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A version of this article first appeared in Leader's Product Liability Law and Strategy.

Jury Persuasion in Products Liability Cases:

A Litigation Psychologist's Approach

An article in two parts
by Amy Singer, Ph.D.

Attorneys in products liability cases, whether representing the defense or the plaintiff, face an extremely difficult challenge. The practitioner must not only present his or her case in a cogent and compelling fashion, but more importantly, find some manner to motivate the jurors to accept it both logically and emotionally. In other words jurors must come to believe in the case as much as the attorney does. Achieving this is no small task. In this two-part article I will discuss some psychologically sound rhetorical tools and related techniques attorneys can use to accomplish this goal - persuading jurors not only to accept the case but to believe in it wholeheartedly.

Trials are often regarded as classic battles of hearts and minds. But the most sage and seasoned trial masters know that if you can win the jurors' hearts, their minds will surely follow. It is important that the practitioner understand why this is so.

Consider these two key facts regarding jury decision-making: 1) jurors reach their verdict decisions with their right brains, then endorse these decisions with their left brains (that is, they utilize emotions to decide the case, then rummage through the evidence to authenticate their emotional reactions on an intellectual basis); and 2) jurors decide cases on the basis of perceptions, not reality.

The key to courtroom success is therefore to persuade jurors regarding the merits of the case at an emotional (read: subconscious) level. This can best be achieved by employing psychologically powerful persuasive techniques to mold the desired perceptions of jurors so they regard the case in the strongest possible fashion.

Impossible to persuade the non-persuadable

Jurors whose value beliefs - that is, basic bedrock principles - run counter to your case are highly unlikely to come down in favor of it during deliberations. This is why one of the attorney's primary tasks is to use voir dire to effectively de-select panelists who are biased regarding key case issues right out of the box. For many practitioners this often proves to be a hit-or-miss proposition - but doesn't have to be.

The key to voir dire is: 1) use open-ended questions - "please share your feelings concerning the ethics of manufacturers" - to determine the panelists' primary attitudes regarding the key case issues; 2) allow panelists to speak openly and fully (and thus bury themselves if they are blatantly prejudiced); and 3) de-select accordingly.

Aristotle's fourth principle

Aristotle taught that a speaker must display an adequate level of emotion to sway his or her audience. This is particularly true in the courtroom with jurors. But post-verdict interviews routinely indicate that lack of enthusiasm on the part of attorneys often cripples their cases in the eyes of jurors. Jurors cannot believe in an attorney's case if he or she approaches it mechanistically or without emotion. Incorporating an appropriate level of passion when presenting the case is critical to enlisting the jurors on your client's side during deliberations.

Give jurors something they can latch onto

It is hard work to think, and jurors will try to avoid thinking whenever possible. (Jurors, like most people, are "cognitive misers.") But a trial is a message-dense environment, with a multitude of opposing facts, arguments, testimony, and evidence flying back and forth throughout the courtroom.

The way most jurors try to handle this data overload is to quickly find a trial story line that best matches up with their basic belief systems, then shut down any additional information processing. This is why successful attorneys always employ easily understandable trial themes to immediately grab jurors during opening statement, and then regularly reinforce the thematic message, over and over, with the jurors throughout the trial. By closing argument the jurors should know the theme and its trial ramifications just as well as the attorney.

Litigation research shows that: 1) jurors deliberate in themes, 2) a theme is the primary mental organizer jurors use to remember the facts, and 3) themes facilitate evidence comprehension and enable juries to reach pre-deliberation verdict decisions. The best trial themes can be summed up in a single word. In a typical products liability case, for example, a good trial theme might be "accountability" (for the plaintiff) or "responsibility" (for the defense). Be sure and thoroughly test - and thus validate - your trial theme through jury simulations. The right trial theme will achieve the widest level of acceptance with jurors.

Must tell a story

Psychological research indicates that human beings intuitively utilize a highly schematic approach to assimilate, comprehend, store, and retrieve information - and that the "story" format is the most universally popular (and efficient) "schema" for these purposes. A good trial story and theme work hand-in-hand to lock the jurors into a basic understanding of the primary case issues. The trial "story" incorporates the primary thematic message and neatly outlines all of the case facts in a chronological, step-by-step fashion. Jurors then subconsciously use the theme to look for evidence that "fits" the carefully constructed trial story, and to disregard evidence that does not.

It is essential that the attorney employ an engaging and credible trial story that involves a clear beginning, middle, and end, along with a compelling trial theme, to persuade jurors regarding the case.

