Montana Lawyer August/September 2025

witness testimony since jurors heard opening statements. Those factors were not salient. To counter this problem, we developed a repeated set of cross examination questions that explicitly identified each factor, and we asked that set of questions to each of the plaintiff’s witnesses for the next few days. We asked the same questions in the same order using the same wording and after a couple days, the seven factors began popping up unprompted in the shadow jurors’ feedback. Our strategy was working, and it started to change the way shadow jurors were thinking about the case. Our repeated questions in cross exami nation made the key legal factors more salient as jurors thought about the case. We did not have to wait until closing arguments as so many attorneys assume. Jurors were thinking about the factors while hearing testimony. This is a simple way to use repetition in witness testimony to keep the law at the forefront of jurors’ analysis. 2. Highlight issue relevance. As noted in the tapper/ listener experiment, it is easy for jurors to lose sight of the rel evance of an issue during witness testimony. Proximate cause is a prime example. Proximate cause is lost on most jurors. They often do not appreciate that proximate cause is a separate and distinct issue from negligence that carries its own, separate bur den of proof. Consequently, targeted proximate cause questions in direct or cross examination might be lost on jurors. Consider a run-of-the-mill product liability case with failure to warn claims. If jurors are upset by the defendant’s failure to offer sufficient warnings, they may fail to even consider the question of whether such warnings would have made a difference to the plaintiff. Questions related to whether the plaintiff read the warnings that were provided may fall flat if jurors are not ac tively thinking about proximate cause as a separate and distinct hurdle for the plaintiff with its own independent burden of proof. This is where a direct or cross examination question with built-in signposting highlighting proximate cause as a separate and distinct element can make a significant difference. The question lead-in may be as simple as, “Ms. Smith, in this case, it is not enough for the plaintiff to prove there were inadequate warnings. The plaintiff also has to prove that adequate warnings would have led the plaintiff to make different choices so I want to ask you a few questions about whether additional warnings would have made a difference to the plaintiff.” This simple act of signposting, particularly when repeatedly used, can help ju rors understand why the issue an attorney is raising in witness testimony is relevant and important to the outcome of the case. 3. Help jurors grasp the utility. This is similar to but slightly different than helping jurors understand relevance. Too often, attorneys get important admissions in cross examination but fail to ask that next question that helps jurors understand how the admission is useful to their decision making. Great admissions should be followed by questions that implicate them. The question that illuminates how an admission is useful is often more important than the answer itself. It is more about the attorney communicating to jurors than it is about an ex change between the attorney and the witness. We once watched a plaintiff admit that he did not read the contract in a case claiming fraudulent misrepresentation. He claimed the contract did not adequately disclose a key issue, but also admitted he

did not read the contract in its entirety. Like the tappers, most attorneys immediately recognize this testimony cuts against the reasonable reliance element of a fraud claim. But jurors do not necessarily realize this implication and how it could affect their decision in the case. It is plausible to jurors that the plaintiff understood the contract and the relevant provisions even if he did not read it word-for-word. They have probably done exactly that. Perhaps many times. We have watched so many mock jurors explain away a plaintiff’s failure to read a contract by arguing that most people don’t read every word of the contracts they sign, which resonates. It only complicates matters that the legal elements of fraud are abstract, and it is too easy for jurors to lose sight of why such an admission is important to render ing a verdict based on the law. A cleverly worded question can implicate this admission. For example, the cross-examining attorney might ask the plaintiff, “Mr. Jackson, one element of a fraud claim jurors must evaluate is whether you reasonably re lied on the representation that you claim in this case is not true. If you did not read this contract, how could you have relied upon it?” Simple questions with clearly stated implications tie it all together for jurors so they understand what to do with the key admission the attorney just obtained from the witness. 4. Signify transitions. Finally, attorneys should incorpo rate questions that highlight transitions between topics. This might sound simple and obvious, but attorneys often skip this step and jurors conflate and confuse issues that are unrelated as a result. We saw this recently in an employment case involving multiple, differing claims. One motivated mock juror used evi dence for one issue to try to argue an unrelated issue and was quickly shut down by opposition, undermining the motivated juror’s credibility and motivation to speak up in deliberations. The cause was simple: the attorney presenting for the side this juror favored had not provided clear signposting and transi tions when talking through the different claims, and this juror confused evidence and issues as a result. Fix this problem by incorporating simple transition statements into the questions, such as ”Mr. Hurley, those are all the questions I have for you about your whistleblowing claim. I would like to change topics now and ask you some questions about your discrimination claim.” This simple statement can provide important guid ance. One clever strategy we have seen for taking this a step further involves the use of different colored folders. We have seen attorneys who will have for example a blue folder with all their questions about one claim. When they are done asking the questions about that claim, they take the blue folder back to their table and pick up the green folder that has all the ques tions for the next issue. This provides a visual component to the transition and gives jurors a moment of pause while the attor ney is swapping out folders. These momentary mental breaks can help jurors stay focused and better appreciate the transition to a new issue. Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO .

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