Category Archives: Dr. Shelley Spiecker

June 23, 2016

See It Through the Jury’s Eyes: A Trial Consultant Does Jury Duty

Interview of Dr. Shelley Spiecker (by Dr. Ken Broda-Bahm):

Juror badge squareMy colleague, Dr. Shelley Spiecker, is one of the sharpest and most experienced trial consultants in the country. So, it was with some surprise that she recently found herself on a Denver County jury. I took the opportunity to sit down with her for a chat. To hear the full interview, click below (or follow this link).

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Ken: Thanks for agreeing to talk with me. We’re happy that you’re back from your jury duty and happy that you’re willing to talk with us about your experience. First of all, Shelley, I think the attorneys and trial consultants that you know and work with might originally, initially wonder how did you come to be on a jury?

Shelley: Well, I kind of wondered the same thing, actually. We were each asked to complete a one-page questionnaire – the particular criminal case was an issue of sexual molestation of two grandchildren alleged against their grandfather. I think they were aware I was a trial consultant. I think that perhaps part of the reason I was not called back for cause questioning is that a lot of people had experiences in their backgrounds that the attorneys needed to talk with them about. So I suspect that my professional experience didn’t rise to the level of a personal inquiry.

Interestingly, the next morning, the prosecutors spent a fair amount of their time focusing on me specifically, and asking me how I would assess witness credibility and, particularly, the credibility of children. And, pointedly, how much weight I would put on nonverbal and demeanor queues vis-à-vis testimony. So I think that they wanted some confirmation that I was going to not exert any disproportional influence in assessing credibility.

Surprises

Ken: Okay. Now, you probably know better than the average juror what to expect, but what was surprising to you about the whole process?

Shelley: Several things caught me off guard. The first was, frankly, how fatiguing the entire process was. You know, as consultants, we have at times spent 12-1/2 hours in a courtroom — one time in jury selection in Dallas a couple of years ago — and my 8 to 5 jury service was incredibly more fatiguing than any time I’ve ever spent in the courtroom.

Ken: Why do you think it was so taxing?

Shelley: I think for a couple of reasons. I think as a juror you’re trying to take everything in and processing minute detailed pieces of information. The other thing that was difficult is you’re put in a room with 12 strangers. There was a lot of tension in the jury room, so people would walk back on a break and immediately look at their phones or open their reading materials, and attempts by one or more jurors to strike up casual conversation were pretty much shut down by others in the jury room. So this was a fairly fatiguing intense process.

On the positive side, all of the jurors took notes. I was surprised by the detailed level of notes from 13 people with varied backgrounds. And the last thing I wanted to share with you, it reminded me of the importance of first impressions. You know, we live in a world of themes and silver bullets and opening statements and I think that’s absolutely true. The Defense came out with a very strong theme. The prosecution really didn’t have a theme until closing arguments and I think that it definitely made a difference.

Lessons for Attorneys and Witnesses

Ken: Okay. Now, is there any way you think advocates, parties, attorneys, or even witnesses could adapt or should adapt to the kind of taxing nature of jury service as you’ve observed it?

Shelley: I think so. It really reminded me how important it is to not have repetition. To have very succinct presentations. The opening statements were limited to 20 minutes per side and I was grateful. I found, given the taxing nature, that after about 20 minutes I really couldn’t take in all of the information that I wanted to take in. The other thing I think is critical is the use of visuals. Neither side showed any visual information in opening statements. And it was interesting, when the prosecution was talking about the familial relationship, I had a juror on the left and a juror on the right who were trying to create organizational charts of the family to give themselves some kind of a visual. And I think the importance of visual presentation—absolutely critical.

Ken: Is there anything else that you would advise attorneys to bear in mind, based on this experience?

Shelley: I think, going along with the issue of first impressions, the prosecution did a fair amount of inoculation in their opening statement. You know, we talk about the importance of embracing a bad fact if you’ve got it. Get it out early. I’m actually going to change my thinking on that a little bit. Because the prosecution did so much inoculation, my impression was that they had a very weak case at the beginning. In fact they didn’t. And in fact the jury ultimately voted for conviction on all four counts. But I think we need to be careful about how we inoculate and how we introduce inoculation points.

