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Effective Communication in the Courtroom (Continued)
by Donna Siers & Rick Kraemer
STORY BIAS
Trials are stories and jurors want the "story" to make sense to them. If the
facts aren't clear, jurors will make up their own "stories" and create their
own visual images based on what they hear. To avoid confusion, to
eliminate the tendency for jurors to "fill in the blanks" by creating their own
individual stories, and to enhance understanding, introduce a clear picture
that illustrates your story.
A photograph may show how or where something happened, but some visuals can work
against you if jurors' biases are triggered.
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Jurors seeing the photo on the left (of a dock leveller and a
closed gate) may assume the worker who fell from the dock had no business being
on the wrong side of the gate.
A graphic rendering of the same dock leveller without any
extraneous information focuses the jury only on what's relevant.
click on image to enlarge
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Photographs and maps can help orient the jury to where the case took place and
can give jurors a sense of perspective.
Photographs, however, can't always tell the whole story. Sometimes a simplified
rendering of the map or structure is necessary to pull your photographs
together and complete the lawyer's picture of the case.
NORM BIAS
Jurors have expectations about the consequences of actions and behaviors. They
tend to compare how they would act or react to the way the parties in your case
have acted. They have the benefit of hindsight in determining what would
have/could have changed the outcome.
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Looking at the illustration of his "Ladder of Success," jurors
in that case determined that a brain injury had in fact affected the plaintiff.
The defendants wanted the jurors to believe that the plaintiff was a
malingerer. The plaintiff was awarded $3.5 million.
click on image to enlarge
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Jurors consider what a reasonable person would do in a given situation and what
a reasonable person would expect as a result.
If the jurors can be shown that the defendant's actions were unreasonable or
that if the defendant had acted differently the outcome would have changed,
then the jurors will find for the plaintiff.
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In an insurance bad faith case against Aetna Insurance, jurors
were shown an illustration of Aetna's actions and treatment of the plaintiff.
They found it to be completely unreasonable when compared to what an ordinary
person would expect.
The jury awarded $4.5 million in compensatory damages and $116
million in punitive damages.
click on image to enlarge
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Continues... Page 3
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