The Value of Hiring a Credible Attorney - Part 1 [DRI]

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1. Records & Depositions Litigation Psychology Trial Consulting Critical Communications 4950 North O’Connor Road, Suite 100, Irving, TX 75062-2778 Phone 972.717.1773 Toll Free 800.514.5879 By Steve M. Wood The Value of Hiring a “Credible” Attorney Part One

2. The Value of Hiring a “Credible” Attorney, Part One In-House Defense Quarterly | Spring 2019 More importantly, attorney credibility has been an area of interest to attorneys themselves. Based on the literature and personal discussions with many trial attorneys, there appears to be two camps when it comes to this topic. The first camp often states, “Of course attorney credibility matters,” while the second camp often espouses sentiments such as, “What does the attorney’s credibility have to do with the case? The facts are the facts.” There does not appear to be much middle ground—it is an all or nothing proposition. However, the answer to the question, “Does an attorney’s credibility matter in the courtroom?” may not be that straightforward. The literature is replete with recommendations on how attorneys can become more persuasive in the courtroom; however, there are only a few scientific studies related to civil litigation that examine whether the perceived characteristics of attorneys are related to courtroom outcomes. Moreover, there has been little discussion about the things that jurors have stated that attorneys should not do in the courtroom. In this first part of a two-part series, we will (1) define what attorney credibility is and what it is not and (2) examine how attorney credibility influences verdict outcomes. Attorney credibility has been a topic of interest in academia and the legal community for quite some time. Why Should Attorneys (and Their Clients) Care? Whether attorneys believe that their credibility influences jurors’ beliefs, attitudes, or decisions, there are several reasons why they (as well as the clients who are hiring them) should be interested in how jurors perceive them. One of the primary reasons is that attorneys provide the lens through which jurors view a lawsuit. It is not in their clients’ best interests for the attorneys to present themselves in such a way as to provide the wrong lens inadvertently because of their behaviors or mannerisms. We have heard loud and clear from jurors that they are paying attention to the extralegal characteristics of the attorneys. For example, during mock trials and “mirror,” or “shadow,” juries, we have heard from jurors who have noticed minute behaviors of attorneys, such as chewing tobacco, rolling their eyes during the other party’s presentation, and “the way in which an attorney flipped her hair.” Lead counsel are not the only ones who are being watched, either. Jurors also notice the behaviors and demeanor of the other individuals sitting at the counsel tables or just behind. For example, we have had mirror jurors tell us that they did not like the fact that defense co-counsel was constantly whispering to one of her colleagues who was seated behind the counsel’s table during the plaintiff’s presentation. Aside from being distracting, it was viewed as disrespectful to the opposing party. Attorneys also need to consider their behaviors outside of the courtroom and within the vicinity of the courthouse. As we often advise attorneys and witnesses, “You should always assume that jurors are watching your behaviors, even before you step inside the courthouse.” We witnessed a quintessential example of this several years ago. A corporate executive of a convenience store chain provided powerful, effective, and compassionate courtroom testimony. However, after he left the courtroom, some jurors overheard him on the telephone berating his secretary. After witnessing and hearing these behaviors, the jurors formed an extremely unfavorable opinion of the corporate executive and ultimately sided against his company. During post-trial interviews, several jurors pointed to the telephone interaction as a glimpse into who they believed the corporate executive really was. To these jurors, the individual they saw on the stand was a “fake.” The mistake made by this corporate executive has been made by attorneys as well. In numerous post-trial interviews, jurors have commented on attorneys’ behavior outside the courtroom as discrediting them in the same manner. Clients should also be interested in how jurors perceive attorneys because the academic literature suggests that there are several instances in which an attorney’s credibility may play a role in verdict decisions. Jurors are likely to rely on