Ken: All right, Shelley, is there anything else that you would say to attorneys and witnesses?

Shelley: I would. I think that oftentimes we emphasize, when we work with witnesses, kind of preparing them for cross-examination and how to maintain control and credibility on cross. One of the interesting takeaways, we had a witness, a social worker actually, who’s testified over 100 times. She was a fantastic witness, a great storyteller. She had wonderful natural analogies in her testimony, great explanations. But because she was such a good witness, the prosecution failed to break up her testimony. They would just kind of give a head note and then she’d talk for five minutes. And, going back to the issue of you’ve really got to maintain juror’s attention, I think it’s critical that we look at preparing witnesses for effective direct testimony, as well, even when they’re great witnesses. In this particular situation, the prosecution erred in not breaking up this testimony with Q & A. You know, I think an answer that’s longer than two sentences, three sentences, even on direct, becomes too long. So, the effect of her testimony was not as great as I think it would have been had her testimony been broken up on direct with appropriate Q & A.

Lessons for Trial Consultants

Ken: Now, how about you? Are there any ways in which the experience as a juror will change the way you work with attorneys?

Shelley: A couple of ways, absolutely. Being more insistent on the use of visuals in presentation like I referenced. But another interesting way in working with witnesses, I think my focus has been almost primarily on the witness. And what I want to take away from this is the importance of helping attorneys in witness preparation, as well. In other words, suggesting specific questions to them, listening to how they’re asking questions of the witness and giving them feedback.

And I’ll give you a specific example. Part of the taxing nature that I talked about, I think anything that advocates can do to gain jurors’ attention is helpful. And so, sometimes, we’ll recommend treating one of your own witnesses as a hostile witness, for example. And, at one point, you could tell that the prosecution was trying to establish that the witness who was struggling with some memory issues had a history of having poor memory. And I think she asked the question, “Do you generally have a poor memory for details?” As I heard that, I thought, that’s not nearly as strategic as if she had treated the witness as hostile, and said, “Are you trying to tell this court and this jury that you don’t remember such-and-such?”  And that would have been more attention-gaining, and I think it also would have been helpful because the former looked almost as if she was trying to lead the witness.

There was one more factor that we had in this particular case, and that’s the court allowed the jurors to submit questions. And it was interesting. I felt the dynamic in the room kind of perked up when the judge was asking one of the questions that the jurors had submitted, even by fellow jurors that hadn’t submitted the question. So, anything that can gain attention is strategic.

Ken: Okay. So, you and I run mock trials, which are very condensed versions of what you went through, is there any way in which the experience of being a juror changes your perspective on pretrial research like mock trials or focus groups?

Shelley: You know, it really confirmed for me that what we do is a good test and a good strategy to help advocates get ready for presentations. I think that what we do, you and I in our practice, with testing exhibits, is very important. I think our use of testing jury instructions, absolutely critical. I think that when we are gathering feedback on what jurors questions are is extremely important because, to the extent that you can anticipate and answer a juror’s questions at trial, you’re inherently gaining credibility. The other thing that struck me, the backgrounds of my fellow jurors were extremely varied. I mean, I sat next to a woman who’s currently unemployed and going to school to be a canine masseuse.  Just the varied backgrounds – it was really shocking. And so, to the extent that when we are recruiting, and recruiting people randomly and recruiting people from various backgrounds, I think that’s absolutely critical to replicate the experience that you’re gonna have in court.

Trust in the Jury

Ken: Now, getting a little bit more broad in focus, we know that the jury as an institution is threatened these days. And the proportion of conflicts that end with a jury verdict or a jury trial has been in decline. I think that’s particularly acute in the civil arena, but also in criminal as well. Is there anything about your experience that speaks to the faith that we do, or should place in the jury system?

