Courtroom Psychology and Trial Advocacy

by Richard C. Waites, J.D., Ph.D

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“Priceless.... Instantly useful.”  —William S. Sessions, former U.S. District Court Chief Judge, partner Holland & Knight, LLP

“[A] powerful book. A product of real scholarship and insight. If you take trial advocacy seriously, you need it.”   —Professor James W. McElhaney, well-known author,
speaker and professor of trial advocacy

How will the jury or the arbitration panel make its decision in your next case? Courtroom Psychology and Trial Advocacy helps trial attorneys and corporate counsel understand the powerful forces that shape the perceptions of judges, jurors and arbitrators. This exceptional book contains a comprehensive explanation of how to use scientific knowledge to assess the psychological strengths and weaknesses of a case. It will assist you in developing your most compelling and persuasive presentation in the courtroom.

Courtroom Psychology and Trial Advocacy explains the psychology of courtroom communications and juror views of issues that arise in many different contexts. It teaches you how to design and make use of different types of focus groups and other scientific research tools to conduct jury research in your own cases. The book contains hundreds of practical suggestions for use in jury selection, opening statement, fact witness and expert witness testimony, demonstrative aids, closing argument, bench trials and arbitration and mediation advocacy. It also provides helpful guidance on working with trial consultants.

Book #ALM10; hardcover, one volume, 625 pages; published in 2003. ISBN: 978-0-9705970-9-0

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  • Brand: ALM Publishing
  • Product Type: Books
  • Edition: 0
  • Page Count: 625
  • ISBN: 0970597096
  • Pub#/SKU#: ALM 10
  • Volume(s): 1

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  • Richard C. Waites, J.D., Ph.D
Dr. Richard Waites is one of the nation’s leading authorities in the field of jury decision making and trial advocacy. He has been quoted in nationwide and local media including The National Law Journal, The Wall Street Journal, USA Today, and ABC News. Waites has authored or contributed to eleven books and more than 100 articles dealing with persuading judges, jurors, and arbitrators and with the use of scientific information to enhance performance in the courtroom.

Dr.Waites is a board-certified civil trial attorney and psychologist with over thirty years of courtroom experience. He is Chief Executive Officer and Senior Trial Psychologist for The Advocates and Advocacy Sciences, Inc., one of the nations most respected trial consulting firms. He obtained his law degree from the University of Houston Law Center and his doctorate in psychology from Walden University. He is a member of the American Bar Association, the American Psychological Association, the American Psychology-Law Society, the American Society of Trial Consultants, Defense Research Institute, and the American Corporate Counsel Association.

Over the past thirty-five years Dr. Waites has worked with hundreds of trial lawyers and corporate clients. Prior to becoming a national trial consultant, he appeared in more than seventy trials as lead attorney.

Chapter 1
The Decision-Maker Oriented Approach to Trial Advocacy

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

Chapter 2
The Psychology of Communication and Persuasion

§ 2.01 Overview of the Communication/Persuasion Process
§ 2.02 The Process of Communicating
[1]   Basic Characteristics of Communica-tion
[2]   Inner Selves and Communication
[3]   Tools for Creating and Changing Perceptions
[4]   Measuring Effectiveness of Communication in the Courtroom
§ 2.03 The Importance of Listening and Making Jurors Want to Listen
[1]   How Listening Works
[2]   Memory and Retention of Information in the Courtroom
§ 2.04 How Persuasion Works in the Courtroom
§ 2.05 The Elements of Persuasion
[1]   The Communicator and Credibility
[2]   The Content of the Message
[3]   How the Message Is Conveyed
[4]   The Audience: The Judge, Jury, or Arbitration Panel
§ 2.06 Paths to Persuasion
§ 2.07 References

Chapter 3
Jury Psychology and Decision Making

§ 3.01 Psychology and the Jury Decision-Making Process
§ 3.02 Overview of the Jury Decision-Making Process
[1]   Jury Decision-Making Model for Individual Jurors and the Group as a Whole
[2]   Direct Influence of Attitudes in Jury Decision Making
[3]   How Juror Attitudes and Belief Systems Are Formed and Changed
[4]   How Jurors Process Arguments and Evidence
§ 3.03 Individual and Group Decision Making in Juries
[1]   Factors Which Influence Jury Decision Making
[2]   The Role of Individuals in Jury (Group) Decision Making
[3]   Group Influences on Individual Juror Decision Making
[4]   The Active Role of Individual and Shared Attitudes in Jury Deliberations
[5]   What Goes On in the Jury Room?
§ 3.04 References

Chapter 4
Juror Perceptions about Common Issues in Personal Injury and Business Lawsuits

