Chicago Accident and Injury Lawyer Blog

Is your body behaving in a way which is consistent with the words you are using while testifying? For example, you are sitting in a deposition and the opposing attorney is asking you a series of questions. Your arms are crossed. Your brow is furrowed. Both your legs are shaking. You cannot make eye contact. Trust me, opposing counsel will strongly believe that you are not very sure of yourself and will ultimately question your credibility. On the other hand, lounging or appearing too casual in you chair will not gain credibility. Somewhere in between the look of total relaxation and hyper arousal is the look you want your body to have during the deposition.

Like it or not, your face signifies your emotions. Your facial expression will become part of your total picture. Are you the type of person that rolls their eyes? Those little nuisances can be negative influences in a deposition. Similarly, body language is an aspect of your communication that you can and should use to your advantage. Be aware of what your body is doing at all times so that its movements matches your thoughts, feelings and testimony. Similarly, the deposing counsel’s body language will show you what effect you are having on that attorney. Here are a couple of tips for effectively communicating in a deposition.

1. Look people in the eye when you testify. It sounds simply but it shows confidence.

2. Try and control your bodily positions. If you are nervous, try and appear relaxed. However, it is a fine line because you do not want to appear disinterested.

3. Control your facial expressions. True, some are better than others in displaying a poker face. Once you start showing that you are bored, angry, or some other negative emotion, the opposing counsel will use that to their advantage. When you let your guard down, that is when you are most vulnerable.

4. If you have type A tendencies, lessen them, if possible. There are people that tend to interrupt others. When you do, you can be perceived as rude and uninterested. Avoid sarcasm or hostility when communicating. None of that is helpful. Remember, opposing counsel is not only judging what you say but how you say it as well.

5. Read other people’s body language. You will quickly know how effective your testimony when you are examining their posture, their fidgeting or their rolling of the eyes.

Jeffrey J. Kroll has lectured on legal topics on over 100 occasions throughout the country and has had numerous articles published in legal journals on topics such as jury selection, preparing expert witnesses, trial techniques and the role of storytelling in a personal injury trial. For more on Jeffrey J. Kroll visit his firm website.

I often hear on the news or read in that a person filed a lawsuit seeking $50,000.00. In reality, many times, the plaintiff is seeking in excess of that amount. This bit of information cited by the media originates with the "ad damnum" clause, which is a part of the complaint at law filed on behalf of plaintiffs. The clause typically states, "WHEREFORE, Plaintiff, JANE DOE, demands judgment against Defendant, COMPANY X, in an amount in excess of FIFTY THOUSAND DOLLARS ($50,000.00).

The ad damnum clause does not specify the amount of damages sought as much as it specifies to which division of the court the case should be assigned. In Cook County, where the majority of my personal injury and wrongful death cases are handled, there is a municipal division and a law division. Stating in the complaint at law that Plaintiff seeks damages in excess of $50,000.00 places the cause of action in the Law Division for actions pending in the City of Chicago.

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Many cases are won or lost by the testimony of a witness. It is less than ideal when the witness is trying to remember dates or events and comes up blank. As a trial lawyer, we know the significance of “lack of memory.” It is used as both a shield and a sword in the courtroom.

Over the last 40 years, psychologists and individuals working to improve memory have found three methods which consistently improved word memory. They are as follows:

1. Imagery. Word memory is assisted by creating an image of what you would like the witness to remember.

2. Elaboration. This is where you have an individual cogitate of associations to help anchor words in their mind.

3. Generation. Memories improve when your witnesses are required to work their minds to generate the target or phrase.

Research has demonstrated that employing these three methods have produced memory improvements of ten percent over simply reading words once.

In a new series of studies published in the Journal of Experimental Psychology: Learning, Memory and Cognition, there is now evidence for a fourth method to enhance word memory. How? Simply by saying the word you want to remember out loud or even “mouthing the word” will improve memory by increasing its distinctiveness. How does this come into play for a trial? If you are working with a witness and want the witness to retain important parts, the key is to identify the right words and have them vocalize the words or “sub-vocalize” them. The more they discuss the words “out loud,” the more successful their memory will be with the key points.

