Test this out next time you are around a colleague, friend, or family member. Pick a popular song, something everyone knows, and tap it out in front of them. Ask them to guess the song based on the tapping alone. Don’t hum or give other clues. How often would you expect them to get it right? Chances are they will guess wrong, at least that is what Elizabeth Newton found in her famous study. Hundreds of study participants tapped out popular and well-known songs, and the listeners correctly guessed the song only 2.5% of the time. The more fascinating finding is that after selecting a song, the tappers guessed the listeners would guess correctly roughly half the time.
While this study may seem silly, it highlights a fundamental communication problem that is magnified in jury trials. Tappers are quick to assume listeners will correctly identify the songs (at least half the time) because they can hear the song in their head as they tap. It seems obvious. But listeners cannot hear the song in the tapper’s head. All they hear is tapping. This is precisely what can happen with trial lawyers and jurors. By the time a case reaches a courtroom, lawyers have been working for months if not years on their song. They know the case inside and out and know why every fact or admission is relevant. The result is that lawyers too often overestimate how obvious it is to jurors why something is important, or what it even means. Instead, they tap, assuming the song is obvious.
We see a common variation of this problem related to the structure of the lawyer’s case theory. What is so often forgotten at trial is the core structure of the argument or case theory. All arguments have structure, but too often that structure is assumed rather than clearly stated. It may be that attorneys, due to their education and experience — much like the tappers in the study — are quick to assume it is obvious how everything fits together and why their argument means jurors should render a verdict in favor of their client. This tends to be wishful thinking.
Courtroom logic is very different from layperson logic. Some attorneys may be quick to assume the logic of the argument is apparent regardless of whether one is trained in the law, but this is often not the case. Instead, overwhelmed jurors resort simply to what feels right without ever thinking critically about the structure of the process that led to that feeling. They overlook key legal elements like proximate cause, or the elevated burden of proof that comes with certain types of claims. This is only compounded by the fact that most judges will wait until the end of trial to instruct jurors on the claims of the case, offering very limited pre-instructions before the trial begins. Trial is one of the only “games” in our society where the players (i.e., the jurors) are not told the most important rules until the game is almost over.
What jurors so often need most is what they are typically given the least of at trial: a structure for how to think about the case. Attorneys are limited in how they go about dealing with this problem, but direct and cross examination offer an opportunity for the attorney asking the questions to “whisper” that structure to jurors. In this month’s column, we discuss how attorneys can quietly communicate structure to help jurors follow key testimony. Here are four goals attorneys should adopt for their examinations of witnesses at trial.
1. Prime jurors to focus on the key legal factors. Many years ago, we conducted a shadow jury in a lengthy trial where the key claim in the case involved a seven-factor test. We knew from our mock trial research that it was favorable to our client if jurors focused on the seven factors, but if they adopted a gut feeling approach to the case rather than focusing on the legal factors, it was not going to go well. After the first week of the trial, it was apparent from the shadow juror feedback that the seven factors were getting lost in the mix, which was obviously a problem for our client. We had highlighted them in our opening statement, but it had been three days packed full of witness testimony since jurors heard opening statements. Those factors were not salient. To counter this problem, we developed a repeated set of cross examination questions that explicitly identified each factor, and we asked that set of questions to each of the plaintiff’s witnesses for the next few days. We asked the same questions in the same order using the same wording, and after a couple days, the seven factors began popping up unprompted in the shadow jurors’ feedback. Our strategy was working, and it started to change the way shadow jurors were thinking about the case. Our repeated questions in cross examination made the key legal factors more salient as jurors thought about the case. We did not have to wait until closing arguments as so many attorneys assume. Jurors were thinking about the factors while hearing testimony. This is a simple way to use repetition in witness testimony to keep the law at the forefront of jurors’ analysis.
