Wyzga On Words

Florida's Own Emmett Till.

A long-time friend wrote about recent interviews with jurors in the Zimmerman/Martin trial to say that he was caught off guard to learn that some of the verdict result may have come from interpreting the jury instructions.  His impression was that jury instructions are informative but not mandatory; otherwise, why get jurors involved?  Just let the judge decide. He also expressed the view that the Florida law of 6 might not serve the system well; perhaps 12 heads in deliberations might have been a different story.  And one final requirement: a mix (male/female) should be required as well.

Here's the conundrum: jurors are required to follow the letter of the law as the judge instructs.  Oftentimes a question in jury selection will be " Can you follow the law as the judge instructs you or are your beliefs such that you would not?"  Jury instructions, in addition to being poorly written for the layperson to interpret because they are drafted by.......lawyers, are also meant to be followed as written.  And as the judge has read.  Usually the jury will get all the instructions in the jury room but they can be like hieroglyphics to decipher.  However, that is the point of a jury by peers: the community gets to figure it out.

Yes, a small jury is a more difficult jury.  Give me "12 Angry Men" any day.  The numbers give more room for argument.

The 3rd point is that a defendant is innocent until proven guilty; and that is the job of the prosecution.  If they fail, as they have done so notably before, then the jury has no way out except to vote "not guilty."  When I was in law school and then again trying criminal defense cases, I learned that most often the defendant is guilty and the defense lawyer knows the defendant is guilty.  The job of the defense is to keep the State from fulfilling its promise to the jury: prove the case.  That was done here.  If the charges as filed and the jury instructions said X and if the State did not prove X, then the jury has to go with Y.  Even though following the spirit of the law might have rendered a different verdict.

I am still nauseated by the interview given by the defense trial consultant who said they selected women who would relate to Zimmerman's fear when Martin was beating him.  I wonder what these same women  would have felt walking alone in the nighttime in an unfamiliar neighborhood to be followed by a stranger in a car, who then left the car, chased them........do you think they would fight for their life?

At the same time I still cannot fathom how this jury reconciled that someone can put into motion all these events and stand behind a law designed to protect someone in Martin's shoes.   But I wasn't there.  Who am I to say?

At the end of the day no one really knows.

Still and all, this verdict is a reflection of the collective conscience and consciousness of the community: we allow racial bias, we allow gun-toting, we allow vigilantes, we allow angry, violent, cruel behaviors toward each other, in the media, toward animals, toward the environment. It is our collective consciousness that designs our world.  It's no wonder we have become what we allow.

Florida's own Emmett Till.

Who Here Has Given Jury Service?

Would it surprise you to learn that it's not nearly so many as we might think or have been led to believe:

"Twenty-nine percent of the adult American population has served as a juror. The remaining 71% of Americans live with, live next to, work with, or otherwise hear about the experiences, good and bad, of those 29% who have lived it first hand."

- Tom Munsterman
Director Emeritus, Center for Jury Studies
http://www.ncsconline.org/D_Research/cjs/

The media is replete with hair-raising jury and juror stories derived from jurors on high-profile cases, Twittering jurors, pathological liar jurors responsible for causing a mistrial, blogging jurors, texting jurors, flirting jurors, sleeping jurors, Facebook-ing jurors and those who truly want to do a good job.

What's a lawyer to do?  Look no further than the National Center for State Courts Center for Jury Studies.  Following is the Mission Statement:

"Most Americans are more likely to experience the American jury justice system as a juror than as any other type of participant in the legal system. The Center for Jury Studies is dedicated to facilitating the ability of these citizens to fulfill their role within the justice system and enhancing their confidence and satisfaction with jury service by helping judges and court staff improve jury management. To do so, the Center engages in cutting-edge research to identify practices that

- promote broad participation by the community in the jury system
- respect jurors' contributions to the justice system
- utilize jurors' time effectively and make reasonable accommodations for their comfort and privacy, and
- provide jurors with the decision-making tools necessary to make informed and fair judgments in the cases submitted to them."

The Center for Jury Studies disseminates this information through technical assistance contracts, educational programs, and public outreach.

You might wish to check out the publications on such topics as jury size, jury nullification and effective voir dire to learn how to expand the process of justice through your community and courtroom leadership.

Listen To The Decision-Maker. Don't Just Look At Them.