Through choice and sometimes necessity, I have taken dozens of cases to trial. All have involved people injured or killed due to the negligence of others. Sometimes from an auto or trucking accident occasionally from railroad accidents or construction or workplace negligence. Regardless, of how the person was injured, one of the most important aspects as a trial approaches is preparing your client to testify. In advance of testifying at trial, here is a brief “to do” list for victims of negligence:

∙ Make sure you have had the opportunity to review your interrogatories, prior deposition transcripts, photos, videotapes, etc. In other words, review everything.

∙ If there is something the attorney should know about your background or your injuries, tell them. Attorneys are not mind readers and can usually minimize any problem...if they know about it.

∙ Familiarize yourself with any exhibits or demonstrative evidence that would or could be used during the trial. Make sure you see everything your attorney, as well as opposing counsel, intends to use with you.

∙ Identify any and all weaknesses so they can be successfully fronted.

∙ Identify any concerns you may have with your direct testimony or the opposing attorney’s cross examination.

∙ Ensure you know what the case theme or theory is and how your testimony fits in with that theme or theory.

∙ Consider videotaping yourself in advance of trial? Watch it and look for any nervous habits you may have. Attempt to void yourself from any of your distracting habits. So id does not offend jurors.

∙ Avoid “boredom” while testifying. It sounds simple but it is not. Use voice inflection or other tools to change the pace or tone of your testimony. If need be, stand in front of the jury or change the mode of the presentation to “wake up the jury.”

∙ Dress appropriately. Find out from the lawyer what is the appropriate attire for that particular jurisdiction.

∙ Be polite and respectful to everyone. Everyone includes court personnel, opposing attorneys and anyone else you come in contact with in the elevators, lobby of the building or the courtroom.

∙ Be organized. Know where the attorney will be going with your examination. Tell the jury a story. In other words, have a plan.

∙ Try and work with the attorney in developing analogies as a means of clearly describing your injuries or how the incident occurred.

∙ Make eye contact with the jurors. It is important that they trust you. By looking away or by failing to make eye contact with jurors, a level of distrust can be created.

∙ Before trial, it is imperative that you meet (at length) with the attorney that will be asking you the questions. Ensure that the attorney meeting with you will be the one asking the questions.

Preparation is the key to success in the courtroom. As the saying goes, “if you fail to prepare, you are preparing to fail.”

Typically, a focus group is comprised of twelve individuals who are brought together for two to four hours to watch a short presentation of a legal case and discuss the various issues raised. It is a way of gathering information about the attitudes, beliefs and values of a community. Some trial lawyers still doubt the value of focus groups. They say they are too expensive, or too unpredictable. For those skeptics, focus groups are invaluable.
Participating in athletics taught me life long lessons. For example, after being on the wrong end of a game, it was not unusual for a coach to address us and let us know that losing is an educational experience. As a child, that may have been true. As a lawyer, you do not need to suffer a loss to educate you on “what went wrong.” Talking with jurors after a verdict is reached can be a painful experience. You learn that certain issues or pieces of evidence were important to the jurors, assumed by them, or more importantly, misunderstood by them. Typically, our reaction is something along the lines of “I wish I would have known.”
Practice and preparation can make perfect. Focus groups enable attorneys to see first hand how a jury perceives the issues of the case. In doing so, you learn by preparation . . . not by losing.

WHAT DO ATTORNEYS LEARN THROUGH THE USE OF FOCUS GROUPS?

I. FOCUS GROUPS ASSIST ATTORNEYS IN EVALUATING THE VALUE OF CASES

A focus group can help you settle a case. It is amazing to see how quickly a client’s position changes after a focus group awards a sum much different than anticipated. A focus group can quickly open a client’s eyes as to troublesome liability issues. You will also see how a focus group analyzes the non-economic and economic damages of the plaintiff.
Conversely, there are times when lawyers are intensely concerned about the difficulty of some legal issue or factual dispute involved in a case. As it turns out, the focus group that hears the case may think these issues are not nearly as significant. Under those circumstances, a modest settlement offer, which may have been somewhat tempting before the focus group, may then be rejected with a greater comfort level.

