My post about whether the mock jurors take it seriously reminded me of another aspect of this client related surprise. Watching a group of people, mock jurors, listen to the case arguments in a mock trial can sometimes be misleading. Some mock jurors are clearly engaged, others have their eyes closed, others are frantically taking notes, some are squinting (perhaps because they forgot their glasses), and others are making eye contact with the attorneys, even smiling at them. All of these visual cues are subject to being misread. Often, attorneys come into the observation room and comment on their perceptions of the jurors. “That one was sleeping” “That one likes me/us.” “That one wrote down everything.” Those perception bubbles are often popped like a balloon as soon as deliberations begin. I smile to myself when the person who appeared to be sleeping seems to remember every detail of the case. The one who was smiling was smiling while apparently thinking “Wait until I can tell you what I think about your terrible client.” The body language and visual cues are easy to misinterpret, especially when the attorney is engaging in the difficult task of making a case argument. One of the valuable lessons in conducting mock jury research is that things and people are not always as they may seem. People also have different agendas. People have different learning styles. The guy with eyes closed may not be visual. Perhaps the visuals, if any, were not helping. Perhaps the subject matter was not engaging. (Some of the arguments I’ve heard would put an insomniac to sleep!) A good reason to conduct mock jury research is figuring out how to keep the audience, the jury, engaged. We have had attorneys “go off” on their staff, showing their true colors, when setting up the presentation and in front of the mock jurors, or in court, the venire. The smiling, back stabbing, juror may have been offended by something observed during the arguments, before/after the presentation, or by some other unrelated perception. Back to the topic title, “Are they paying attention?” Yes! And, one should assume they are paying attention to everything, even the unintended messages. And, be careful when interpreting non-verbal cues. “Reading” the jurors is best left to the professionals.
Similar to some attorneys’ concern about whether the mock jurors take their participation seriously is their concern about whether the mock jurors are paying attention. And, just as it pertains to the issue of the mock jurors taking the case, and their participation, seriously, I have found that most of them pay attention. There is a lot of information provided to our mock jurors throughout our time together, requiring them to focus, then re-focus, their attention many times. Attorneys present their cases to the mock juries by: (1) speaking (in their lingo, “arguing” their case); (2) displaying demonstrative exhibits on a large projection screen; (3) showing video clips of witnesses, animations of accident reconstructions, or videos of complex medical procedures; and (4) handing out paper copies of important evidence in the case. Following the attorneys’ presentations, the mock jurors are required to listen to the reading of boringly dry jury instructions, then participate in deliberations that last several hours. In between all of these activities, they are required to complete extensive questionnaires that assess their opinions about the case. All of these activities demand attention and contemplative thought. I have always been amazed at how, for the most part, the mock jurors “get it.” When the case is complex, they sometimes gloss over the intricate details, however, they almost always comprehend the basics of the case that will form their views and ultimately, determine whether they decide the case in favor of the plaintiff or the defendant. One of the most memorable experiences I have had illustrates this point: After several days of tedious and complicated presentations by multiple attorneys, one of the mock jurors was getting sleepy after lunch. Not wanting to fall asleep and needing to pay attention, he picked up a pitcher of ice water that was placed near him on a table, poured its contents onto his head, shook off the excess water, and in an instant, was able to pay attention! This is an extreme example of how hard our mock jurors try to pay attention, but overall, I have been pleasantly surprised with their ability to pay attention to the facts of the lawsuit they are being presented.