As originally published in The National Law Journal.
Winning a jury trial is not about which side has the most rational argument or the better logical presentation. Jurors expect flash and drama. But sizzle alone will not win trials, either. The challenge for the successful litigator is to meet jurors’ expectations for compelling presentations while at the same time connecting with jurors in a meaningful way—one that is persuasive and not just entertaining. This requires an understanding of how the modern juror thinks in the courtroom.
Trial consultants have been studying jurors for more than 30 years. In the 1970s, the legal process was relatively unknown to the typical juror, beyond the Perry Mason focus on criminal trials with clear-cut outcomes. Presentations and evidence were definitely low tech, and jurors expected to hear more than see. Case presentations were straightforward, keyed to logic and legal standards. Back then, lawyers hired consultants to help weed out jurors biased against their clients.
We’ve got jurors today bringing in high expectations shaped by L.A. Law, CSI, Law & Order and years of media coverage of legal issues. They expect a multimedia show with lawyer and witness performances like they have seen on television, with key messages contained in concise, eloquently delivered sound bites. Based on what they think they know from watching these shows, jurors assume that they understand legal standards and feel familiar with the process. They feel
experienced at figuring out what really happened and who should be liable. Lawyers have to be more facile than ever and accept that modern jurors are not awed by the process.
While expectations about the quality of the lawyers’ presentation skills have gone up, juror acceptance of the testimony of the lawyers’ clients (particularly major corporate defendants) has declined. Harris Interactive Inc. has asked about the trustworthiness of various institutions for years, and its latest sampling shows that just 25% of respondents in the United States think that the pharmaceutical industry, for example, is trustworthy—a major decline from years past. See Harris Interactive, “Reputation of Pharmaceutical Companies, While Still Poor, Improves Sharply for Second Year in a Row.” This means that lawyers in civil suits often start with an uneven playing field; a corporate litigant cannot assume that testimony by its witnesses will be accepted at face value. Consequently, litigation consultants spend the bulk of their time deciding how best to communicate to jurors rather than how to deselect the ones with biases.
Effective communication requires that the case be framed and positioned well to both fit the evidence and reflect an understanding of jurors’ preconceptions. Unlike the producers of CSI and Law & Order, who need to appeal to the widest mass audiences, the lawyer has to remember that his target audience is a very specific six or eight or 12 people. They all likely bring similar expectations about performance level, but may have radically different perspectives on the substance involved. And even if the attorney uses the best selection process, most jurors likely start with a bias against the corporate defense side.
Suspension of Disbelief
The easiest example of the communication challenge at hand is the O.J. Simpson murder case, in which that specific jury panel was not swayed by better presentations or even better rhyming. Most of that panel started with a preconception that the police will lie if necessary to convict the person they want to be guilty. Once it was clear in the jurors’ minds that the police were lying, the case was over, because a majority of that panel put no weight on anything else the prosecution presented. See Timothy Egan, “The Simpson Case: The Jury; With Spotlight Shifted to Them, Some Simpson Jurors Talk Freely,” N.Y. Times, Oct. 5, 1995, available at http://tinyurl.com/2o3eua. Nowadays, if jurors see any evidence that a pharmaceutical company, for example, has suppressed information about dangers from a drug, they will assume the company is still doing so in court.
Aristotle offered the formula for effective persuasion.
So lawyers must pressure-test every argument and piece of evidence to ensure that, if they can get the jurors to suspend their disbelief, the jurors will trust their side enough to consider the evidence. Can each key argument or purported fact be proven to a group of people who distrust the side trying to make that point?
Thus, the first key to understanding and persuading modern jurors is to uncover their preconceptions (about presentation, which is fairly universal, and about the substance, which is fairly diffuse) and work to enhance some and/or overcome others. Pretrial research can assess the underlying attitudes of likely jurors and learn how these beliefs relate to the case facts: specifically, skeptical jurors identified during pretrial testing, isolated and used as sounding boards to test each argument for credibility.
This type of research ultimately can lead to a well-developed juror selection strategy but, more importantly, can illuminate the predispositions of certain jurors that should be incorporated into the way the evidence is presented at trial. For example, experience with research in accounting firm liability cases teaches that the vast majority of jurors expect auditors to look for fraud in the course of their everyday work. It therefore becomes important for a defendant accounting firm to clearly differentiate among the types of services it offers and point out that there are differences between a routine audit and a fraud audit—the latter being specifically designed to uncover fraud, while the former is not. Careful use of this language by witnesses and attorneys alike helps to address jurors’ pre-existing beliefs while demonstrating that the accountants properly did the job they were hired to do.
Most cases turn on emotional connections.
Beyond trying to identify and strike potential jurors with biases against a party (a difficult task for a corporate defendant, since there are so many of them), and work to overcome jurors’ predispositions in the presentation of the case, it is important for lawyers to heed the observation of Aristotle. In his Rhetoric, he posited that there are three requirements for persuasive presentations:
- Credibility.
- Rational appeal.
- Emotional connection.
See Christoper Carey, Rhetorical Means of Persuasion From Persuasion: Greek Rhetoric in Action 25-45 (Ian Worthington ed., 1994).
Typically, lawyers focus all their attention on the rational plane. This is completely understandable, yet can become a major hurdle to winning cases. Too often, lawyers assume that their clients have credibility and believe in the logic of their experts. Of course, it isn’t what the lawyers or their clients believe that is important; it’s what the jurors think—and feel.