                        

A few weeks back I was in a courtroom helping the trial team select a panel of jurors to hear a three week trial.

We had a weekend to sort through the venire panel's answers to a 65-question supplemental juror questionnaire (SJQ).  We made preliminary decisions based on the written responses.  We thought we knew something of the members of the venire panel.  Armed with their responses we planned our follow up in court.

One woman in particular was intriguing.  Her responses read well on the SJQ.  She answered appropriately.  She appeared favorable to our side.  But there was something about her expression that was unsettling. 

This woman smiled constantly.  She smiled in the jury box. She smiled when she was excused from the courtroom.  She smiled when she talked with fellow panelists.  She smiled when she responded to the attorneys' questions. 

It was too much smiling; it was misleading, disingenuous smiling. And it was a clue.

Despite having previously agreed to let the distraught and grieving parents attend key portions of the trial, this woman later demanded a hearing with the judge to tell him in no uncertain terms that she resented (yes, resented!) having to sit through day after day of an emotionally difficult trial when the same demand was not made on the grieving parents of the dead child. 

What does one thing have to do with another?

In a recent study reported in Scientific American, How Emotions Jump From Face to Face, researchers found that:

"Across two studies, lead author Rebecca Neel and her colleagues found that male faces were more likely to grab anger from the face next to them, and female faces were more likely to grab happiness. Interestingly, this was not just a matter of people seeing male faces as more angry and female faces as more happy (an effect shown in several previous studies): the errors were most common when the emotion came from the adjacent face.

While this grabbing seems like an automatic process of visual perception, it can be influenced by biases we hold about the social world. Expectations shape perceptions (and misperceptions).  Since we tend to assume men are more aggressive and women are more nurturing, we’re more likely to see men as angry and women as happy. Snap judgments happen easily as we scan our environments looking for social cues. It may seem a serious design flaw in a diverse modern society, but our brains have evolved to make constant and routine approach-avoid assessments called ‘affordance management’ decisions. At the creature level, we’re trying to minimize risk and maximize opportunity. It’s more costly to miss cues of impending danger than it is to mistakenly assume that someone is threatening, so we err on the side of caution. Men have historically posed a greater physical threat than women, so the angry face is suddenly male. Females are seen as posing little threat and ample opportunity for connection, so our brains maximize opportunity by assuming a woman is friendly and eager to interact (or take care of us) even when she isn’t."  [Emphasis added.]

This potential juror had it written all over her: I can pose a threat.

TIP:    

Do not mistakenly assume that the friendlies are the ones with the smiling faces. 

Do not mistakenly assume that the enemies are the ones with the angry faces.

Listen to voir dire with the whole body, and pay attention to what you know about people.

What Can Lawyers Learn From Silence In Presentation?

All that noise!  Any more the sound of silence seems as ancient history as Paul Simon's turtleneck and Art Garfunkel's  hair.

Maureen Dowd writing for the NYTimes, "Silence Is Golden," put this thought in my head.  Excerpt.

"The sounds of silence are a dim recollection now, like mystery, privacy and paying  attention to one thing — or one person — at a time.

As far back as half-a-century ago, the Swiss philosopher Max Picard warned: “Nothing has changed the nature of man so much as the loss of silence,” once as natural as the sky and air."

All you have to do is listen to know there are few sanctuaries left to us where one can be with silence.  And now there is, of all things, a silent movie.  What nerve, what imagination, what risk to make a silent movie in this day!  "The Artist" may be just what we need to remind us how powerful is silence.  Excerpt.

"It turns out that all the skeptics were wrong, and it was clever to do a silent movie in 2011, as an antidote to our modern plague of pointless chatter. It’s a weird paradox that the essential feature of technology is talkativeness, but usually without the sound of human voices attached.

In the case of “The Artist,” silence is not only golden, it’s a reminder of how much you can articulate without words. If you take away the language, green screens and 3-D glasses, the feelings — pride, vanity, envy, fear, love — can be more primary and fascinating."

What is so powerful about silence?  Silence is the quiet between the notes that give us music.  Silence gives us pause from all that numbing noise so we can reflect, even if only for a moment.  Silence allows another to be heard.

