Developing Juror Trust with Integrity and Personality

Developing Juror Trust with Integrity and Personality:

By Attorney William E. Frazier

September 24, 2007, in Redwood City, California, I found myself trembling in my Florsheims before twelve jurors and two alternates with a stack of neatly printed index cards and a new appreciation for trial lawyers. I was a fourth-year associate starting my first jury trial and had the benefit of having our firm’s founding partner, Steven R. Bangerter, at counsel table with me.

As the judge finished up with preliminary instructions, he looked in my direction and indicated that it was time for the plaintiff’s opening statement. I stood up, walked to the lectern, and glanced at my first index card. Making eye contact with the jury, I introduced myself, co-counsel, and my client. As I was doing this, Mr. Bangerter casually moved toward the lectern and removed my index cards. I was a bit irritated, but deeply trusted my mentor. After a few moments of malaise, I told the jury that the evidence would show that the accident was caused by the defendant failing to stop at a red light, leading to my client’s injuries for which she received reasonable and necessary treatment. I further described how the accident affected her hobbies, personal life, and job. Finally, I previewed the evidence relating to the likely long-term sequelae of the injuries sustained. I thanked the jury for their time and consideration and took a seat. As defense counsel made his opening statement, my boss passed me a sticky note that said, “Nice job. Don’t read to the jury. SPEAK to them.” I thought I understood what he meant.

After opening statements, I called plaintiff’s first witness. While he was sworn, I assumed my position at the lectern with my witness outline and a pen. As I navigated preliminary matters, I would check off questions or subject headings while making an occasional note. Once again, Mr. Bangerter subtly approached the lectern and took my pen. I glanced at the jury, noticing a few amused countenances. I finished direct examination of the first witness and took my seat. This time, my boss wrote, “Don’t read to the witness. Interact with the witness.”

At lunchtime of trial day one, I walked to a nearby cafe with my client and boss. We noticed some jurors in the general vicinity walking to a different establishment. The boss said to us whilst walking, “Appearance always matters. Be calm and professional. Don’t appear stressed, but don’t laugh either. The jurors can see us.”

After the completion of trial day one, Mr. Bangerter and I were eating dinner and discussing day two. The boss indicated that, when I was reading or paying attention to notes and outlines, I was not developing any rapport with the judge, witness, or jury. Instead, I was appearing to be overly formalistic, tense, and impersonal. Knowing that I was a musician, Mr. Bangerter asked how I would feel if I went to a rock concert and all the musicians were reading sheet music and stationery. I told him that I would be critical of such a lack of showmanship and professionalism. Now I understood what he meant. He not-so-gently instructed me to be myself, ditch the notes, and handle the trial as though I knew the documents, facts, and arguments better than anyone in the room. After a few moments of reflection, I realized that I indeed knew more about the case than anyone in the courtroom.

At the conclusion of the trial, the jury returned a verdict in excess of the amount our client demanded via California’s statutory offer-to-compromise statute, CCP 998, resulting in the defense being required to pay our client’s reasonable expert fees. The six-figure verdict was triple the amount predicted by our experienced settlement conference judge. The judge excused the jury, and told them that they could speak with counsel, but were by no means required to do so. I strode into the hallway hoping to speak with some of the jurors, incorrectly assuming that I might only get to chat with one or two. To my surprise, all of the jurors gathered around us, and began firing off questions.

Q: Is the plaintiff your mother?

A: No, she is my aunt. (The case was called Frazier v. Emcor)

Q: Was this your first trial?

A:Yes. I was hoping it wouldn’t be that obvious!

Q: Were you scared?

A:Terrified

Q: Did you like it?

A: I loved it!

Q: Didn’t the other side have insurance? (No mention could be made of insurance during the trial by counsel or witnesses.)

A: Strangely, they did not.

I wanted to learn from the jurors’ perspectives before they left the courthouse and returned to their lives after a week in court. I asked them what I did poorly and how I could improve. Almost unanimously, they told me that I was obviously nervous during jury selection, stiff during opening statement, and improved when Mr. Bangerter deprived me of my pen and notes. They all laughed heartily when recalling those moments. It seemed that everyone in the courtroom, except for me, saw the bigger picture. I thanked everyone for their attention and patience, and excitedly left the courthouse with my first favorable jury verdict in hand.