3. The Value of Hiring a “Credible” Attorney, Part One In-House Defense Quarterly | Spring 2019 simple heuristics (e.g., likability and credibility) in cases when the evidentiary strength is not obvious for one party (Findley & Sales, 2012). These moderately strong cases are precisely the ones that are likely to make it to the courtroom. Jurors will also rely on heuristics when they do not have the ability to attend to a message (Petty & Wegener, 1998). Complex cases increase this likelihood, making patent infringement litigation rife for situations in which jurors will rely on attorney credibility to help them make verdict decisions. It was once thought that jurors will attend to heuristic cues if they did not enjoy thinking at a deep level (e.g., Cacioppo, Petty, Feinstein, & Jarvis, 1996). However, more recent findings indicate that jurors will attend to the attorney’s credibility, regardless of their enjoyment of thinking at a deep level (Wood, DeVault, Miller, Kemmelmeier, & Summers, 2018). A third reason why attorneys should be interested in their perceived credibility is that it has the potential to influence the perceived credibility of witnesses. An experimental study found that manipulating the plaintiff and defense attorneys’ credibility can affect jurors’ perceptions of an expert witness’s credibility. Participants rated the plaintiff expert witness’s credibility higher when the plaintiff attorney was viewed as credible compared to non-credible. Likewise, the expert witness for the defense was evaluated as more credible when the defense attorney was viewed as credible compared to non-credible. This study did not evaluate perceptions of fact witness credibility; however, we believe that these findings can be extrapolated to fact witnesses because their credibility is being assessed “on the fly” more so than expert witnesses, who provide their credentials to a court. This becomes incredibly important when considering that perceptions of fact witnesses are often one of the most important elements of juror decision-making. In sum, attorneys and their clients have several reasons why there should be a concern with jurors’ perceptions of an attorney’s credibility. Moreover, attending to their credibility is something that attorneys should worry about regardless of the case type, who is sitting in the jury box, and who is sitting on the witness stand. Attorney Credibility in the Courtroom With a clearer understanding of what attorney credibility is, the question remains, “Does it matter to courtroom verdicts?” Within the realm of civil litigation, the answer to this question is, “It depends.” Specifically, it depends on (1) how attorney influence is being measured and (2) which attorney is being referred to. Wood, Sicafuse, Miller, and Chomos (2011) conducted a study using data from federal court jurors from the U.S. District Court for the Southern District of Iowa who served between the years of 1997 and 2009. These jurors were asked to rate the plaintiff and defense attorneys’ opening statements, evidence presentation, closing arguments, courtroom demeanor, sincerity, competence, and preparedness on a 5-point scale, ranging from 1 = very poor to 5 = excellent. Wood et al. (2011) collapsed the opening statements, evidence presentation, and closing arguments ratings into one “presentation” variable. Similarly, the authors combined courtroom demeanor, sincerity, competence, and preparedness into a single “credibility” variable. The study results showed that two factors were related to final verdicts: plaintiff attorney presentation scores and defense attorney credibility. The higher the plaintiff attorney’s presentation scores, the more likely the jury was to find for the plaintiff. The higher the defense attorney’s credibility scores, the more likely the jury was to find for the defense. However, one potential drawback of these studies is that they are correlational in nature and do not allow for a clear examination of attorney credibility. Academics have suggested a true test of attorney influence can only be done with a scientific experiment in which everything is held constant except for the attorney behaviors. A recent study did just this. After experimentally manipulating the plaintiff attorney’s credibility (credible or non-credible), the defense attorney’s credibility (credible or non-credible), and the plaintiff’s evidence strength (strong or ambiguous) in a toxic tort case, attorney credibility was found to be an influential factor in jury decision making (Wood et al., 2018). Across liability, causation, and compensatory damage verdict decisions, attorney credibility, and not case evidence, was found to be the primary determinant in jurors’ decision making. However, as will be shown next, not all attorneys have equal influence on jurors. Findings from the Wood et al. (2018) study showed that the plaintiff attorney’s credibility had a more direct

