- Theodore O. Prosise Ph.D.
WHAT THE “GAME OF THRONES” NOVELS (NOT THE SHOW) TEACH US ABOUT JURIES
One of the things that makes George R. R. Martin’s series of books, A Song of Ice and Fire (which the HBO show is based on) such a success is that each chapter is written from a single character’s point of view (POV). The television series has not captured this effect, and being a different medium, such an attempt is impractical. But this is a big part of what makes the books so fascinating, so masterful and complex, and, believe it or not, so instructive for trial lawyers. Different characters see the same events and hear the same information, but each one applies their own personal bias and inherently flawed perspective. In short, there is no reliable narrator; no single point of view.
The reader is left with a myriad of mysteries and puzzles that can only be assessed with inferential reasoning. At times, the reader comes to realize that the POV characters are overwhelmed by their own egocentrism; interpreting actions and events only through their unreliable point of view. Other times, the reader becomes aware that they may have misjudged a character because they have only seen them from another’s biased viewpoint. Once he or she see things through that character’s eyes, it is possible to understand them, their motives, and the “character” better.
So, what can this teach us about jurors? First, far too often advocates in the courtroom are developing strategy and interpreting events in trial through their own biased point of view, then mistakenly assume that their view is everyone’s. They are, in a sense, imposing a potentially false “reliable narrator” onto the courtroom scene, whereas each juror is a character with their own point of view, witnessing events at trial from their own unique perspective. Each juror has a different set of experiences and attitudes; they each have different motivations and cognitive abilities.
As a trial advocate, confirmation bias presents an ever-present danger, because when we notice the things we are looking for (e.g., a key admission from a party) it confirms an important event to us because we were looking for it, and because that is what we wanted to achieve. The problem is that the jurors may not have been “looking” for that admission, so the event may not strike them as meaningful. It may be dismissed as “noise” or simply forgotten. To simplify, if one hundred events happen per day in trial, what if the jurors recall only six? And, even if they could sit down and recall more, the important thing is which six have presence in their minds.
So often, trial lawyers are left speculating about how a jury is assessing their case; how they are evaluating witnesses and evidence. But there are few “windows” into the black box of a juror’s mind. A key solution to such a problem is to enlist a group of shadow jurors who then become “windows” into the jurors’ thought processes, as each shadow juror provides a separate, unique point of view of the courtroom events. This is a way to learn about the strengths of a plaintiff’s case, or witnesses, or the weaknesses of a defense witness, or a piece of evidence. You get to hear, and therefore understand, the narrative reasoning they use to put the entire complexity of trial into simple, but powerful, frameworks. When you observe particular consistencies in the perspective of each point of view, you can understand what may be a more reliable interpretation of how actual jurors understand trial events.
Even if one is not advantaged by a shadow jury, a trial advocate can use performative tools and techniques to give presence to particular events, witness testimony, or evidence. Too often the strengths of oral performance are sidelined as the drive to inform overwhelms the need to entertain and motivate. It is important to provide the audience (the jury) with performative clues and cues as to what deserves the most attention, what they should remember, and how to make sense of the trial’s complex events. The techniques may include pauses and subtle non-verbal actions after a key admission; they may include physically interacting with demonstrative exhibit boards rather than just talking about them; they may include stylistic rhetorical moves such as the repetition of vivid language and phrases, and providing jurors with meaningful and memorable language they can use themselves in deliberations to advance a party’s advocacy.
Martin is a master at toying with his readers, providing red herring after red herring, offering strategically ambiguous events that can be interpreted in a variety of ways. And, if you want to see the complexity of thought and interpretation that readers bring to his work, you have only to look at the fan site Westeros.com, in the forum section to observe the ongoing debate over the books’ events. This offers another way to understand how people in collective deliberation work to determine the “right” interpretation of events. It’s a great place to see the best, and at times the worst, of how people reason using circumstantial evidence.
So, cheers to your reading, and to your trial advocacy. Remember, there is no single reliable narrator in trial. To get into the minds of the jurors who will decide your case, step out of your own perspective and try to grasp the POVs of your audience members. And, try to perform in court to help them understand what is most important so they are better able to recall your key points as they make their decisions, because if everything is important, then nothing is.