Why are we afraid of silence, especially in the courtroom? People expect us to be talking, conducting jury selection, delivering opening statements, examining witnesses, making objections, and so on.  If a lawyer is silent - for even a moment - maybe a juror will think that she has lost her place or does not know what to say. Maybe the lawyer herself is afraid that if she stops she will lose her place or forget what to say.

Here's an old storytelling tip I learned decades ago from Jay O'Callahan: "Dare to pause!"  Previously I wrote about Jay's advice and it's enduring impact on me.

TIP:    As you listen the case story out of your client, let silence fill the office to give space for more of the client's words to eventually fill in the story.

TIP:    As you rise to conduct voir dire, ask a question and let it hang there for a moment before inviting a prospective juror to speak.

TIP:    As you walk to deliver your opening statement, put down the notepad, no one gets hurt, and let the silence build the expectation of what you will say. 

TIP:    If you lose your place while speaking, give yourself the gift of a moment of silence, breathe and continue - the breath will have gotten you back on track.  If you have to refer to your notes you are showing the jurors that you are human after all.  We like people like us.   

TIP:    Learn to embrace silence as a powerful tool of communication and persuasion.

"Hazanavicius recalled that at a French screening of the movie, a group of teenagers approached him. “They thanked me for letting them hear the silence,” he said. “It was touching to discover that these young people, always with their iPods, could like real silence.

“I compare it to the zero in mathematics. People think it’s nothing, but actually it’s not. It can be very powerful.”"

 

Let Me Be Clear: Doctors Practice Medicine; Lawyers Practice Law; Litigation Consultants Practice Removing The Blinders.

I'll be the first to admit it: I'm biased. I'm biased toward two heads being better than one.  I'm biased toward more hands helping the project go faster.  I'm biased toward getting outside objective help that will encourage one to take off the blinders and see things as they are - not as we are.  Especially when it comes to clients and cases.

Over the years as my practice evolved my approach to focus group research has evolved.  I have come to learn that we take literal responses to questions at our own peril.  That's true whether we are listening to deliberations, moderated discussions or reading written responses on a questionnaire.  Yet, I hear this time and again when I am asked to review attorney-run research: "When he said X he meant X because he said X; therefore, X must be true". 

Imagine my professional concern when I come across copies of written questionnaires I prepared time out of mind for cases long since resolved that have been re-used and recycled just as they were written.  And not for the reason you think.  As much as the next person I owe what I know in great part to learning from the work of others.

My concern comes from seeing some lawyers churn out copies of written questionnaires in lawyer-run focus group research with little heed to what is being asked or why.  And compound the problem by not knowing what to do with the information they might have gotten.

I'm going out on a limb here because I believe this.  Yes, I have said: Get trusted, professional help to design, conduct and analyze the focus group research. Do not go it alone to figure out liability and damages.  Work with a litigation consultant to uncover your case landmines, blow them up, walk the decision-maker around them, and incorporate them into the story.

I say this with a measure of confidence because I know that despite my achievements as a practicing lawyer, do I feel I can try a case today?  Not with the same skill set I had when I was a practicing lawyer. 

My professional role has changed and my skill set along with it.  My medical and legal training brings a depth of knowledge to the trial table. What I know I can do is help develop a forensic fact pattern into a real life drama that will persuade the decision-maker.

Let me be clear: I am not averse to lawyers practicing as litigation consultants or even testing their own cases - as long as they do it with thought, care, consideration, objectivity, and arm's length dispassion about the subject matter with carefully chosen research participants who are not off the "been there done that" assembly line.  Know what you want to know, what you are asking, how you are asking, and how to interpret the response.  "It's not what we say - it's what they hear." [Frank Luntz]  And it's not what they say - it's what we hear.

Drop The Storyline.

Sometimes this is how it can feel to suit up for voir dire.

So much time and effort and expense is spent pre-trial on focus group research, experts, witness prep, trial notebooks, opening statements, and the rest that when it comes to actually facing the prospective jurors it can feel like a battle zone for a Super Hero.

Without denying all the aspects of trial as battle, I suggest considering dropping the storyline.  What storyline?  Jurors as enemies, not allies.

We make of life what we see.  As the saying goes, "We see things not as they are, but as we are."  [Anais Nin]  As the story goes when a child asks his grandfather which of the two beasts fighting inside him would win?  He is told that the one he feeds is the one that wins.

