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A version of this article first appeared in Trial Diplomacy Journal.

Using Psychology to Win in Court

by Amy Singer, Ph.D.

Courtroom victory cannot always be gained through sheer legal firepower alone. In a trial, the heavy cannons of argument and evidence can prove useless if not accurately targeted - i.e., locked on the jurors and what they need to see and hear. Off target, each powerful fusillade becomes mere fireworks, blazing brilliantly in the courtroom but accomplishing nothing. Think not? The first O.J. Simpson trial dramatically proved that a vast armada of damning evidence that is not insightfully presented can sink without a trace as if it did not exist.

It is true of course that trials do sometimes resemble massive B-52 bombing raids, with one side blowing huge holes in the opposing side's case, and blasting away all counter-arguments. Often, however, the successful trial is more guerrilla campaign, organized and conducted with perspicacity and focus to win the hearts and minds of the jurors.

To achieve these goals the attorney needs to understand the jurors - who they are, what motivates them, and how they make decisions. The answers to such questions comprise the primary subject material of psychology; and in particular, litigation psychology. The more knowledge the attorney possesses concerning psychology, and its courtroom ramifications, the better he or she can expect to do in court.

Jurors enter the courtroom with opinions already formed

Jurors bring to trial the heavy emotional baggage of pre-conceived attitudes, opinions, and prejudices. Extensive jury research indicates that these powerful (and largely subconscious) motivating factors carry tremendous weight regarding the verdict decisions jurors make.[1]

It is incumbent therefore that the attorney plan and present the case, not only on an intellectual level, but also with a special awareness regarding the case's possible psychological effects on the jurors. This means the attorney must be perceptive regarding the jurors' individual psyches; while also being able to anticipate, as much as possible, the jury's group (read: psychological) dynamics as they interact and deliberate with each other to reach a verdict.

Failure by the attorney to factor the case along these lines almost always proves to be a serious mistake. He or she may serve up the strongest possible legal case to the jurors. But unless the case is also planned along this crucial psychological plane, it is likely to fall flat in court.

Many attorneys uncomfortable using psychological approach

Attorneys are rigorously educated in the most minute aspects of the law, in proper trial procedures, and in all of the other complex and demanding requirements and tasks associated with planning and presenting a case in court. But most law schools fail to adequately prepare attorneys to conduct real-world cases that also are psychologically intuitive. This is unfortunate. You cannot expect to influence a jury unless you understand them psychologically.

Psychology affects every conceivable aspect of trial case planning, preparation, and presentation, from pre-trial surveys to post-verdict interviews. Space limitations do not permit a full exploration of how a better understanding of psychology can be of immense aid to the attorney in all of the various trial planning and presentation aspects. But we can discuss some key areas that will be helpful.

For example, we'll consider psychology's first principle and how it can be effectively employed by the attorney to help ferret out, then de-select, problem jurors during voir dire. We'll take a look at how jurors assign blame in court cases, and discuss how reframing the information presented to them at trial can change a probable negative outcome. We'll discuss how jurors think and act when they deliberate together concerning damages award amounts. And we'll consider some psychologically powerful persuasion and rhetorical techniques from the world of litigation psychology[2] and related fields that can help attorneys be more effective in court.

Psychology's most important principle

The key rule in psychology: Reinforcement increases the probability of response. This means that people are more likely to open up and reveal their true feelings if they are complimented when they do. Equally important, individuals who are questioned should not be judged harshly if they provide information that is not preferred. Positive and negative answers to questions should merit the same type of response from the questioner: "Thank you, sir; it's good that you mentioned that!"

Reinforcement is the guiding principle of therapy, where it is critical that patients reveal themselves completely to the therapist. The reinforcement principle also can be put to valuable use during voir dire where attorneys need to quickly learn who the problem jurors are, so they can be de-selected.

This means the attorney should be completely non-judgmental while questioning jurors regarding their value beliefs,[3] i.e., the core attitudes and opinions they hold most dear. Otherwise, the jurors will not feel comfortable in revealing their true feelings about the case and its primary issues. So, reinforce all responses, whether good or bad.