2. Highlight issue relevance. As noted in the tapper/listener experiment, it is easy for jurors to lose sight of the relevance of an issue during witness testimony. Proximate cause is a prime example. Proximate cause is lost on most jurors. They often do not appreciate that proximate cause is a separate and distinct issue from negligence that carries its own, separate burden of proof. Consequently, targeted proximate cause questions in direct or cross examination might be lost on jurors. Consider a run-of-the-mill product liability case with failure to warn claims. If jurors are upset by the defendant’s failure to offer sufficient warnings, they may fail to even consider the question of whether such warnings would have made a difference to the plaintiff. Questions related to whether the plaintiff read the warnings that were provided may fall flat if jurors are not actively thinking about proximate cause as a separate and distinct hurdle for the plaintiff with its own independent burden of proof. This is where a direct or cross examination question with built-in signposting highlighting proximate cause as a separate and distinct element can make a significant difference. The question lead-in may be as simple as, “Ms. Smith, in this case, it is not enough for the plaintiff to prove there were inadequate warnings. The plaintiff also has to prove that adequate warnings would have led the plaintiff to make different choices so I want to ask you a few questions about whether additional warnings would have made a difference to the plaintiff.” This simple act of signposting, particularly when repeatedly used, can help jurors understand why the issue an attorney is raising in witness testimony is relevant and important to the outcome of the case.
3. Help jurors grasp the utility. This is similar to but slightly different than helping jurors understand relevance. Too often, attorneys get important admissions in cross examination but fail to ask that next question that helps jurors understand how the admission is useful to their decision making. Great admissions should be followed by questions that implicate them. The question that illuminates how an admission is useful is often more important than the answer itself. It is more about the attorney communicating to jurors than it is about an exchange between the attorney and the witness. We once watched a plaintiff admit that he did not read the contract in a case claiming fraudulent misrepresentation. He claimed the contract did not adequately disclose a key issue, but also admitted he did not read the contract in its entirety. Like the tappers, most attorneys immediately recognize this testimony cuts against the reasonable reliance element of a fraud claim. But jurors do not necessarily realize this implication and how it could affect their decision in the case. It is plausible to jurors that the plaintiff understood the contract and the relevant provisions even if he did not read it word-for-word. They have probably done exactly that. Perhaps many times. We have watched so many mock jurors explain away a plaintiff’s failure to read a contract by arguing that most people don’t read every word of the contracts they sign, which resonates. It only complicates matters that the legal elements of fraud are abstract, and it is too easy for jurors to lose sight of why such an admission is important to rendering a verdict based on the law. A cleverly worded question can implicate this admission. For example, the cross-examining attorney might ask the plaintiff, “Mr. Jackson, one element of a fraud claim jurors must evaluate is whether you reasonably relied on the representation that you claim in this case is not true. If you did not read this contract, how could you have relied upon it?” Simple questions with clearly stated implications tie it all together for jurors so they understand what to do with the key admission the attorney just obtained from the witness.
4. Signify transitions. Finally, attorneys should incorporate questions that highlight transitions between topics. This might sound simple and obvious, but attorneys often skip this step and jurors conflate and confuse issues that are unrelated as a result. We saw this recently in an employment case involving multiple, differing claims. One motivated mock juror used evidence for one issue to try to argue an unrelated issue and was quickly shut down by opposition, undermining the motivated juror’s credibility and motivation to speak up in deliberations. The cause was simple: the attorney presenting for the side this juror favored had not provided clear signposting and transitions when talking through the different claims, and this juror confused evidence and issues as a result. Fix this problem by incorporating simple transition statements into the questions, such as “Mr. Hurley, those are all the questions I have for you about your whistleblowing claim. I would like to change topics now and ask you some questions about your discrimination claim.” This simple statement can provide important guidance. One clever strategy we have seen for taking this a step further involves the use of different colored folders. We have seen attorneys who will have for example a blue folder with all their questions about one claim. When they are done asking the questions about that claim, they take the blue folder back to their table and pick up the green folder that has all the questions for the next issue. This provides a visual component to the transition and gives jurors a moment of pause while the attorney is swapping out folders. These momentary mental breaks can help jurors stay focused and better appreciate the transition to a new issue.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver.