Shelley: Absolutely. I was shocked, as I mentioned, at the intense and extensive note taking by my fellow jurors. A couple of other things stood out that really give, solidify my trust in the jury system. I think I might have mentioned that there were four criminal counts against this Defendant. And they were fairly straightforward. And basically two counts for one victim and two counts for another. The jurors spent over five hours deliberating these four very simple counts, because they wanted to make sure that everybody poured over their notes. I was also struck by how closely jurors paid attention to the judge’s admonitions. On Friday morning when we knew that closing arguments were going to be later that afternoon, one of the women on the jury, who had actually served on three prior juries, just made a very brief statement. Again, the room is primarily quiet, and she said, “You might just want to start getting your thoughts together, because when we come in for deliberations after closing arguments, I found in my experience the voting goes pretty quickly.” And immediately, a male juror to my right said, “The judge told us that we’re not supposed to form an opinion until all of the evidence is in. And all of the evidence is not in.” So it was really interesting to see how closely people paid attention to the admonitions and how encouraging that was.

Final Words

Ken: Well, a lot of active trial lawyers and litigation consultants really aren’t ever going to get that chance to sit on a jury. So, is there any final words of advice that you’d have to a lawyer or consultant that doesn’t have that chance?

Shelley: I guess to an attorney, I would just beware of repetition. For years I’ve talked about the importance of telling jurors what you’re going to tell them, tell them, and then tell them what you told them. And in my experience sitting as a juror, I think some of that repetition is overkill.

I was, as I mentioned, so pleased by how detailed and focused my fellow jurors were that we got it. And I think the prosecution did an excellent job of not having any overlapping witnesses. For example, one fact witness was put on direct, for only five minutes. And that fact witness was extremely important because they were on for such a short time. So, not belaboring points, when the prosecution would stand up and say, “no redirect,” that sent a strong message that the Defense hadn’t done anything damaging on the cross-examination. So, my takeaway is, oftentimes less is more when it comes to presentation. And particularly in persuading jurors today. You know, in our environment, we got it. We came and we were ready to do our job. And took it seriously.

Ken: Okay. All right. Well, thank you very much for your time. We’re very happy to have you back. But it sounds like it was a very interesting experience for you.

Shelley: It was fascinating. Thanks, Ken.

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Other Posts on the Role of the Jury:

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Image Credit: It is Shelley’s Actual “Juror” Sticker.

August 5, 2015

Protect Your Precious Resource — Energy Industry-Friendly Jurors

By Dr. Shelley Spiecker: 

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‘Precious resource’ in the energy industry typically refers to a saleable commodity like a coal seam or shale play.  Yet when an energy company finds itself in the courtroom, it is not coal nor shale, but industry-friendly jurors that are a ‘precious resource’. I recently spoke at the Rocky Mountain Mineral Law’s 61st Annual Conference in Anchorage, Alaska about how the trend of more favorable public perception is impacting litigation strategies for energy companies. Returning home after the Conference, I received an email from an attorney who attended and had a response to my presentation. He said, “What do I do when I have to select a jury with no voir dire opportunity? Is there a single juror characteristic predictive of favorability that I can know simply from reading a juror’s information card?”

For readers following our blog, you know we emphasize the importance of juror attitudes in predicting juror bias. But to uncover attitudes requires the ability to question jurors during voir dire, which the attorney emailing me indicated he is increasingly unable to do. So to answer his question I needed to turn to demographic characteristics to see if there is a single key variable that significantly predicts juror industry favorability. 

Using logistical regression analysis we analyzed the background demographic information from respondents in our most recent 2014 nationwide juror survey and compared this data to their responses to various lawsuit scenarios. Only one demographic factor emerged as a significant predictor – age. Specifically, as people get older, the more favorable they are to the energy industry. To illustrate, in one lawsuit scenario respondents were informed that an oil and gas company has been accused of underpaying the owners of the oil and gas the company has been producing. Half of the respondents learned that after receiving the underpayment claim, the oil and gas company committed to changing its payment practices. The other half of respondents were informed that the company did not commit to changing its payment practices. All respondents were then asked whether they felt the company should be punished with a damage award. The overall regression model was significant, meaning that respondents leaned more in favor of the defendant company that ‘committed to change’ its payment practices. However, in addition to this finding, as respondents got older they were more likely to respond that when the company committed to change it should not be punished with a damage award. Specifically, with every one-year increase in a potential juror’s age, he or she was 3.35 times more likely to respond that the company that committed to change should not be punished with a damage award. 

