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How to Effectively Try a Business Case to a Jury

How to Effectively Try a Business Case to a Jury. Presented to the Business Litigation Committee of the Boston Bar Association November 21, 2005. Edward P. Schwartz www.EPS-Consulting.com. Advice on Trial Strategy. What do we know? Statistical Verdict Studies Surveys

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How to Effectively Try a Business Case to a Jury

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  1. How to Effectively Try a Business Case to a Jury Presented to the Business Litigation Committee of the Boston Bar Association November 21, 2005 Edward P. Schwartz www.EPS-Consulting.com www.EPS-Consulting.com

  2. Advice on Trial Strategy • What do we know? • Statistical Verdict Studies • Surveys • Mock Jury Experiments • What can we extrapolate from what we know? • Related Studies • Experience with Similar Cases • What do we need to study? • Run our own survey, focus group or mock trial www.EPS-Consulting.com

  3. Information Aggregation • Meter Readers (Lopes, 1986, Hogarth and Einhorn, 1992) • Algebraic • Balancing • Anchoring and Adjustment • Story Tellers (Pennington and Hastie, 1991) • Narrative Construction • Seek Coherence • More prevalent www.EPS-Consulting.com

  4. Hindsight Bias • Jurors tend to treat low a probability event that actually occurs as much more likely than it is. • Jurors will believe it to have been more easily anticipated and will assign greater urgency to guarding against it. • Jurors often conclude that parties to a contract should have anticipated every contingency. • Jurors tend to blame “the big guy, with all his fancy, high-priced lawyers.” • A second order effect is that the more bizarre the circumstances, the more jurors tend to believe that it must have been “somebody’s fault.” • One strategy for overcoming hindsight bias is to argue by analogy to something familiar to jurors. www.EPS-Consulting.com

  5. High Expert with strong argument Non-Expert with strong argument Expert with weak argument Agreement with Message Non-Expert with weak argument Low Low High Issue Saliency Issue Salience and Persuasion(Petty et al., 1981) www.EPS-Consulting.com

  6. Factors Affecting Jury Performance • Give Instructions First. • Improves Jury Recollection of Relevant Information (Elwork, Sales, and Alfini, 1977) • Defanging • Offering bad news yourself allows jurors to provide counter-arguments. • Example: The “Hired Gun” effect. www.EPS-Consulting.com

  7. Damage Calculations • A variety of strategies are employed (Goodman, Greene, and Loftus, 1989) • “Ad damnum” is often used as anchor for award. (Zuehl, 1982) • A “counter-anchor” can affect the jury’s calculations. (Raitz, et al., 1990) • Itemized verdict forms can reduce excessive damage awards. (Zuehl, 1982) www.EPS-Consulting.com

  8. Zuehl’s Ad damnum Study (1982) www.EPS-Consulting.com

  9. Punitive Damages in Business Cases • Punitive Damages are most common in business cases (contract, fraud, employment) according to Eisenberg, et al. • The request for punitive damages tends to increase the size of the compensatory award, even if no punitive damages are awarded. • When conduct is egregious and punitive damages are capped or unavailable, juries react by increasing compensatory awards www.EPS-Consulting.com

  10. Do Juries Help Out Local Litigants?Punitive Awards From Table 4.2 of Punitive Damages www.EPS-Consulting.com

  11. Auditory and Visual Cues of DeceptionZuckerman, DePaulo and Rosenthal 1981 • Do jurors infer truthfulness of testimony from verbal and visual cues? • Subjects saw/heard taped testimony which varied along three dimensions: • Audible Speech. • Visible Body. • Visible Face. • Some subjects only read a transcript of testimony. www.EPS-Consulting.com

  12. Auditory and Visual Cues of Deception: ResultsZuckerman, DePaulo and Rosenthal 1981 Entries are in Standard Deviation Units Transcript Only: 0.70 Tone Only: 0.20 www.EPS-Consulting.com

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