Classic Juror Misunderstandings

 

The brilliant cartoonist, Wiley Miller (“Non Sequitur”), captured the misunderstandings between men and women as few others have. For example, the wife says: “Let's go shopping." The husband hears: "Let's go drain the life force from your body." The husband says: “Honey, are you almost ready yet?" The wife hears: "Life as we know it will cease to exist unless you can alter the space-time continuum."

My experience with jurors has led me to conclude that similar misunderstandings occur regularly in the Courtroom between attorneys and jurors. For example, the lawyer says: “Negligence.” The juror hears: “Forgetfulness.” The lawyer says “Proximate.” The juror hears “Approximate.” The lawyer says: “Standard of care.” The juror hears: “Like OSHA.” The lawyer says: “Preponderance.” The juror hears: “Heavy thinking.”

I could go on and on. Lawyers like to say a graphic will “depict” things. Jurors need to know what the graphic will “show.” The lawyer says this event was “prior” to the current one. Jurors want to know what came “before” what. And “aforementioned” doesn’t even compute.

You must speak a language the jurors understand if you are to persuade them. For example, explain legal terms such as negligence so there can be no confusion with the more common use of the term, forgetfulness. Use words you used before you became a lawyer: familiar words, easy-to-understand words, words that don’t require more than a high school education.

With that, you are far more likely to have – a winning case!

Address Your Jurors’ Overriding Concerns: Safety & Trust

 

Did you know that the United States is near the top of all countries in terms of anxiety? The U.S. comes in a close second behind Greece in adult stress levels—55 percent according to the Gallup World Emotions Report. This number is 20 percent higher than the global average.

We live in one of the most affluent societies in the world, and yet the majority of our population does not feel safe. Safety is, put bluntly, Americans’ overriding concern.

How does this matter to you? Whether you are plaintiff or defense, you must take into account how your jurors will perceive the safety factors inherent in your case. This does not merely apply to product liability, medical malpractice or personal injury cases, where safety concerns are usually obvious. This applies equally to business contract cases, disputes over IP, even eminent domain.

Safety, you see, isn’t just about physical safety. Safety is also about emotional safety, the ability to trust--to trust self and others, to trust those we deal with day to day, be they drivers or doctors or everything in between, to trust businesses, corporations, and other institutions. When you can’t trust someone or something, you don’t feel safe.

Americans’ overriding concern is safety. Your jurors’ overriding concerns revolve around safety. Pay attention to the safety and trust issues in your case, and address them appropriately.

Get Those Undecideds On Your Side: With Jury Instructions

Despite the best efforts of all involved, jury instructions remain obscure and confusing to all but the most legalese-savvy jurors. Cases should be won or lost on their merits, but too often, cases are lost (or unsatisfactory verdicts obtained) because the jurors either did not understand the jury instructions, or how those jury instructions should be specifically applied to the verdict form.

Clarifying jury instructions so jurors can make their way through the verdict form fully understanding what their vote means, is important. That’s step one. But then it’s critical to move on to step two: letting the jurors know during closing argument not only how they should vote (according to you), but why.

It’s the “why” that is often left out. You need to arm the jurors already decided by your arguments with sufficient ammunition to convince the undecideds – reiterating the evidence/testimony simply isn’t enough.

“Why” consists of firmly tying specific evidence supporting your case to specific verdict questions, preferably in bullet form, which is easier for your decided-jurors to remember and use in their “Here’s why” during deliberations.

Undecided jurors are your “make it or break it” jurors, and they only make up their minds during deliberations. If you don’t give those jurors already on your side the information they need to swing the undecideds over, you leave the verdict up to chance. Or worse, up to ill-formed, confused, half-hearted attempts, for in the absence of solid rationale, what else can your decided-jurors argue?

Build Juror-Compelling Stories: Use the “Boy Meets Girl” Formula

Facts are boring. Stories are riveting. Facts put jurors to sleep. Stories keep them awake. Facts are essential to the case; stories are what make those facts persuasive. Each case has a story to tell no matter how apparently dry or complex the case may be.

At this point, plaintiff lawyers usually chortle with glee, they’re all about story! Except when the case is about eminent domain, or the intricacies of a business contract. They then grumble that business and contract cases lack the excitement of a story. For that matter, defense lawyers have the same complaint when it comes to business cases and more. Too often, defense lawyers complain that their side doesn't have a story to tell. This is false. A lawsuit is first about people, and it is the people side of a lawsuit that engages jurors.

A story doesn’t have to be long. In fact, long-winded stories are almost as frustrating to jurors as no story at all. A story encompasses your theme and gives the major points of the case. Preferably three points. That’s really all you need. Challenge yourself to finding your case’s story and then reducing it to the quintessential “Boy meets girl, boy loses girl, boy gets girl.” A beginning, middle and end. Preferably with your client cast as the hero.

Short, sweet, and to the point; that’s effective Courtroom story-telling!

Explain "Why" to Make Your Case Matter to the Jurors

In a courtroom, it isn't necessarily the attorney with the best facts who wins, but the attorney who best explains the relevance of those facts both to the case and to the jurors.

Certainly, you need solid evidence, but here we’re talking about what do you need to get the edge? What, given the usual state of affairs by the time a case gets to court where both sides believe their evidence is strong enough to prevail, can you do to give you the advantage over your opponent?

Explain why. Why does your interpretation of the facts make sense? Why should the jurors care that their verdict favor your client? Why should this matter to the jurors? How does it impact their lives (work, family, children, safety, etc.), preferably in an immediate and direct way?

Explain through your experts, your lay witnesses, and most importantly, your closing argument, and of course your opening to the degree allowed.

We invest in the personal, in that which strikes home. That's why stories have such impact, they touch the personal. So too with explanations - make your case matter, not just to your client, but to the jurors.

Persuasion 101: Seeing is Believing

Recently, a Brigham City orthopedic surgeon (Dr. Dewey MacKay) claimed that the jury mistakenly convicted him of illegally prescribing medication  because they neither understood the facts of the case, nor how chronic pain is managed.

Jurors interviewed by the Salt Lake Tribune, however, said Dr. Mackay’s comments were misguided. One juror summed up the jury’s deliberation process succinctly: “We took every single count one by one and discussed each count in detail. We used the chalkboard, we used chart paper so everything was visual for everyone.”

(The Salt Lake Tribune, Dec 22 2011)

“So everything was visual for everyone.” That’s the key. That’s how you must be able to present your case if you are to prevail: visually. Regardless of the nature of your case: personal injury, med mal, construction defect, eminent domain, contractual dispute, whatever, you must be able to find ways to translate testimony and facts into visual elements.

That means much more than flashing deposition or other text on the screen. Visual rendition of testimony means coming up with graphics, diagrams, and bottom line charts. It’s answering today’s jurors’ constant need to “see it” before they believe it.

When you, the lawyer, provide the jury with compelling visuals to clarify and emphasize your points, you pave the way for the deliberations to favor your interpretation of the facts. This is far better than relying on the jurors’ ability to render your points visually, for they may or may not do so accurately.