Courtroom Psychology and Trial Advocacy
Richard C. Waites, J.D., Ph.D

Detailed Table of Contents

Introduction xxi
Acknowledgments xxiii

Chapter 1 The Decision-Maker Oriented Approach to Trial Advocacy 1
§ 1.01 What Is Decision-Maker Oriented Trial Advocacy? 3
§ 1.02 The New Age of Trial Advocacy and Courtroom Psychology 6
§ 1.03 How to Inspire Judges, Jurors, and Arbitrators to Decide in Your Favor 7
§ 1.04 The Secret to Motivating Judges, Jurors, and Arbitrators 8

Chapter 2 The Psychology of Communication and Persuasion 11
§ 2.01 Overview of the Communication/Persuasion Process 13
§ 2.02 The Process of Communicating 14
[1] Basic Characteristics of Communication 14
[2] Inner Selves and Communication 14
[3] Tools for Creating and Changing Perceptions 15
[a] Language 15
[b] Schemas 16
[c] Affect 18
[4] Measuring Effectiveness of Communication in the Courtroom 20
§ 2.03 The Importance of Listening and Making Jurors Want to Listen 21
[1] How Listening Works 21
[2] Memory and Retention of Information in the Courtroom 22
§ 2.04 How Persuasion Works in the Courtroom 24
§ 2.05 The Elements of Persuasion 26
[1] The Communicator and Credibility 26
[2] The Content of the Message 28
[3] How the Message Is Conveyed 32
[4] The Audience: The Judge, Jury, or Arbitration Panel 33
§ 2.06 Paths to Persuasion 34
§ 2.07 References 36

Chapter 3 Jury Psychology and Decision Making 37
§ 3.01 Psychology and the Jury Decision-Making Process 39
§ 3.02 Overview of the Jury Decision-Making Process 40
[1] Jury Decision-Making Model for Individual Jurors and the Group as a Whole 40
[a] Construction of a Mental Summary 41
[b] Learning Legal Decision Alternatives 43
[c] Classification 44
[2] Direct Influence of Attitudes in Jury Decision Making 45
[3] How Juror Attitudes and Belief Systems Are Formed and Changed 45
[4] How Jurors Process Arguments and Evidence 49
[a] Individual Characteristics of Jurors 50
[b] Juror Decision-Making Styles 51
[c] How Jurors Make Sense Out of Evidence 52
[d] Juror Decisions About Causation 56
§ 3.03 Individual and Group Decision Making in Juries 56
[1] Factors Which Influence Jury Decision Making 56
[2] The Role of Individuals in Jury (Group) Decision Making 57
[3] Group Influences on Individual Juror Decision Making 58
[4] The Active Role of Individual and Shared Attitudes in Jury Delib-erations 60
[5] What Goes On in the Jury Room? 62
§ 3.04 References 65

