Strategic Considerations of How Case Presentation Influences Jurors’ Note-Taking (Part 1)

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By Thomas M. O’Toole, Ph.D. 

There has been a lot of discussion and research devoted to the value of juror note-taking. Not too long ago, the concept of allowing jurors to take notes during trial was considered cutting edge. Some trial venues still do not allow it, although most do. No attention appears to have been given to strategies for influencing juror note-taking, which is shocking since so much of the research speaks to the influence that note taking plays in deliberations. According to one study, 75% of all jurors given the opportunity to take notes believed it assisted them in recalling the evidence, understanding the law and reaching a decision. Given the influence that jurors’ notes play in their decision-making, the jury consulting field needs to venture into an examination of how presentation strategies can influence the process of note-taking.

I am absolutely convinced there is a significant strategic advantage to be gained when an attorney can structure a presentation in a manner that exerts influence on juror note-taking. But it is not enough that jurors just take notes. This is the problem of the current research. It focuses on the value of taking notes versus not taking notes. But the issue is not that simple. The real strategy development lies in the next level of examining how jurors take and use their notes and how an attorney’s presentation at trial can influence the way in which jurors take and use their notes.

Since no attention has been focused on strategies to influence juror note-taking, I looked to the research conducted in the field of education. There is a decent amount of research focused on student learning and how a teacher’s style may influence students’ note taking.  The fairly obvious findings from this research are that note taking serves two primary functions: 1) aiding recall and 2) aiding reflection. The latter essentially means that note taking helps people understand what was important and meaningful when they reflect back on an experience.

From my experience with mock trials, shadow juries, and post-trial interviews with actual jurors, one consistent problem stands out to me: jurors often take too many notes, making it difficult for them to find what is relevant or what is necessary to rebut arguments during deliberations that are counter to their orientation. In other words, it takes time to search through pages and pages of notes to find the relevant evidence or testimony and jurors are not always successful in finding it. This can have a detrimental impact on the parties. If jurors are taking too many notes, critical information can get drowned out by less relevant information, consistent with the old phrase, “if everything is important, nothing is important.” But the primary detriment that I’ve often seen is a situation where an advocate for the opposing party is pushing his or her agenda during deliberations and one of our client’s advocates is fumbling through their notes, unable to find the evidence or testimony that effectively rebuts the point in a timely manner. This is problematic because it allows advocates for the opposing party to gain momentum in deliberations, which can be difficult to overcome once it begins.

There has been so little research in this area that it is difficult to identify a clear solution, but I have seen two effective strategies in recent trials. The first deals with juror notebooks. I was involved in a trial where both parties agreed to create a set of notebooks for the jurors where they divided sections by plaintiffs (this was a case with multiple plaintiffs). The notebooks also included a section listing out the stipulations in the case as well as the central document in question in the case. In hindsight, we could have taken one additional step and formatted the notepaper for each plaintiff in a way that corresponds to the structural elements of the claims in the case.  I am not sure how often something like this happens, but I am guessing that it does not happen often. Even the judge commented that he had never had a case where the parties agreed to provide the jurors the notebooks with such a unique structure. Perhaps it is a rare instance, but it is worth noting because it highlights the creative possibilities of addressing the problems of juror note-taking. In our case, agreement with the other side played a key role in making it happen.

The second, perhaps more practical, approach involves providing jurors guidance on how to take notes during opening statement. For example, an attorney could highlight the key elements of the claim in opening and suggest that jurors structure their notes over the course of trial along the lines of the claim elements. Then suggest that jurors have two columns for each element: one column consists of evidence or testimony that supports the plaintiff(s) and one column of evidence or testimony that supports the defendant(s). The attorney should then adopt a similar structure for closing argument that follows this same procedural approach to the issues. This increases the likelihood of a procedural approach in deliberations and provides structure to jurors’ notes that make key evidence and testimony more accessible during deliberations.

This approach assumes that a procedural approach to deliberations benefits the client, which may or may not be the case. My personal bias stems from the fact that I tend to do more work with defendants, who tend to benefit from a procedural approach. I’ve certainly seen many instances where it is beneficial for the plaintiff to have little structure to deliberations and instead, have jurors spend a lot of time up front in deliberations talking about their general feelings in the case. Obviously, this is an important consideration that will influence strategies for addressing jurors’ note-taking.

I’ve looked at other research on how students take notes in the classroom and it shows that the following five items are most likely to make it into the notes:  Material written on the board, slow dictation, lists, definitions or “catch phrases,” and enumeration (i.e. first, second, third, etc.). Lists and enumeration are particularly interesting strategies because the way they appear in notes typically sets them apart from other notes. In other words, lists and enumeration are often easier to spot amongst pages and pages of notes.

This is just an initial look at the issue of juror note-taking. Given how quickly courts across the country have embraced juror note-taking as well as the research that highlights the important role jurors’ notes play in deliberations, it is incumbent upon jury consultants to start examining how case presentations can influence the process of note-taking. Look for additional practical suggestions for how to influence jurors’ note-taking in the next Sound Jury Consulting Blog post.