I subscribe to an email publication called the Jur-E Bulletin; it is published by the National Center for State Courts. It is a very informative publication and I recommend subscribing to it as you never know what tidbits will be there to be learned. Like a few other posts in our blog, this one was inspired by a story reported in the Jur-E Bulletin. Earlier this year, there was an article entitled “Helping Juries Succeed” which was originally published in the New Jersey Law Journal – it was written by attorney Jeffrey M. Pollock. The entire focus of the article is beyond the scope of this post as much of it involved commentary deflecting criticisms of jurors and juries as decision makers. As Mr. Pollock pointed out, “juries excel at observing and understanding the facts.” We know this from the thousands of mock juries we’ve observed. They (usually) get the facts – the story. The primary focus of Mr. Pollock’s article was on the problem of jurors being able to apply the law to the facts or, perhaps, the facts to the law. The simple take away from the article in this regard is that lawyers should craft jury instructions and verdict forms to make it easier for jurors to comprehend and apply the law. While it is obvious that lawyers do not have free reign to creatively write jury instructions, allowable modifications to standard jury instructions can go a long way to ensuring jury successes. This is also something we frequently observe in mock trials – that the jury instructions may confuse more than inform mock jurors, especially when creating them is tasked to a low level associate and/or done at the last minute. Another tactic which Mr. Pollock mentioned has been recommended by many people in recent years, that is, the tactic of pre-instructing the jurors so that they can try to use the law as a framework for hearing the case. While this is somewhat old news, it may not be as common in reality as it should be. However, beyond the discussion of jury instructions, the title of the article intrigued me. “Helping Juries Succeed.” Shouldn’t that be the goal of all lawyers? (As a side note, success may be defined in different ways; see our blog post entitled “Defining Success.”) While jury success may start with the question of whether they “get” the facts, there are other success factors. First, because of innate human nature, jurors get many things beyond the story intended for them by the lawyers. Did they see the lawyer grimace or flinch when a witness let something slip? Did they see exhibits that were not used or not allowed? Did they witness the lead attorney berating an associate? Avoiding these give aways and “tells” is critical – all of the trial team must be in sync on how their nonverbal communications, as well as their side conversations, can impact the jury. Another factor, which is very important for me, is showing, not just telling, the jury about the case and the facts; see our recent post entitled The “Trial Show.” If you want the jury to get things right, make sure you are talking to them in their language, within their frame of reference, and that you are carefully explaining, and proving/showing them things visually. This is the tremendous value of mock jury research – learning what jurors comprehend about a case, as well as learning how to communicate often complex information in a way that is both informative and compelling. Practicing your “sales pitch” is critical to ensuring that it will be heard the way you want it to be heard. This is true whether you sell used cars or you are a litigator. Conceptualizing the job of a trial lawyer as that of someone who wants a jury to succeed should lead to a broader perspective than, perhaps, a lawyer merely arguing his or her case. You can argue all you want, but if you do not fully consider the audience, your success will be limited.
I have been working in the realm of psychology and law for decades and it has always seemed odd to me that many attorneys view jurors as their adversaries. I have heard countless remarks made by attorneys that denigrate the intelligence, motivation, and decisions made by juries. In addition, I have selected juries on hundreds of cases, allowing me to witness, first hand, the attorneys’ discomfort when in the presence of “real people.” Although some judges are not oriented toward helping juries succeed, it has been my experience that most attorneys who become judges somehow learn to relate to the citizens who are devoting their time to serve their country by participating as jurors. (Judges who are running for re-election seem particularly adept at being nice to jurors. Hmmm…) There are numerous ways in which juries can be more successful, including: (1) revising jargon filled jury instructions to, instead, use everyday language; (2) allowing the jurors to take notes during the trial (numerous social psychological studies have shown note taking improves jurors’ recall of trial testimony, which, in turn, improves their decisions); (3) allowing the jurors to ask questions of the witnesses; (4) allowing the jurors to take frequent comfort breaks; (5) using visual aids to enhance attorneys’ arguments and witnesses’ testimony; and (6) demonstrating actual, not feigned, respect for members of the jury. Many attorneys for whom I have worked over the years have a Richard Nixon tendency to turn their usual grimacing expression into a fake smile when they are in the presence of a jury. I have always been entertained by this obvious ploy because I have never believed the jurors are fooled by this; most people know when someone is attempting to “curry favor” by pretending to be nice when they are not, in reality, nice. In all of the years I have been working with juries and attorneys, I have rarely heard, when the actual jury or mock jury reaches a decision unfavorable for my client’s case, “Well, given the information we provided them, they did the best they could.” Instead of accepting the reality that juries do the best they can with the information they have been provided by the attorneys, many attorneys blame the jury for “not getting it.” If this attitude persists, I daresay the next jury, then the one after that, and the one after that won’t “get it” either because the problem lies with the attorney and the way he or she presented the information, not the jury. Rethinking one’s relationship with jurors will go a long way toward providing a proper perspective for attorneys to present their cases. Instead of viewing juries as adversaries who deserve to be dominated, perhaps seeing them as people who are taking time out of their lives to help one’s client would help them succeed.