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Trial consulting has become de rigeur in most major and complex litigation. As the field has grown, so have the behavioral-science underpinnings. The field had been known as jury consulting, but the evidence over the last decade has focused on not only voir dire but also on techniques of persuasion during opening and closing arguments, witness preparation, demonstrative exhibits and strategies for influencing punitive damages. All attorneys should know about four recent developments in civil trial consultation. First, there are different strategies for civil litigation than for criminal litigation. Second, trial consultation has moved from jury consultation to post-selection consultation. Third, jury selection has changed from de-selection during voir dire to observation of the jurors’ group process throughout the trial. Last, the emphasis of trial consultation has transformed from voir dire and opening statement to include preparation of witnesses and closing argument. The first development is due to changes in the way we understand how jurors think and talk about accidents. In interpreting data in a civil trial, jurors make use of knowledge structures that are different than in criminal trials. The way knowledge structures are used in civil trials, which emphasize liability and damages, is different from how knowledge structures are used in criminal trials, which emphasize mens rea, guilt and punishment. Punishment is different in a civil trial than a criminal trial. Also, the criminal trial standard of proof of “beyond a reasonable doubt” influences how jurors react to evidence differently than the “preponderance of the evidence” or “clear and convincing evidence” necessary in civil suits. JURY SELECTION The importance of knowledge structures has focused on post-jury selection consultation. The evidence for de-selecting jurors has not been as robust as watching how jurors respond to evidence in the trial. With the courts limiting number of questions at voir dire, it has become more difficult to de-select biased jurors with preemptories. In addition, the evidence for de-selecting jurors who might be prejudiced is not strong. There are only three juror characteristics that have yielded valuable information for the trial: authoritarianism, internal versus external locus of control, and the just-world belief. Authoritarians have traditional values and punitive attitudes. Internal locus of control individuals believe their own behaviors are responsible for outcomes, whereas externally-oriented individuals believe outside forces are responsible for outcomes. Finally, jurors who hold the “just-world” belief feel people get what they deserve. The problem with assessing these juror attitudes and personality characteristics is that time is limited in voir dire. It is more scientific to watch how the jury responds to the evidence and witnesses during the trial. By watching the jurors’ interaction patterns and their nonverbal behavior, an attorney can get important feedback about how his or her case is going. Each jury has leaders, followers and partners. Each jury has indifferent jurors and negative ones. As the trial proceeds it is important to assess how each juror is responding to the case. This eliminates the need to form an ideal juror pattern before voir dire, an unscientific exercise at best. DURING TRIAL Understanding how people think about accidents — their knowledge structure — is more important than jury selection. It should drive an attorney’s presentation of the evidence and how he or she delivers opening and closing arguments. These knowledge structures include heuristics, prototype effects, monocausality, norm theory, counterfactual thinking, culpable causation, fundamental attribution error, hindsight bias or severity effect, anchoring, decision framing and statistical bias. Heuristics are a way to simplify complex information; providing the jury with examples and categories for plaintiffs, defendants and witnesses will help jurors remember and assimilate information when in deliberation. Prototype effects are simplified models that people use to categorize each other. This can lead to stereotyping, but it can also help the litigator establish his or her theme of the case. Monocausality refers to the tendency of people to prefer one salient cause to several causes. Reminding the jury throughout the trial what the one chief cause was for the accident will be most persuasive. Norm theory posits that jurors are harshest against defendants who have violated an important norm — such as being a reasonable person. Establishing how your opponent has violated the norms of typical community conduct will influence final decisions regarding the plaintiff or defendant. Counterfactual thinking stems from norm theory. If a person deviates from some community norm, jurors are apt to attribute causation to the person who deviated, regardless of the facts. The more morally blameworthy an opponent is made out to be, the greater responsibility that person is ascribed. This is known as culpable causation. Attribution error is the error of attributing to others personality traits that caused the accident rather than ascribing it to the situation. This usually hinders a plaintiff unless the attorney can get the jury to empathize with his or her client. Hindsight bias is the tendency to blame a person for not predicting an outcome when the outcome is particularly severe. Hindsight bias affects liability decisions in many tort law cases even though outcome severity is not supposed to be a factor in such decisions. Hindsight bias has also been called the severity effect. Anchoring and adjustment refer to the tendency of jurors to latch onto numerical estimates of what punitive damages should be. Jurors frequently complain that they have no way of deciding the value of someone’s life in a wrongful-death case, or a kidney in a malpractice case, or even loss of consortium from a motor vehicle accident. Suggesting numbers to the jury in closing argument or through an expert witnesses during the trial provides an “anchor” for jurors. From there they “adjust” the numbers upward or downward as they deem just. Decision framing is a theory of judgment about risks. How a risk is framed by the attorney often influences both liability and compensation for accidents. The risk of the accident can be framed as a deviation from the status quo or as a broader class of risks that all people face. Finally, statistical biases are often introduced by demonstrative evidence or by an opposing attorney. Jurors often mistakenly find liability because they do not understand graphs, charts or frequencies. PREPARING FOR TRIAL The last new development in civil trial consultation is a refocusing on witness preparation and closing arguments. Any witness’ credibility and attractiveness influence the evidence and how it is received by the jury. A witness’ presentation of the facts influences how persuasive he or she is. Preparing a fact witness or helping an expert witness communicate more clearly is essential in winning a case. Finally, closing statements should be carefully planned. The closing statement has been the orphan of trial attorneys. Many commentators have felt that the case was won or lost by the end of opening statement. This is a gross exaggeration. Closing arguments can reduce hindsight bias and, thus, liability and damages. They can also be used for anchoring and adjustment of award size. Closings can be used to arouse suspicion of opposing counsel’s witnesses or presentations of facts. In a tight courtroom battle, the best closer will win. Ronald J. Karpf, Ph.D., is director of Forensic Psychology Associates with offices in Lafayette Hill, Pa., and Pennsauken, N.J. He can be reached at 610-834-8212.

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