To answer the emailer’s question: If you are restricted to knowing only about jurors’ basic background information, seniority really does matter. Protect your older jurors who are reliably more industry-favorable than younger jurors.

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Other Posts on Energy Litigation: 

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Image credit: 123rf.com, used under license

May 12, 2014

Remember Actions Speak Louder Than One Thousand Words

By Dr. Shelley Spiecker:

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I recently had the opportunity to interview a juror in the case of The State of Nevada v. Linda Cooney in which prosecutors claimed 66-year-old Linda Cooney shot her grown son, Kevin, in a rage over his relationship with his then-girlfriend. As a result of the shooting, Kevin is an incomplete quadriplegic. As is the case with many publicized criminal cases, there are clearly two sides to the story. What makes this case unique, however, is the fact the Defense story was told by Linda’s two sons. The first son, Christopher, a Las Vegas police officer, testified that his mother was attacked by his brother and the gun went off during the struggle. The second was Kevin himself, who testified that the gun went off accidentally when he grabbed it from his mother. He further testified that he was at fault and his mother was the victim. Linda Cooney did not testify in her defense, but rather relied on her sons’ testimonies to support her innocence. 

One might think that with the only two eyewitnesses both supporting the defendant (albeit in different ways), it would be a slam dunk acquittal. But it did not turn out that way. Without the sons’ testimonial support, the prosecution relied on two fundamental persuasion principles to prove its case. After just over two weeks of trial, the 12-person jury convicted Linda Cooney of attempted murder in less than two hours. I discovered in my interview that the prosecution got to that result by relying on two simple, but profound principles of legal persuasion. This post takes a closer look at the interview and at those two principles. 

Pictures

During the juror interview, I was struck by how powerful a role these two principles played – and how, as a litigation consultant, I unconsciously put these into practice when advising clients on presentation strategy. The first principle? A Picture Is Worth a Thousand Words. 

In my Cooney juror interview, pictures of Linda’s alleged wounds and a photo of a cluttered living room, absent evidence of earplugs and a sleeping mask (as had been testified to), made a strong visual impression. Other consultants have commented on the impact of this fundamental principle (here and here), and abundant research outside the legal field attests to the power of visual persuasion. For example, a 2001 Canadian study found that visual messages were 60 times more likely to persuade smokers to quit than text-only warning.

But what struck me was the power that words can have when they are simply presented visually. The juror I interviewed shared with me this replication of the prosecutor’s last PowerPoint slide from closing argument, indicating that this said it all about the woman they ultimately convicted. 

Power_control[1]

The email address itself serves as convincing evidence of the prosecution’s narrative: The “Imperial Mother” wanted to control her son’s choice of a girlfriend, and that is what led to the shooting. 

And Actions

The second principle also points to the power of nonverbal persuasion as Actions Speak Louder Than Words. In my experience, it is patterns of action that have a particularly loud voice. In the Cooney trial, prosecutors effectively painted a picture of Linda as an uber-controlling mother who stalked several of Kevin’s girlfriends, harassed them with text messages and Facebook posts, and who routinely carried a gun on her person. Although the jurors were prevented from knowing the circumstances, the prosecutor was able to allude to one more key pattern in that Linda was acquitted of killing her then-husband when Kevin was 11 years old. It was within this backdrop of patterns of controlling and vindictive behavior that jurors ultimately decided the two Cooney sons were just dutifully testifying in order to try to keep their mother from conviction. 

Interestingly, there is very little social science research on why actions speak louder than words, and next to none on the power of patterns of behavior in persuasion. That may be because we do not bother to research what seems to be such a palpable fact of human psychology and understanding: We infer intents, motives, and fault based on patterns of prior behavior. I have seen it play out in trial after trial when jurors recount what most influenced them. 

So the next time you are thinking about the narrative you will present to a jury, also contemplate how you will emphasize the parties’ actions and add a visual message to your story. 