II. FOCUS GROUPS SERVE AS A MEANS OF PRACTICE AND PREPARATION

World class athletes practice for countless hours before every contest. I find it ironic that we as lawyers will take a case to verdict, a case often involving enormous sums of money, and not use similar levels of practice.
A focus group allows the attorney the opportunity to practice and prepare for their upcoming trial. It is a great time to experiment with a new argument or see how a case them works. The attorney has the opportunity to look “jurors” in the eye and determine how the presentation of potential evidence and/or testimony will be received. Without a focus group, it may be too late.

III. FOCUS GROUPS ENABLE THE ATTORNEY TO DETERMINE IF A JURY’S ATTITUDES AND EXPERIENCES WILL CO-EXIST WITH THE FACTS OF A CASE

Focus groups furnish a valuable insight in cases that involve complex, controversial or disputed issues. One key to a successful focus group is the ability to have some type of direction or control over which issue you would like addressed. A fresh outlook obtained through a focus group, especially cases involving issues that you have not been associated with, can open your eyes and enable you to see and recognize more clearly the strengths, weaknesses and viability of such claims.

IV. FOCUS GROUPS ASSIST ATTORNEYS IN DESELECTING POTENTIAL JURORS.

Jury selection or “de-selection” is unquestionably one of the most crucial aspects of any trial. Focus groups enable an attorney to listen to a number of issues that impact a juror’s thought process . . . even though there may not be any evidence to support their views.

V. FOCUS GROUPS ELICIT REACTIONS . . . BOTH NEGATIVE AND POSITIVE

In our daily lives, it is not difficult to get reactions. How many times a day do you hear the question, “what did you think of the game last night?” Inevitably, there is a reaction. You need to know a juror’s reactions prior to the trial . . . not after a trial. It is disheartening to talk with jurors after a case and learn that they did not believe your client because a specific issue was not developed. If you would have known this fact prior to the trial, you may have won. In other words, you did not know what “buttons needed to be pushed” for these potential jurors.
Listen to the members of the focus group. People in focus groups ask questions that must be answered at a trial. To have the foresight to know the questions that jurors will have and to answer them throughout your case gives you power. It gives you control. It increases the probability of advocating your client’s rights. Going back to our formative years, I think we would all agree it would be much easier taking tests if we knew the questions ahead of time. Knowing what questions a juror will be asking makes it easier to take this “test.” Focus groups enable you to answer their questions prior to trial.

CONCLUSION

Focus groups are an invaluable tool. Focus groups permit attorneys to discover important and profitable information. They allow attorneys to create, test and/or evaluate themes prior to trial. More importantly, focus groups enable attorneys to thoroughly understand community attitudes or the way potential jurors will view certain issues in a case. Examining the results from the discussions and conclusions of each focus group will offer a wealth of information.
One word of caution to attorneys is that focus groups are not the Utopia in the trial of a case. One reason we have all been successful in the courtroom is because of our instincts in understanding the reactions of individuals. Rely on your instincts in the trial of your case. Do not set aside your own experience as a lawyer in making decisions about a trial.

Jeffrey J. Kroll has obtained numerous favorable jury verdicts and settlements for his clients in matters of personal injury, wrongful death and medical malpractice cases. He often uses focus groups to help give his clients the advantage and ensure a favorable outcome at trial or mediation. Contact the Law Offices of Jeffrey J. Kroll today if you or a loved one have been injured. Attorney referrals are welcome.

