By Thomas M. O’Toole, Ph.D.
One of the greatest difficulties in any trial is coping with the uncertainty of the outcome. There is a sense (or at least an illusion) of control in just about everything leading up to the moment attorneys must present the issues to the trier-of-fact. And then there is uncertainty: How will the judge perceive the issues? How will the jurors perceive the issues?
This uncertainty, based on my experience, seems particularly vexing for attorneys. Attorneys seem built to control and this makes sense. Anyone who is passionate about strategy and argument is naturally going to have a strong need for control. In this respect, this need for control is healthy and positive. It drives attorneys to work hard and prepare the best case possible. However, there is also a downside to this need for control: it often causes attorneys to look too hard for any cues from the judge or jury about how he/she/they might feel about the case.
There is nothing wrong with observing and reacting to cues from your audience. In many respects, this is a characteristic of an experienced and sophisticated public speaker. However, this can go too far, particularly in a litigation setting. In these scenarios, the desperate need for control can cause attorneys to perceive “cues” that are erroneous and lead them to make hasty and counterproductive decisions about the case. Four instances come to mind:
1. I once saw attorneys decide to play a demonstrative video to the jury based on perceptions that the jury was unhappy with the descriptions of how the product worked. The attorneys cited nonverbal cues they were sensing from the jurors. The problem, however, was that all of our jury research had previously shown that the video was counterproductive and actually led to negative perceptions of the product. Post-verdict interviews in this case confirmed it had the same effect on the actual jurors.
2. I recently watched a juror smile and nod his head throughout an attorney’s 90-minute closing. Any reasonable person who witnessed this would have been convinced this juror was in the attorney’s camp. However, post-verdict interviews revealed this juror was one of the most vocal advocates for the other side.
3. I frequently see attorneys stray from the agreed upon jury selection strategy to exercise challenges on jurors who they felt had concerning nonverbal cues during voir dire.
4. I have seen attorneys abandon lines of questioning in cross-examination based on “cues” they were perceiving from jurors. In two memorable instances, the attorneys abandoned important lines of questioning.
The problem in three of these examples is that the attorneys strayed from what we knew would or would not work and made impulsive decisions that actually created more uncertainty or risk.
The fundamental problem with “cues” is that they are extremely unreliable, particularly in a litigation setting. This is particularly true with nonverbal cues, which are probably the most common “cues” relied upon in a trial setting. There are many reasons for this. First, nonverbal cues provide very little information. When a judge or juror reacts with a nonverbal, it is unclear what it means. Perhaps it is something related to the case. Perhaps it is something completely unrelated. Perhaps it is not even a reaction at all.
Consider what I call the “vegging” face. This is the odd face people make when they are just sitting there watching something. It is the face they are completely unconscious of. People make funny and odd “vegging” faces when they are absorbed in something. To experience this first hand, watch your spouse/kid/friend from across the room next time he or she is “vegging” out on the couch, watching a television show or movie. These odd faces mean absolutely nothing and should not be read into, yet they can easily be misinterpreted to indicated some sort of feeling about the case or issue.
One of the most famous instances of this was the focus group testing for the sitcom pilot for Seinfeld. According to the stories, there was no movement on the feedback dials the researchers used and much of the audience sat there with blank faces. This apparently almost resulted in NBC not picking up Seinfeld. The lack of dial movement and the blank faces of the audience convinced many at NBC that the audience did not like the show. Instead, the audience was so drawn into the show that they entered into “vegging” mode.
“Vegging” mode happens at trial as well. Entertaining or not, when jurors have to sit in those uncomfortable jury chairs for hours upon hours, the “vegging” face is inevitable (my personal favorite is when jurors have to listen to a longwinded economist after the lunch hour). Consequently, sometimes the nonverbal “cues” mean nothing at all.
Sometimes, nonverbal cues have nothing at all to do with the case or what is happening at the moment. Jurors live busy lives and jury duty throws a wrench into those busy lives. Juror #8 may seem very unhappy as your key witness testifies, but this may have nothing at all to do with the actual testimony. Maybe juror #8 slept in an odd way that night before and kinked his or her back. Maybe juror #8 is not feeling well in general. Maybe juror #8 had an argument with his or her spouse that morning and is still thinking about it. Maybe juror #8 just remembered he or she forgot to run an important errand before coming to the courthouse that morning. Maybe juror #8 looked down and noticed a tear in his or her brand new slacks. The possibilities are endless and it is difficult to know the reason behind juror #8’s nonverbal cue.
It is also possible that the nonverbal cue is case-related, but not in the way that it is perceived or interpreted by the attorney. Juror #8 may provide a nonverbal cue that suggests he or she is unhappy with the witness’s answer, but in reality, he or she is just surprised by the answer because it went against something he or she assumed or believed based on something earlier in the case. Maybe juror #8 just could not hear the answer well. Maybe juror #8 is reacting to a nonverbal cue from someone at the attorney tables. Again, there are a multitude of possibilities.
Compounding the ambiguity and potential for misperception of cues is the bias associated with the attorney’s role in the case. The attorney is not an impartial perceiver. He or she is invested in the outcome. This can lead to what I call a “sender-based” bias where nonverbal cues are interpreted through the attorney’s own perceptions and feelings about the case. For example, if an attorney is insecure about a particular part of the case where he or she feels there are vulnerabilities, the nonverbal cues may be interpreted through this lens. In other words, he or she might erroneously perceive the cues as an indication that the jury is focused on the vulnerability. Consider what academics call the “spotlight effect,” which is where people tend to believe things are noticed more than they actually are. Insecurities about the case create a breeding ground for spotlight bias.
Finally, of course, it is possible that the “cue” genuinely reflects the juror’s displeasure with what is happening in the case. The point, however, is to stick with what you know. Don’t let “cues” from your jurors or judge become a distraction and lead you to make impulsive, hasty decisions that go against what works or what your jury research showed you was effective since the “cues” may be indicators of a great number of things, some of which have nothing at all to do with your case.