Damages are most common in business cases (contract, fraud, employment) according to Eisenberg, et al., not torts cases. 2.The request for punitive damages tends to increase the size of the compensatory award, even if no punitive damages are awarded. 3.When conduct is egregious and punitive damages are capped or unavailable, juries react by increasing compensatory awards

13. 1/17/2006www.EPS-Consulting.com12 Do Juries Help Out Local Litigants? Punitive Awards MeanAwardsMedianAwards DefendantLocationDefendantLocation LocalRemoteLocalRemote Plaintiff Location Local49.4458.01 Plaintiff Location Local50.00 Remote37.2742.06Remote25.00 From Table 4.2 of Punitive Damages (Litan, et al. 2001)

14. 1/17/2006www.EPS-Consulting.com13 Issue Salience and Persuasion (Petty et al., 1981) Issue Saliency LowHigh Agreement with Message High Low Expert with strong argument Expert with weak argument Non-Expert with strong argument Non-Expert with weak argument

15. 1/17/2006www.EPS-Consulting.com14 Auditory and Visual Cues of Deception Zuckerman, DePaulo and Rosenthal 1981 Do jurors infer truthfulness of testimony from verbal and visual cues? Subjects saw/heard taped testimony which varied along three dimensions: –Audible Speech. –Visible Body. –Visible Face. Some subjects only read a transcript of testimony.

16. 1/17/2006www.EPS-Consulting.com15 Auditory and Visual Cues of Deception: Results Zuckerman, DePaulo and Rosenthal 1981 Transcript Only: 0.70 Tone Only: 0.20 Entries are in Standard Deviation Units