Why Winners Win: How
Juries Make Decisions—Part Three
By Linda S. Crawford, JD
With healthcare professionals’ and organizations’ reputations—and large sums of money—hanging in the balance, it is helpful to
know that when juries decide medical professional liability (MPL) cases the outcome is highly predictable. The witnesses you present, specifically the defendants, and the way they are perceived are the keys to winning the case. Part One of the article (Third
Quarter 2015),”Why Winners Win: Preparing Witnesses for Testimony,” by Linda Crawford, JD, covered the four big questions that
jurors ask about a defendant in making their decision. Part Two (Fourth Quarter 2015) discussed some key tips on how to present
a case that juries will respond to, positively. Now, here, Ms. Crawford explains the critical variables at work in a jury’s consideration of the presentation of a case.
Sight. Some 80% of what juries base their decisions on is
what they see. Indeed, because they cannot speak during
the trial process, they depend on their sight even more than
in everyday life.1 Since only 15% of the human brain is used
for language, the other 85% is left for everything else.2 We
believe what we see.
no neck brace, no wheelchair, nothing, you know? And
we’re all just like…she looks fine to me.” 6 In a loss of consortium claim the jurors all talked about the fact that the
husband and wife didn’t sit together in the courtroom. They
decided that the couple must be having marital difficulties.7
In one obstetrical case, the mother testified most convincingly that she was on the brink of welfare, but one of the
jurors saw her park her BMW a long distance from the
courthouse. It wasn’t that the BMW was the problem. It
was that the jurors began to question whether the mother
could be trusted in anything she said. It is not only what
jurors evaluate while the witness is testifying that matters; it
is also all the collateral information that they use to determine the truth of the words—from the time the witness
arrives at the courthouse to the last time the jury sees him.
Of course, the physical appearance of witnesses and attorneys does make a difference. Attractive people are seen as
more competent, friendly, and persuasive. 3 But witnesses
don’t have to be extremely attractive to be effective. Indeed,
there is a U-shaped curve: a person can actually be too
attractive. We can all relate to those who fall in the middle
of the range of attractiveness, because that is where we see
ourselves.4
However, what is much more important to jurors than physical attractiveness is a sense that attorneys and witnesses are
genuine. Is the demeanor consistent with what he is saying?
Is there a consistency in dress, attitude, behavior, manner,
grimaces, gestures, and appearance? 5 In one case, a juror
said, “He (the attorney) kept saying how perfect her body
was before the accident….he made her almost seem like a
cripple, but we could all look at her and see that there was
Inside Medical Liability
Order: primacy and recency. People remember best their
first and last impressions. There is controversy about which
is more important, primacy or recency; but our research,
and research extending back to 1940, shows that primacy is
most important in trials.8 In the seminal 1940 study by
Weld and Danzig, mock jurors watched a live mock trial and
made liability judgments throughout the trial. The judg-
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“It can’t be stated too strongly: Jurors need to have a positive first impression of
attorneys and witnesses if we want to be successful at verdict.”
ment at the end of the trial was consistent with their judgments after opening statements.9 We all have our first impressions. It is unavoidable. Once we have them, we tend to
fit other information into that first impression and ignore
information that contradicts it.10 While jurors report to us
that they try to stay neutral, when pressed, they always had a
first impression of the parties and attorneys—and this tends
to be a lasting impression.11 When I asked a juror recently
what her first impression was, at first she demurred, saying
she hadn’t formed an opinion; but when pressed, she finally
admitted, “Well, he looked guilty. He looked like he had
been through this before. He wasn’t dressed up—like he
didn’t care. It was reassuring to all of us to find out after the
trial was over that he had been through the legal system before. We were right in our assessments.” In another case,
the jurors very quickly decided that the defendant was “lying
through his teeth.” He “did not come across as professional,
trustworthy, honest.”12 It can’t be stated too strongly: Jurors
need to have a positive first impression of attorneys and witnesses if we want to be successful at verdict.
ble story, complete with characters who are assumed to have
specific goals and plans, (the attorney) may be contributing to
the natural process by which jurors reason in deliberation.”15
Jurors will learn best if they are given an opportunity to do it
through more than just listening. We are visual creatures.
Words are no longer our primary means of communication.
One researcher described it like this, “Most people can listen
five to seven times faster than a trial lawyer can speak. As we
wait to hear more, our minds can drift onto another subject.
At that point we miss a few words. Soon, we are missing
whole sentences and may even stop listening altogether.” 16
Increasing sensory perception, and therefore learning, is essential. Successful attorneys and witnesses do more than
speak; they “paint the picture” through the words they use
and the visuals they present.17 A picture really is worth a
thousand words. And the picture that counts most is the
evidence-demonstrative or real—that is used with fact witnesses. If the jury doesn’t learn from the fact witnesses, they
have lost their best opportunity to understand the case from
our perspective. We learn best from those with personal
knowledge and juries are waiting to hear from those who
were actually involved with the patient.
