Legal News

Consistency Is Critical

By Brian Harris

By Melissa M. Gomez
Special to the Legal

Near the completion of a trial involving a contract dispute, I was working on closing arguments with the lead attorney. We were the plaintiff, the larger organization in the case. The defendants were a smaller company and its president. At one point during our work on the closing, my client asked me the following question: ?What do you think is the biggest strength of our case?? I thought for a moment, looked up and said one word: ?Consistency.?

What I meant, and what I explained in response to the puzzled expression I received, is something I believe applies to every trial everywhere.

In this case, we were accused of being sloppy, underhanded and disorganized, and of being run by a selfish person who cares only for his own gain. On the other hand, our company argued the opposite. We are a well-oiled machine. While we may not be warm and fuzzy, our business is run honestly and with integrity. What we argued was that it was the business on the other side of the courtroom that was sneaky and underhanded, trying to use our company as a personal ATM for its president.

The consistency of which I spoke concerned not only the evidence that supported our case, but also the peripheral messages sent through the behaviors, demeanor and tactics demonstrated on each side of the courtroom. These messages developed the images that jurors had of the parties involved. They began to take form as early as voir dire.

Specifically, in voir dire, the other side spoke to the jurors for a long time, trying to ingratiate themselves with countless ?nice nice? questions that had nothing to do with the case. While rapport-building questions can be a nice addition, they were well overused in this instance. Opposing counsel was apparently also not prepared for the process. It looked as though they were making up the questions as they went along, and had not even glanced at the extensive questionnaires the jurors had filled out.

When it was our turn, we acted like a well-run business. We were polite and organized. It was obvious that we were prepared and had spent a good amount of time reviewing the forms the jurors filled out. We were immediately ready with our follow-up. We asked a few directly relevant questions and sat down. Can you start to see where the images of the parties were beginning to form? 

Throughout the trial, the other side treated the courtroom like its personal domain. There was an entourage of young, beautiful women surrounding the defendant at counsel table, who appeared to have no purpose other than to look good. There were distracting visitors, mumblings and fumblings with documents and sneaky trial tactics that backfired.

On the other hand, we made sure that documents were readily available on a moment?s notice. Each person who entered our side of the courtroom was briefed on how to behave in and around the courthouse. We were on time, concise and thorough. We made sure our witnesses were prepared to be in accordance with this image, especially our CEO.

In the end, the consistency of which I spoke was the consistency of the image we portrayed at trial with the image we wanted jurors to see, as well as the consistency of image the defendant portrayed at trial, which, again, fell right in line with what we were accusing them of doing in the litigation. It was not just the evidence. It was the total picture.

The point is this: Trial is more than just law and evidence. As a jury consultant, I believe it is imperative to take a close look at everything and everyone on your side of the courtroom with a strict evaluation of how the messages being sent are consistent with the image of your case, or, on the other hand, the image that the other side would like jurors to see.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Gomez at melissa@mmgjury.com or call 215-292-7956.

Full post as published by The Legal Intelligencer Blog on October 25, 2010 (boomark / email).