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Other Posts on Visual Persuasion: 

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Image Credit: Wikipedia Commons

May 31, 2013

Tune Your Witness’s Tone of Voice

By Dr. Shelley Spiecker:

 Speaking Bubbles

A few days ago I was helping prepare a successful CEO for testimony in an upcoming arbitration. The case boiled down to a dispute between two shareholders with one advocating for dissolution of their agreement and the other seeking to keep the agreement in force. My client’s testimony and credibility would be crucial to the case. A high self-monitor, he quickly picked up on my recommendations for posture, eye contact, and other key nonverbal credibility cues. One impediment remained – a tendency to end sentences with an upward vocal inflection. While infrequent, this “uptalking” had the overall effect of making him appear uncertain and less believable than desired.

Ironically, while vocal characteristics speak volumes in terms of impression formation, they can often be one of the more difficult aspects of witness presentation to change. Sager suggests that scientifically voice sounds different to the speaker than it does to the listener, a key reason it can be difficult for many witnesses to self-correct their vocal cues.

Recent research suggests that making the effort to assess vocal quality and enhance vocal effectiveness can pay off. A 2012 study by Quantified Impressions and published in the Wall Street Journal, found that voice quality accounted for two times more than message content for listeners when forming impressions.  The same article reports a study of over 700 executives, finding that CEOs with lower-pitched voices made on average $187,000 more than their higher-pitched counterparts.

So why does how we sound have such an impact? Some communication strategists suggest that listeners can have a positive or negative emotional reaction to vocal cues. Jeffrey Jacobi, author of How to Say It with Your Voice (Prentice Hall, 2000), surveyed 1,000 men and women and asked, “Which irritating or unpleasant voice annoys you the most?” Overwhelmingly, the most annoying sound was a whining, complaining, or nagging tone. Other offenders included a high-pitched or squeaky voice, a loud and grating voice, a mumbler, very fast talkers, a weak and wimpy voice, a flat and monotonous tone, and a thick accent.

In contrast, I find that witnesses who use a lower pitch with pitch fluctuation, strategic use of pauses, nonhesitant speech, and strong vocal projection convey the most confidence and believability. When working with witnesses struggling to improve their vocal cues, I have found the following techniques to be helpful in improving the message a witness sends with their voice:

Eliminate the visual distraction. When I give the witness feedback, I turn my recording iPad away from the witness so they can only hear themselves speak. This enables them to hone in on their vocal characteristics. 

Demonstrate the difference. I play audio recordings of persons who speak with strong vocal cues so the witness can hear the contrast in their vocal cues versus the stronger speaking cues.

Create a different communication context. To make it easier for a witness to feel what it feels like to speak in a different way, I suggest they imagine themselves talking in a different context. For example, if they are too soft-spoken, we identify a key piece of their testimony and I ask them to speak this imagining they are in their kitchen commanding their dog not to jump on the counter and eat the dinner that was just pulled out of the oven. The shift in mental framework helps facilitate a shift in the vocal cue.

Emphasize only the key elements that make a difference. I identify the two to three key vocal cues critical to credibility for a particular witness and I only help them improve in those identified areas. Attempting to change too many cues tends to overwhelm a witness.

It takes effort, focus and repetition for witnesses to improve their vocal skills. When done strategically, the persuasive effects speak volumes.

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Other Posts on Witness Preparation:

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May 7, 2012

In Today’s Energy Litigation, Drill Beyond Attitudes

By Dr. Shelley Spiecker: 

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Here in America, we could be said to have a love/hate relationship with energy. We love the energy itself, at least when it is plentiful and cheap. But we often hate the process of developing it, and by extension, those who do the developing. With the current election season drawing on populist themes, and with gas prices still high, big oil can end up being as distrusted as big government. Based on the tenor of today’s public discussions, you may believe that anti-energy industry bias runs rampant in public perception. However, those of us who assist energy companies in litigation know anti-industry bias ebbs and flows. Various segments of the population also have dramatically different takes on the industry. 

In a 2011 post, I identified four key factors that work to an energy defendant’s favor in the courtroom: the economic downturn, corporate desensitization, the influence of legal reasoning over ethical determination, and the interjection of personal responsibility. Those four factors are still in play today. Based on a recent Persuasion Strategies national survey, this post examines an additional factor, the role of demographics and juror experience, that can provide an even greater advantage to today’s energy defendant.