Reinforcement, reflection, clarification

Reinforcement is just part of a sophisticated and highly effective response strategy the attorney should employ when questioning jurors during voir dire. After reinforcing answers as appropriate, the attorney should also openly reflect on, and attempt to clarify, the responses provided.

The renowned psychologist Carl Rogers was a master in using this technique to get his patients to open up and reveal themselves. He would always reinforce his patient's statements with an approving follow-up statement - "It's helpful you brought that up!" or "Thanks for that honest answer!" Rogers would then openly reflect on the patient's statement - "The fear you are now experiencing must be hard to handle" - to clearly show he had heard what the patient had said. Finally, he would make sure to clarify the statement - "So what you are saying is that....." - to eliminate any confusion.

This same approach can be used by the attorney during voir dire to determine the jurors' basic attitudes and possible biases. For example:

As the example shows, the attorney has been able to clearly expose the juror's bias concerning jury awards for all to see. This has been accomplished by encouraging the juror through reinforcement to reveal her genuine attitudes; by reflecting openly regarding these feelings; and by asking clarifying questions to spotlight the juror's responses (and biases) so they are crystal-clear. Remember: people love to talk about themselves and their opinions and beliefs. Give jurors the opportunity to do so during voir dire and they'll take it.

Note: By utilizing the reinforcement-reflection-clarification technique, the attorney has been able to set up this juror so she can be easily struck for cause.

Another important point: By handling voir dire in this manner, it is the jurors who are doing the speaking, not the attorney. Our firm's extensive jury research indicates that the biggest complaint jurors make about the voir dire process is that they feel the attorneys talk too much. Dale Carnegie taught that if you do most of the speaking, then people will end up judging you. Be sure not to fall into this common trap with jurors at the beginning of the trial.

Use open-ended questions

Note that the attorney uses open-ended questions to get the juror to provide the most expansive and revealing answers. This runs counter to the close-ended questioning style many attorneys use during voir dire. Close-ended questions can only be answered with tightly-controlled "yes" or "no" responses by jurors during voir dire - e.g., "Have you ever had a family member or close friend involved in a car crash?" or "Can you be fair in reaching your verdict?"

Such questions prompt only socially-acceptable responses, or answers that reveal little worthwhile information about the jurors and their attitudes regarding the central issues of the case. (Note: Questions regarding the ability to be impartial will almost always be regarded by jurors as insulting, and may result in answers that run directly opposite to the jurors' true feelings about the primary case issues.) Conversely, open-ended questions let jurors fully explain their basic attitudes and beliefs, and in a meaningful context to the key case issues at hand.

These type of questions usually begin with such phrases as "Can you tell us your opinion about...," "What do you think concerning.....," or "Please share your feelings regarding....." They usually end with references to actual case issues, e.g., "products liability law suits," "jury verdicts," "physician negligence," and so on.

What about contamination? This is largely a needless worry. People's bedrock beliefs and core values are almost impervious to change. Trained psychotherapists must sometimes work for years with their patients to alter such belief systems, often with negligible success. It is extremely unlikely that a juror's basic attitudes will be changed by a brief remark made by another juror during voir dire.

"Attribution" and "Ownership" Theories

"Attribution Theory" concerns how people place blame. This cognitive model represents the method by which jurors reach verdicts in court cases. Blame devolves in most verdicts on a "person" versus a "situation" basis. Did the plaintiff lose his leg in the car crash because of his trial opponent's poor driving habits (person)? Or because of bad weather and road conditions (situation)? Did the lawnmower mangle the small child's foot because of a lack of parental supervision (person)? Or due to an unsafe mower design (situation)?

Attribution of blame by jurors often depends on specific linguistic "cues" to which jurors respond. These signals fall into two categories: "person" cues and "situation" cues. Blame normally devolves to "person" or "situation," depending on the specific cue the jurors receive.

