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The Advantage Blog

  • Tsongas Litigation Consulting


Updated: Jul 14, 2023

I just completed my second shadow jury project of the year, and the opportunity to pick the brains of typical jurors for 10-12 days has reinforced for me some of the basic tenets of persuasion and decision-making that we see in the literature but don’t often get to observe in practice.

For those who haven’t been exposed to a trial monitoring project before, basically it involves putting four ordinary citizens in the audience of a jury trial and having them watch the proceedings each day. In the evening, I call each juror individually to learn how they reacted to the issues they were presented with during that day’s testimony, and then determine their current leanings on the case.

Perhaps the strongest principle I have observed is the strength with which people try to avoid changing their minds on an issue. A recent PsyBlog post outlined nine ways the mind resists persuasion, and I certainly witnessed many of them during my interviews. A couple stood out to me as most prominent for the individuals to whom I was speaking.

Inoculation — When individuals have already received the refutation they need to fend off an argument, they are much more likely to stay strong in their convictions. This is an important concept for attorneys to employ in their opening statements and with witnesses. The more arguments you can anticipate and inoculate against, the more likely the audience will resist counter arguments presented later in the trial. I frequently heard trial monitors use these “inoculations” when explaining why they didn’t accept an argument they heard that day.

Reactance — People don’t like being told they have “no choice” but to believe a certain argument. They like to feel they have come to a conclusion on their own. I saw this frequently when jurors jumped at the chance to piece together the components of a “mystery,” or even simple math problems, to come to their own decision about the facts. Give jurors a choice (with the right facts) and they are more likely to agree with your conclusion.

Resistance breeds more resistance“When people successfully defend themselves against an attempt at persuasion, their original position gets stronger.” Trial monitors locked into their perspectives early, and fended off attempts by attorneys to get them to change their minds, which strengthened their resolve. Thus, the longer the trial went, the less likely jurors were to change their minds. This reinforced for me how critical it is to get off to a fast start in your case, and not save your best witnesses for last. By the time they take the stand, it could be too late. Additionally, far too often points were made in examinations that weren’t given any context, so jurors couldn’t use them in developing their opinions. Waiting until closing to explain the relevance of a key admission is frequently too late.

Even though most jurors try to be open-minded, people have a natural inclination to resist persuasion. It is important to keep this in mind when making your case, rather than assuming the brilliance and correctness of your arguments will be enough to carry the day on their own.

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