Don’t Be Too Eager to Drill Down Into Anti-Oil and Gas Attitudes

Juror demographics and experience as a strategic factor you might be asking? Usually, we’re in agreement with consultants and other social science researchers who say that if you have a choice between looking at the surface of demographics and common experience, or drilling into the underlying attitudes, then the best choice is the latter. We typically advise, if you’ll forgive the pun, “Drill, baby, drill.” We’ve written recently about the reasons for that, and today’s effective trial lawyers know that juror attitudes and opinions are most predictive of juror decision orientation. And that is certainly true. But there are always exceptions. In an industry where the majority of a given venire hold attitudes against your client, delving deep into jurors’ attitudes more often than not simply shines a light on the minority of the venire that is likely to favor your client.

Results of a survey we completed last month of a random nationwide sample of 400 jury-eligible individuals illustrate the predominance of anti-industry sentiment and are consistent with what we have observed over the past decade, including: 

  • 68% of prospective jurors feel it is “somewhat” to “very common” for oil and gas companies to harm the environment for economic gain.
  • 93% are “somewhat” to “extremely concerned” about gasoline and natural gas prices.
  • 86% feel an oil and gas company should be held “somewhat” to “much more” responsible than an individual in a dispute.
  • 76% feel an oil and gas company would “often” to “almost always” lie if it could benefit financially from doing so. 

It wasn’t all bad news however, and some of the results were more favorable to the energy industry. This mirrors what we have observed anecdotally in focus group research and interviews with jurors after serving on an energy case. For example, in a recent survey, we found 45% reporting a favorable opinion of the industry and 52% believing that a case against an oil and gas company “often” to “almost always” has merit. An article exploring some of these more favorable findings will be forthcoming by Persuasion Strategies this summer.

Instead, Rely on Some Demographic and Experiential Proxies To Guide Your Voir Dire

With roughly three-fourths of any given venire holding opinions against the industry, how do you approach jury selection protecting your minority of “good” jurors? The answer? Use reliable demographic and experience indicators to know which jurors are likely to hold unfavorable and favorable opinions of your energy client. Those factors can serve as safer proxies for the underlying attitudes that you are trying to target. 

Our recent research identified four statistically significant, reliable, and valid predictors of anti-energy industry bias.  Specifically: 

  • Political affiliation. For example, jurors who generally vote Democrat in national elections are significantly more likely to believe that “oil and gas companies commonly harm the environment for economic gain.”
  • Supervisory experience. Jurors with supervisory experience are significantly more likely to believe that oil and gas companies “sometimes” to “almost always consider the environmental impact of their company practices.”
  • Experience of the impact of the energy industry in one’s community. In a survey with 34 questions devoted to the impact of juror demographics, experiences and opinions on sentiment toward the oil and gas industry, this question was the key predictor of juror opinion orientation. Jurors reporting that oil and gas companies have had a “somewhat” to “very positive impact on their community” are significantly less likely to believe “oil and gas companies are more prone than other companies to conspire” and more likely to feel that the industry “has treated the public somewhat” to “much better than five years ago.”
  • Gender. Should you find yourself in a situation in which you do not have access to information on the impact of the industry on the community, gender can serve as a reliable substitute. Males, for instance, are significantly more likely than females to report that “oil and gas companies have had a positive impact on the community” in which they live.

So, the next time you find yourself facing a venire, consider starting with one or more of these four indicators and avoid asking questions of jurors with these characteristics. All things being equal, jurors who are males, conservatives, and those with supervisory and positive industry experience are likely to be the sources of the most moderate or positive sentiments about energy companies. Instead of helping your adversary by shining a light on those jurors, go to those jurors with indicators of unfavorable bias and concentrate your attitudinal questioning there in order to prioritize your peremptory strikes.

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Other Posts on Energy Litigation: 

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Photo Credit: Jaimito Cartero, Flickr Creative Commons (Photo of a monument, “Tribute to the Rough Necks,” Cindy Jackson, Signal Hill, CA)

May 30, 2011

Litigation Postscript’s Centennial: The Top 9 of the First 100

By: Persuasion Strategies –

Birthday cake
Litigation Postscript has just turned one hundred!  Posts, that is.  Through these past hundred, and into the next, we’ve remained stubbornly committed to the idea of writing articles, not typical blog posts, and including targeted recommendations for litigators in every single post, based on research and experience.