A jury trial is not unlike going to a movie theater. Jury selection is a bit like seeing a movie trailer. The jury pool learns a bit about the case, but they don’t know much about the characters, their motivations, or positions until the opening statement. The jury learns about the case between the opening and closing statements and will base their decisions on what they learn during that finite period. The jury must be kept interested. Important points must be made, but tedium is to be avoided whenever possible. A few critical points outweigh dozens of small ones. This article is meant to be a primer on what I’ve learned in the fourteen years since jury trial number one. I hope it helps.

VOIR DIRE

The Utah Rules of Civil Procedure govern voir dire; however, the methods described by the code are “non-exclusive.” Regardless of which method a judge prefers, voir dire provides an excellent opportunity to establish a rapport with the diverse group of people that may be deciding your case.

Most experienced trial attorneys have encountered potential jurors that will do or say anything to get out of serving – especially in a lengthy matter. Some of the “interesting” responses I’ve heard include:

“I’m racist toward white people,” spoken by what appeared to be a white person.

“I’m against organized religion,” spoken by a person wearing a small crucifix.

“I don’t think I can wait to decide the case until the defendant goes. I usually make up my mind very quickly.”

“I can’t be here very long. I have a lot of cats that will destroy my house.”

Dealing with suboptimal potential jurors provides an excellent opportunity to navigate a difficult conversation with sensitivity, dignity, and respect. This does not go unnoticed. Juries notice and care about how you treat people. On several occasions, jurors have told me that the way our firm treated witnesses and court staff during the trial had a positive effect on how they viewed my clients. If you have an affable personality, use it!

Don’t leave it at the door and succumb to the formality of the process or the stress of the occasion. People are more inclined to listen to pleasant personalities and people.

OPENING STATEMENT

Preparation begets comfort and confidence. When starting a trial, one should know the documents and discovery better than opposing counsel. One develops this sentiment via deprivation of luxuries like sleep, food, and enjoyment of life. Yes, there are significant drawbacks to this approach, but during trial, confidence in preparation is a warm blanket. Preparation allows the advocate to discard notes and avoid being a slave to an outline. Instead, well-prepared counsel can operate with fluency and fluidity. Keeping your eyes off an index card or outline allows you to gauge the responses or engagement level of the people that ultimately will be making critical decisions in the trial; namely, the judge and jury. Further, being able to see reactions of opposing counsel and adverse parties can provide fodder for summation. You do not need the cards. Ditch them. You know the case better than anyone.

Now that the cards have been recycled responsibly, we can pay attention to my five opening statement objectives. These are not in any particular order.

After Basic Introductions, Lead with Your Worst Fact

Each case has flaws. It is tempting to lead with your strengths and hide or minimize weaknesses. In my view, this is a misstep. If you represent a plaintiff, this is an incredible opportunity to control the narrative about a bad fact.

Sidestepping such a fact typically affects credibility in a negative way. Hiding a bad fact gives it power. When counsel leads with their worst fact, they control the manner in which it is discussed, and can provide a preview of how the evidence will negate or minimize the bad fact. I tell juries about bad facts before my adversary can, whenever possible. Leading with bad facts conveys that my client is a human. I am willing to share that my client’s case is imperfect. A case need not be perfect to be strong. Juries respect that an advocate is willing to level with them, being honest in their dealings instead of hiding the ball.

I find that my adversaries are surprised by this tactic. It can take the wind out of their sails. After trials, colleagues have shared that they hated that I stole the power from their opening by addressing the weakness in my client’s case first. Would you rather control the narrative of the bad fact, or leave that to your adversary?

Another compelling reason to open with a bad fact is the passage of time. Opening statements are at the beginning of a trial. As the case wears on, the jury will have time to get over any shock value and digest the information. By the time the parties rest, the bad fact seems like old news. While the bad fact may still be relevant and have an effect on the ultimate result, the shock value is gone.

