By Thomas M. O’Toole, Ph.D.
Regardless of the merit of the vast majority of literature out there on jury persuasion, most of it tends to have one critical shortcoming. It focuses on a vast array of persuasive techniques, ranging from the cliché “tell a story” advice to discussions of psychological principles such as primacy or recency, but what it fails to recognize is that persuasion is only one small part of a trial. That may sound absurd, but it’s a subtle distinction that just so happens to be an important one.
To better understand this point, I want to highlight my experience as a member of the college debate team and later as a college debate coach. As a member of the debate team, my job was to go into a debate round and hopefully prevail in an argumentative duel against my opponents. This was something I truly enjoyed: the battle of wits, argument, and rhetoric. I remember how difficult it was transitioning from being a member of the debate team to being a coach. It removed a lot of my control over the round. I was no longer able to go in and take on opponents. Instead, my job was to train members of my team to do this. Coaching debate is a difficult task. There are plenty of examples of folks who were excellent debaters, but terrible coaches and vice versa. It is one thing to be able to successfully execute argumentative strategies. It is an entirely different task to coach others to execute those same argumentative strategies.
This same critical distinction between debater and coach is what attorneys need understand as they prepare for trial. Attorneys may think of themselves as the debaters, but that conceptualization is fundamentally wrong and can lead to ineffective trial practices. The most important debate that takes place at trial is not between the attorneys in the courtroom. The most important debate that takes place at trial is the one that takes place in the jury deliberations between jurors with opposing viewpoints on the case. This is why persuasion is only one small part of trial. Persuasion gets people on your side when it comes to counting votes back in deliberation, but that may not be enough (unanimous leanings at the start of deliberations are rare in civil cases). Persuasion does little to effectively “coach” those juror advocates to take control of deliberations and drive a verdict in favor of your client in the face of opposition from other members of the jury.
I have conducted mock trials, focus groups, and shadow juries across the country for over a decade now and I have seen endless examples of jurors who were persuaded for one side, but not effectively motivated or sufficiently armed by that side’s attorney to assert themselves in deliberations and successfully counter arguments put forth by juror advocates for the other side. These latter elements are critical to success. Your advocates on the jury must be motivated. Otherwise, they will remain quiet or back down in the face of opposition in the jury room. This allows the other side to gain momentum and take control of deliberations. Similarly, juror advocates who are motivated, but not sufficiently armed to take on the opposition in deliberations can be a significant problem. If they do not feel confident in their ability to re-articulate or advance key points or arguments, they might remain quiet. Perhaps even worse, they may push forward even though they lack the tools to win debates against opposition jurors. In another scenario, a juror might advance the wrong evidence for an argument or advance the argument in a very inarticulate or confusing manner. This can not only undermine the argument itself, but also have a spill-over effect where it undermines your client’s overall position in the case.
These situations create losses for your client on various issues in deliberations, which creates momentum for the other side. In other words, deliberations consist of a series of debates over a variety of issues. Each time opposing jurors take on an issue, the end result is that one will win and the other will lose, meaning the overall group will embrace one position and reject or minimize the other position. These moments are critical. Wins and losses change the course of deliberations by creating momentum for one party or the other. They embolden one side’s advocates and demotivate another side’s advocates. It is this deliberative dynamic that ultimately drives the final verdict.
It is for these reasons that it is important for attorneys to begin to think about their role in a different way. You are not the debater. The day-to-day duel between you and opposing counsel in trial is not nearly as important as the presentations strategies that you have developed to simplify the key issues and arguments and effectively motivate and arm jurors to advocate in deliberations and drive home a verdict in favor of your client.
The key is to think about how each issue, argument, piece of evidence or testimony might impact an argument in deliberations. Try to imagine an argument between opposing advocates. As you evaluate each issue, argument, etc., ask yourself what it will add to the argument that will help your advocate prevail on the key issues in the case. If you have difficulty articulating what it will add, it may be time to consider cutting that issue out of the case. Every issue you raise at trial creates the opportunity for a loss in deliberations. Losses shift momentum, embolden opposing advocates, and demotivate your own advocates. Consequently, effective presentation and strategy development should place considerable attention on minimizing the opportunities for unnecessary losses.