§ 4.01 Introduction
§ 4.02 How We Know What Jurors Are Thinking
§ 4.03 Attitudes and Jury Decision Making
[1]   The Importance of Attitudes and Life Experiences in Jury Decision Making
[2]   Forming Perceptions: Jurors' Psychological Stages
[3]   The Complicated Link between Juror Attitudes and Jury Decision Making
§ 4.04 Looking at Evidence
§ 4.05 Attitudes about Lawsuits and Tort Reform
[1]   The McDonald's Coffee Case
[2]   Media Coverage and Tort Litigation
[3]   Relationship between Attitudes toward Tort Reform and Verdicts
§ 4.06 Perceptions in Personal Injury and Products Liability Cases
[1]   Antecedents in American History
[2]   Perceptions of Plaintiffs
[3]   Views of Corporations and Businesses
[4]   Views of Subsequent Remedial Measures
§ 4.07 Perceptions in Medical Malpractice Cases
§ 4.08 Perceptions in Labor and Employment Litigation
§ 4.09 Perceptions in Business Litigation
§ 4.10 Perceptions in Intellectual Property Cases
[1]   Intellectual Property Trials Generally
[2]   Patent Infringements
[3]   Trade Secret and Copyright Infringements
[4]   Trademark Infringements
§ 4.11 Perceptions of Trial Lawyers
[1]   Attitudes and Opinions about Lawyers
[2]   Media Images and Juror Attitudes
§ 4.12 Perceptions about Damages
[1]   Personal Injury and Product Liability Cases
[2]   Medical Malpractice Cases
[3]   Labor and Employment Litigation
[4]   Business Litigation
[5]   Punitive Damages and Bifurcation of Trials
[6]   "Deep Pockets"
[7]   Making Alternative Damages Arguments
§ 4.13 References

Chapter 5
Developing Powerful Stories and Themes

§ 5.01 What Is Storytelling?
§ 5.02 Why Storytelling Is So Psychologically Powerful
§ 5.03 Storytelling as an Art Form
§ 5.04 Selecting the Story to Tell
§ 5.05 Developing Compelling Story Themes
§ 5.06 Identifying the Right Themes for the Case
§ 5.07 Story Structure and Organization
§ 5.08 Developing the Story Characters
§ 5.09 Adding Creativity to Storytelling
§ 5.10 Relaxing and Getting in the Mood
§ 5.11 Conclusion
§ 5.12 References

Chapter 6
Scientific Jury and Decision-Maker Research

§ 6.01 Introduction
§ 6.02 Applying Science to Development of the Case for Trial or Settlement
§ 6.03 General Principles Applicable to All Courtroom Research Projects
[1]   Reasoning Errors That Science Can Remedy
[2]   Principles for Constructing the Research Project
[3]   Designing the Research Project
[4]   Cost of Scientific Research
§ 6.04 Community Attitude Surveys
[1]   What a Community Attitude Survey Does
[2]   Developing a Sample of People to Be Interviewed
[3]   Developing the Survey Questionnaire
[4]   The Interviews
[5]   Types of Questions to Be Included
[6]   Coding, Tabulating, and Analyzing the Data
§ 6.05 Live Focus Group Research
[1]   When to Use a Focus Group
[2]   Organizing a Focus Group
§ 6.06 Internet-Based Focus Group Research
[1]   Advantages and Disadvantages of Online Focus Groups
[2]   Who Operates Online Focus Groups
[3]   Setting Up the Study and Recruiting Research Jurors
[4]   Collecting and Analyzing the Data
§ 6.07 Mock Trial Research
[1]   The Purpose of a Mock Trial Study
[2]   When to Use a Mock Trial Study or a Focus Group
[3]   Locating and Recruiting Research Jurors
[4]   Designing the Study and Developing the Agenda
[5]   Maintaining Confidentiality Among the Research Jurors
[6]   Analyzing and Applying the Information Gained in the Study
§ 6.08 Mock Arbitration Panel Studies
§ 6.09 Mock Bench Hearings and Trial Studies
§ 6.10 Mock Appellate Hearings
§ 6.11 Psychological Review of Pleadings and Briefs
§ 6.12 Shadow Juries
[1]   Lawyer Experiences with Shadow Juries
[2]   Organizing an Effective Shadow Jury
[3]   Some Additional Tips
§ 6.13 References

Chapter 7
Bench Trials

§ 7.01 Introduction
§ 7.02 Why Judges Present Special Challenges to Attorneys
§ 7.03 Bench Trial Considerations
[1]   What Judges Think about You and Your Case
[2]   What Judges Need from Counsel
[3]   Judges and Jurors: Similarities and Differences
[4]   Trial Advocacy Techniques for Bench Trials and Jury Trials: Similarities and Differences
[5]   Persuasive Techniques for Bench Trials
§ 7.04 References

