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If you have a question that you would like for us to answer, please feel free to submit it to care@mbavinstrategies. We cannot answer all questions; however, we will choose to share some of the answers here with you as blog posts.

1.I am trying a construction case that involves various defects in a newly refurbished building. My opponent has taken approximately 150 pictures and plans to show the jury the pictures as part of a power point presentation by bringing a large screen and computer devices into the courtroom. I’m afraid that this technique will sway the jury in his favor. I also have some pictures. Do you suggest I spend the money to put on a show of my own?

I am not a big proponent of power-points, animations or high-tech aids in a courtroom. A jury needs to feel as if they are on the same level as the attorney. Studies have shown that most cases are won or lost by the time opening statement is over. A juror has an average attention span of approximately 1 minute before the boredom starts to set in and the mind starts to wander. Other studies have shown that jurors tend to remember more if it is presented to them in a visual format. Put the pictures in an album, and let the jury see and feel them. Ask the judge if you can publish the pictures to the jury. Technology in a courtroom is sometimes very off-putting to a jury, most of which are not computer savvy, may not have enjoyed school as a youngster, and cannot afford the technology themselves. Instead of isolating and intimidating the jury with the use of technology, I suggest sticking to the old fashioned boards. For example, drawing on an easel in front of the jury creates an intimate atmosphere, a trust or a bond between attorney and jury, and without that interaction, there is a higher risk that the jury will not be inclined to rule in your favor. There are exceptions to this, such as using Trial Director, a software that will allow you to blow up or highlight specific sentence or paragraphs within a document, which can assist in complex litigation.

2. I have a case coming up in two weeks and as I was preparing one of my witnesses, I realized that he constantly looks at me for guidance before answering a question, even if he knows the answer already. Don’t you agree that this will make a bad impression on the jury, and if so, how do I stop it?

During cross-examination, it is important to impart upon your witness, that he should not look at you prior to answering the question because that gives the jury the impression that he is looking for guidance and has something to hide (i.e. What do I say? Should I make something up?). Conversely, he should also be made aware not to look at you (i.e.: his attorney) after answering the opponent’s question because it subconsciously communicates to the jury that the witness is seeking affirmation that they have answered the question correctly (i.e.: Did I get that right?). You know the old adage, practice makes perfect. Try a few mock cross-examinations. Have your client practice at home in front of a mirror.

3. While in deposition with my client, I realized that he tends to get very nervous and speaks too quickly when questioned by the opposing attorney. The deposition wasn’t video taped, but I know it would look really bad in front of a jury. How do I help him?

For those witnesses that tend to speak fast when they are nervous, tell them to practice silently counting to five before answering, especially during cross. There are a number of reasons for this. First, the witness must wait until the opponent has finished asking the question and not assume what the question will be. The witness should only answer the question that is actually asked, and not get into trouble by jumping the gun. Second, the witness must learn to wait a few seconds before answering any question because the attorney needs to have an opportunity to object if he/she deems it necessary. If the client/witness has already begun to answer, even if the judge sustains the objection, it’s too late because the words are already out and the jury already heard the answer. Jurors take everything into account as evidence, regardless of the rules of law or instructions given them. For example, if you tell a child not to do something, then he/she will very likely do that very thing you told them not to do. Thirdly, if a witness jumps right in and answers questions quickly without thinking first, then when the hard question comes (and it will), the jury will notice the witness hesitating for the first time, and the jury will conclude that the witness is trying to think of something to say or is lying. However, if the witness has been briefly hesitating (for a count of 5) all along, before giving each answer, then the jury will not notice the “real” hesitation as much when the hard question comes.

4. I have some bad points in my case that I know my opponent will emphasize. One of my colleagues has suggested I address them only if and when the other attorney brings them up to the judge or jury. Is she right?

Not usually. It is always prudent to inoculate the jury during voir dire and opening to the problem areas in your case. You don’t want them to feel betrayed by you when your opponent lets it slip (and he will).

5. I am involved in an Insurance Claim case wherein there is an equal amount of good and bad on both sides. How do I make the jury more upset at the other party than my client?

You need a theme. Themes are crucial to any case for a number of reasons, but most importantly to give the jury something to relate to, to hold on to, to understand and “feel”, and to anchor. In this particular instance, I would try the “That’s Not All” Technique. When the plaintiff and the defendant are on equal ground as far as liability is concerned, and the jury needs to be convinced one way or another, the way to tip the scales is to help the jury get more angry at one party. For example, “Not only did the Insurance Company fail to pay out on the policy, but they also added insult to injury and sued this man to prove that he was not disabled at all and in fact committing fraud. That’s not all the Insurance Company did. They also accepted and kept all of his premiums, failed to report him to the state for fraud as is the law, and forged a reservation of rights letter that he never received when there is no ROR provision in the policy.” As you can see, this techniques can be modified to fit whatever the facts of your case are.

