Lessons from hundreds of mock jury deliberations
Why guess? Here are the key preconceptions and questions that juries have for 9 case types. Included are the themes, analogies, and arguments juries find persuasive for both plaintiff and defense. Examples below.
Dr. Karen Lisko, Past President of the American Society of Trial Consultants, has observed the deliberations of hundreds of mock juries in the 22 years she has been helping attorneys develop case strategies. She has also conducted scores of post-trial interviews with actual jurors.
She has compiled her research findings in Proven Jury Arguments and Evidence. This $119 book provides general recommendations for persuading all types of juries, and offers detailed advice for the following nine types of cases:
- Auto accidents
- Police misconduct
- Slips and falls
- Medical malpractice
- Products liability
- Breach of business supply contract
- Breach/delay of construction contract
- Race discrimination
- Sexual harassment
Key research findings
Here are some abbreviated excerpts from Proven Jury Arguments and Evidence which may help you prepare for your next trial. These suggestions comprise a small slice of the dozens of research-based recommendations found in this ground-breaking 430-page book:
- Use of Story. “The knowledge that story order in opening statements is powerful and persuasive has been around for awhile and has been reinforced in other research. Yet, many well-intentioned litigators still persist in organizing their openings topically around the legal theories in the case. Other attorneys attempt to introduce story within their legal theories; for example, some tell a liability story and a damages story.
Having personally observed many hundreds of mock jurors deliberate, it is clear to me that jurors do not compartmentalize story within legal theories. Rather, jurors blur the lines across those theories to tell themselves (and one another) a single complete story, inserting their own personal experiences or hypotheses where holes in that one story exist. Academic research supports this observation. We have also observed this same phenomenon in our privately-sponsored research with mock judges and mock arbitrators.”
- Themes. “Little has been published in the academic literature about the effectiveness of different themes. However, in our privately sponsored mock trial research, we have repeatedly tested themes. One strong pattern has emerged from that research: The more effective themes are the ones that appeal to the tougher audience on the jury. In other words, a plaintiff who uses a defense-oriented theme is more persuasive than one who uses a plaintiff-oriented theme.
The reasoning is simple. Pro-plaintiff jurors are less in need of a plaintiff-oriented theme. They walk a pro-plaintiff mindset every day. The conversion you need to accomplish at trial is with those on the jury who are not automatically prone to favor your position. A good theme focuses on what motivates this more reluctant audience on the jury. An even better theme can be readily repeated throughout the opening and other phases of trial.”
- Demonstratives. “When jurors can view your interpretation of critical evidence, rather than simply listen to it, your odds of prevailing on the point most definitely increase. You may be able to see your point perfectly in your mind’s eye, but you have had the benefit of months, maybe years, of living with the evidence to perfect that image. Jurors (and judges) are not so lucky.
“You can dramatically shorten their learning curve by using computer animations or simple demonstratives. While current academic research finds that computer animations may not give you a dramatic advantage over simple demonstratives, our field research in more complex litigation finds that there is no substitute for an animation when you need to take someone inside a process, whether it be inside the human body or inside a technological innovation.”
- Blaming the Other Guy. “Research finds that drawing attention to the failings of the other side during your opening statement increases jurors’ willingness to blame the other side. However, less has been written about when to voice the blame. Do you start your opening focusing on the other side’s failings, as some practitioners suggest, or do you wait until you have first established what you did well?
“We have tested the approach of starting the opening (plaintiff or defense) with what the presenting party did well before castigating the other side. In general, this approach has proven more successful than starting on the attack. Make no mistake — the attack on the other side still needs to occur in most cases, but the timing of the attack matters.”
REVISION 1 Highlights
In this update to Proven Jury Arguments & Evidence, Dr. Karen Lisko brings her 25 years of experience working with juries to bear on litigation involving a claim of bad faith breach of an insurance contract; she also provides a more detailed analysis of why it is so important to identify and answer jurors’ key questions in specific types of cases. With this supplement, Proven Jury Arguments & Evidence continues to be your trusted source for understanding juror biases and presenting your case in a way that will resonate with jurors – from voir dire, to opening statement, to witness examinations, to closing argument.