Limit Themes to Two if Possible, and Certainly No More than Three

During opening statements, the jury will have heard no evidence. Unlike you, your client, and opposing counsel, they have not lived with the case for years. They do not know why page ninety-six of a bank statement is critically important. They do not know what the significance of encephalomalacia is. Stated simply, the jury does not know your case. The jury is curious about the macro of the case, not the micro. Accordingly, there is benefit in macro-level themes. Knowing all the evidence is much easier than succinctly grouping it into broad and critical themes. However, this grouping is worth the energy. A jury can remember two or three themes – not fourteen. Spend time on the important themes and continually build upon the thematic foundation as the case continues. Do not be afraid to use the themes in crafting direct examination questions. For example, “Let’s talk about mitigation. Did you follow through with your doctor’s recommendation to undergo an MRI?” If I covered mitigation of damages as a theme during opening statement, I want to use the words from that theme as a preface to questions whenever possible. Themes must be revisited to ensure retention.

Finally, excess detail is overwhelming during opening statement. Mentioning more than two or three themes will water down the entirety of the case at this stage. During opening, it is critical to alert the jury as to what they will hear, and why it is thematically important.

Tickle At Least Two Senses – Three if You Can

Confucius is said to have coined the proverb, “I hear and I forget. I see and I remember. I do and I understand” nearly 2,500 years ago. Author Tansel Ali, former Australian Memory Champion, writes in his book Yellow Elephant: Improve Your Memory and Learn More, Faster, Better, “Research has shown that engaging as many senses as possible at once improves retention of information most.” (2013) We want juries to retain information. It is a mistake to only use our voice to convey information, because we want them to remember that information. It is critical to show and tell at bare minimum. Using more senses will yield more retention.

It is usually not possible to allow jurors to handle evidence during opening statements (though, at times, it can be done via stipulation). Some data suggests that people who can use their visual, auditory, and tactile senses during a task retain more information than people that use only one or two of these. Accordingly, a PowerPoint with bullet points, maps, or photos along with a complementary narrative is an excellent choice for opening. When tactile stimulation is not an option, I ask jurors to make a special note about something. For example, “The evidence will show and you may wish to note [emphasis on note, with slight pause] that the defendant’s speed at the time of the crash was sixty-two miles per hour according to the electronic data recorder.” Seeing, hearing, and writing engages three of the five senses. The other two senses are difficult to elicit or demonstrate during opening statement, unless the quality of your openingcauses your adversary to sweat profusely.

Make Promises, and Keep Them

During opening, I make very careful use of bold red font in my PowerPoints. I try to keep as many of the subject headings and subparts in plain font. Anything in bold red font is a promise. I beseech the jury to trust the evidence instead of spoken words about the evidence. I tell them that anything that is referenced in bold red font will be something that they can see or touch for themselves in the jury room. They will be able to review the document. Jurors like this promise, because they can, as the Russian proverb suggests, “trust but verify.”

It is a cardinal sin to promise the jury that they will have something and not deliver. Yet worse is to promise that an item of evidence will say or demonstrate something when it does not. It is critical that you can deliver on each and every promise in bold red font.

Argue Without Arguing Using Inflection and Volume

Thou Shalt Not Argue During Opening Statement. With that said, it is possible to argue without arguing.

Sure. Suuuuuuuuuuuuuuure. Right. Riiiiiiiiiiiiiiiiiiiiiiiiight. The first, normally pronounced words, stand for an ordinary purpose. While elongating a word or emphasizing a particular syllable does not change what was spoken (or recorded by a court reporter), certain pronunciation conveys information about legitimacy or credulity. Further, short sentences with pauses between words can convey (or argue) the importance of an idea. Consider the follow- ing two alternatives:

“The evidence will show that Sally was traveling fifty-three miles per hour in a thirty-five mile per hour zone.” “The evidence will show Sally was speeding. [pause] Fifty-three in a thirty-five. Fifty-three…..in…..a  thirty-five.”

The latter sentence changes cadence to emphasize a point: it indicates three times in different ways that Sally was speeding. Alternating volume and pace can prevent an opening statement from blending together. When emphasizing a point, reduce volume instead of increasing it. Yelling grows tiresome over hours and days. Further, overuse of cacophonous bellows may subject you to one of my favorite jury lines: “The loudness of my adversary’s argument does not improve its quality.”

Witness Examination

Direct and cross-examination provide numerous opportunities to garner favor with the jury. We have already discussed preparation and the importance of direct interaction with the witness, as opposed to an outline. There are numerous additional techniques to connect with jurors during examination.