6. I feel that I am a pretty good litigator, but my one weakness is in conducting voir dire. I just don’t feel that I make that connection and I am never sure about the people that I select from the panel. What do you suggest?

Voir Dire is certainly the time to make the connection with the jury considering that many cases are won or lost on voir dire. A jury puts a lot of stock into which attorney they like better and sometimes base their decision on that criteria alone. Try some self-disclosure, some humor, some humility. Remember to show respect to everyone, no matter their occupation or station in life because they all have their own story to tell. Call them by name, repeat back their answer to let them know they’ve been heard, practice active listening, apologize for prying, admit that you are nervous too because you don’t like having to ask such personal questions, explain the process so they know what to expect and don’t feel left out or excluded, continuously thank them for their time, their “opening up,” and their honesty. Establishing rapport is essential for preconditioning. Remember to ask about hobbies and spouses to gain insight to the person. Do not ask the prospective juror yes/no questions (which will tell you nothing about the type of person they are).

7. I have a case about an African-American man who was beaten up by a white cop. I obviously want African-American men on my jury, but what about people who are in law enforcement, the military, or work for a state agency? My guess is no way.

I do not believe in selecting jurors based on demographics alone. If you select your jury according to generalizations or stereotypes, you are setting yourself up to fail. Of course, you could gamble, and win, but you could also lose. Wouldn’t it be better to learn about that person’s history, life experiences, personal background, and value beliefs, and base your selection on that criteria instead? Stereotypes and reality don’t always match up. For example, do you think the Hispanic juror would rule in favor of a Hispanic client? Maybe you do. But what if that Hispanic juror was abandoned by his/her Hispanic parents, and adopted by a loving Asian family? What if the African American male juror in your example was the son and brother of police officers? My point is that you need to “deselect” based on more than just demographics, and place your focus on the inner person instead. Is the person an introvert or extrovert, a follower or leader, a believer in fate or responsibility, a business man or an artist, etc. etc. etc.

8. I just got retained on what I think could be a big case. I know it is important to have a trial consultant pick the jury, but I don’t feel I need any psychological help before that. It’s a big expense, and I don’t really see what a trial consultant can tell me that I don’t already know considering that I have been doing this for over 20 years.

Trial Consultants or Litigation Strategists do not just help in-jury selection or jury trials. A trial consultant should be hired in the beginning of a case for many reasons. First of all, it is helpful to determine whether or not a case should be taken on contingency, what types of information should be gleaned during the discovery phase, what the damage potential of a case is, basic strategy for mediation or settlement, etc. Bringing a trial consultant in at the very last minute is a disservice to yourself and your client, and is only minimally beneficial. Yes, the consultant can help you pick a jury that she thinks would be favorable to you, but wouldn’t it make more sense to test the various theories on some jurors beforehand to get a analysis of exactly what type of people you want to look for on your jury? Psychology is not an exact science, but every little edge helps. A trial consultant or litigation strategist offers a different perspective when quite often the attorney is enmeshed in his reality of the case. The trial consultant is trained to apply psychology to delve into the psyche of the potential jurors and help implement various strategies before or during trial in order to structure and hopefully win the case. As for the cost, it can often be passed along to the client who can be convinced by the attorney’s vast skills in the art of persuasion that a consultant is a necessary tool in the arsenal that could help win the case, just as the attorney would for the cost of an expert witness.

9. I am designing a timeline that I would like to blow-up for trial. I am not really sure if color matters at all for any particular reason. I was thinking of doing it in black and white because it is so much cheaper. Please advise.

Demonstrative evidence and/or trial exhibits are important because most people tend to learn visually rather than verbally. Our feelings are invariably influenced by the colors and shapes that we see. Certain colors can elicit a positive or negative reaction, and although we may not remember which color was associated with which statement or incident, we nevertheless will recall said statement or incident from the recesses of our subconscious because of the association of color. It is always prudent to use contrast because just as the human eye sees warm colors before cool colors, it is also attracted to “out of place” usage of color. Here are a few example of the emotional effects that color has on the human psyche: Red is internalized as excitement, passion, or danger. Yellow signifies enlightenment and energy. The human eye will notice yellow before any other color on a display or board. Purple makes people feel regal, spiritual, and contemplative. Shades of colors are also important because while bright purple makes us think of the future and new technology, pale purple or lavender can impart feelings of nostalgia or deep thought.