Chapter 4 Juror Perceptions about Common Issues in Personal Injury and Business Lawsuits 67
§ 4.01 Introduction 69
§ 4.02 How We Know What Jurors Are Thinking 70
§ 4.03 Attitudes and Jury Decision Making 72
[1] The Importance of Attitudes and Life Experiences in Jury Decision Making 72
[2] Forming Perceptions: Jurors’ Psychological Stages 73
[a] Angst and Confusion 74
[b] Information Gathering 75
[c] Matching Information with Life Attitudes and Experience 76
[d] Verification 76
[e] Motivation to Act 77
[f] Challenge and Confrontation with Other Jurors 78
[g] Closure 79
[3] The Complicated Link between Juror Attitudes and Jury Decision Making 79
§ 4.04 Looking at Evidence 81
§ 4.05 Attitudes about Lawsuits and Tort Reform 82
[1] The McDonald’s Coffee Case 82
[2] Media Coverage and Tort Litigation 84
[3] Relationship between Attitudes toward Tort Reform and Verdicts 85
§ 4.06 Perceptions in Personal Injury and Products Liability Cases 88
[1] Antecedents in American History 88
[2] Perceptions of Plaintiffs 92
[a] Are Jurors Guided by Sympathy? 92
[b] Are Jurors Guided by a Standard of Social Duty? 93
[c] Perceptions of Plaintiff Competence 94
[d] Impact of Jurors’ Life Experiences 94
[3] Views of Corporations and Businesses 95
[a] How Corporations and Businesses Differ from Individuals 95
[b] How Small Businesses Fare vs. Larger Corporations 96
[c] Corporate Identity and Company Officials in Trial 96
[d] Standards by Which Jurors Scrutinize Corporate Behavior 97
[e] Relationship Between Bad Corporate Behavior and Corporate Re-sponsibility 99
[4] Views of Subsequent Remedial Measures 100
§ 4.07 Perceptions in Medical Malpractice Cases 101
§ 4.08 Perceptions in Labor and Employment Litigation 106
§ 4.09 Perceptions in Business Litigation 109
§ 4.10 Perceptions in Intellectual Property Cases 112
[1] Intellectual Property Trials Generally 112
[2] Patent Infringements 113
[3] Trade Secret and Copyright Infringements 113
[4] Trademark Infringements 115
§ 4.11 Perceptions of Trial Lawyers 116
[1] Attitudes and Opinions about Lawyers 116
[2] Media Images and Juror Attitudes 117
§ 4.12 Perceptions about Damages 118
[1] Personal Injury and Product Liability Cases 118
[2] Medical Malpractice Cases 121
[3] Labor and Employment Litigation 122
[4] Business Litigation 123
[5] Punitive Damages and Bifurcation of Trials 124
[6] “Deep Pockets” 126
[7] Making Alternative Damages Arguments 127
§ 4.13 References 129

Chapter 5 Developing Powerful Stories and Themes 131
§ 5.01 What Is Storytelling? 133
§ 5.02 Why Storytelling Is So Psychologically Powerful 135
§ 5.03 Storytelling as an Art Form 136
§ 5.04 Selecting the Story to Tell 137
§ 5.05 Developing Compelling Story Themes 138
§ 5.06 Identifying the Right Themes for the Case 140
§ 5.07 Story Structure and Organization 142
§ 5.08 Developing the Story Characters 143
§ 5.09 Adding Creativity to Storytelling 146
§ 5.10 Relaxing and Getting in the Mood 148
§ 5.11 Conclusion 148
§ 5.12 References 150

Chapter 6 Scientific Jury and Decision-Maker Research 151
§ 6.01 Introduction 153
§ 6.02 Applying Science to Development of the Case for Trial or Settlement 155
§ 6.03 General Principles Applicable to All Courtroom Research Projects 160
[1] Reasoning Errors That Science Can Remedy 160
[2] Principles for Constructing the Research Project 162
[a] What Is the Purpose of the Research Project? 162
[b] Focal Points During the Research Study 163
[c] The Core of Every Research Study: Stimulus and Response 164
[d] Generalizability, Validity, and Reliability 164
[e] Gathering Information in the Research Project 165
[f] Identifying and Obtaining the Best Sample of People for the Study 167
[g] Why Specific Questions and Answers Are More Reliable and Useful 168
[3] Designing the Research Project 168
[4] Cost of Scientific Research 169
§ 6.04 Community Attitude Surveys 170
[1] What a Community Attitude Survey Does 171
[2] Developing a Sample of People to Be Interviewed 172
[3] Developing the Survey Questionnaire 173
[4] The Interviews 174
[5] Types of Questions to Be Included 174
[6] Coding, Tabulating, and Analyzing the Data 175
§ 6.05 Live Focus Group Research 175
[1] When to Use a Focus Group 176
[2] Organizing a Focus Group 177
[a] Identifying the Best Research Jurors for the Focus Group 177
[b] The Best Setting for the Study 178
[c] Agenda for the Study 179
[d] Maintaining Confidentiality Among the Research Jurors 180
[e] Analyzing and Applying Information Gained in the Study 181
§ 6.06 Internet-Based Focus Group Research 182
[1] Advantages and Disadvantages of Online Focus Groups 183
[2] Who Operates Online Focus Groups 184
[3] Setting Up the Study and Recruiting Research Jurors 185
[4] Collecting and Analyzing the Data 185
§ 6.07 Mock Trial Research 186
[1] The Purpose of a Mock Trial Study 187
[2] When to Use a Mock Trial Study or a Focus Group 188
[3] Locating and Recruiting Research Jurors 189
[4] Designing the Study and Developing the Agenda 189
[5] Maintaining Confidentiality Among the Research Jurors 192
[6] Analyzing and Applying the Information Gained in the Study 192
§ 6.08 Mock Arbitration Panel Studies 193
§ 6.09 Mock Bench Hearings and Trial Studies 195
§ 6.10 Mock Appellate Hearings 196
§ 6.11 Psychological Review of Pleadings and Briefs 198
§ 6.12 Shadow Juries 200
[1] Lawyer Experiences with Shadow Juries 200
[2] Organizing an Effective Shadow Jury 201
[3] Some Additional Tips 203
§ 6.13 References 206