In addition to "Attribution Theory," another related cognitive model termed "Ownership Theory" (discovered and developed by my firm during the vehicle rollover case described in the following section) describes how jurors process information. It posits that linguistic cues in legal disputes are "owned" either by the plaintiff or the defendant.

Planning then planting linguistic cues

By exploiting these valuable "Attribution" and "Ownership" Theory insights, the attorney can present his or her case so the desired cues are received by the jurors and then used as the primary basis for their deliberations. To illustrate, consider the following example from my own practice.

A few years ago I assisted attorney Buddy Payne[4] of Miami with a vehicle rollover case. Our firm conducted extensive jury research to determine how the jurors would deliberate regarding the matter. In the first series of simulations the surrogate jurors speculated that the rollover was due to an "over-correction" they presumed the driver made to his steering. Since "over-correction" is a linguistic cue that is "owned" by the driver, the surrogate jurors blamed him for the rollover.

We then changed the focus of the deliberations by introducing two new linguistic cues to the surrogate jurors - "steer-ability" and "steer-worthiness." These linguistic prompts are clearly "owned" by the vehicle manufacturer. When the deliberations centered on these terms, the majority of surrogate jurors blamed the manufacturer for the rollover. The "steerability" theme was subsequently highlighted at every opportunity throughout the trial, and the plaintiff won handily.

Words carry special power. For example, the word "illness," should not be used by an attorney representing the plaintiff in a medical malpractice case - it is "owned" by the client. A better word to use would be "treatment," as in, "We must ask ourselves why a satisfactory treatment was not afforded the plaintiff."

Jurors utilize various heuristic principles to reach consensus regarding their verdict decisions - e.g., "information pooling," "error correction," and "conflict resolution." These terms are self-evident: Jurors pool the information they take from the courtroom; correct each other to eliminate erroneous interpretations of the case facts; and work together to resolve conflicts and reach a harmonious verdict to which all can agree.[5]

By insightfully recasting the facts of the case with the "Ownership Theory" in mind, the attorney is able to create a positive framework the jurors can use throughout the heuristic process described above to reach a favorable verdict decision.

"Equity Theory"

One of the best ways to understand how jurors determine damages award amounts is through a concept from social psychology known as "Equity Theory." This theory states that people prefer even outcomes, i.e., the amount of reward one party takes out of a situation (relationship, job, education) should be equal to the amount of investment (love, work, study) put into it. According to Equity Theory, inputs should always equal outputs.

Equity Theory represents one of the most basic concepts of social exchange. The attorney can employ this principle to present his or her case to the jurors in a manner to which they will surely be able to relate. To illustrate, consider a commercial case in which the attorney is seeking damages for the plaintiff. He or she should plan the overall case so as to propose an equitable exchange of inputs and outputs for the client. One good way to illustrate this would be to create a visual aid showing the time, effort, and money the plaintiff invested next to what represents an equitable return for these investments.

In such a dispute, jurors will work hard to be fair to all parties involved. A case presentation based on the Equity Principle provides an acceptable and easily-agreed upon framework the jurors can employ to reach consensus regarding a fair damages award. A colorful courtroom graphic, clearly showing inputs and outputs, can act as a primary starting point the jurors will feel comfortable in using to arrive at an equitable judgment.

Norm of reciprocity

The idea that people should pay back in kind what others give them is the concept behind the "norm of reciprocity," another important standard of social exchange since time immemorial. This concept can be effectively used for cases in which jurors may find it difficult to assess damages (e.g., often where the defendant is a doctor, hospital, or a pharmaceutical company).

The attorney should keep in mind that the Equity Principle and the norm of reciprocity also affect jurors and their own sense of obligation. For example, when de-selecting jurors in a medical malpractice case, it is critical for the plaintiff's attorney to determine if a particular juror's judgment may be swayed because he or she feels indebted to hospitals and doctors. "Has a doctor or hospital ever been instrumental in preserving your health?" or "Have you ever been dependent on life-saving drugs?" are useful questions to ask jurors during voir dire. The tone of responses provided may indicate whether a particular juror believes that he or she is in debt to the medical profession, according to the powerful norm of reciprocity principle. The attorney may be able to elicit bias by continuing to question the juror along this line.