We’re doing that for you.  Yes, you, the one right there in front of the monitor.  So, if you enjoy and benefit from this focus, here is what you should do.  Look to the right.  No, your right.  Higher… higher… Yes, that is it!  The subscription box!  Type your email address there and hit “subscribe.” Continue reading

March 28, 2011

Avoid the “And Another Thing…” Style in Rebuttal

By: Dr. Ken Broda-Bahm, Dr. Kevin Boully, & Dr. Shelley Spiecker, with Dr. Karen Lisko –

 

Shopping list

For all the careful attention and planning that goes into a good opening statement story, and a strong closing argument structure, the rebuttal can end up sounding like an afterthought — especially when it is an afterthought.  Composed on the fly while listening to your opponent’s argument, your rebuttal can often be reduced to a simple shopping list of the points you’d like to make, without the glue of clear structure or strategy to hold the message together.  While you might think that all a rebuttal needs to do is “clean up” any points that still need more attention, structure remains an important part of the message, especially when we are talking about the last words that your decision makers will hear from you.  The problem with the “and another thing…” structure is that it does nothing to help you prepare, it doesn’t aid the audience’s comprehension, and it doesn’t promote persuasion.  As Supreme Court Justice Antonin Scalia and Bryan Garner note in their recent book, “the scatter-shot approach is no more effective [in rebuttal] than anywhere else.”  Even if your shopping list does give you a clear sequence, if you made that list while your opponent was speaking, then as Lubet’s Modern Trial Advocacy points out, you are replicating your opponent’s structure, not your own.  Continue reading

January 31, 2011

Test the Waters, but Don’t Assume that Bias is Forever: Deepwater Hasn’t Translated to Deep Trouble for Energy Defendants

By: Dr. Shelley Spiecker

 

Deepwater horizon

 

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Six months after the public was riveted to press coverage of the oil spill in the Gulf, impact on energy defendants has been less doomsday than feared.  In fact, this is one of the better times in the past 10 years to be an energy defendant in front of a jury.  Why?  Much as the spill itself appeared to dissipate more rapidly than expected, the tide of public opinion has drifted away from concern over the environmental practices of energy companies, and toward concern over the economy.  A recent Pew Research Center survey found the economy was identified as Americans’ top policy priority for 2011 by 87% of respondents.  The public is also focused on resentment of what many perceive as a failure of government to fulfill the promises made in the 2008 election. Continue reading

July 19, 2010

Build A Persuasive Construction Case

by: Dr. Shelley Spiecker

Spiecker_88_120 Our research consistently indicates jurors, arbitrators and judges evaluate cases through two perceptual filters, or lenses.  The first is a filter of “power” and the second is a filter of “choices”.  Specifically, they seek to know which party had the most power to alter the outcome of the dispute, and which party had the most choices.  Our pre-trial research consistently demonstrates the more powerful party bears the burden of persuasion in the courtroom.  Furthermore, social science

research documents that the more choices a party is perceived as having, the more responsibility is attributed to that party and the more likely decision-makers are to perceive the consequences to the party with fewer choices as being damaging. Continue reading

June 13, 2010

Bifurcation: Not Always a Corporate Defendant’s Best-Friend

By: Dr. Shelley Spiecker

 

Spiecker_88_120 Yesterday I received a call from a client seeking argument strategies for a punitive damages presentation in a bifurcated personal injury lawsuit.  After discussing argument approaches, I shared with him what I consider to be the single most important piece of advice for any attorney defending a company in a bifurcated trial today – educate jurors at the outset of the trial that the case is bifurcated and that they will deliberate on punitive damages should their initial verdict trigger the punitive phase.

True, research confirms that bifurcation makes it less likely jurors will find against a defendant on liability[1] and causation.   However, when jurors deliberate punitive damages in bifurcated trials in which they are unaware during the compensatory phase that they will be given the opportunity to award punitive damages, they augment the amount they award in compensatories[2], are more likely to award punitives when that phase comes, and their punitive damage awards are higher compared to when they are aware of the potential for a punitive phase[3]. 

  Continue reading

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