NEW! Chapter 10 Bad Faith Breach of Insurance Contract
I. Jury Preconceptions/Truths in Bad Faith Insurance Litigation
II. A Case Fact Pattern: Samson v. ABC Insurers of America
III. Opening Statements
IV. Case Themes
V. Jury Analogies
VI. Witnesses of Greatest Importance to Jurors in Bad Faith Insurance Litigation
VII. Demonstrative Evidence Checklists
VIII. Arguing Damages
IX. Jury Selection
NEW! 10 demonstratives to use as models for building persuasive trial exhibits:
Dr. Samson’s Policy Limits with ABC versus ABC’s Payout to Dr. Samson [§10:13A]
Dr. Samson’s Chronic Neck Condition Versus Acute Neck Conditions [§10:13B]
Living with a Degenerative Neck Condition [§10:13C]
Checklist of Contractual Obligations for Insurer and Insured [§10:13D]
ABC’s Disability Policy Language [§10:13E]
Dr. Samson’s Payments to ABC versus ABC’s Payout to Dr. Samson [§10:14A]
Medically Sanctioned Activities Versus Medically Discouraged Activities [§10:14B]
Contract Language to Convey Rescission of Benefits [§10:14D-1]
Contract Language to Convey Rescission of Benefits (with highlight) [§10:14D-2]
The Harm of Insurance Fraud [§10:14E]
Jurors’ Key Questions
Revised to include an easy-to-follow chart that explains the questions jurors want answered and why these questions are significant, in the following cases: Driver-Pedestrian Cases [§2:02], Slip and Fall Cases [§3:02], Medical Malpractice Cases [§4:02], Police Misconduct Cases [§5:02], Products Liability Cases [§6:02], Breach of Contract Cases [§8:02], Construction Delay Cases [§9:02], Race Discrimination Cases [§11:02], and Sexual Harassment Cases [§12:02].
ABBREVIATED TABLE OF CONTENTS
TABLE OF IMAGES
CHAPTER 1: JURY DECISION-MAKING
CHAPTER 2 AUTO ACCIDENT LITIGATION—DRIVER-PEDESTRIAN
CHAPTER 3 SLIP & FALL LITIGATION
CHAPTER 4 MEDICAL MALPRACTICE—EMERGENCY ROOM (UNDIAGNOSED CONDITION)
CHAPTER 5 POLICE MISCONDUCT LITIGATION
CHAPTER 6 PRODUCTS LIABILITY LITIGATION
[CHAPTER 7 RESERVED]
CHAPTER 8 BREACH OF BUSINESS SUPPLY CONTRACT
CHAPTER 9 BREACH OF CONSTRUCTION CONTRACT—CONSTRUCTION DELAY
CHAPTER 10 BAD FAITH BREACH OF INSURANCE CONTRACT
CHAPTER 11 WRONGFUL TERMINATION—RACE DISCRIMINATION
CHAPTER 12 SEXUAL HARASSMENT LITIGATION
ABOUT THE AUTHOR
Karen Lisko, Ph.D., has over two decades of practical experience in hundreds of cases across the country in the areas of civil plaintiff, civil defense, and criminal defense ranging from simple to complex litigation. She provides expertise in courtroom persuasion, strategic jury selection, case theme development, persuasive opening statements, and closing arguments, and assists with witness preparation for deposition, arbitration, and trial. She has trained many attorneys, both individually and in groups. Dr. Lisko utilizes her training to conduct focus group and mock trial research for arbitration, bench, and jury trials. She relies on her experience with hundreds of actual and mock juries as well as with mock judge panels to develop case strategy recommendations based on the research findings. Dr. Lisko has provided expert witness testimony on jury bias, jury decision-making, and community attitude survey research for change of venue. She holds a doctorate in legal communication, a specialized degree held by only a few consultants in the nation. Dr. Lisko is the former president of the American Society of Trial Consultants (ASTC), and she is a lecturer in the Trial Consulting Certificate Program at Towson University in Towson, Maryland. She is also a member of the Board of the ASTC Foundation, and a member of the American Bar Association, Section of Intellectual Property Law. In addition, she has published several articles and has spoken to numerous groups regarding courtroom persuasion and jury decision-making.