4. The Value of Hiring a “Credible” Attorney, Part One In-House Defense Quarterly | Spring 2019 influence on liability, causation, and compensatory damage decisions than the defense attorney’s credibility. Regarding liability decisions, participants were more likely to render liability verdicts when the plaintiff attorney was credible versus non-credible. (For the sake of parsimony and clarity, only the results related to the ambiguous evidence condition are reported for liability verdicts. Different results were found when the plaintiff’s evidence was strong. However, ambiguous cases are the ones more likely to go on to trials; therefore, the results are more useful than the ones related to strong cases. For results related to the strong evidence condition, please contact the author. The findings for causation and compensatory damage awards are presented independent of evidence strength.) However, this only occurred when the defense attorney was credible. When the defense attorney was not credible, the plaintiff attorney’s credibility did not influence liability verdicts. This suggests that a credible defense attorney can place the onus on the plaintiff attorney to ensure that he or she is seen by jurors as a credible source. If the plaintiff attorney cannot do this, the likelihood of a favorable verdict decreases because jurors seem to be making those individuals who possess the burden of proof pay for any perceived non-credibility. When the defense attorney is not credible, the onus on the plaintiff attorney to be perceived as credible is removed. Therefore, a non-credible plaintiff attorney could still be successful against a non-credible defense attorney, but a non-credible plaintiff attorney will not be successful against a credible defense attorney. See Table 1 for the percentage of liability verdicts across attorney credibility and evidence strength. Regarding causation verdicts, Wood et al. (2018) found that an individual’s need for cognition interacted with the plaintiff’s credibility. “Need for cognition” relates to an individual’s tendency to engage in and enjoy effortful thinking (Cacioppo et al., 1996). Individuals with high need for cognition engage in and enjoy effortful thinking more than individuals with low need for cognition. Results from the study (as indicated in Table 2) showed that individuals who had higher need for cognition were more likely to render a causation verdict in favor of the plaintiff when the plaintiff attorney was credible versus non-credible. For individuals who had low need for cognition, the plaintiff attorney’s credibility did not matter. Therefore, individuals who enjoy effortful thinking are attending to a plaintiff attorney’s credibility when rendering causation verdicts more so than individuals who do not enjoy effortful thinking. It is believed that the reason why this occurs is that high need for cognition individuals are scanning their environment and looking for pieces of information that they can use to make an informed decision. The plaintiff attorney’s credibility is seen by these individuals as an additional piece of evidence, rather than some periphery piece of information. Interestingly, across both groups, the defense attorney’s credibility did not influence causation verdicts. This suggests that jurors were focusing more on the plaintiff attorney’s credibility when making causation determinations than the defense attorney’s credibility. This is yet another example that jurors are placing the burden on plaintiff attorneys not only to prove their case, but also to prove that they are credible. Jurors will make plaintiff attorneys pay if they fail to meet their burden. Such a burden is not being placed on defense attorneys. Table 1. Percentage of Liability Verdicts by Attorney Credibility Plaintiff Attorney Credibility Defense Attorney Credibility Liability Verdicts Non-Credible Non-Credible 60 percent Non-Credible Credible 52 percent Credible Non-Credible 74 percent Credible Credible 81 percent Plaintiff Attorney Credibility Defense Attorney Credibility Low Need for Cognition High Need for Cognition Non-Credible Non-Credible 70 percent 60 percent Non-Credible Credible 71 percent 58 percent Credible Non-Credible 73 percent 87 percent Credible Credible 70 percent 83 percent Table 2. Percentage of Causation Verdicts by Attorney Credibility and Need for Cognition

5. The Value of Hiring a “Credible” Attorney, Part One Steve M. Wood, Ph.D., is a social psychologist at Courtroom Sciences, Inc. (CSI), a full-service, national litigation consulting firm in Irving, Texas. Dr. Wood uses his social psychological experience to help clients understand the juror decision-making process and maximize the likelihood of favorable case outcomes. CSI is a corporate member of DRI. Finally, Wood et al. (2018) found that only the plaintiff attorney’s credibility mattered when jurors were considering compensatory damage awards. The plaintiff was more likely to receive the amount that she asked for ($500,000), or more than she asked for (average award of $3,161,666.67), when the plaintiff attorney was credible versus non-credible. Alternatively, the plaintiff was more likely to receive less than she asked for (average award of $224,016.04) when the plaintiff attorney was non-credible versus credible. These findings suggest that jurors are monetarily rewarding credible plaintiff attorneys and their clients, while punishing non-credible plaintiff attorneys and their clients. Someone may argue that the findings from these studies make intuitive sense because jurors were trying to rationalize why they voted a certain way. For example, jurors were thinking, “Of course I think the plaintiff attorney is credible because I sided with the plaintiff.” However, these arguments are problematic for a few reasons. First, the Iowa study using federal jurors found that the plaintiff attorney’s presentation was related to verdict decisions. On the other hand, the defense attorney’s credibility was related to verdict decisions. If jurors are attempting to rationalize their decisions, why would they use one metric for the plaintiff attorney and another for the defense? It seems more practical that jurors would use presentation or credibility to rationalize their decision, not a mixture of the two. A second reason why a rationalization argument is problematic is because the current author has conducted three experimental studies in which attorney credibility has been manipulated and verdict decisions have been rendered. Across these studies, the presentation of the verdict decisions and attorney credibility ratings have been counterbalanced (i.e., some participants render verdict decisions first and others provide attorney credibility ratings first). Findings indicate that it does not matter the order in which the verdict decisions or ratings are made. Credibility decisions are similar if they come before or after the verdict decisions, and verdict decisions are similar if they come before or after attorney credibility ratings. Therefore, it appears that jurors are not rationalizing their attorney credibility ratings based on their verdict decision and vice versa. What appears to be happening, as mentioned earlier, is that jurors are using the attorney’s credibility as an additional piece of information with which to judge the merits of the case. The courtroom is an environment in which there is a complex interplay between various factors. Some of these factors are within an attorney’s control, while others are not. Attorneys must approach each case with a heightened understanding that a strong case will not necessarily carry the day. There will be instances in which jurors will integrate an attorney’s perceived credibility into their decisions. There will also be instances in which the preconceived notions of the way in which a jury should process information will be incorrect. Overlooking any of these aspects could mean the difference between a favorable or unfavorable verdict. The data is clear: hiring credible attorneys is beneficial to plaintiffs and defendants. Fortunately, credibility is something that can be measured. We strongly encourage clients to contact experienced litigation psychologists who are skilled in evaluating attorney credibility. In Part Two of the series, we will examine the ways in which attorneys can hurt their perceived credibility. We will also discuss how these findings can be put into practice by attorneys. Clients should also be interested in how jurors perceive attorneys because the academic literature suggests that there are several instances in which an attorney’s credibility may play a role in verdict decisions.

