The Question’s Not the Problem: The Answer May Be

 

How many times in your youth, were you told by a benevolent, or at the very least, good-hearted, coach or teacher, “There’s no such thing as a stupid question.” You’ve probably said that very phrase to your children as well. 

And yet, when jurors ask during deliberations to have something explained to them or ask a question that clearly reveals their lack of understanding, lawyers will frequently roll their eyes and mutter about “the decline in average intelligence” or mumble about the impossibility of getting “bright jurors” on the panel.

Similarly, in focus groups, when it’s obvious the mock jurors have completely missed a lawyer’s point, the lawyer will often blame the jurors for their stupidity . . . which drives me absolutely berserk.

Jurors are people who are good at what they do! Whether that’s repairing cars, or managing a convenience store, or cleaning houses. And just like the internationally acclaimed show “Undercover Boss” revealed the inability of most bosses to accomplish the mundane tasks of their employees, I defy any attorney to walk in the shoes of any juror and accomplish their tasks in life, from bus driver to pediatric nurse, with the same level of expertise as said juror.

There are no stupid questions. There are simply different arenas and levels of experience in the world. Run your cases by focus groups whenever you can to ferret out what are the issues critical to your case that jurors are likely to misunderstand or fail to comprehend. 

Then do all that you can, with the aid of visuals whenever possible, to clarify matters for those who will be your “real” jurors. 

There are no stupid questions. But there are some mightily confusing, obfuscating answers.

Will Juror Empathy Help or Hurt Your Case?

 

Delving into the group affiliation tendencies and reading habits of your jurors can give you valuable clues to whether or not a juror will be empathic, meaning able or willing to help others in need.

We’ve usually taken this to mean that the nature of the groups people join, and the material they read, are good indicators of how jurors will assess facts. Persons joining a law-and-order type group are more likely to be defense-oriented, persons volunteering at a handicapped facility more likely to be swayed by the plaintiff, and certainly, that still holds true.

However, studies show that the mere fact of belonging to groups of whatever ilk is more likely to be connected to concern for others. Persons who are socially isolated tend to be less generous towards others.

The same appears to be true of reading. Just the fact of reading seems to be connected to one’s empathy. Persons who read little may be less empathic, and, more specifically, that persons who read less fiction report themselves to be less empathic.

As always, the types of jurors you want to include/exclude depend on your case. The more you know about what goes into decision-making, for example, empathy or the lack thereof, the more likely you are to choose appropriate jurors. 

The Nuisance of Jurors

 

Now that we’re slowly coming out of the pandemic with its restrictions, trials are resuming. With that, jurors are once again entering your world. Darn.

Trials would be so much easier if you didn’t have to deal with jurors. Jurors wander off mentally during your most critical testimony. They are distracted by the need to scratch an itch, or by a lawyer’s mannerisms. Jurors are irritated by an expert’s vocal tone, they disapprove of a witness’s attitude. Jurors misunderstand the law and all too often make it up as they go along. Jurors impose their own version of what’s right or wrong, ignoring to a distressing degree the jury instructions, regardless of the judge’s admonitions. Jurors deliberate as a group, which introduces the whole notion of group dynamics, complicating the matter further. And that’s but the tip of the juror iceberg . . .

But jurors must be dealt with, and more importantly, you must deal with how they come to the decisions they make. For the better you can determine or discern what impacts those decisions, the more likely you are to succeed at trial.

This is where intense, targeted use of the pre-trial focus group can be especially valuable. Instead of letting focus group “jurors” elect a foreperson and talk over each other to arrive at a consensual decision, have a facilitator ask probing questions of each and every juror, to analyze how each juror arrives at their various conclusions, as well as observe how group dynamics affect those conclusions.

Knowledge is power.

Help Witnesses Deal With The Lie

 What frequently occurs as you prepare your witness (usually the client) for deposition or trial, is a resounding “That’s a lie!” to your best attempt to replicate what will be opposing counsel’s “Isn’t it true…” questions.

For all that it may be highly satisfying for said witness to roar “Lie!” it is not good juror strategy. Jurors are best persuaded when they come to the “Lie” conclusion on their own. Encourage your witness to respond to what they consider a “lie” with phrases such as “That is incorrect,” or “That’s not correct,” or “That’s not how I experienced it,” or some such.

Reassure your witness that at trial, the “lies” will be revealed for the jurors, for example through a “Chart of Inconsistencies.” As defense, for instance, you could bullet on a chart what the plaintiff told Dr. A, the different story he told Dr. B, and the yet more different tale he told at deposition. Or as plaintiff, you could bullet on a chart what defendant told the police, what was discovered in emails, what she swore to in interrogatories. Such a chart alone, since it references facts, has more impact on today’s jurors than your witness’s forceful expostulation “And he lied!!” ever could.

Once your witness understands that you will not let the “lies” go undiscovered, he or she will more readily accept your recommendation of “incorrect” as a valid alternative.