The Value of Hiring a Credible Attorney - Part 2 [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 courtroomsciences.com By Steve M. Wood, Ph.D. The Value of Hiring a “Credible” Attorney Part Two

6. The Value of Hiring a “Credible” Attorney, Part Two 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. Putting This Information into Practice Attending to their courtroom behaviors may not be something that all attorneys concern themselves with because they may believe that they have a good understanding of their perceived credibility. However, research has shown that defense attorneys rate their own performance more favorably than jurors (Linz, Penrod, & McDonald, 1986). Similarly, we have heard attorneys make comments about how they believe a juror is “on their side” based on how the juror was responding nonverbally (e.g., smiling) to the attorney’s presentation. But on seeing the juror’s verdict orientation, it becomes clear that the juror was not on the attorney’s side, and the nonverbal behaviors were suggesting that the juror did not believe the attorney. As a result of misunderstanding jurors’ perceptions of them, some attorneys may be unknowingly engaging in the behaviors mentioned above. Some attorneys may also be in the camp that believe that “the evidence will carry the day,” and their perceived credibility provides little to no influence on the verdict outcome. Historic and current civil litigation data on attorney credibility shows that this is not true. Of course, evidence is an integral part of any case; however, attorneys who overlook how jurors perceive their credibility do so at their own peril. Similarly, attorneys risk impugning the credibility of their expert and fact witnesses, thereby inadvertently decreasing the strength of their own case. This latter point is extremely important when considering that the credibility and performance of fact witnesses is pivotal to case outcomes. In closing, the comments that we have received from jurors about the things that decreased an attorney’s credibility were about highly skilled, highly successful attorneys who were involved in high-exposure litigation. If these comments are being made about them, we must wonder what is being said about less-experienced attorneys. Our research demonstrates that attorneys must make a concerted effort to understand how jurors perceive their credibility. This means working with researchers who have extensive knowledge to help prepare attorneys to avoid the pitfalls that lead jurors to blame the messenger. This also means that attorneys must be open to receiving feedback from jurors. Rather than running from it, attorneys must embrace the comments that jurors are making during mock trials and post-trial interviews. In the long run, what may be a temporary discomfort (it is human nature to have evaluation apprehension) may very well pay dividends in helping attorneys become more successful in the courtroom. Our research demonstrates that attorneys must make a concerted effort to understand how jurors perceive their credibility.

2. The Value of Hiring a “Credible” Attorney, Part Two In-House Defense Quarterly | Summer 2019 While this influence was more pronounced for plaintiff attorneys, defense attorneys play a pivotal role in forcing a plaintiff attorney to prove to the jury that he or she is credible. In the second part of our two-part series, we will (1) identify the actions and behaviors of attorneys that lead them to lose credibility with jurors and (2) provide insight into juror decision-making so that attorneys can increase their ability to deliver when the “bright lights come on” and the clients and jurors are watching. For several years, we have been collecting data on attorney credibility across a wide variety of case types. Jurors are asked to indicate why they believe that the attorney was credible or non-credible. The following section provides jurors’ views on the ways in which attorneys hurt their credibility. We conclude each section by providing insight into the rationale for why jurors believe that these actions and behaviors decrease an attorney’s perceived credibility. In Part One of our article, we discussed how attorney credibility can influence civil courtroom outcomes. Lack of Proof Even though jurors understand that the plaintiff has the burden of proof in civil trials, they still believe that defendants must disprove the plaintiff’s case as well, no matter the court’s admonishments. For jurors, it is never enough that the defense refutes the plaintiff’s claims and pokes holes in the plaintiff’s case: jurors expect the defense to provide them with credible “proof” that the plaintiff is lying, exaggerating, or misattributing blame. Jurors also expect the defense to provide them with evidence that the defendant acted consistently with the defendant’s duties and responsibilities in the matter at hand, regardless of whether these duties and responsibilities are outlined or challenged by counsel or perceived by jurors themselves. Without this type of evidence, jurors will begin to question the attorney’s credibility. This is because jurors will question whether the attorney can produce the requisite evidence. It may not be a question of whether the evidence exists, but whether the attorney is skilled enough to identify what is needed for the case and then locate the evidence. We have heard jurors justify their low attorney credibility ratings by stating the following: • “He didn’t check all the facts of the plaintiff’s case.” • “He made several assertions with little to no support shown.” • “Lots of unimportant and non-relevant information. Smoke and mirror tactics.” • “He didn’t give me all the news that I needed, didn’t explain himself all the way.” • “She was very vague with details.” Interpretation: Jurors expect that attorneys on both sides will provide clear, concrete, and credible cases. Moreover, jurors do not want to feel like the attorneys are attempting to trick them by providing vague, tangential, or irrelevant information. Not only will jurors believe the case is weak, they will also hold it against the attorneys.