6. The Value of Hiring a “Credible” Attorney, Part One In-House Defense Quarterly | Spring 2019 References Cacioppo, J.T., Petty, R.E., Feinstein, J.A., & Jarvis, W.B.G. (1996). Dispositional Differences in Cognitive Motivation: The Life and Times of Individuals Varying in Need for Cognition. Psychological Bulletin, 119(2), 197–253. doi: 10.1037/0033- 2909.119.2.197. Cheung, C.M.K., Lee, M.K.O., & Rabjohn, N. (2008). The Impact of Electric Word-of-Mouth: The Adoption of Online Opinions in Online Customer Communities . Internet Research, 18(3), 229–47. doi: 10.1108/10662240810883290. Curseu, P., & Curseu, A. (2001). Source Credibility in Decision-Making – A Game Theory Approach . Cognitie, Creier, Comportament, 5(2), 159–78. Likeability vs. Credibility. Fast Company (Mar. 8, 2018), Findley, J. D., & Sales, B. D. (2012). The Science Of Attorney Advocacy: How Courtroom Behavior Affects Jury Decision Making. American Psychological Association. Hovland, C.I., Janis, I.L., & Kelley, H.H. (1953). Communication and Persuasion. Yale University Press. Kaufman, D.Q., Stasson, M.F., & Hart, J.W. (1999). Are the Tabloids Always Wrong or Is that Just What We Think? Need for Cognition and Perceptions of Articles in Print Media. Journal of Applied Social Psychology, 29, 1984–97. doi: 10.1111/j.1559- 1816.1999.tb00160.x. Lovas, M., & Holloway, P. (2009). Axis of Influence: How Credibility and Likeability Intersect to Drive Success. Morgan James Publishing, LLC. McCook, C. Establishing Credibility and Likeability: Two Necessary Goals When Introducing a Speaker. LinkedIn (Mar. 22, 2016), Petty, R.E., & Wegener, D.T. (1998). Attitude Change: Multiple Roles for Persuasion Variables. In D. T. Gilbert, S. T. Fiske, & G. Lindzey (eds.), The Handbook of Social Psychology, at 323–90. McGraw-Hill. Wood, S.M. (2006). Attorney Performance, Strength of Evidence, and Courtroom Outcome. Unpublished master’s thesis, Central Michigan University. Wood, S.M., Sicafuse, L. L., Miller, M.K., & Chomos, J.C. (2011). The Influence of Jurors’ Perceptions of Attorneys and Their Performance on Verdict. The Jury Expert, 23(1), 23-41. Wood, S.M., DeVault, A., Miller, M. K., Kemmelmeier, M., & Summers, A. D. (2018). Decision-Making in Civil Litigation: Effects of Attorney Credibility, Evidence Strength, and Juror Cognitive Processing. Unpublished.


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