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 “They’re the bad guy, not us. Don’t let them get away with it.” And, certainly, threats to life, limb or pocketbook attract our attention. TV 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 show that “gain-framed” appeals, or appeals that encourage people to positive benefits, have a slight persuasive edge over “loss-framed” appeals. The researchers suggest that it might be because we don’t like being bullied or threatened into behavior.

When it comes to trial practice, use both. Whether you are plaintiff or defense, show jurors the consequences of their verdict, and 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.

Pressuring Potential Jurors in Voir Dire Can Backfire at Trial

Time after time, what I discover in jury debriefings is that jurors don’t like being “interrogated” during voir dire. They don’t mind being questioned, but they heartily dislike attorney attempts to force answers out of them, and especially resent being pressured into a “yes” or “no” responses.

Now this wouldn’t be so critical, if it weren’t for the fact that people who feel pressured into a position, retaliate by disliking the person who pressured them. Cornered animals bite. So do jurors.

As tempting as it is to finally get that unqualified “yes” or “no” from a juror, be aware of the consequences. A juror who doesn’t like you will be far less susceptible to your arguments, and may very well damn you during deliberations. Not only that, but the unqualified “yes” or “no” is often the juror simply trying to wriggle free from your unwanted persistence.

You may receive a sufficiently truthful and more accurate response by framing your question differently such that it doesn’t antagonize your juror unnecessarily: “Is it more likely that you would . . .” People respond well to choice, as well as to the word “would” which is experienced as non-invasive.

Want to Win? Start Off On The Right Foot With Prospective Jurors

When prospective jurors walk into the courtroom, they only know one thing for sure: The courtroom is His/Her Honor’s private reserve, and the Judge’s word is law. Everything about the physical layout of the courtroom says “In this room, the Judge is Top Dog, and whatever he/she says is set in stone.” The Judge sits higher than everyone else. All must rise upon the Judge’s entrance, and may only be seated when told to do so. And whatever the Judge says, however erudite or nonsensical it may seem, becomes “what is” in that Courtroom.

So imagine my surprise, when I observe lawyers go directly against a Judge’s “what I expect in my courtroom.”  I know, from years of experience, that jurors ding any lawyer who fails to respect a Judge’s stated orders. The most common failure is the failure to respect time. The Judge says “Your mini-opening will be two minutes, no longer.” The lawyer launches into their mini-opening, the two minute mark is hit, the Judge cuts the lawyer off – sometimes, mid-word. The lawyer, hurt and surprised, sits down. The jurors look coldly at the lawyer. They heard the rule, why couldn’t the lawyer obey it?

You see, prospective jurors MUST appear when summoned, MUST be on time, MUST turn off their mobile devices, MUST sit where told to sit, and the list goes on. When the Judge tells you what you MUST do, you’re well advised to do it. Failure to do so makes you disrespectful, in the prospective jurors’ eyes, and less worthy of their consideration. Much harder to convince.

And since your jurors are within that pool of prospective jurors, abiding by the Judge’s edicts right from the git-go is the easiest, quickest way to get their approval.

Start off on the right foot with your jurors, and you’ve much better chances of ending on the right foot.

The Enduring, Maddening CSI Effect

In my ongoing research of what jurors think and how they decide cases, I read umpteen blogs, posts and articles authored by those who have served. Recently, yet another article appeared which pointed out to me the enduring “CSI effect,” and how lawyers would do well to pay more attention to it.

Simply put, the “CSI effect” is jurors’ over-riding, sometimes obsessive, need to explore for themselves every bit of physical evidence in an attempt to come to a fair and just decision. This is true whether the case at hand is civil or criminal. Contracts are scrutinized, emails pored over and signatures examined with the same zeal as skid marks and bloodstains.

In the article referred to, jurors requested photos of the victim’s wounds and examined them minutely. A mechanic among them categorically pronounced the wounds as from a Torx screwdriver, despite the fact that apparently no such screwdriver had been mentioned during the trial. The rest of the jurors seized on this interpretation and what had been a stalemated jury with 8 finding against defendant, and 4 equally adamantly finding defendant innocent, rapidly became a unanimous “guilty” verdict.

What’s the lesson here? That it’s up to you, the attorney, to look at your evidence every which way and give a forceful, compelling, interpretation to your evidence such that it cannot be re-interpreted in some unfavorable way by a jury that examines the evidence with a keener eye than yours. Even when there is no way for you or your experts to say with conviction “Here’s the smoking gun!” offer the jurors the strongest probable interpretation that can be drawn from the evidence. Leaving the interpretation up to the jurors is taking a chance you can ill afford when you want to win.