4. The Value of Hiring a “Credible” Attorney, Part Two In-House Defense Quarterly | Summer 2019 Not Persuasive One of the primary jobs of an attorney is to convince jurors that the attorney’s position is more correct than opposing counsel’s. To be able to achieve this goal, attorneys must not only present jurors with evidence, but they must also be persuasive in their presentation. Based on responses from mock jurors and actual jurors in post-trial interviews, there are (at least) two ways that attorneys fail to be persuasive. First, jurors expect that the evidence will be persuasive. It is not enough just to have evidence in support of the attorney’s case. Rather, jurors are looking for evidence that persuades them to believe that the attorney’s position is “correct.” Second, jurors appear to expect that attorneys believe in their own arguments. Attorneys lose credibility with jurors when they believe that the attorneys are just “doing their job” or are “not convinced of their own arguments.” In addition, jurors understand and expect that attorneys will zealously advocate for their clients. Television shows and movies’ portrayals of attorneys have likely set jurors’ expectations for how passionate and animated an attorney should be. When perception does not meet reality, however, attorneys will lose credibility with jurors. For example, jurors have explained their low attorney credibility ratings by indicating that they held these views: • “She didn’t show any emotion in anything she said at all... she sounded like a robot.” • “He put me to sleep.” • “He looked like he was bored being there.” • “He didn’t seem too interested in his case.” Interpretation: Jurors are extremely astute when it comes to recognizing when attorneys are “phoning it in.” This fact becomes increasingly important not only when counsel is preparing for trial, but when counsel is preparing for a mock trial as well. For example, if a member of the defense team is portraying the plaintiff attorney in a mock trial, this attorney must give the impression that he or she is as engaged and as passionate as the plaintiff attorney will be in the real case. The defense attorney should behave in a similar manner during a mock trial. When conducting mock trials, one of most important things that we are attempting to do is to assist clients in having valid results (i.e., results that are as close to the real outcome as possible). If jurors do not truly believe that the attorneys are engaged and are passionate about their case during a mock trial, then the research design and subsequent findings can be flawed. Attorneys lose credibility with jurors when they believe that the attorneys are just “doing their job” or are “not convinced of their own arguments.”

3. The Value of Hiring a “Credible” Attorney, Part Two In-House Defense Quarterly | Summer 2019 Lack of Trustworthiness Lack of Humility It is no secret that the public does not trust attorneys. In a recent Gallup poll, only 18 percent of people indicated that attorneys have high or very high honesty and ethical standards, while 28 percent indicated that attorneys have low or very low honesty and ethical standards (Brenan, 2017). We have heard similar comments from jurors as well, such as these: • “I didn’t believe much of what she said.” • “She seemed like she was lying to us to help her client.” • “She will tell us what they want us to know.” • “Everything she said sounded like she was spinning the truth.” Interpretation: A prominent intellectual property attorney once opined, “What is important is that jurors come to the conclusion that the attorney believes what he or she is saying, not necessarily that the jurors understand what the attorney is saying.” To do this, jurors must trust the attorney. What is not clear, however, is whether jurors immediately do not trust attorneys because of preconceived biases, or the attorneys gave jurors reasons not to believe them, or both. Based on our research, the last scenario is more likely because we have heard from many jurors who have commented that an attorney appeared “genuine” and “believable,” which is no small task. This is a positive finding in that it suggests that attorneys may begin with jurors not trusting the attorneys, but the attorneys could overcome these preconceived notions. There is a fine line between confidence and cockiness in all facets of life, and the courtroom is no different. From the way attorneys interact with witnesses, to the way they dress, to their courtroom demeanor, jurors notice subtle (and sometimes not-so-subtle) behaviors that lead them to believe that the attorney is arrogant. On several occasions, jurors have made comments such as, “He seemed arrogant and more interested in criticizing the other lawyers.” Along similar lines, we have been told that an attorney should be “less cocky.” Interpretation: Humility is one of the most underrated of all aspects of personal perception. Although attorneys may not necessarily worry whether jurors like them or think that they are a “nice person,” what they should remember is that jurors view attorneys as the de facto representative of their client. Being perceived as arrogant has the real possibility of seeping over into jurors’ perceptions of an attorney’s client. As one juror noted about a male attorney, “He comes across as arrogant, at least as the face of his client, thus making the defendant seem arrogant.” Interestingly, the juror who made this comment was also asked, “If you were a jury of one, who would you blame most in this case?” (This was a case with multiple defendants.) This juror indicated that she would blame the attorney’s client more than the other defendants. Additionally, this juror awarded the highest apportionment of responsibility to this attorney’s client. While the attorney’s perceived arrogance was likely not the direct cause of the juror’s verdict, it likely provided a distorted lens with which to view the case evidence.