Chapter 7 Bench Trials 209
§ 7.01 Introduction 211
§ 7.02 Why Judges Present Special Challenges to Attorneys 211
§ 7.03 Bench Trial Considerations 212
[1] What Judges Think about You and Your Case 212
[2] What Judges Need from Counsel 214
[a] Freedom from Separation and Isolation 215
[b] Help in Dealing with Time Pressures and
Obstacles to Concentration on Your Case 215
[c] Relief from the Stress of Ruling 217
[d] Dealing with Community and Appellate Pressures 217
[e] Help in Combining Courtroom Ritual and Humanistic Concerns 218
[f] Respect 218
[3] Judges and Jurors: Similarities and Differences 219
[4] Trial Advocacy Techniques for Bench Trials
and Jury Trials: Similarities and Differences 221
[5] Persuasive Techniques for Bench Trials 221
[a] Judges’ Criticisms of Trial Lawyers 221
[b] Persuasive Techniques 223
§ 7.04 References 227

Chapter 8 Making the Choice: Arbitration, Bench Trial, or Jury Trial 229
§ 8.01 Introduction 231
§ 8.02 Decision-Making Characteristics of Various
Fact Finders 231
[1] Jurors 232
[2] Judges 233
[3] Arbitrators 234
§ 8.03 Comparisons of Decision-Making Patterns 235
[1] Judge vs. Jury Decisions 235
[2] Arbitration Panels and Professional Panels vs. Jury Decisions 237
[3] Arbitration Panels vs. Judge Decisions 240
§ 8.04 Deciding among an Arbitration Panel, a Trial Judge, and a Jury 241
[1] The Process of Making Decisions 242
[2] Assumptions for Making Rational Decisions 243
[3] Developing the Criteria 244
[4] Gathering Information About Fact Finders 245
[5] Comparing the Data 245
§ 8.05 References 248

Chapter 9 Pretrial Publicity 249
§ 9.01 Introduction 251
§ 9.02 The Effects of Pretrial Publicity in Trial 252
[1] How We Study the Effects of Pretrial Publicity 252
[2] How Pretrial Publicity Can Affect Jurors 255
[3] Reducing Prejudicial Effects of Pretrial Publicity 256
[a] Continuances 257
[b] Extended Voir Dire 258
[c] Judicial Statements and Admonitions 259
[d] Trial Evidence and Argument 260
[e] Juror Moderation 261
[f] Change of Venue 262
[4] Conclusion 263
§ 9.03 Handling Pretrial Publicity for Your Firm and the Client 263
[1] Communicating with the Media in High-Profile Matters 264
[2] Avoiding Missteps with the Media 265
[3] Developing Your Most Powerful Appearance and Mindset 267
[4] Giving Effective Interviews 267
§ 9.04 References 268

