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?
