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Scoping the juror's head:
Illustration by Warren Gilbert
going on in there?
The jury's preconceptions can be as
as actual evidence in reaching a
By Robert D. Duboff and Nancy L.
/ Special to The National Law Journal
Winning a jury trial is not about which side has the most
rational argument or the better logical presentation. Jurors expect flash and
drama. But sizzle alone will not win trials, either. The challenge for the
successful litigator is to meet jurors' expectations for compelling
presentations while at the same time connecting with jurors in a meaningful way
— one that is persuasive and not just entertaining. This requires an
understanding of how the modern juror thinks in the courtroom.
Trial consultants have been studying jurors for more than 30 years. In the
1970s, the legal process was relatively unknown to the typical juror, beyond
the Perry Mason focus on criminal trials with clear-cut outcomes.
Presentations and evidence were definitely low tech, and jurors expected to
hear more than see. Case presentations were straightforward, keyed to logic and
legal standards. Back then, lawyers hired consultants to help weed out jurors
biased against their clients.
We've got jurors today bringing in high expectations shaped by L.A. Law,
CSI, Law & Order and years of media coverage of legal issues.
They expect a multimedia show with lawyer and witness performances like they
have seen on television, with key messages contained in concise, eloquently
delivered sound bites.
Based on what they think they know from watching these shows, jurors assume
that they understand legal standards and feel familiar with the process. They
feel experienced at figuring out what really happened and who should be liable.
Lawyers have to be more facile than ever and accept that modern jurors are not
awed by the process.
While expectations about the quality of the lawyers' presentation skills have
gone up, juror acceptance of the testimony of the lawyers' clients
(particularly major corporate defendants) has declined. Harris Interactive Inc.
has asked about the trustworthiness of various institutions for years, and its latest
sampling shows that just 25% of respondents in the United States think that
the pharmaceutical industry, for example, is trustworthy — a major decline from
years past. This means that lawyers in civil suits often start with an uneven
playing field; a corporate litigant cannot assume that testimony by its
witnesses will be accepted at face value. Consequently, litigation consultants
spend the bulk of their time deciding how best to communicate to jurors rather
than how to deselect the ones with biases.
Effective communication requires that the case be framed and positioned well to
both fit the evidence and reflect an understanding of jurors' preconceptions.
Unlike the producers of CSI and Law & Order, who need to
appeal to the widest mass audiences, the lawyer has to remember that his target
audience is a very specific six or eight or 12 people. They all likely bring
similar expectations about performance level, but may have radically different
perspectives on the substance involved. And even if the attorney uses the best
selection process, most jurors likely start with a bias against the corporate
Suspension of disbelief
The easiest example of the communication challenge at hand is the O.J. Simpson
murder case, in which that specific jury panel was not swayed by better
presentations or even better rhyming. Most of that panel started with a
preconception that the police will lie if necessary to convict the person they
want to be guilty. Once it was clear in the jurors' minds that the police were
lying, the case was over, because a majority of that panel put no weight on
anything else the prosecution presented. Timothy Egan, "The Simpson Case: The Jury; With Spotlight
Shifted to Them, Some Simpson Jurors Talk Freely," N.Y. Times, Oct. 5,
1995. Nowadays, if jurors see any evidence that a pharmaceutical company, for
example, has suppressed information about dangers from a drug, they will assume
the company is still doing so in court.
So lawyers must pressure-test every argument and piece of evidence to ensure
that, if they can get the jurors to suspend their disbelief, the jurors will
trust their side enough to consider the evidence. Can each key argument or
purported fact be proven to a group of people who distrust the side trying to make
Thus, the first key to understanding and persuading modern jurors is to uncover
their preconceptions (about presentation, which is fairly universal, and about
the substance, which is fairly diffuse) and work to enhance some and/or overcome
others. Pretrial research can assess the underlying attitudes of likely jurors
and learn how these beliefs relate to the case facts: specifically, skeptical
jurors identified during pretrial testing, isolated and used as sounding boards
to test each argument for credibility.
This type of research ultimately can lead to a well-developed juror selection
strategy but, more importantly, can illuminate the predispositions of certain
jurors that should be incorporated into the way the evidence is presented at
trial. For example, experience with research in accounting firm liability cases
teaches that the vast majority of jurors expect auditors to look for fraud in
the course of their everyday work. It therefore becomes important for a
defendant accounting firm to clearly differentiate among the types of services
it offers and point out that there are differences between a routine audit and
a fraud audit — the latter being specifically designed to uncover fraud, while
the former is not. Careful use of this language by witnesses and attorneys
alike helps to address jurors' pre-existing beliefs while demonstrating that
the accountants properly did the job they were hired to do.
Beyond trying to identify and strike potential jurors with biases against a
party (a difficult task for a corporate defendant, since there are so many of
them), and work to overcome jurors' predispositions in the presentation of the
case, it is important for lawyers to heed the observation of Aristotle. In his Rhetoric,
he posited that there are three requirements for persuasive presentations:
• Rational appeal.
• Emotional connection.
See Christoper Carey, Rhetorical Means of Persuasion From Persuasion: Greek
Rhetoric in Action 25-45 (Ian Worthington ed., 1994).
Typically, lawyers focus all their attention on the rational plane. This is
completely understandable, yet can become a major hurdle to winning cases. Too
often, lawyers assume that their clients have credibility and believe in the
logic of their experts. Of course, it isn't what the lawyers or their clients
believe that is important; it's what the jurors think — and feel.
The power of emotion
Jurors almost never put the same stock in expert testimony that lawyers do.