In observance of National Collision Awareness Month, School Transportation News featured attorney Jeffrey J. Kroll in an article promoting safe driving tips. The article (which can be read in its entirety here), provides the following simple safety recommendations:

• Eliminate distractions while driving. Focus on the road, not the backseat or that hot cup of coffee, when you are behind the wheel.
• Don't multitask while driving. Never text or email. Also, refrain from adjusting the radio, applying makeup or snacking. Taking your eyes off the road, even for a second, can create a lifetime of loss.
• Keep your vehicle clean. Keep the area near your accelerator and brakes free from debris.
• Don't ever drive impaired. Call a friend, take a taxi, or use public transportation if you feel you are unable to drive for any reason.
• Drive with your headlights on, even during the day.

The Law Offices of Jeffrey J. Kroll encourages all drivers to take the time this month to evaluate their driving practices in an effort to make our roads safer.

The international sensation, Susan Boyle, has re-taught us an age-old lesson that you cannot always judge a book by its cover. The Britain's Got Talent star appeared dowdy and awkward as she appeared on stage. The judges and audience around the world doubted her ability to sing based on her appearance. Ms. Boyle definitely blew everyone away when she started singing, "I Dreamed A Dream." Apparently, everyone's expectations of her were so low based on how she looked and you could see audience members at the show snickering at her. Trial lawyers should also take note of the lesson here on how a person's appearance affects others expectations of them. At trial, it is essential that you grasp the opportunity to manage the jury's expectations.

Like it or not, people do judge others based on their appearance. It is not always fair, but it is a fact. Keep this in mind when you are on trial. This principle applies to your own appearance, the appearance of the plaintiffs and defendants and the appearance of the jury.

My advice would be to make a good impression from the start because appearances do make an impression. That being said, it may be a good idea to explain, perhaps during your opening statement, any of your client's idiosyncrasies or behaviors if you think that the jury is judging him or her on that basis. Use the opportunities that you have before the jury to emphasize your client's positive attributes or the factors that are at issue in the case, such as your client's injuries.

With regard to jurors, keep in mind that you really should not judge them based on appearance alone, which is why effective voir dire is essential.

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As a plaintiff’s personal injury law firm, the Law Offices of Jeffrey J. Kroll deals with expert witnesses on an almost daily basis. Jeffrey J. Kroll has lectured to expert witness organizations on a number of occasions and the most common question asked of him is “what are you looking for in an expert witness?” What I want from an effective expert witness is simple - yet, difficult to find. Although Christopher Columbus sailed the Seven Seas, we set sail for different “C’s” in our search for an expert witness. What we seek in an expert witness is the following:

1. Credible - Another way of gauging an expert’s credibility is assessing his or her believability. Is this expert believable? If the expert has published something which is inconsistent with the opinions in your case, that could impact his or her credibility. It often takes years to build credibility as an expert witness and only one case to destroy it. Experts should be careful in getting involved in the wrong cases.

2. Competent - We often utilize teachers as experts. When an expert stays within their area of expertise, they often are very effective. Many experts get in trouble when they venture outside of their “sandbox,” their comfort zone. You need to find out the expert’s true area of expertise.

3. Convincing - I want an expert that is persuasive. An expert witness needs to recognize any nervous habits and figure out/discuss how to avoid them during their testimony. When the jury goes back to deliberate, I do not want them talking about how my expert fidgeted with a pen or looked at the ceiling before every answer. Convincing encompasses every part of examination, not just direct.

4. Confident - There is a fine line between confidence and cockiness. Jurors appreciate confidence. They do not like cockiness. An expert should attempt to maintain the same disposition on direct examination and cross examination.

5. Caring - When an expert appears that he or she is attempting to “right a wrong,” the system works. A jurors will see through the expert that is involved in the case solely for financial gain.

6. Creative - I like when an expert is able to assist me with developing a theme for the case. I like when an expert chooses exhibits that effectively gets across our case theme with the jury. An expert is an intrical part of the trial team and should be used to maximize their own effectiveness.

7. Communicate - Jurors are searching for their guide. They are searching for the teacher. I need an expert to persuasively communicate our theme, our message, to a jury.