Chapter 10 Voir Dire and Jury Selection 271
§ 10.01 Introduction 273
§ 10.02 Historical Composition of Juries and the Role of Jury Selection in Trial 274
§ 10.03 The Importance of Jury Selection in the Persuasion Process 276
§ 10.04 Purposes and Goals of Voir Dire 278
§ 10.05 How Bias Affects Jurors, Judges, and Trial Attorneys in Jury Selection 280
[1] What Are Bias and Prejudice? 280
[a] Bias 280
[b] Prejudice 283
[2] Assessing the Effects of Bias and Prejudice in Jurors 285
§ 10.06 Assessing Jurors During Voir Dire 287
§ 10.07 Procedural Legal Tools to Ensure Adequate Voir Dire 289
§ 10.08 Understanding Jurors in Jury Selection 290
[1] What Jurors Are Thinking and Feeling During Jury Selection 290
[2] Getting Jurors to Be Honest 292
[3] How and When Jurors Make Decisions 292
[4] Factors in Jury Decision Making That Are Important for Voir Dire 293
[5] The Importance of the Message During Jury Selection 294
§ 10.09 Preparation for Oral Voir Dire 294
[1] Prepare the Psychological Side of the Case 294
[2] Production of Demonstrative Aids 294
[3] Written Juror Questionnaires 295
[4] Planning the Presentation 298
[5] Juror Seating Charts, Notes, and Checklists 299
[6] Assistance During Jury Selection 299
§ 10.10 Conducting Oral Voir Dire 300
[1] Uncovering Bias and Prejudice 300
[2] Educating and Persuading 301
[3] Establishing a Good Relationship with Jurors 302
[4] Reading Jurors’ Behavior and Body Language 302
[5] Challenges for Cause 304
§ 10.11 Working with Trial Consultants in Jury Selection 305
§ 10.12 Powerful Persuasive Tools for Voir Dire 307
[1] Inoculate for Bad Facts or Circumstances 307
[2] Admit Something Intimate 308
[3] Build Credibility through Genuine Honesty in Style and Content 308
[4] Repeat Important Themes Throughout the Trial 309
[5] Anchor Psychological Messages to Principles, Facts, and Evidence 309
[6] Use Visual, Oral, and Tangible Demonstrative Evidence 310
[7] Simplify the Case Story and Case Themes 310
[8] Use Everyday Analogies 310
[9] Use Powerful Stereotypes 311
§ 10.13 Some Final Tips for Voir Dire 311
§ 10.14 References 313

Chapter 11 The Opening Statement 315
§ 11.01 The Importance of the Opening Statement 317
§ 11.02 The Purpose of the Opening Statement 318
§ 11.03 Juror Psychology and the Opening Statement 319
[1] Understanding Individual Juror and Group Psychological Needs 319
[2] Consistency and How Jurors Understand Causation 320
[3] Contrast and Comparison 322
§ 11.04 Creating a Powerful Story in the Opening Statement 323
[1] Why Storytelling Is Important Psychologically 323
[2] Visual, Auditory, and Kinesthetic Representational Systems 324
[3] Reinforcement 325
§ 11.05 Strategy for a Winning Opening Statement 326
§ 11.06 Developing Themes for the Opening Statement 328
§ 11.07 Structuring a Powerful Opening Statement 330
[1] Putting It All Together 330
[2] Using Analogies 331
[3] Primacy and Recency 332
[4] Length of an Opening Statement 332
§ 11.08 Presenting a Winning Opening Statement 332
[1] Addressing the Jury’s Self-Interest 333
[2] Personal Style 334
[3] Establishing Credibility with the Jury 335
[4] Laying Out the Agenda and Headlining 336
[5] Speaking and Using Words Carefully 337
[6] Powerful Nonverbal Communication 339
§ 11.09 Conclusion 340
§ 11.10 References 342