Call Your Adversary First if You Can

Going first has advantages. One of those advantages is being able to call one or more defendants during the plaintiff’s case-in-chief. By doing so, you deprive the other side of controlling the order or narrative of the defense case. Calling the defendant first may not be advisable in every case. That said, our firm has done this for the majority of our matters in which we represented a plaintiff.

Calling the defendant first demonstrates to the jury that you are not afraid of the defense case. Further, you can commence with cross-examination, which forces a defendant to testify whilst the trial is new and nervousness abounds. Nervousness can lead to diminished testimonial performance. A defendant can choose to answer damaging cross-examination questions honestly or be impeached by prior testimony or discovery under oath. Both are bad for optics, especially when the defendant is trying to make a first impression.

Limit Objections When Possible

“Just because you can doesn’t mean you should” is a commonly used phrase that applies to trial objections. Jurors rarely understand the technical reasons for objections. Frequently, when an attorney objects, jurors wonder what an attorney does not want them to hear. Preserving the client’s rights is paramount. With that in mind, if there are questions that are objectionable but not dangerous to your client’s rights, consider swallowing the objection.

Identify Kept Promises /Talking to the Jury Without Talking to the Jury

During opening statement, you asked the jury to hold you to promises about what the evidence would show. Now is the chance! For example, “Mrs. Gonzalez, this is Exhibit eighty-five, which was referenced in bold red font during opening statement.” The statement is an aside, and prefatory to a question (which should quickly follow). I have not encountered objections to this technique.

This alerts the jury to the fact that you are keeping a promise, and perhaps they should pay particular attention to an important item.

Ask Direct Examination Questions That Appear Hostile

In my experience, jurors understand that an attorney is being paid to advocate his or her client’s best interests, against the interests of the adversary. It is predictable that “softball questions” will be asked during direct examination. During preparation for your client’s direct examination, set up a “zinger” or “gotcha” moment, where it appears you are asking a hostile question incredulously, and providing the client an opportunity to succeed and gain credibility by providing an honest response as to an important aspect of the case. During post-trial discus- sions, jurors have mentioned that they appreciated that my questions would occasionally (and apparently) challenge my own witnesses.”

Be Sensitive to Roles and Perceptions

Please learn from my mistakes here. Witnesses can be sympathetic figures – often deservedly so. During trial, it is common to be hungry, sleep deprived, and stressed. Sometimes those physiological realities cause counsel to forget basic facts, such as the witness’s sad circumstances or occupation.

For example, when representing a defendant in an admitted liability case, it is important to remember that it is already your client’s fault that a claim was even necessary. Aggressively attacking a plaintiff who sustained a serious injury may not be the best strategy. Rather, it may be better to attack the plaintiff’s experts or call into question the foundation of treating medical providers.

Once, during a three-month jury trial in southern California, I was questioning a building inspector who previously worked as a pastor for fifteen years. Our founding partner reminded me that, no matter how fallacious the testimony, I should avoid being overly aggressive. I was certain that the witness was either “misremembering” at best or lying at worst. I began to drive the point home with vigorous and agitated impeachment. Though we were fortunate to obtain a fully favorable jury verdict, I was chastised by a juror for “attacking the pastor” during the post-trial debrief in the hallway. I did my clients no favors by doing that. It was satisfying in the moment but did not advance my client’s cause.

Risky Tactics That May Pay Dividends

I share these tactics because jurors shared with me that they were memorable moments in trials.

Distraction.

During a particularly contentious trial in Mendocino County, California, our founding partner was examining a psychology expert designated by the plaintiffs. Mr. Bangerter was doing an excellent job of building momentum with well-crafted cross-examination questions. Suddenly, the psychologist deviated from the rhythm and offered an unsolicited tidbit that was arguably responsive to the question. Instead of moving to strike the arguably responsive portion (akin to un-ringing the bell), Mr. Bangerter asked an ordinary question with a predictable answer. When the witness gave the expected answer, Mr. Bangerter loudly exclaimed, “EXACTLY,” and said he had no further questions. From my position at counsel table, I could see all of the jurors. Nearly all of them looked befuddled. I certainly was. My boss later indicated that, in the past, he had used that “tactic” with some success. When he had an unexpected moment that was favorable for the other side, he would pivot quickly and use a vocal inflection and volume he had not used during the trial to draw attention to that as opposed to the untidy testimonial tidbit. After obtaining a unanimous defense verdict, multiple jurors mentioned they were surprised to hear “mild-mannered Steve” become so emphatic when he had made a point. He had not made a point. Instead, he got the jury to forget that the adverse witness had a made a point. Brilliant.