If you think about it, the qualities that make someone a good dinner companion (personable, open, entertaining, engaging, fascinating) also makes a good expert witness. As a lawyer, I know that if a jury follows my experts in the battle of experts, it is because I won the battles of “C’s”.

The Chicago Sun-times recently reported that jurors are sending Twitter messages from courthouses across the country about their service. Experts said Tuesday that most messages posted to the social networking site are innocuous, perhaps expressing boredom.

But at least a few jurors have gone online to discuss cases they are helping decide.

In Philadelphia this week, a juror in a high-profile public corruption case told Facebook friends to “Stay tuned for a big announcement on Monday” — forecasting that a verdict was near.

Jurors are instructed by the judge presiding over their case that they are not to discuss the cases with anyone until they are dismissed upon the conclusion of the case. They are to judge the evidence in the case without outside influences. I support updating jury instructions to clarify that online communications about a case, via email, Facebook, Twitter, or otherwise are prohibited.

A recent study sponsored by Texas Tech University concludes that English-speaking Hispanics fare better in the courtroom than their non-English-speaking counterparts. In fact, a non-English-speaking Hispanic is 15% LESS likely than an English speaker to obtain a better jury trial verdict than the last settlement offer. This finding corresponds to a different study, published in the Social Sciences Quarterly , in which researchers found that Spanish-speaking Hispanics express less trust in juries than non-Hispanic whites and other English-speaking persons. The authors concluded that "faith in the jury as a more trustworthy decision-making body [than a judge] is weakest among those groups that have a history of discriminatory treatment in the legal system and who are less acculturated on other measures, such as language dominance."

The study noted that Hispanic individuals who do not speak English very well, or perhaps at all, must testify in Spanish which necessarily results in the use of a translator and perhaps some loss in communication with the jury. Consequently, "less than optimal communication between the plaintiff and the jury may result." Moreover, testifying in Spanish may subject the plaintiff to various biases, discrimination and prejudices. Such effects, the study notes, may be especially prevalent in group contexts, such as a jury of twelve individuals.

This study makes me question whether non-English-speaking plaintiffs are receiving the fair and impartial trial to which they are constitutionally entitled. This study raises important questions that policymakers, lawmakers and community leaders should consider and address. More importantly, a trial lawyer needs to take this into consideration when presenting evidence when representing a non-English speaking plaintiff.

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A juror’s responsibility is to pay attention, retain information and participate in jury deliberations. Does that conflict with some members of the venire? The percentage of Americans taking medication is rising and lawyers have begun asking potential jurors what kinds of medication they are actually taking. In fact, Science Daily cited a study from Boston University's Slone Epidemiology Center finding that in a given week, over 10 million Americans are taking opioids.

Of course, asking a jury whether or not they are on medication could be a death knell for a trial lawyer. You risk upsetting the judge and looking terrible in the eyes of jurors. Also, some judges maybe reluctant to allow such personal questions to be asked of potential jurors as it could be in direct conflict with the privacy provisions of the Health Insurance Portability and Accountability Act.

I think it could be very important to find out if a juror is taking a medication. Moreover, you want to know what they are taking. If a juror is taking some type of anti-depressant or mood changing medication, it could impact their ability to stay awake and alert during an extended trial. Some jurors, without any fault of their own, fall asleep during trials due to the medications they are taking. I believe lawyers have a right to know anything that can conceivably affect their client’s case.

I think the prudent course of action would be to ask a juror in some type of juror questionnaire or in open court, “are you taking any type of medication?” If the answer is yes, that issue should be addressed in a side bar, outside the presence of the other jurors. I believe this line of questioning could be appropriate in many types of cases. I am concerned about any juror who may be taking some type of anti-psychotic medication or some other medication that would be make them drowsy during a trial. The side effects of some drugs can interfere with the jurors’ ability to sit and concentrate during a trial. With the commercialization of many of these drugs and without many knowing the side effects, this line of questioning should be appropriate for a jury trial.

For additional information on this topic see the recent National Law Journal article, "What's Your Juror Taking?"

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