Montana Lawyer August/September 2025

Whispering Through Witness Examinations THOMAS M. O’TOOLE, PH.D & KEVIN R. BOULLY, PH.D JURY ECONOMICS

Test this out next time you are around a colleague, friend, or family member. Pick a popular song, something every person knows, and tap it out in front of them. Ask them to guess the song based on the tapping alone. Don’t hum or give other clues. How often would you expect them to get it right? Chances are they will guess wrong, at least that is what Elizabeth Newton found in her famous study. Hundreds of study participants tapped out popular and well-known songs and the listeners correctly guessed the song only 2.5% of the time. The more fascinating finding is, after selecting a song, the tappers guessed the listeners would guess correctly roughly half the time. While this study may seem silly, it highlights a fundamen tal communication problem that is magnified in jury trials. Tappers are quick to assume listeners will correctly identify the songs (at least half the time) because they can hear the song in their head as they tap. It seems obvious. But listeners cannot hear the song in the tapper’s head. All they hear is tapping. This is precisely what can happen with trial lawyers and jurors. By the time a case reaches a courtroom, lawyers have been working for months if not years on their song. They know the case inside and out and know why every fact or admission is relevant. The result is that lawyers too often overestimate how obvious it is to jurors why something is important or what it even means. Instead, they tap, assuming the song is obvious. Trial is one of the only ‘games’ in our society where the players (i.e. the jurors) are not told the most important rules until the game is almost over. We see a common variation of this problem related to the structure of the lawyer’s case theory. What is so often for gotten about at trial is the core structure of the argument or case theory. All arguments have structure, but too often that structure is assumed rather than clearly stated. It may be that attorneys, due to their education and experience, and much like the tappers in the study, are quick to assume it is obvious how everything fits together and why their argument means jurors should render a verdict in favor of their client, but this tends to

be wishful thinking. Courtroom logic is very different from lay person logic. Some attorneys may be quick to assume the logic of the argument is apparent regardless of whether one is trained in the law, but this is often not the case. Instead, overwhelmed jurors resort simply to what feels right without ever thinking critically about the structure of the process that led to that feel ing. They overlook key legal elements like proximate cause, or the elevated burden of proof that comes with certain types of claims. This is only compounded by the fact that most judges will wait until the end of trial to instruct jurors on the claims of the case, offering very limited pre-instructions before the trial begins. Trial is one of the only “games” in our society where the players (i.e. the jurors) are not told the most important rules until the game is almost over. What jurors so often need most is what they are typically given the least of at trial: a structure for how to think about the case. Attorneys are limited in how they go about dealing with this problem, but direct and cross examination offer an oppor tunity for the attorney asking the questions to “whisper” that structure to jurors. In this column, we discuss how attorneys can quietly communicate structure to help jurors follow key testimony. Here are four goals attorneys should adopt for their examinations of witnesses at trial. Prime jurors to focus on the key legal factors. Many years ago, we conducted a shadow jury in a lengthy trial where the key claim in the case involved a seven-factor test. We knew from our mock trial research that it was favorable to our client if jurors focused on the seven factors, but if they adopted a gut feeling approach to the case rather than focusing on the legal factors, it was not going to go well. After the first week of the trial, it was apparent from the shadow juror feedback that the seven factors were getting lost in the mix, which was obvi ously a problem for our client. We had highlighted them in our opening statement, but it had been three days packed full of What jurors so often need most is what they are typically given the least of at trial: a structure for how to think about the case. 1.

73 RD ANNUAL

October 24-25, 2025

AUGUST-SEPTEMBER 2025

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