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.

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.

Who Has The Longer Attention Span? Your Jurors or A Goldfish?

 

--The average attention span of a human being in 2000: 12 seconds

--The average attention span of a human being in 2023: 8.25 seconds

--The average attention span of a goldfish: 9 seconds

Do I have your attention now?!

This is the unfortunate reality you are up against in the courtroom. A goldfish has a longer attention span than today’s average juror . . .

Our attention span has shortened as our world has become more complex, faster, more demanding, and more bite-sized. This is not a put-down of jurors or anyone else. It is simply a reality that is best dealt with, not avoided.

Short sentences, introducing a single idea in a single sentence, pausing between short paragraphs--these are techniques that will serve you well in assuring you retain juror attention.

Beyond that, use visuals. We have become a visually-obsessed society. We are geared to paying attention to visuals, rather than words. The good news is that when well-designed and executed, visuals can encapsulate lengthy explanations that the jurors can grasp in those critical 8 seconds, whereas the verbal explanation--albeit still necessary--may take hours to thoroughly present.

A Dynamite Persuasion Technique: “But You Are Free”

 

We live in the “land of the free, home of the brave.” As a people, we cherish freedom, but it’s something lawyers do not always factor into voir dire and closing arguments.

And yet, 42 psychological studies on 22,000 people has shown that the single most powerful persuasion technique is to give people the freedom to choose. In other words, when you ask someone to do something, make sure to add to your request, “but you are free” to do otherwise.

The exact words don’t matter, for example, the phrase “But obviously do not feel obliged” worked as well as “but you are free.” What’s important is that people resist being forced to a singular choice. When you give them the option to choose, people are more amenable to being persuaded by you.

The used-car salesman who says “But of course, you’re free to compare the price with other dealers” is more likely to make the sale than the salesman who hammers a “this deal is the best deal you’ll ever get” approach.

However you phrase it, whenever possible, give jurors a “but you are free” option: free to choose as their conscience dictates, free to come to some other conclusion--all the while putting your choice forward, leading them to it rather than corralling them into it.

Photo Credit: Brandonrush, CC0, via Wikimedia Commons

Use Repetition to Drive Juror Acceptance of Your Case

When the jurors troop into the jury room for deliberations, every litigator’s dream is that each of them would, individually, spout your case theme/key points so that group consensus in your favor is inevitable.

But how do you get them to do that? By presenting a targeted, credible and compelling case. That’s a given. In addition, put the power of repetition to work for you.

Research by K. Weaver and colleagues shows that repetition, even by the same person or organization, is highly impactful: “…when an opinion is repeatedly broadcast at us by the same organization--think of a particular media conglomerate or an advertiser--we’re likely to come to believe it represents the general opinion. That’s despite the fact it is analogous to the same person repeating themselves over and over again.”

Not only should you, the trial attorney, repeat your themes and key points throughout your opening, examination of witnesses, and close, but all your witnesses, expert and lay, should be encouraged to include case themes and key points in their testimony.

Repeat, repeat, repeat! When you and your witnesses are consistent in broadcasting the same message over and over again, jurors are far more likely to accept it as the general opinion and adopt it as theirs.

 

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” response.

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.

Win Your Case by Winning Client Cooperation!

 

It’s often said that the practice of law would be great if it weren’t for clients. Clients, of course, are what drive your business, so like it or not, part of a successful practice is learning how to deal with difficult clients.

Most clients don’t set out to be difficult, but in their frustration, anxiety or fear, they are difficult. Given that understanding, one way to assure easier interactions with your clients is to tell them upfront what to expect. This will allay their fears to some extent, which in turn will usually make them less difficult to deal with.

Let your client know, at the beginning of the relationship, that the unexpected will crop up as you handle their case. This isn’t a maybe, it’s a guarantee. Every case has its unanticipated events. Sometimes that unexpected situation will be to your client’s advantage and sometimes not. Let your client know that you will promptly inform them of the bumps and hurdles as they come along and how you expect to deal with them.

Ask your client how they prefer to be informed: by email, phone, never on a Friday, only in the afternoon, whatever. Don’t assume that the way you like to communicate is satisfying to your client. Respect their preferences. Your client may not like what they hear from you, but they will feel kept in the loop in the way they like to receive information. This, in and of itself, will often soothe a fitful client. You will have acknowledged and respected their wishes, which in turn is likely to make things a little easier for you through the life of the case.