Chapter 12 Psychology and Demonstrative Aids 345
§ 12.01 Introduction 347
§ 12.02 Persuasion and Visual Aids 349
[1] The Psychological Connection Between Visual Aids and Persuasion 349
[a] Reinforcing Key Messages 349
[b] Improving Memory Recall 351
[c] Explaining and Simplifying Key Concepts 351
[d] Improving Accurate Encoding of Information 352
[e] Involving the Fact Finder 353
[f] Creating Powerful Contrast and Comparison 353
[g] Adding Credibility 355
[h] Explaining and Simplifying the Context 356
[i] Making the Process More Enjoyable for Everyone 356
[2] The Psychological Connection Between Attitudes and Visual Attention 356
[3] Why Multimedia Is So Powerful: The Psychological Connection Between Visual and Verbal Communications 358
[a] The Contiguity Principle 359
[b] The Modality Principle 360
§ 12.03 Juror Perceptions of Demonstrative Aids: High Tech vs. Low Tech 361
§ 12.04 Using Focus Groups and Mock Trials to Test Effectiveness 362
§ 12.05 General Strategy for Developing and Presenting Demonstrative Aids 363
[1] Limiting Information for Each Visual Aid: Focusing vs. Overloading 364
[2] Use a Building Block Approach 364
[3] Visual Aids Should Speak for Themselves 365
[4] The Scale of Visual Aids Should Match the Courtroom 365
[5] Tell, Then Show 366
[6] Let the Jury Touch Key Documents and Materials 366
[7] Always Consider a Time Line 366
[8] Make Sure Everyone Can See the Aid 367
[9] If the Visual Aid Is Really Important, Refer to It Often 367
[10] Practice Using the Visual Aid with Witnesses 367
§ 12.06 Determining the Best Demonstrative Aid to Use 368
[1] Easel Pads and Chalkboards 368
[2] Photographs and Enlargements 369
[3] Juror Notebooks 371
[4] Videotaped Deposition Excerpts 371
[5] Videotaped Demonstrations and Scene Re-creations 372
[6] Live Demonstrations 373
[7] Charts and Graphs 373
[8] Models 375
[9] Computer-Generated Animations 376
[10] Traditional and Electronic Overhead Projectors 377
[11] Computer-Generated Slides 378
§ 12.07 Paperless Trials and Computer-Generated Imaging 378
[1] Advantages of Computer-Generated Imaging 378
[2] Juror Perceptions of Computer-Generated
Imaging 379
[3] Choosing and Working with Technical People in the Courtroom 380
§ 12.08 The Future of Courtroom Presentation Technology 380
[1] High-Tech Courtrooms 381
[a] Presentation and Visual Communication Systems 383
[b] Maintaining a Trial Record in a High-Tech Environment 384
[c] Advanced Courtroom Infrastructure 385
[2] Advances in Storytelling Technology 386
[3] The Psychology of the Decision Maker in an Age of Advanced Technology 387
[4] Your Decision-Making Process 389
[5] Sources of Information about Courtroom Technology 390
[a] Web Sites 391
[b] Books 391
§ 12.09 References 391

Chapter 13 Fact Witnesses 393
§ 13.01 Introduction 395
§ 13.02 Judge and Juror Perceptions of Fact Witnesses and Their Testimony 398
[1] Assessing Credibility 399
[a] Logical Structure of the Testimony 399
[b] Structured vs. Unstructured Testimony 399
[c] Quantity of Details 399
[d] Context 400
[e] Interactions Between People 400
[f] Recounting Speech from Past Transactions 400
[g] Complications and Unusual Details 400
[h] Details That the Witness Does Not Understand 401
[i] Thoughts and Feelings at the Time of the Events 401
[j] Admissions and Corrections 401
[k] Integration 402
[2] Testifying from Memory 402
[3] General Perceptions of Witnesses by Judges, Jurors, and Arbitrators 404
[a] Under the Microscope 404
[b] Internal Dialogue of Fact Finders That Influences Their Perceptions 405
[c] Lawyer Blind Spots During Direct and Cross-Examination 406
§ 13.03 Choosing Fact Witnesses and Preparing Them for Direct Examination 406
[1] What Witnesses Are Experiencing at the Beginning of Preparation 406
[2] Choosing the Right Witnesses 407
[3] Order of Witnesses 410
[4] Preparing a Witness Mentally and Emotionally 410
[5] Overcoming Problems with Difficult Witnesses 413
[6] Orienting Fact Witnesses to the Themes and Story of the Case 414
§ 13.04 Direct Examination of Fact Witnesses 415
[1] Structure of the Examination 415
[2] Conducting an Effective Direct Examination 417
[a] Beginning the Examination 417
[b] Questioning Style 418
[c] Handling Sensitive or Unusual Issues 420
§ 13.05 Cross-Examination of Fact Witnesses 422
[1] Purposes and Goals 423
[2] Perceptions of Fact Finders During Cross-Examination 423
[3] Organizing and Choosing Points for Cross-Examination 425
§ 13.06 References 427