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

Chapter 9
Pretrial Publicity

§ 9.01 Introduction
§ 9.02 The Effects of Pretrial Publicity in Trial
[1]   How We Study the Effects of Pretrial Publicity
[2]   How Pretrial Publicity Can Affect Jurors
[3]   Reducing Prejudicial Effects of Pretrial Publicity
[4]   Conclusion
§ 9.03 Handling Pretrial Publicity for Your Firm and the Client
[1]   Communicating with the Media in High-Profile Matters
[2]   Avoiding Missteps with the Media
[3]   Developing Your Most Powerful Appearance and Mindset
[4]   Giving Effective Interviews
§ 9.04 References

Chapter 10
Voir Dire and Jury Selection

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

Chapter 11
The Opening Statement

§ 11.01 The Importance of the Opening Statement
§ 11.02 The Purpose of the Opening Statement
§ 11.03 Juror Psychology and the Opening Statement
[1]   Understanding Individual Juror and Group Psychological Needs
[2]   Consistency and How Jurors Understand Causation
[3]   Contrast and Comparison
§ 11.04 Creating a Powerful Story in the Opening Statement
[1]   Why Storytelling Is Important Psychologically
[2]   Visual, Auditory, and Kinesthetic Representational Systems
[3]   Reinforcement
§ 11.05 Strategy for a Winning Opening Statement
§ 11.06 Developing Themes for the Opening Statement
§ 11.07 Structuring a Powerful Opening Statement
[1]   Putting It All Together
[2]   Using Analogies
[3]   Primacy and Recency
[4]   Length of an Opening Statement
§ 11.08 Presenting a Winning Opening Statement
[1]   Addressing the Jury's Self-Interest
[2]   Personal Style
[3]   Establishing Credibility with the Jury
[4]   Laying Out the Agenda and Headlining
[5]   Speaking and Using Words Carefully
[6]   Powerful Nonverbal Communication
§ 11.09 Conclusion
§ 11.10 References

Chapter 12
Psychology and Demonstrative Aids

§ 12.01 Introduction
§ 12.02 Persuasion and Visual Aids
[1]   The Psychological Connection Between Visual Aids and Persuasion
[2]   The Psychological Connection Between Attitudes and Visual Attention
[3]   Why Multimedia Is So Powerful: The Psychological Connection Between Visual and Verbal Communications
§ 12.03 Juror Perceptions of Demonstrative Aids: High Tech vs. Low Tech
§ 12.04 Using Focus Groups and Mock Trials to Test Effectiveness
§ 12.05 General Strategy for Developing and Presenting Demonstrative Aids
[1]   Limiting Information for Each Visual Aid: Focusing vs. Overloading
[2]   Use a Building Block Approach
[3]   Visual Aids Should Speak for Themselves
[4]   The Scale of Visual Aids Should Match the Courtroom
[5]   Tell, Then Show
[6]   Let the Jury Touch Key Documents and Materials
[7]   Always Consider a Time Line
[8]   Make Sure Everyone Can See the Aid
[9]   If the Visual Aid Is Really Important, Refer to It Often
[10]   Practice Using the Visual Aid with Witnesses
§ 12.06 Determining the Best Demonstrative Aid to Use
[1]   Easel Pads and Chalkboards
[2]   Photographs and Enlargements
[3]   Juror Notebooks
[4]   Videotaped Deposition Excerpts
[5]   Videotaped Demonstrations and Scene Re-creations
[6]   Live Demonstrations
[7]   Charts and Graphs
[8]   Models
[9]   Computer-Generated Animations
[10]   Traditional and Electronic Overhead Projectors
[11]   Computer-Generated Slides
§ 12.07 Paperless Trials and Computer-Generated Imaging
[1]   Advantages of Computer-Generated Imaging
[2]   Juror Perceptions of Computer-Generated Imaging
[3]   Choosing and Working with Technical People in the Courtroom
§ 12.08 The Future of Courtroom Presentation Technology
[1]   High-Tech Courtrooms
[2]   Advances in Storytelling Technology
[3]   The Psychology of the Decision Maker in an Age of Advanced Technology
[4]   Your Decision-Making Process
[5]   Sources of Information about Courtroom Technology
§ 12.09 References