Primacy - recency

Researchers have established that what people hear first they remember longer, while what people hear last they remember better. Which concept - primacy or recency - should therefore be most important to attorneys when planning the trial presentation? How about both? Considering jurors' short and often wandering attention spans, primacy must be a key consideration when presenting the case. The primacy effect can be exploited in numerous ways - by clearly establishing the case theme in the first few minutes of opening statement; by lining up your best witness for testimony first thing in the morning or immediately after lunch; by asking the most central questions to a witness first, and so on.

Conversely, recency can be exploited, for instance, during cross-examination by adroitly maneuvering to skewer an adverse but weak witness at the end of the day, thus giving jurors something to think about until the trial resumes; by closing the session with your strongest demonstrative evidence; and of course during closing argument.

Psychologically potent rhetorical tools and techniques

Jurors use an idiosyncratic approach to handle information from a case. Repetition, key phrases, analogies, tone of voice, and other non-evidentiary factors have an extremely powerful effect on each juror's subconscious and the way he or she processes information and reaches decisions. Let's take a brief look at some useful rhetorical devices that can be effectively employed in the courtroom.

Expectancy Statements

Framing statements to the jury by saying, "You can expect us to show that..." is an excellent way to get the jurors to anticipate (and wait for) important case information you plan to introduce later. In psychology, this is known as gaining the "selective attention" of the subjects. This means that jurors will unconsciously look for information that supports the case argument and disregard information that doesn't.

Rhetorical questions

Using rhetorical questions - "what are the primary issues of this case?" or "would we need to be here today if the plaintiff had exercised a simple modicum of responsibility in his actions?" - will produce more favorable results with juries than statements where only strong arguments are employed. Research indicates that introducing a counter-attitudinal message with questions leads to a more intensive processing of the message's content than introducing it with statements.

Colorful language

It is not surprising that two colorful Southerners with down-home, deep-fried, country styles - former Sen. Dale Bumpers - D-Arkansas and Rep. Lindsay Graham, R-South Carolina - got the biggest laughs during President Clinton's recent impeachment trial in the Senate. Mr. Bumpers broke up his former Senate colleagues when he said: "If someone tells you this is not about money, it's about money." Equally funny was Rep. Graham when he commented on one of President Clinton's late-night phone calls to Monica Lewinsky: "Back where I came from, when someone calls you at 2:00 A.M., they're up to no good."

Colorful, even whimsical, language is almost always far more memorable and has a much stronger impact on jurors than run-of-the-mill, tired verbiage. Whenever you can, try to dress up your courtroom oratory with vivid and bright words and phrases to get the jurors on your side.

Rule of Three

Studies in communications research show that an idea must be repeated at least three times for it to be remembered. "Responsibility! Responsibility! Responsibility! If only the plaintiff had given some thought to this basic concept, this trial would not be necessary." People remember better and agree more when they hear something three times.

Use of Double-Binds

Characterizing the opposition in "either-or" terms that are both negative is an effective way to minimize juror sympathy for the opposition - for example, "did the plaintiff injure himself because he was inattentive, or because he was careless?"

Analogies & Metaphors

Freud said that "analogies prove nothing but they make us feel right at home." The practitioner should use analogies and metaphors throughout his or presentation to highlight arguments and illustrate key facts - for example, "a smoke detector that stops working due to a simple short circuit is like a life preserver that keeps you afloat until it gets wet."

Today's courtroom - the Yucca Flats of modern day applied psychology

It used to be that an academic and highly technical presentation of the case would win the day in court. But today, in America's new Oprah-fied culture, this is no longer true. Successful legal practitioners must now be amateur psychologists, expert at knowing precisely when and how to push the jurors' requisite emotional buttons to persuade them to reach the desired verdict. This can best be accomplished if the practitioner has first armed himself or herself with a full arsenal of psychologically powerful rhetorical tools and techniques that are guaranteed to move jurors and positively influence their decision-making.

In the second part of this article, to be published in the [month year] edition of Leader's Product Liability Law and Strategy, I will examine additional highly successful persuasive techniques for the courtroom, including neurolinguistic programming and the use of embedded commands, classically conditioning jurors, transmitting power through personal demeanor and style, and related communication topics.

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Amy Singer, Ph.D., trial consultant, is a nationally recognized authority in the field of litigation psychology, and an expert regarding the psychology of jurors and juries and the dynamics of a jury's deliberations and decision-making processes. Dr. Singer is the founder and president of Trial Consultants Inc. (jury research and trial preparation), Litigation Consultants Inc. (a litigation think tank) and the Institute for Settlement Sciences (settlement intelligence services), all headquartered in Fort Lauderdale, Florida. Telephone: (954) 525-9663. Mail: JuryDoctor@aol.com.