The Power of Emotion
Jurors almost never put the same stock in expert testimony that lawyers do. Experts can help to explain complex issues, but it is the rare case in which expert testimony is decisive. Jurors are much more likely to decide which side should win a case using a blend of logic and emotion. A purely logic-driven presentation is seldom enough to prevail.
For example, Simpson’s prosecutors thought their DNA evidence was pretty powerful, but the defense pointed out that, by the prosecutors’ math, there were several, if not many, other people in Los Angeles besides Simpson who would fit the DNA profile (even though they would be only a few in a million). In medical cases, jurors can be mesmerized by the fact that those taking a particular medicine were, say, three times more likely than others to contract a disease, even though the increased incidence of anyone taking the medicine getting the disease was fewer than 100 out of 10,000. The point is that numbers are usually construed to support one’s emotional preconceptions about the case rather than from the perspective of the more logical mathematician.
The second lesson, then, is that the attorney must make sure that he or she fully understands what jurors take away from the facts presented.
New techniques can help here to uncover what jurors garner from evidence and testimony. For years, jury simulations have included electronic dials that record second-by-second reactions to measure how positively or negatively each juror evaluates what was being said by a given side. Of course, this requires active volition by the subjects. Now, there are brain-monitoring tools that can automatically record attention levels and reactions for anyone willing to be hooked up.
However, even if the jurors are willing to accept what the defense (or plaintiff) presents, and the rational appeals are described in a compelling way, most cases turn on the emotional connections. Data suggest that about half of the world approaches decisions from a thinking perspective, but half (including slightly more women than men) approach them from a feeling perspective. See David Keirsey & Marilyn Bates, Please Understand Me: Character & Temperament Types (1978). The former are receptive to rules and criteria (such as the judge’s charge) for making decisions; the latter decide more on the basis of values and gut feelings. Experience suggests that those in the latter category often end up being more committed to their position during deliberations than those relying on cold logic for their position on the case. These emotional jurors are a critical target audience, since their strong commitment can make them influential in the jury room. See Chip Heath & Dan Heath, Made to Stick: Why Some Ideas Survive and Others Die (2006).
Overall credibility comes from presenting the facts while developing a rapport with jurors by addressing their emotional concerns. One way to do this is to explain events from an individual human’s point of view. In a case in which corporate greed is alleged, it can be critical for corporate witnesses to acknowledge that their organization is motivated by profits, while emphasizing that this does not mean that profits were more important than anything else in the crucible of decisions. For example:
Q: “Are you and your firm motivated by making money?”
A: “Yes, absolutely, but it does me no good to make money in the short run if it’s going to hurt my reputation (or my company’s reputation) in the long run. Of course, I’m in business to make money for my company and my family over the long haul. But, to do that, we have to do a good job and not cut corners.”
Sympathy for Goliath
As any good case presentation is developed, the lawyers must humanize the actors and draw analogies that can help jurors understand why events unfolded the way they did. Helping jurors to understand the motives of the key players decreases the likelihood that they will fill in the gaps in their understanding with their own dangerous ideas. Litigators must be prepared to answer the question of why key decisions were made by showing jurors the human face behind the decision and demonstrating that the process followed was consistent with other established and familiar activities consistent with good values.
The bottom line is that the best lawyering occurs when the lawyers make an emotional connection to key jurors. This may be easy for an injured individual plaintiff David against Goliath. It is naturally harder for big corporate defendants. When defending Goliaths, emotional connections can best be accomplished through a compelling witness who can embody the client—by testifying and being present in court every day. Absent an attractive client representative, the lawyers need to ensure that jurors understand the human elements of the company and ramifications on these individuals (e.g., the grandparents who own the stock in their 401(k), or the hardworking employees, for example).
A third angle is to focus on the human drama. In accounting cases, for example, there often are no individual shareholders and no particularly articulate or likable fact witnesses (who typically are too traumatized by the accusations to be effective anyway). Even in such instances, a case can be presented with a human component by dramatizing the decisions that had to be made in real time with incomplete information and without the luxury of videotape replay. If the witness can describe a typical human situation, the jury may come to accept that a well-meaning professional made a bad, but understandable, mistake in judgment. Once the mistake is viewed as understandable, it is less likely to be perceived as an act of negligence or fraud.
There is one other important issue for lawyers to remember. While the events behind the controversy occurred in the past, the jurors always approach the trial from today’s perspective. Trials are classic Monday-morning-quarterback situations. It’s almost impossible at this stage to convince people that invading Iraq made sense because Saddam Hussein was hiding weapons, but a majority of Congress was convinced of that in 2002. The business analogy might be Enron Corp.—trying to convince a jury that intelligent bankers didn’t know that Enron was a house of cards is well-nigh impossible.
What can lawyers do? The best attempt to transpose the jury back through a “time capsule” that might include a multimedia show of what was happening then, complete with a soundtrack of the music then popular. (Of course, lawyers have to use ingenuity to get this evidence admitted and may have to use indirect means, such as asking all witnesses about contemporary events that may be anchors to their memories of the times.)
The point is to get the jurors to be open to and connect with the case—and the way to do that is by accepting that words and logic are rarely, if ever, enough to really get one’s client’s case through to a jury. While much is changing with jurors, their expectations and the level of trust they bring into the box, the attorney’s essential task remains the same: to connect with jurors on a human level.