Chapter 14 Expert Witnesses 429
§ 14.01 Introduction 431
§ 14.02 Fact Finder Perceptions of Expert Witnesses and Their Testimony 435
§ 14.03 Retaining the Right Expert 437
[1] Is an Expert Needed? 437
[a] Understanding Specific Aspects of the Case 438
[b] Delineating the Broad Picture 438
[2] Qualifying the Expert 439
[3] The Expert as a Persuasive Witness 440
[4] Choosing Among Possible Experts 441
§ 14.04 Integrating an Expert Witness into the Case 442
[1] Establishing a Strong Rapport with Expert Witnesses 443
[2] The Role of the Expert in the Themes and Story of the Case 445
[3] Overcoming Problems with Expert Witnesses 446
§ 14.05 Preparing an Expert Witness for Direct Examination and Cross-Examination 449
[1] Contents of the Expert’s Testimony 449
[2] Preparing an Expert for Direct Examination 452
[a] General Considerations 452
[b] Including the Expert in Decision Making 452
[c] The Expert’s Mental Focus 453
[d] Presentation Style and Technique 454
[e] Practice and Role Play 455
[f] Woodshedding 455
[i] Keep the Presentation Simple and Interesting 456
[ii] Use Simple Language 457
[iii] Use Visual and Demonstrative Aids 458
[g] Meaning vs. Volume of Information 460
[3] Preparing an Expert for Cross-Examination 460
[a] Efforts to Control the Witness by Opposing Counsel 460
[b] Compensation Questions 462
[c] Trial Consultants and Communications Experts 463
[d] Behavior on Direct Examination vs. Cross-Examination 464
[e] Tips for Handling Hard Questions 465
§ 14.06 Conducting Direct Examination of Expert Witnesses 465
[1] Structuring the Examination 466
[2] Developing Credibility of the Expert Witness 469
§ 14.07 Conducting Cross-Examination of Expert Witnesses 470
§ 14.08 References 475

Chapter 15 Final Argument 477
§ 15.01 Introduction 479
§ 15.02 Psychology and Purpose of Final Argument 483
[1] Summing Up the Case 483
[2] Clarifying and Simplifying the Case 484
[3] Explaining the Evidence 484
[4] Proving Your Case Theory 484
[5] Disproving the Other Side’s Case 485
[6] Guiding and Motivating Fact Finders 485
§ 15.03 What Decision Makers Are Thinking and What They Need 486
[1] Jurors 487
[2] Judges 488
[3] Arbitrators 489
§ 15.04 How Jurors Make the Decision 490
[1] Morality 491
[2] Life Experiences 491
[3] Perceptions of Themselves and Others 491
[4] Attitudes and Stereotypes 492
[5] Intuition 492
[6] Sympathy and Empathy 493
[7] Perceptions of the Law 493
[8] Relations Among the Jurors 494
[9] Need to Feel Good about the Decision 494
§ 15.05 Getting Ready for Closing Argument 495
[1] Empowering Yourself 495
[2] Inspiring Your Audience 497
[a] Clarifying Objectives 497
[b] Creating and Rehearsing 498
[c] Managing Stress 498
[d] Focusing on the First Four Minutes 499
[e] Establishing Credibility 500
[f] Creating the Right Atmosphere 500
[g] Surpassing Expectations 501
[h] Holding Their Attention 501
§ 15.06 Telling a Powerful Story 502
§ 15.07 References 505

Chapter 16 Advocacy in Mediation and Settlement Negotiations 507
§ 16.01 Introduction 509
§ 16.02 Interaction Between Mediation and Advocacy 509
[1] Obstacles to Settlement 510
[a] Fuzzy Thinking 510
[b] Incongruence 510
[2] Elements of Conflict: When to Talk Peace and When to Fight 511
[3] Testing the Relative Strength of the Case 512
[4] Advantages and Disadvantages of Trial, Mediation, and Arbitration 513
[a] Jury Trials 513
[b] Bench Trials 514
[c] Mediation 516
[d] Arbitration 517
[e] Summary Jury Trials 517
[5] When to Use Mediation 518
[6] The Role of Advocacy in Mediation 519
§ 16.03 Negotiating Tactics 520
§ 16.04 Effective Advocacy Skills in Mediation 521
[1] Effective Speaking and Body Language 521
[2] Applying Communication Skills to Mediation Advocacy 522
§ 16.05 Using Science to Enhance Effectiveness in Mediation Advocacy 523
[1] The Role of Science in Developing Effective Mediation Advocacy 523
[2] Using Scientific Knowledge and Research Methods 524
[a] Available Scientific Research Information 524
[b] Consultations with Psychologists and Other Experts 525
[c] Mock Jury Trials, Mock Bench Trials, and Mock Arbitrations 525
[d] Should Jury Research Be Revealed to the Opposing Party? 526
[e] Mock Mediations 526
§ 16.06 References 530