What if we were to begin with the belief that people are fundamentally compassionate, sane and decent - while acknowledging that some can also behave as neurotic, psychotic, and ego-centrist nut cases.

It is almost heretical to suggest: Seek out the first set; invite them to serve with you as your allies; arm them with the cape; fortify them to fight the internal battle against the one or two in their midst who are inclined to be enemies; and, lead them with all with the necessary tools to do good work together as fundamentally compassionate, sane and decent people.

They, in turn, will become your wind machine.

 

James Joyce, Dublin, & The Emotional Meaning Of The Story You Are Telling.

 

James Joyce, the Irish novelist and poet wrote these words, “For myself, I always write about Dublin, because if I can get to the heart of Dublin I can get to the heart of all the cities of the world. In the particular is contained the universal.” 

For years I have taught what I understand Joyce meant with this line.  What I believe Joyce meant was that when he wrote about Dublin he did it in such a way that every reader could experience his own city in the descriptions and images of Dublin.   The images were universal.  And because they were universal, they were emotionally meaningful to the reader.

Your listeners are the same.  They are looking to hear what is universal to their experience in the particular one of your client.     

For example, a common civil litigation theme is death of a loved one.  A focus group research participant or even potential jury member may not have experienced the death of a loved one - but every single one of us has experienced loss.  This universal experience of loss helps the listener find emotional meaning in the particular experience of the client’s story because they can relate to a time of tears. 

For the listener, now the story makes sense.  Now they can act on your behalf.  You have translated an intangible concept into workable images that are compelling for the simple reason that they are emotionally meaningful.

 TIP:    Forget winning on a stack of facts.  It's like cuddling up to a cash register: it rings but it has no warmth.

TIP:    Couple your best facts with the context within which those facts took place, and add the key personal or social value or values that fortify this narrative.  For example: rapacious home mortgage loan lender (facts) + securing profits over people (context) + greed, taking advantage and social disregard (values) -> story.

TIP:    Take THIS story to the focus group research participants and listen:  “This is about....”  “All that happened here is....”   "I’ve seen/heard about this kind of thing before...."  "It’s just like my mother/father/granny always used to say....”  Absorb what is emotionally meaningful to them.

TIP:    Take away what is persuasive (or not) about your legal story.

TIP:    Rewrite the story in your best "clear, concise and cogent manner" as I have always said and will continue to say.  It's right there on my office telephone answering message.

What Did They Say? And What Did You Hear? Tips For Listening To Clients, Focus Groups, Venire Panels, Anyone.

A crying baby gets our attention  The cry could mean "I am lonely, hungry, wet, tired, sick, in a bad mood, or just expressing my inner angst about the current politicl environment."  Moms know which it is - usually.  Their ears are attuned to the nuances.

It may not be as easy for us to know what we are hearing when we listen to our client, focus group research participants, members of the venire panel, the mediator, arbitrator, a friend, family member, or even our boss. 

How do we listen?

TIP:     Listen to what is said and what is not.  Like the space between the notes that serves to create the music, often what isn’t said is more powerful than the words used to speak a thought.

TIP:    Listen to the speaker on their level.

TIP:    Listen as if you’re a stranger in a foreign land.  Listen as if you are learning customs, rituals, and behaviors of the people in this foreign land.

For what do we listen?  The five critical elements, as follows.

TIP:     Listen for the precise facts the speaker chooses to use, as well as the pronouns, adjectives, verbs, and all descriptors that bring those facts to life.

TIP:    Listen to the emotion or how the speaker says what she says.  It may not be as obvious as say,  enraged anger.  It could be a timid reply that is covering for the thought underneath.

TIP:    Listen for the intention that helps inform us "how come" something is said. It may be to persuade, cajole, entice, inform, defend, emphasize, clarify, and so on.

TIP:    Listen for the sensations the speaker uses to tell us how something matters or feels to her.

TIP:    Listen most carefully to associations the speaker makes: how is this like that. The associations help inform us what the topic or question relates to in the speaker's world view.

TIP:     One of my secret weapons is a wonderful book I've used in decades of learning and teaching storytelling skills entitled The Power of Personal Storytelling by Jack Maguire.

If We Can't Overcome Bias, Then What?

Recently I wrote about our inability to overcome bias and went so far as to say that "overcoming bias" is a misnomer.

