Juror’s Search for Understanding Bumps Her Off Panel

Recently, a juror in the Ronald Woodard murder trial was removed from the panel after she brought to court a glossary of legal terms she found online. Throughout the trial Jackson County Circuit Judge John McBain had cautioned jurors not to research or read anything in relation to the case, not even to look up a term in the dictionary.

What is wrong with this picture? Why should the juror be penalized for something that is essentially the lawyers' failing – for whatever reason – to do their job in regards to the jurors? Perhaps the lawyers indeed defined their terms adequately in this case, and the juror was being compulsive, but in truth, I have found repeatedly that lawyers forget how much of their communication is legalese, and how many words have a different meaning in ordinary conversation.

Take negligence, for example. To many lay persons, being negligent has an aspect of deliberateness about it. You know you should put your seat belt on, but you don’t, you’re negligent. So if the surgeon didn’t mean to leave the sponge in the person, it’s probably not negligence. Another example: Lawyers refer to memorializing things. To a lay person, that often means some kind of memorial was created, like a statue or special edict. To opine is frequently confused with “to pine” as in “lament.” I could go on . . .

Bottom line: define your terms, use words your fifteen year old can easily understand and use in a sentence. The jurors will not only thank you for it, they’re more likely to favor your interpretation of the case. After all, it’s the one they understood.

Motivate Jurors Positively, Not Just Negatively

It used to be thought that by activating dire consequences in jurors’ minds, jurors would rush to fix or avoid consequences. This has held true whether one is plaintiff justifying huge damages, or defense arguing “Don’t hold us responsible for the other guy’s doing.” And, certainly, threats to life, limb or pocketbook attract our attention.

Television ads and commercials point constantly to just how prevalent such thinking is, and marketing research has conducted study after study that justifies the “Get ‘em scared and they’ll come running” position.

However, more recent studies (O'Keefe & Jensen, in press) show that “gain-framed” appeals, or appeals that encourage people to positive benefits, have a slight persuasive edge over “loss-framed” appeals. O’Keefe and Jensen suggest that it might be because we don’t like being bullied or threatened into behavior.

When it comes to trial practice, use both. Show jurors the dire consequences, yes, but also give them a positive theme with which to uplift. Help jurors see how their decision will accomplish a higher good, something that benefits the larger population, or their community, or improve a system. Something that motivates jurors to feel good about their decision, not just terrified into it.