Non-Lexical Responses to on Sequiturs with Side-Eye

I have used this technique more than once. Each time it made opposing counsel angry and amused some jurors. Having some experience in theater and blocking techniques is useful here. When an adverse witness provides an answer that is nonsensical or completely lacking in credibility, I like to let the ridiculous answer hang in the air for an uncomfortably long period, perhaps as long as ten seconds. I position my body so it is facing a point midway between the testifying witness and the jury box. I’ll drop my head a bit and look at the jury out of the corner of my eye and subtly say “Hmmmmmm.” On one occasion during a trial in Oakland, opposing counsel nearly levitated from his seat to make an objection that he had not yet formed fully. What is the objection to a question that has not been asked and a word that has not been spoken? I was thrilled by the fact that opposing counsel had tipped his hand that he was upset, and the prior bad answer continued to linger in the air and the minds of the jurors.

Closing

Our firm tries more cases for defendants than plaintiffs. While the plaintiff’s attorney is closing, I take brief notes and maintain a calm, neutral demeanor. I think it is easy to lose points with the jury by head shaking, making guttural sounds, or other exhalations of disgust. Exuding dignity is important here. Disagree vehemently with your argument, as opposed to gesticulations and sighs. During rebuttal, refrain from taking notes. Since there is no opportunity to respond, taking notes makes it seem as though plaintiff’s counsel is somehow making points that bother you.

Most importantly, you started the case by making promises. You elicited evidence during the testimonial phase of the trial and kept those promises. Now is the opportunity to tell the jury about the promises kept, and what they mean.

During summation, drive home key points with a decrease in volume and speech rate. Key points should be made slowly and methodically, with an integration of visual (PowerPoint), and if possible, tactile stimuli (items of evidence).

POST-VERDICT

The jury has spoken. Your connection to this jury matters little at this phase. But an attorney can learn a tremendous amount about which tactics worked and which did not with this particular microcosm of society. If you are looking for compliments, call your mother. Instead, ask the recently released jurors about what worked for them and what did not. What did they find convincing? At any time did I do something that they did not like? What was discussed in the jury room? Did they appreciate the theme? Which experts were most effective, and why?

Juries pay attention to things that an attorney cannot fathom in the heat of battle. One humorous example was on March 1, 2013, when our firm just obtained a $6 million jury verdict in favor of our client. In the hallway, the female jurors gathered around me quickly, which I found confusing, as it had never happened to me in my life! They all seemed concerned. The presiding juror asked if the three-month trial caused my marriage to end. In bewilderment, I answered in the negative and asked why she had that concern. Another female juror mentioned that they noticed that I was not wearing my wedding ring during the last two weeks of the trial. As it turned out, my ring was damaged during my youngest son’s birthday party two weeks prior, and I had sent it in for repair. I was astonished that the jurors noticed. I gleaned a lot from that experience. The jurors were incredibly perceptive, and they cared, even after three months of listening to arguments and witnesses.

CONCLUSION

It is an amazing experience to be a part of a jury trial. These are called “trials” for a reason. They are trying, and at times, exasperating. Jury trials are a bit of a rare treat for civil practitioners, but I very much look forward to restarting jury trials with the pandemic hopefully waning.

Being prepared, honest, and humble are critical. Most importantly, be yourself. In the immortal words of Stuart Smalley, the protagonist of Saturday Night Live’s “Daily Affirmations” sketch: “[You’re] good enough. [You’re] smart enough. And doggone it, people like [you].” Don’t hide your personality under a basket due to the seriousness of a case. One can advocate zealously without adopting a robotic personality. Do not be afraid to crack a smile or display some comedic wit. The jurors likely will appreciate it. Happy juries lead to happy clients.

Written by Attorney William E. Frazier for the Utah Bar Journal Vol. 34 No.4 July/Aug 2021 issue.