5. The Value of Hiring a “Credible” Attorney, Part Two In-House Defense Quarterly | Summer 2019 Lack of Remorse or Sympathy Unprepared Depending on the case type and facts, an attorney may be dealing with a case in which an individual, or individuals, have been severely injured or killed. In these types of cases, jurors have a heightened sensitivity to whether defense counsel displays remorse or sympathy on behalf of their client. Defense counsel that does not show remorse or sympathy will lose credibility with jurors. For example, we have heard jurors state the following: • “She came off as if she were trying to explain a very horrific situation as insignificant and minor.” • “She came off 100% corporate and 100% insincere.” • “Her presentation was rather cold and calculated.” • “She didn’t seem to care for the family and had no real feeling.” Interpretation: Many jurors are also cognizant that they cannot let sympathy and emotion play any part in their deliberation process. However, this is not to say that jurors expect themselves to be completely devoid of emotion. This expectation is also carried over onto the attorneys representing the different parties. While jurors may not expect defense counsel to concede liability, what they do expect is some acknowledgement that a human being has been injured or killed. Some jurors will have a higher expectation of this than others. We do not suggest that defense attorneys feign emotion; rather, defense attorneys should be aware that jurors are looking for (and expecting) these attorneys to provide some genuine outward appearance of remorse or sympathy. Jurors in real trials have been ripped from the fabric of their lives. They are asked to take hours, sometimes days, out of their normal routine to come and perform their civic duty. Those that are ultimately selected are likely not excited about serving on the jury and most prefer to be anywhere else besides the courtroom. Therefore, one of their primary goals is to get their jury service over and return to their daily routine. Standing in the way of this goal are attorneys who exhibit behaviors that indicate they have not thoroughly prepared for their presentation. As a result, the attorneys are wasting the court’s time and, more importantly, jurors’ time. • “He seemed like he didn’t know what he was going to say next.” • “He appeared to not be very well prepared, [glossing over visual aids, taking them down too quickly, fumbling through documents].” • “While he did present some good points, he also bounced around and was a little confusing.” • “She stumbled over her words a lot, misspoke.” Interpretation: Although mock trials are not “real” in the sense that the verdict decisions are not legally binding, jurors still hold the attorneys to a level of preparedness on par with attorneys in actual trials. Mock jurors are told that their participation can be helpful in resolving the dispute at hand. Therefore, the jurors come to expect that the attorneys will be “putting their best foot forward.” When an attorney exhibits behaviors that suggest he or she has not fully prepared a presentation, jurors begin to question the attorney’s credibility. As we previously mentioned, one of the goals of a mock trial is to achieve valid results. Attorneys that appear unprepared to mock jurors run the risk of invalidating the findings. Even worse, an unprepared attorney may receive an unfavorable verdict at trial.

7. The Value of Hiring a “Credible” Attorney, Part Two In-House Defense Quarterly | Summer 2019 References M. Brenan, Nurses Keep Healthy Lead as Most Honest, Ethical Profession, Gallup (Dec. 26, 2017). Retrieved from https://news.gallup. com/poll/224639/nurses-keep-healthy-lead-honest-ethical-profession.aspx?g_source=Economy&g_medium=newsfeed &g_campaign=tiles. D. Linz, S. Penrod, & E. McDonald, Attorney Communication and Impression Making in the Courtroom: Views from Off the Bench, Law and Human Behavior, 10(4): 281–302 (1986). doi: 10.1007/BF01047342.

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