By Thomas M. O’Toole, Ph.D.
Happy New Year to all of the readers out there! I hope 2015 brings everyone the best in their litigation practices. One of my New Year’s resolutions is to provide more frequent updates to the blog in an effort to continue providing reliable and practical advice for implementing strategy over the course of a lawsuit.
One critical issue that rarely receives the attention it deserves is the dynamic of jury deliberations. Consideration of the dynamic should significantly influence decisions about strategy development, yet this rarely occurs. I think sometimes the problem is that attorneys tend to focus on persuasion as their objective when it comes to the jury. While this is certainly an important part of the process, it is still only one part of the process. Persuaded jurors do not necessarily result in favorable verdicts. As ridiculous as this may sound, it is true and I have seen it happen frequently in the hundreds of mock juries I have observed over the years. While unanimous verdicts happen, they are not necessarily common. There is usually some sort of division amongst the jurors when deliberations begin (even when they ultimately reach an unanimous verdict).
It is this division in leanings within the jury that requires attorneys to do more than persuade. With this in mind, let’s look at three simple ways in which persuasion alone may be insufficient to produce a favorable verdict and identify the underlying cause of each:
1. Not motivated: Everyone who has watched a mock jury deliberate has seen this juror. This is the juror who was persuaded by one side, but simply is not motivated to fight the fight for that side in deliberations. For some reason, he or she just does not care enough to exert the energy to convince other jurors. He or she is simply not invested in the case. In other words, while others on the jury are debating the issues, he or she sits back and remains quiet, even though he or she could likely speak up and exert control over the direction of deliberations if only the desire to do so was present.
This lack of motivation is the product of the attorney’s failure to package the case within a fundamental human value that the juror can relate to and is important to him or her. Values are what motivate jurors. They are motivated to fight because the case now represents something bigger that is deeply important to them, so they are motivated to stand up for it. What is the fundamental value that your case boils down to and how can the average person relate to it? If you can’t answer this question, you have a serious problem. Furthermore, you should be able to articulate how a verdict in favor of your client upholds this value. You may think it is obvious, but force yourself to write it down. It is one thing to think something. It is quite a different thing to effectively articulate that thought to someone else. Don’t make the assumption that you will be able to do the latter if you’re not willing to try to do it now.
2. Not focused: This juror is motivated, but lacks the focus or understanding of what is most important. He or she takes on unnecessary fights at the expense of important fights during deliberations. When an advocate for your client on the jury takes on irrelevant or peripheral issues, he or she is exerting critical and finite energy and motivation. In other words, their energy is limited and exhausting that limited energy on a peripheral issue takes away from energy they will need for the key issues. Juror exhaustion is a real problem. Some advocates get exhausted with the disagreements in deliberations and back down. They give in on issues they really do not want to give in on because they just don’t have the energy. Anyone who has young children has had this experience of giving in due to mental exhaustion. This creates an issue with the momentum of deliberations, which is critical. This advocate risks losing a debate on an unnecessary issue for your client, which creates momentum in favor of the other party in deliberations. It may even undermine the credibility of the juror advocate, making him or her less impactful on the remainder of deliberations. Finally, as I have said hundreds of times, a verdict is a product of the focus in deliberations. The unfocused advocate risks shifting the focus of the discussion in deliberations to issues that are more favorable for the opposing party by focusing on irrelevant or peripheral issues.
Poor focus is a product of disorganized and unfocused case strategies. Too many attorneys try to present and win on too many issues. Jurors care about (and remember) a small percentage of what you actually say at trial. As the old saying goes, if everything is important, nothing is important. To obtain focused advocates, attorneys need simple, focused case theories and presentations that reinforce this simple focus through a repetitive and understandable framework.
3. Not armed: Motivated and focused jurors need the tools to effectively argue with other jurors in deliberations. This means a few things. First, they need to be able to re-articulate key arguments for your client. It is not uncommon to come across persuaded jurors who cannot re-articulate the argument that actually persuaded them, often due to the complexity or technical nature of the argument. This results in a lack of confidence. While they want to fight the fight, they lack confidence in their ability to fight the fight, so they remain quiet, allowing advocates for the opposing party to take control of deliberations. Even worse are the un-armed jurors who have the confidence. These advocates advance confusing arguments or the wrong evidence and testimony for an argument, which undermines the overall credibility of the argument and the party that advanced it at trial. This results in argumentative losses for your client in deliberations, which shifts the momentum in favor of the opposing party.
Unarmed advocates the product of a closing argument that failed to provide jurors with a clear roadmap for how to deliberate on the case. A closing argument needs to show jurors where they should begin deliberations, how they should work through the jury instructions and verdict form, what evidence and testimony is relevant to those instructions and verdict form questions, and tie it all up nicely so that the average person can take what the attorney presented and run with it. In short, just because a juror agrees with you does not mean he or she knows how to get a group of several people to render a verdict in favor of your client. Closing argument is your opportunity to show them how, step by step.