SATISFYING A KEY JUROR NEED IN CLOSING ARGUMENT

A recent study of 3,202 jurors by Sprain and Gastil (2013) reveals a critical opportunity for trial attorneys. The researchers found that although jurors thought very highly of their fellow jurors, felt their service to be extremely rewarding and meaningful, there was one area of dissatisfaction. In short, while they were given jury instructions, a verdict form, and lots of evidence and argument, they were not given an understanding of how they should proceed in deliberations. In other words, what “process” should they use?

A key to successful persuasion is the identification and satisfaction of an audience’s psychological needs and wants. This clear need is a gift for the trial lawyer who wants to arm and motivate jurors to deliberate in a manner most helpful to their client.

Jury deliberations can often be chaotic. They are a group of people unaccustomed to deliberations, who are not experts in the law, and who have not been trained in the technical rationality of judges and attorneys. Our experience from observing mock trial deliberations and the deliberations of shadow jurors, and conducting post-verdict interviews is that in many cases, deliberations bounce from issue to issue rather than proceeding in a calm, linear, and organized manner.

Although not always the case, such chaotic deliberations can favor plaintiff-oriented jurors. There are many times where plaintiff-oriented jurors literally wear down fellow jurors, and rather than engaging with the substance of an issue, they shift the discussions, keeping deliberations driven by their emotions and desires. In one recent case, each time a defense-oriented juror pressed the issue with a plaintiff-oriented juror, the plaintiff-oriented juror simply shifted and said, “Well, that’s not all there is. It is also about…” referring to a point they felt supported their feelings. The problem was that there was no orderly method guiding their deliberations. At one point, the defense-oriented juror just gave up and said, “Fine,” choosing to stop advocating for the defendant.

The more deliberations lack methodical process, the more likely mistakes can be made. For example, in one recent mock trial, the defendant was confronted with a troubling situation. Jurors addressed negligence and causation as separate and unrelated questions, rather than directly related ones. This is how it went. The juries found negligence because of a one-foot difference in the location of a municipal structure compared to the internal guidelines of where that structure should be placed relative to the street. After voting “yes” on the question of negligence, they turned to causation. Rather than saying “So, is this one foot difference a cause of the injury?” the jury jumped to, “Did this structure cause the injury?” The answer was, “Yes, because the roof fell on the man’s legs (even though that was not a theory of negligence advanced by the plaintiff).

With those two questions answered, it was on to damages while the trial team observed helplessly in closed circuit. Since it was not the real trial, but a mock, there was opportunity to address the risk. We realized that we needed to use graphics to teach the jurors how to proceed through the verdict form. The graphics would depict the need for a direct relationship between the source of negligence as the (or a) source of causation. We could not just tell them what content or evidence to evaluate, we needed to give them a map to follow.

The key for the defense is to arm and motivate jurors to be effective advocates. Jurors really want to understand how their deliberations should proceed. We have had great success in providing those answers to jurors, and thus heavily influencing the way in which they deliberated.

In one instance, the defendant’s closing argument divided the evidence into three categories; two of the categories were, in essence, framed as a “tie.” These were the categories of confusion, whereas the third category of evidence — the attitudes, character, and behavior of the named plaintiffs — was framed as the critical and most interesting issue. As the foreperson told us afterwards, the jury, “Divided up the evidence, decided that there was one primary bucket of evidence they should focus most of their attention on, and that the other two were so close that heavy deliberations about them would be unlikely to result in greater clarity.” It was a great process resulting in a great verdict for the defendant.

So, we have been recommending the use of “process graphics.” The process graphic arms jurors with the tools and resources to keep deliberations flowing in a linear and orderly fashion. When we call up directions on MapQuest, most of us prefer to have not only the line-by-line text of the directions, but a picture or map of the destination as well. This helps us envision the details within the larger goal.

Tell the jurors and show the jurors, thus increasing the retention and recall of your critical themes and facts. Use witness testimony summary slides or boards with excerpts from the trial transcript, and a picture of the witness. Associate key testimony with their face. Then, integrate these select pieces of evidence into a “process” graphic to walk the jurors through how they should apply the evidence through the filter of a jury instruction in order to answer a particular verdict form question.

After weeks of overloading jurors with more information than they can process, store, or use, your visual road map will provide them with a way to organize their thoughts and your key evidence. Jurors, after all, greatly appreciate any effort to make their job easier. It is also a way to have jurors control the form, and thus the content, of deliberations. They are using your map to find the verdict, not opposing counsels “directions.” With all the concern over the plaintiffs’ bar increasing use of the “reptile” brain strategy, encouraging some linear, logical, and thoughtful deliberations seems increasingly appropriate