Chapter 17 Improving Jury Trials: Perceptions and Reality 531
§ 17.01 Introduction 533
§ 17.02 The Controversies and the Debates 534
[1] Voices of Dissatisfaction with the Jury System 535
[2] Responses to Criticisms 536
[3] Debate over Improvements in Jury Trial Procedure 537
§ 17.03 Basic Considerations for Changes in the Jury Trial System 537
§ 17.04 Scientific Research and Jury Trial Reforms 539
§ 17.05 Jury Competence in Complex Matters 540
[1] Jury Competency: Positing the Argument 540
[2] Jury Competency Research 543
[a] Juror Intellectual Capacities Research 543
[i] Judge Decisions vs. Jury Decisions in the Same Case 543
[ii] Subjective and Objective Determinants 544
[b] Improvements in Court Procedure to Aid the Jury 546
§ 17.06 Juror Note-Taking 548
[1] Procedures Used or Tested 548
[2] Evaluation of Perceived Advantages 549
[a] Notes Are an Aid to Memory 549
[b] Increase in Satisfaction 549
[3] Evaluation of Perceived Disadvantages 550
[a] Does Note-Taking Distract Jurors? 550
[b] Do Note-Takers Have Influence over Non-Note-Takers? 550
[c] Must Notes Be Accurate Trial Records? 550
[d] Does Note-Taking Favor One Side? 551
[e] Does Note-Taking Consume Too Much Time? 551
[4] Conclusions and Recommendations 551
§ 17.07 Juror Questions to Witnesses 552
[1] Procedures Used or Tested 553
[2] Evaluation of Perceived Advantages 554
[a] Do Questions Promote Juror Understanding
or Alleviate Juror Doubts? 554
[b] Do Juror Questions Improve Satisfaction? 554
[3] Evaluation of Perceived Disadvantages 555
[a] Are Juror Questions Inappropriate? 555
[b] Is Attorney Reluctance to Object a Problem? 555
[c] Do Jurors Make Inappropriate Inferences When Objections Are Sustained? 555
[d] Do Jurors Become Advocates? 556
[e] Do Jurors Place Undue Emphasis on Their Own Questions? 556
[f] Do Juror Questions Have a Prejudicial Effect? 556
[4] Conclusions and Recommendations 557
§ 17.08 References 557

Chapter 18 Working with Trial Consultants 559
§ 18.01 Introduction 561
§ 18.02 History of Trial Consultants 562
§ 18.03 Types of Trial Consultants 565
[1] Single vs. Multiple Disciplines 565
[2] Education vs. Experience 566
[3] Psychologists 566
[4] Sociologists 567
[5] Marketing Research Professionals 567
[6] Lawyers and Trial Advocacy Instructors 567
[7] Drama and Theater Professionals 567
[8] Other Professionals 567
§ 18.04 Choosing a Trial Consultant for a Case 568
[1] Factors to Consider 568
[2] Clarifying the Services Needed 568
[3] Individuals vs. Firms 569
[4] Budgeting the Cost 569
[5] Finding a Trial Consultant 569
§ 18.05 Trial Consultants’ Services 570
[1] Prior to Filing 570
[2] Early Pretrial 570
[3] Discovery Assistance 570
[4] Settlement and Alternative Dispute Resolution 571
[5] Trial Preparation 571
[6] At Trial 571
[7] Post-Trial 571
[8] Media Coaching and Other Special Services 571
§ 18.06 References 579

Appendix A Scientific Journal Articles on Courtroom Decision Making 581
Appendix B Trial Science in the Life of a Lawsuit 593
Appendix C Should Jurors Be Allowed to Ask Questions of Witnesses? 597
Index 603

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