Jurors feel a strong sense of commitment to restore fairness where fairness is missing. For this reason, the attorney who use the "Equity Principle" and the norm of reciprocity as the bases for a damages award is operating on very solid ground.

Jurors learn best through colorful visual evidence[6]

A trial is a learning process requiring good memorization by the jurors. Substantial evidence exists that people retain more information when it is presented to them with visual support. In this regard, jurors remember and retain about 10 - 15 percent of what they hear in court. Their retention rates increase dramatically however when the information they hear is supported with information they see - charts, pictures, diagrams, and other visuals and graphics.

Along this line, research indicates that jurors have roughly a 17-minute attention span; and that the first four minutes the attorney speaks will determine whether the jurors pay attention for the remaining 13 minutes.[7] Colorful and compelling visual aids can help engage the jurors for these all-important first four minutes.

Visual aids are important for another reason. Research indicates that the first step jurors take when forming opinions involves a memory process known as encoding. During this encoding process, mental information is classified according to specific criteria, and then forwarded on for additional logging and processing in the brain. Visuals and other graphics greatly facilitate this encoding/classification process.

When designing visual support aids, the attorney should be sure and put the power of color to work. Understanding the psychological effects of colors can help in the preparation of more compelling demonstrative evidence.

Red - A primal, exciting, energetic color. It is often used by color therapists to help raise blood pressure and to stimulate the nervous system. Red is employed widely and very effectively for courtroom graphics because it commands attention. One downside to the use of red for demonstrative evidence is that, along with green, it may not be picked up correctly by color-blind members of the jury.[8]

Black - The absence of color, black has a dense, heavy energy and is freighted with numerous negative associations. Consequently, it is best to use it sparingly in all visuals and graphics associated with the client.

Blue - Chosen by people as their favorite color more often than any other. Blue is a non-threatening and calming color that promotes trust. It has many positive associations, including serenity and spirituality.

Orange - Sometimes employed in medical settings to promote stronger heartbeats in patients. Orange is not a good color to use, however, for people who suffer from stress. Since the jury experience can be extremely stressful, orange is not recommended for use as a predominant color in most courtroom graphics.

Green - Relieves tension and can lower blood pressure. A highly restful color to the eye, green works well in trial graphics that combine with pink.

Yellow - An attention-getter, yellow is the color most quickly perceived by the eye. As such, it is often used to strong effect in trial displays.

Colors compliment one another, e.g., red and turquoise. When two complimentary colors are used in the same graphic or visual, they combine to present a balanced energy; as such, they promote a pleasing sense of completion for the viewer.

A final advisory: all graphics incorporating color should be thoroughly tested prior to trial to determine their overall acceptance with, and their effects on, jurors; along with their ability to communicate.

Psychologically powerful persuasion techniques

Theme development - A strong trial theme is critical to a successful case. The theme provides essential meaning and focus to all the case particulars. Studies indicate that: 1) jurors deliberate in themes; 2) the trial theme is the key mental organizer the jurors use to remember the facts; and 3) jurors look for evidence that correlates with the theme and ignore evidence that does not. Additionally, the trial theme enables the jurors to quickly relate to the case and its primary issues, while at the same time forming favorable case impressions. And favorable impressions win trials. Some good themes: "Prevention"[9] for injury cases, or "David versus Goliath" for commercial cases.

Rhetorical questions - Throughout history great orators have always used rhetorical questions to persuade audiences. Modern research indicates that rhetorical questions produce a stronger impact on the listener than mere statements of opinion or fact. This is because rhetorical questions lead to a far more intensive processing of message content by the listener.