For lawyers who hear daily about the threat of cognitive biases in the population at large, venire panels, jury pools, and focus groups, it must sound inane to say we cannot overcome bias.  But I stand firm.  It would be like asking one to overcome their blue eyes and blond hair.  True, you can get your hair dyed and wear colored contacts but underneath you are still a blue eyed blond.

So, then what?

TIP:   Start by learning what cognitive biases are so you can understand them, identify them, and exploit them. 

TIP:   Nothing wrong with exploiting the biases; to exploit means to use something to one's own advantage.  What lawyer does not do that?

TIP:   For identifying the biases I rely heavily on the fine research of Alabama Attorney Greg Cusimano.  I have offered practical working tips of my own:

Suspicion ~ What about your case made the focus group research participants suspicious of your client?  Is there something unusual about her?   Does she really look like she is worse off than the average person?  What can you do to blow up that potential landmine?  How will you prime the jury to be suspicious of the ways in which the opposition will present its side of the legal story - because each story has two sides.

Victimization ~ Will the jurors feel victimized by the outcome you want for the legal story they will conclude for you?  Will they somehow feel that their insurance premiums will sky rocket, their doctors will leave the community, they will freeze to death in the dark, the price of consumables will be out of reach, and so on? Even so, why should they find for your client?  What overarching good will come from this case?  Show all the ways in which your client is persistent, resilient and determined while hoping for an ally along the way to give her a hand up - not a hand out.

Personal responsibility ~ When bad things happen to good people folks are inclined to blame the good people as a way to protect themselves from a similar fate.  This is how it sounds in focus group research, "I would never have [fill in the blank].  I always [fill in the blank]."  Here is what I have to say about personal responsibility: We are each of us responsible to follow the rules and, we are each of us to be held accountable when by breaking the rules we harm anther.  Folks will agree with that measure of common sense.  Adopt it.

Stuff happens ~ Experience has shown that the worse the injuries the more likely the blame for tortfeasors; however, the more attenuated the injuries the more likely the blame for the victim.  And it sounds like this: "It’s too bad but when bad stuff happens to good people that is part of life and you just gotta move on."  We live in a cause and effect world.  Nothing happens by itself.  Our job is to show link-by-link the causal chain and accumulate item-by-line-item the harms and losses suffered. 

Blame-the-plaintiff ~ Every kid who’s ever been fingered as the culprit in a caper can give you a dozen reasons why it was not them.  And the reasons begin with the other guy.  Adopt it.

Framing Hindsight ~ Negligence is based on the notion of what is foreseeable.  We have to ask what the tortfeasor could reasonably have foreseen ahead of time and before the accident.  However, the jury is like Monday night quarter-backers because they are required to make after-the-fact judgments about the possibility of what the tortfeasor could have foreseen before the event.  This is a legal story framing task.

Q&A Tuesday: What Difference Between "Yes" And "But"?

Q:    What difference is there between "yes" and "but"?

A:    One accepts and the other rejects or discounts.

When I work with clients I have an improv exercise I've used for years.  I ask one half of the group to imagine that there is a proposal on the table for a company outing.  Each person acknowledges the outing with a "but."  For example, "The company wants to have a summer picnic at the lake but - there will be bugs; but it could rain; but it's too far to drive; but we have to bring our families...." and so on.  The other half of the group is asked to acknowledge the proposal with an "and."  For example, "The company wants to have a summer picnic at the lake and - there will be lots of room to play ball; and we can spend the day; and we can relax outside; and there will be food; and there will be iced drinks; and we can come and go as we like...."

Do you hear the difference?  One is inclusive while the other is exclusive. 

Generally, when we follow a statement with the word "but" we are negating the statement.  For instance, how often have you heard someone say, "I get what you're saying, but...."  They probably have not heard your message.  Moreover, the speaker wants to get his or her statement to the head of the line.  It's a position of disagreement.

On the other hand, when someone tells us, "I get what you're saying, and...." we are closer to knowing we have been heard.  The listener is making an effort to join their position to ours.  It's inclusive.

TIP:    When listening to focus group participants respond to the moderator or deliberate among themselves, make a distinction between the "yes" and "but" statements to further identify what the speaker means.  Are they in agreement or not?  Same with jury selection.  Pay attention to the "yes, but...." and distinguish it from the "yes, and...." to help you include or exclude someone from your panel.