Experts can help to explain complex issues, but it is the rare case in which
expert testimony is decisive. Jurors are much more likely to decide which side
should win a case using a blend of logic and emotion. A purely logic-driven
presentation is seldom enough to prevail.
For example, Simpson's prosecutors thought their DNA evidence was pretty
powerful, but the defense pointed out that, by the prosecutors' math, there
were several, if not many, other people in Los Angeles besides Simpson who
would fit the DNA profile (even though they would be only a few in a million).
In medical cases, jurors can be mesmerized by the fact that those taking a
particular medicine were, say, three times more likely than others to contract
a disease, even though the increased incidence of anyone taking the medicine
getting the disease was fewer than 100 out of 10,000. The point is that numbers
are usually construed to support one's emotional preconceptions about the case
rather than from the perspective of the more logical mathematician.
The second lesson, then, is that the attorney must make sure that he or she
fully understands what jurors take away from the facts presented.
New techniques can help here to uncover what jurors garner from evidence and
testimony. For years, jury simulations have included electronic dials that
record second-by-second reactions to measure how positively or negatively each
juror evaluates what was being said by a given side. Of course, this requires
active volition by the subjects. Now, there are brain-monitoring tools that can
automatically record attention levels and reactions for anyone willing to be
However, even if the jurors are willing to accept what the defense (or
plaintiff) presents, and the rational appeals are described in a compelling
way, most cases turn on the emotional connections. Data suggest that about half
of the world approaches decisions from a thinking perspective, but half
(including slightly more women than men) approach them from a feeling
perspective. David Keirsey & Marilyn Bates, Please Understand Me: Character
& Temperament Types (1978). The former are receptive to rules and criteria
(such as the judge's charge) for making decisions; the latter decide more on
the basis of values and gut feelings. Experience suggests that those in the latter
category often end up being more committed to their position during
deliberations than those relying on cold logic for their position on the case.
These emotional jurors are a critical target audience, since their strong
commitment can make them influential in the jury room. Chip Heath & Dan
Heath, Made to Stick: Why Some Ideas Survive and Others Die (2006).
Overall credibility comes from presenting the facts while developing a rapport
with jurors by addressing their emotional concerns. One way to do this is to
explain events from an individual human's point of view. In a case in which
corporate greed is alleged, it can be critical for corporate witnesses to
acknowledge that their organization is motivated by profits, while emphasizing
that this does not mean that profits were more important than anything else in
the crucible of decisions. For example:
Q: "Are you and your firm motivated by making
A: "Yes, absolutely, but it does me no good to make money in the short run
if it's going to hurt my reputation (or my company's reputation) in the long
run. Of course, I'm in business to make money for my company and my family over
the long haul. But, to do that, we have to do a good job and not cut
Sympathy for Goliath
As any good case presentation is developed, the lawyers must humanize the
actors and draw analogies that can help jurors understand why events unfolded
the way they did. Helping jurors to understand the motives of the key players
decreases the likelihood that they will fill in the gaps in their understanding
with their own dangerous ideas. Litigators must be prepared to answer the
question of why key decisions were made by showing jurors the human face behind
the decision and demonstrating that the process followed was consistent with
other established and familiar activities consistent with good values.
The bottom line is that the best lawyering occurs when the lawyers make an
emotional connection to key jurors. This may be easy for an injured individual
plaintiff David against Goliath. It is naturally harder for big corporate
defendants. When defending Goliaths, emotional connections can best be
accomplished through a compelling witness who can embody the client — by
testifying and being present in court every day. Absent an attractive client
representative, the lawyers need to ensure that jurors understand the human
elements of the company and ramifications on these individuals (e.g., the
grandparents who own the stock in their 401(k), or the hardworking employees,
A third angle is to focus on the human drama. In accounting cases, for example,
there often are no individual shareholders and no particularly articulate or
likable fact witnesses (who typically are too traumatized by the accusations to
be effective anyway). Even in such instances, a case can be presented with a
human component by dramatizing the decisions that had to be made in real time
with incomplete information and without the luxury of videotape replay. If the
witness can describe a typical human situation, the jury may come to accept
that a well-meaning professional made a bad, but understandable, mistake in
judgment. Once the mistake is viewed as understandable, it is less likely to be
perceived as an act of negligence or fraud.
There is one other important issue for lawyers to remember. While the events
behind the controversy occurred in the past, the jurors always approach the
trial from today's perspective. Trials are classic Monday-morning-quarterback
situations. It's almost impossible at this stage to convince people that
invading Iraq made sense because Saddam Hussein was hiding weapons, but a
majority of Congress was convinced of that in 2002. The business analogy might
be Enron Corp. — trying to convince a jury that intelligent bankers didn't know
that Enron was a house of cards is well-nigh impossible.
What can lawyers do? The best attempt to transpose the jury back through a
"time capsule" that might include a multimedia show of what was
happening then, complete with a soundtrack of the music then popular. (Of
course, lawyers have to use ingenuity to get this evidence admitted and may
have to use indirect means, such as asking all witnesses about contemporary
events that may be anchors to their memories of the times.)
The point is to get the jurors to be open to and connect with the case — and
the way to do that is by accepting that words and logic are rarely, if ever,
enough to really get one's client's case through to a jury.
While much is changing with jurors, their expectations and the level of trust
they bring into the box, the attorney's essential task remains the same: to
connect with jurors on a human level.
Robert D. Duboff (Robert.Duboff@HawkPartners.com)
Nancy L. Neufer (Nancy.Neufer@HawkPartners.com)
fact-based litigation consultants
in the Cambridge, Mass., office of HawkPartners.
© 2008. ALM Properties, Inc.
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