Rhetorical questions can be extremely powerful persuasive tools when used during a trial - e.g., "Would we be in court today if the surgical staff had followed normal procedures during my client's operation?" or "Did the ABC Company fail to prevent this injury because they were negligent.....or because they were arrogant and simply didn't care about preventing injuries to their workers?" [10]

Analogies & metaphors - In most trials jurors must understand and evaluate an tremendous amount of information to reach their verdicts. Analogies and metaphors help jurors process and understand information more quickly by supplying easily-grasped word pictures. They make rhetoric and language totally memorable - e.g., "She got the gold mine, I got the shaft"[11] or "There's frost on my roof, but there's fire in my furnace."[12] (Analogies and metaphors also make language entertaining!)

"Expectancy Statements" - Psychology teaches that gaining the "selective attention" of subjects is a powerful way to promote interest in what you have to say. This can be achieved in the courtroom with jurors through the use of Expectancy Statements, e.g, "You can expect us to show that..." This type of rhetorical device causes the jurors, in effect, to pause and wait for other key trial information you will introduce later. The jurors' tendencies will be to unconsciously latch onto trial evidence and argument that support the anticipated "expectancy" information, while paying minor attention to information that doesn't.

Parallelism - Language with rhythm and rhyme evokes the most deeply-felt sensations among listeners. "If it doesn't fit, you must acquit," stated Johnnie L. Cochran, referring to the clothing and gloves evidence, in his summation at the first O.J. Simpson trial; we all know the outcome. Using parallel structure in language is an excellent method to reinforce an impression with the jurors, e.g., "My client's injury was avoidable because it was preventable. It was preventable because it was foreseeable."

Rule of Three - Communications research tells us that an idea needs to be repeated at least three times for it to be remembered. So, for example: "Arrogance! Arrogance! Arrogance! If the manufacturer had not been so arrogant, so unconcerned about the danger its product might represent to others, none of us would need to be here!"

Jurors employ a distinctive methodology to bring meaning and order to disparate case facts, evidence, and arguments. Repetition, key words and phrases, metaphors, voice tone, order of information (e.g., primacy and recency effects), and other non-evidentiary factors create a powerful pull on each juror's subconscious and the way he or she processes information and reaches decisions. The attorney needs therefore to carefully plan his or her rhetoric to realize the maximum psychological impact with jurors.

What about reading jurors through nonverbal "leakage?"

Don't do it! Many attorneys operate with the mistaken notion they can reliably determine juror personality characteristics through "body language." This is a major fallacy. There is no question that dress, attitude, demeanor, voice tone, gestures, tics, facial expressions, body alignment, eye contact or lack of same, and similar voluntary and involuntary body signs and signals can provide important and worthwhile information about personality, attitudes, truthfulness, and emotional state. It's true that seasoned and highly perceptive attorneys often can pick up valuable personality clues, at least in broad gauge fashion, about jurors through observation. Too often, however, body language can seriously mislead the non-clinical eye.

This is why attorneys who have no formal education and experience in advanced psychology or related fields are strongly advised against formally trying to uncover jury personality traits from body language and other nonverbal "leakage." There are simply too many subtle and conflicting body language signals, signs, and clues that can be easily misinterpreted by the untrained observer to develop a truly reliable "read."

Cultural, gender, ethnic, and nationality differences plus numerous other variables such as current health, employment, and emotional state can also result in mixed messages.

This is not to say that astute and worthwhile observations of nonverbal leakage cannot be made regarding a juror's psychological make-up and potential verdict behavior. This task however should be left to an experienced psychologist, psychiatrist, or similar expert working as a consultant.

Otherwise the attorney may mistakenly seat a supposed "positive" body language juror who ends up maniacally bludgeoning the case to pieces back in the jury room; or de-selects a "negative" body language juror who might have been sympathetic but was simply having a "bad hair" day.

Law and psychology - a strong interface

Being psychologically aware is essential in every avenue of life, including the courtroom. Attorneys must remember that a trial is not just about the law, opinion, and precedent; it is about people - the client, the jurors, the witnesses, the other side, the judge. And you can't understand people without understanding psychology.

But in a major trial where the stakes can be huge, a basic understanding of psychology is not enough. This is where the services of a psychologist specializing in litigation research can be helpful. Often, the attorney engages the psychologist to carefully study and predict the jurors' perceptions of the case issues, and how these perceptions are affected by the jurors' pre-existing attitudes, values, and beliefs.