Attention span. The average duration of attention span in
the United States is eight minutes, and it is dropping.13 That
does not bode well for a system where jurors are asked to sit
passively and listen for hours, days, weeks. A short attention
span reinforces the importance of primacy, of making a good
first impression and setting a framework for jurors. The storytelling model of opening statements developed by Nancy
Pennington and Reid Hastie provides such a framework. 14
This model proposes not only giving jurors a story line but
filling it in with people, dates, times—the more detail you
give, the more effective this approach will be. There are
three sources jurors use to create their own trial story: (1)
the information presented in the trial itself; (2) the factual
knowledge of social and physical rules that seem to apply to
the case; and (3) their strategic knowledge—their own particular style of learning. What that means is that primacy and
the short attention span dictate a need for more effort at the
opening statement. As one researcher concluded, “Insofar as
the attorney provides jurors with a meaningful, comprehensi-
Inside Medical Liability
Content. None of us remembers very much of the content in
what we hear. Even when we are trying to be attentive to
what someone is saying, only 7% of what is communicated
comes from the actual words. Fifty-five percent comes from
facial expression and 37% from tone of voice. 18 It is the old
truth: How you say what you say is more important than
what you say. If the way information is delivered is inconsistent with what is being said, people choose delivery over
substance. Cases with favorable outcomes produced the
following juror comments: “(The defendant) was intelligent
and sincere while testifying”; and “the nurse did all she could
under the circumstances and appeared ‘earnest.’” In cases
with unfavorable outcomes, this is what jurors said: The doctor “was disingenuous, pompous, and self-aggrandizing. ”
“He thought this was a waste of his time. We could tell that
from the very first day. ” “During cross-examination he was
hostile, sarcastic, and immature. ”19 In our own research, one
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“To ensure that the evidence is the central focus of the trial, witnesses must present
what they have to say in a credible manner, or the jury will not believe the message.”
defendant was described as, “Arrogant! I felt like he was put
out that he was being questioned about this whole thing. His
explanation of things was like, ‘I’m not even sure why you are
questioning me on this.’” “He was cocky. He was arrogant—
he was very confident of himself, but not willing to accept
any other opinions.” “His demeanor surely did not help him.
I think if he had been a little less arrogant and a little more
humble, he would have gotten a better response from the
jury.” “He was flipping his pen around and looking bored. He
didn’t seem like the most intelligent person. He didn’t help
himself at all.” Notice that not one of the jurors had focused
on what the witness had said, but, rather, on how they had
said it and how they had appeared to them. To ensure that
the evidence is the central focus of the trial, witnesses must
present what they have to say in a credible manner, or the
jury will not believe the message.
10. Norman Anderson, “Averaging Versus Adding as a Stimulus-Combination Rule in Impression Formation”, 70 J.
Experimental Psychol. 394, 1963.
11. NB: See Hans, at footnote 16. This author’s experience
studying jurors is that, because they are told not to form
an opinion until all of the evidence has been presented,
will hold to that line when talking with researchers.
However, when pressed, they do indeed admit that they
had significant and predictable first impressions.
12. Hans, footnote 6 at p. 155.
13. Lindsay Michaels, “Grabbing Science”, Ariz. S. U. Research Magazine, Winter 1997.
14. Nancy Pennington and Reid Hastie, “A Cognitive Theory
of Juror Decision Making: The Story Model”, 13 Cardozo
L. Rev. 519, 1991.
References
1.
Parker. Applied Psychology in Trial Practice. 12 Fed of
Ins Couns 6 (1962).
2.
Hamlin, What Makes Juries Listen, Prentice-Hall, Englewood Cliffs, N.J., 1985.
3.
Mark Snyder et al., “Communicator Attractiveness and
Opinion Change”, 3 Canadian J. Behavioural
Sci.
377, 1971.
4.
Ibid.
5.
James P. Timony, “Demeanor Credibility”, 49 Cath. U.L.
Rev. 903, Summer 2000.
6.
V. Hans, supra at footnote 16, p. 35.
7.
Ibid at p. 33.
8.
David G. Linz, “Increasing Attorney Persuasiveness in the
Courtroom”, 8 Law and Psychol. Rev. 1, 8-11, 1984.
9.
H. P. Weld and E.R. Danzig, “A Study of the Way in Which
a Verdict is Reached by a Jury”, 53 Am. J. Psychol. 518,
1940.
15. Daniel Linz et al., “Increasing Attorney Persuasiveness in
the Courtroom”, 8 Law 6, Psychol. Rev. 1, 8-11, 1984.
16. N. Vidmar, supra at fn 29, p. 16.
17. Katz and Jacobson, “Preparing Sensory-Based Direct Testimony,” Trial Diplomacy Journal, Vol. 15, 1992.
18. A. Mehrabian et al., “Decoding of Inconsistent Communications”, Journal of Personality and Social Psychology 6:
109-114, 1067.
19. N Vidmar, supra at footnote 13.
Inside Medical Liability
Linda S. Crawford, JD, is Principal, Linda Crawford & Associates.
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