Sleeping Beauties

The role of a trial juror is critical in American justice and yet, jurors are often criticized collectively by many trial lawyers and the general public. Being a juror is a difficult job; sitting in judgment of your fellow citizens can be very stressful, and trials are not nearly as exciting and fast paced as they seem on TV or in movies. They just aren’t! Never have been, never will be. But, in a world where attention spans are shorter than ever, new challenges emerge. Keeping the jurors “entertained”, and therefore, awake, has never been more important. A December 2017 article in the Wall St. Journal (December 9, 2107, page 1!) entitled “Your Honor, The Jury Rests” brought the issue to the forefront. As noted in the article, the conditions under which jurors participate are difficult. They are corralled in a small space – we call it a jury “box” for goodness sake! They sit for hours, breaks can be few, and very few lawyers are compelling enough to be compared to Perry Mason or Atticus Finch (not that some of today’s jurors will even know these names). (In fairness, it is probably often that the subject matter and procedural rules that keep lawyers from being as compelling and strong with their oratory skills as, perhaps, preachers, whose well skilled delivery keeps their congregations engaged week after week – though I have heard some lawyers who sound like preachers – for good or bad.) The article, and subsequent letters to the editor, pointed out some tips to try to keep the jury engaged. These include: taking breaks before key witnesses, and more breaks in general; schedule the more engaging witness testimony for after lunch and less exciting testimony in the mornings; allowing juror note taking and questions (which are both increasingly common), walking close to the jury box and speaking loudly. Judges have been known, according to the article, to “signal” to a juror sitting next to a juror who appears to be nodding off to “nudge” the nodder. Calling out a sleeper in open court is discouraged; it is inconsiderate and the juror may have a reason for being sleepy (health and family issues, work shifts, etc.) AND the juror may not be asleep. In our mock juries, clients sometimes get worked up when they think that a juror is sleeping when, in fact, he/she was listening with eyes closed. While the attorneys are sometimes offended by this – by thinking they were not worthy of being listened to – in truth, with this issue and many others, attorneys need to adapt to the realities of jurors and juries. And, as pointed out by a reader of the original article, perhaps this is an area to address in voir dire. Asking the venire members how many hours of sleep they get a night may help identify those who, for whatever reason, are prone to sleep deprivation. Sleep deprivation, as the writer noted, reduces attention; impairs memory both learning and retention; information processing; and decision making. Lastly, there is also the need for some attorneys to “step it up.” With fewer and fewer trials, the opportunity to practice trial presentation skills has diminished and may be part of the sleeping problem. The “old school” use of trial exhibits in lieu of electronic exhibits is also a factor – the jurors must be kept “entertained” – or at least engaged. And, there is a need for both old school and new school exhibits – attorneys should carefully chose the “right” style, which is most often using a mix of both. A well done electronic presentation can control attention in ways that should enhance memory and attention. And, then there is the practice effect. It may not be possible for practice to make perfect in the courtroom – there are too many variables at play. But, failing to practice is a sure way to lose the jury. And, as a shameless plug, I’ll add that conducting mock trials as a way of “practicing” has many advantages. Now, to keep the judge awake…

Sadly for most people who are selected to be on a jury, there are few attorneys who possess the oratory skills required to keep them interested in the case, not to mention engaged. I have had the pleasure to observe some skillful trial lawyers in my career as a jury/trial consultant, including Buddy Payne, J. B. Spence, Murray Sams, Bob Beckham, and Bob Montgomery. Alas, these attorneys were part of a dying breed of attorneys who could capture, then maintain, the jurors’ attention solely with their riveting arguments on behalf of their clients. (As an aside, all of these great attorneys are now deceased and interestingly, all of them made a name for themselves by representing plaintiffs involved in high stakes civil litigation.) Most attorneys in today’s world, at least the ones with whom I consult, are over worked to the point they rarely have time to fine tune their presentation skills. In addition, due to the prevalence of electronic presentation systems, many attorneys over rely on the words projected on a big screen to tell the story that, in years past, could be told only with a great ability to use words in a most eloquent manner. I cannot count the times I have counseled my clients to stop reading aloud the words on the screen in an attempt to capture the jury’s attention. The jurors can read the words for themselves and a boring recitation of one’s electronic presentation is enough to put almost anyone to sleep, regardless of how much sleep he/she had the night before. In my opinion, one of the primary reasons attorneys have lost the skill of eloquent and interesting oratory is they fail to practice their arguments prior to their delivery to the jury. I have observed the impact of the failure to practice one’s presentation countless times within the context of mock trials. One attorney, supposedly a “big shot,” was unprepared to make her arguments to the mock jury to the point she became furious with me for arranging a situation that made her look bad! Because the mock jurors criticized her boring reading of a PowerPoint presentation a lower level attorney had prepared for her, it somehow became my fault! As with many things in life, practice makes perfect and practicing one’s presentation, learning how to speak in an engaging and interesting manner, and being genuinely interested in other people’s views of one’s case is far more likely to keep the jury awake than “winging it” and hoping one’s boring electronic presentation will save the day. It is easier to criticize the jury for making a “bad decision” than taking responsibility for one’s role in leading them to the bad decision, and this strategy will result in few courtroom victories. Blaming a juror for sleeping through a boring trial is the fault of the attorney responsible for the juror’s boredom; failing to recognize this guarantees the next jury trial will be equally boring.

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