Chapter 13
Fact Witnesses

§ 13.01 Introduction
§ 13.02 Judge and Juror Perceptions of Fact Witnesses and Their Testimony
[1]   Assessing Credibility
[2]   Testifying from Memory
[3]   General Perceptions of Witnesses by Judges, Jurors, and Arbitrators
§ 13.03 Choosing Fact Witnesses and Preparing Them for Direct Examination
[1]   What Witnesses Are Experiencing at the Beginning of Preparation
[2]   Choosing the Right Witnesses
[3]   Order of Witnesses
[4]   Preparing a Witness Mentally and Emotionally
[5]   Overcoming Problems with Difficult Witnesses
[6]   Orienting Fact Witnesses to the Themes and Story of the Case
§ 13.04 Direct Examination of Fact Witnesses
[1]   Structure of the Examination
[2]   Thoughts to Be Considered in Conducting an Effective Direct Examination
§ 13.05 Cross-Examination of Fact Witnesses
[1]   Purposes and Goals
[2]   Perceptions of Fact Finders During Cross-Examination
[3]   Organizing and Choosing Points for Cross-Examination
§ 13.06 References

Chapter 14
Expert Witnesses

§ 14.01 Introduction
§ 14.02 Fact Finder Perceptions of Expert Witnesses and Their Testimony
§ 14.03 Retaining the Right Expert
[1]   Is an Expert Needed?
[2]   Qualifying the Expert
[3]   The Expert as a Persuasive Witness
[4]   Choosing Among Possible Experts
§ 14.04 Integrating an Expert Witness into the Case
[1]   Establishing a Strong Rapport with Expert Witnesses
[2]   The Role of the Expert in the Themes and Story of the Case
[3]   Overcoming Problems with Expert Witnesses
§ 14.05 Preparing an Expert Witness for Direct Examination and Cross-Examination
[1]   Contents of the Expert's Testimony
[2]   Preparing an Expert for Direct Examination
[3]   Preparing an Expert for Cross-Examination
§ 14.06 Conducting Direct Examination of Expert Witnesses
[1]   Structuring the Examination
[2]   Developing Credibility of the Expert Witness
§ 14.07 Conducting Cross-Examination of Expert Witnesses
§ 14.08 References

Chapter 15
Final Argument

§ 15.01 Introduction
§ 15.02 Psychology and Purpose of Final Argument
[1]   Summing Up the Case
[2]   Clarifying and Simplifying the Case
[3]   Explaining the Evidence
[4]   Proving Your Case Theory
[5]   Disproving the Other Side's Case
[6]   Guiding and Motivating Fact Finders
§ 15.03 What Decision Makers Are Thinking and What They Need
[1]   Jurors
[2]   Judges
[3]   Arbitrators
§ 15.04 How Jurors Will Make the Decision
[1]   Morality
[2]   Life Experiences
[3]   Perceptions of Themselves and Others
[4]   Attitudes and Stereotypes
[5]   Intuition
[6]   Sympathy and Empathy
[7]   Perceptions of the Law
[8]   Relations Among the Jurors
[9]   Need to Feel Good about the Decision
§ 15.05 Getting Ready for Closing Argument
[1]   Empowering Yourself
[2]   Inspiring Your Audience
§ 15.06 Telling a Powerful Story
§ 15.07 References

Chapter 16
Advocacy in Mediation and Settlement Negotiations

§ 16.01 Introduction
§ 16.02 Interaction Between Mediation and Advocacy
[1]   Obstacles to Settlement
[2]   Elements of Conflict: When to Talk Peace and When to Fight
[3]   Testing the Relative Strength of the Case
[4]   Advantages and Disadvantages of Trial, Mediation, and Arbitration
[5]   When to Use Mediation
[6]   The Role of Advocacy in Mediation
§ 16.03 Negotiating Tactics
§ 16.04 Effective Advocacy Skills in Mediation
[1]   Effective Speaking and Body Language
[2]   Applying Communication Skills to Mediation Advocacy
§ 16.05 Using Science to Enhance Effectiveness in Mediation Advocacy
[1]   The Role of Science in Developing Effective Mediation Advocacy
[2]   Using Scientific Knowledge and Research Methods
§ 16.06 References

Chapter 17
Improving Jury Trials: Perceptions and Reality

§ 17.01 Introduction
§ 17.02 The Controversies and the Debates
[1]   Dissatisfaction with the Jury System
[2]   Responses to Criticisms
[3]   Debate over Improvements in Jury Trial Procedure
§ 17.03 Basic Considerations for Changes in the Jury Trial System
§ 17.04 Scientific Research and Jury Trial Reforms
§ 17.05 Jury Competence in Complex Matters
[1]   Jury Competency: Positing the Argument
[2]   Jury Competency Research
§ 17.06 Juror Note-Taking
[1]   Procedures Used or Tested
[2]   Evaluation of Perceived Advantages
[3]   Evaluation of Perceived Disadvantages
[4]   Conclusions and Recommendations
§ 17.07 Juror Questions to Witnesses
[1]   Procedures Used or Tested
[2]   Evaluation of Perceived Advantages
[3]   Evaluation of Perceived Disadvantages
[4]   Conclusions and Recommendations
§ 17.08 References

Chapter 18
Working with Trial Consultants

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

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