Source of article The Advantage Blog - Tsongas Litigation Consulting.
Recently there was quite a stir over the possibility that Alexa, Amazon’s highly successful and useful home device, could be listening to everything everyone says (it’s too late, she has already heard what you have said), and that it could actually be used as evidence in a criminal trial. After all, “she” must be listening, since she is voice activated. This is an interesting realization. So, Alexa hears everything: she is always “aware.” It reminded me also that in a jury trial, a jury “sees” everything, is always looking, always assessing, always evaluating, and potentially judging what they see.
Jurors certainly listen to evidence, but they evaluate a case in a trial court on what they see as well. The impressions and feelings formed by what they see can be very powerful. So much of our brain is based on the sense of sight, we should remember that jury trials are about not just what jurors hear, but on what they see and observe as well. And, it may not always be what they see on the stand that makes a difference. Jurors remember feelings and impressions, and what they see may be more important than what they hear, especially if there is an incongruence between the two.
In a recent civil trial defense victory, the jurors noted that the plaintiff in the case simply did not look, act, and dress consistent with the claims they (and their lawyer) were making. There was an incoherence between the characterization and the observed “character” in the trial. This judgement they made is consistent with the theory of narrative rationality, a concept discussed in great detail by Walter Fisher of the Annenberg School for Communication, USC. One of the key tests humans impose on the arguments they hear is “narrative coherence,” and within that test there is a powerful sub-test of “characterological coherence.” (The other global test of narrative rationality is “narrative fidelity,” e.g., “does the argument “ring true” and comport with an audience’s values?”)
In most simple terms, for characterological coherence, is the hero in the story acting (or looking/behaving) like a hero? Is the villain acting (or looking/behaving) like a villain? If so, the narrative is more coherent, more compelling, and more “sticky.” By “sticky,” I refer to the body of work on motivational rationality which posits that once someone buys into an impression or point of view, the impressions are very difficult to “undo.” As a brief aside, check out Elizabeth Kolbert’s recent New Yorker essay (February 27, 2017) titled “Why Facts Don’t Change Our Minds: New Discoveries About the Human Mind Show the Limitations of Reason.”
So, the jurors heard the testimony, listened to the plaintiff witness, and it lacked coherence because the description of the emotional distress and injury was in sharp contrast to their mannerisms, behavior, dress, and style of appearance in court. The plaintiff was “done up” (my words, not the jurors) each and every day in trial, acting inconsistent with their claimed damages.
In one case, we had a shadow jury for a federal civil trial. The opposing expert was on the stand. He was a pro. He was smooth, credible, and competent. As he was testifying in the afternoon, the back of the courtroom began to fill up with “suits.” In truth, this was just a huge group of lawyers getting ready to attend a hearing with the court on a different matter that would follow the end of the trial day. As the expert testified, jurors began to notice the pews fill. What did our shadow jurors say that night? It was, for all of them, some variation of: “That expert was amazing. He was so important, so good; did you see how many people came to watch him testify?” Not much a trial team can do to control that, but it illustrates the point that particular optics in the courtroom can be very powerful.
In another case, we were conducting, in court, jury selection for a plaintiff in a wrongful death case against a multinational corporation. To simplify, our case theme was simple: This was a company that put its drive for profit over the safety of and care for its employees. We sat at counsel tables with the lawyers, the widow, and her young son. During voir dire, the corporate representative for the defendant checked his phone (presumably for email messages). Three jurors in the box noticed this and their faces were clear: disgust. The defense counsel did not note their reaction. We did. Two of the three remained on the panel after strikes were completed. Talk about narrative coherence. The performance of the corporate representative was consistent with our theme. He had more important things to do than to attend to the tragic loss of this family, a loss that occurred to them because of a safety lapse on the defendant’s factory floor.
It is important to remind your client(s) that the jurors see everything, casting a wider scope from just the behavior of a witness on the stand. They watch how people at counsel tables react to testimony. They watch the people at counsel tables for their reactions, their attitudes, and for behavioral clues and cues about what is important. They may make note of how someone drives or parks outside the courthouse, or if they push the door close button on the elevator rather than hold it for prospective jurors the morning of jury selection; they may form an impression about someone’s character.
So, even as Alexa is always listening to see if you say something important (her name spoken, followed by a request for “dinner music”), jurors are watching you and your client for something important to happen in trial. Make sure they see the right stuff, note what is important, and not attend to the visual message you do not want them to note, to evaluate, or to remember. Oh, and Alexa listening to everything is only one of the potential problems with the device. There are other unintended consequences. Just ask my colleague, Alexis, who is fed up with my young son, who when visiting the office comes to her and says “Alexis, sing ‘Let It Go.’
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