The study of jurors' perceptions and of juror/jury decision making and information processing requires, at a minimum, knowledge and experience regarding planning a balanced research design; organizing scientific sampling procedures; and administering and analyzing the results of controlled research studies (e.g., jury focus groups and simulations) by the psychologist.

The psychologist rejects common knowledge and identifies the true antecedents of behavior through systematic observation of cause and effect relationships - e.g., "If this trial theme is used, then jury response X will occur" - plus, application of appropriate data collection techniques, and the repetition of research results to ensure generalizability. Such results are then expertly analyzed and interpreted to determine, among other findings, the ideal juror de-selection and case presentation strategies.

Through this systematic approach, the attorney can operate in court with confidence that his or her case will be one the jurors will be most receptive to psychologically - an essential requirement for courtroom success.

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Amy Singer, Ph.D., is a nationally recognized authority in the field of litigation psychology, a discipline she helped pioneer; and an expert regarding the psychology of jurors and juries and the dynamics of a jury's decision-making processes. Dr. Singer is the founder and president of The Singer Companies and The Institute for Settlement Services. Both companies are headquartered in Ft. Lauderdale, with offices across the country. Dr. Singer is the co-author, along with Texas trial attorney Pat Maloney, of Trials and Deliberations: Inside the Jury Room, published by Lawyers Publishing Corporation. Her articles on jury and trial matters are a regular feature of the legal and business media. Dr. Singer is called upon on a routine basis by the national broadcast media to provide informed courtroom commentary regarding prominent trials. She frequently lectures on jury and trial matters before numerous professional organizations across the country.

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[1] Studies show that jurors are most influenced by personal biases, secondly by legally inadmissible evidence, and only third by legally admissible evidence.

[2] Practitioners in the rapidly expanding field of litigation research develop the most reliable jury-validated information and intelligence available regarding jurors for particular cases - who they are, what they believe, and what will influence them as they deliberate to reach their verdicts. The final product of litigation research involves scientific findings which often are presented as a series of "if-then" statements - if this argument is made, then jury response "X" will occur; if this evidence is presented, then "Y" takes place.

[3] Numerous studies indicate that it is jurors' value beliefs - and not demographics - that comprise the only true factor proven to be predictive of verdict behavior.

[4] R.W. Payne Jr. - Spence, Payne, Masington & Needle, Miami.

[5] A jury's verdict will be affected by processes known as recognition of truth, rejection of error, and collective information processing. Research indicates that groups may recognize patterns and relationships better than individuals.

[6] Information in this section is drawn from my own practice; from Color Your Life, by Howard and Dorothy Sun, Ballantine Books, 1992; and from two papers by Rodney Jew, Corporate Design Strategies, Palo Alto: Decipher the Color Symbol Code: Using a Visual Strategy to Increase Your Courtroom Effectiveness and Strategic Application of Color: The Dynamics of Presenting Demonstrative Evidence.

[7] Along this line, it is important for the attorney to understand that the initial part of the opening statement plays an extremely important part in the overall trial. Every case should be summarized in the first paragraph of the opening statement. At no other point will the attorney have the jurors' same rapt and undivided attention. If they are lost at the beginning of the trial, it may be difficult to recapture them later.

[8] At least one in ten people suffer from some form of color blindness, according to Mr. Jew.

[9] One-word themes are the best ones to use. They help jurors quickly lock on the case's pivotal point, i.e., the fact or issue on which the entire case turns.

[10] Note the use of the double-bind. Characterizing your trial opponent in either-or terms that are both negative is an effective way to influence the jurors against the opposition.

[11] Tim Dubois, Warner House of Music, 1983 (from I've Got Tears in My Ears...Country Music's Best and Funniest Lines, compiled by Paula Schwed, Andrews and McMeel, publishers, Kansas City, Missouri.

[12] Opal Jean Holmes, Acuff-Rose Music Inc. (ibid.).