Monthly Archives: October 2015

Why Not Just Tell the Jurors How to Deliberate?

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By Thomas M. O’Toole, Ph.D.

It is a scary proposition to hand a case that you have worked on for months or years over to a jury for final adjudication. With all that’s on the line, it’s actually quite preposterous when you think about it. It took you months or years to learn enough about the case to bring it to trial and present it. Now you’ll hand the fate of all that work over to a small group of random people, who probably knew nothing about the issues in the case before they showed up for jury duty. You have no clue what they will do. All you can do is wait and hope.

It doesn’t necessarily have to be this way. As I’ve discussed in previous blog posts, attorneys focus too much on strategies for persuasion at the expense of strategies for controlling deliberations. A persuaded juror is not necessarily an influential juror and this is important because the safest bet for any attorney is to assume there will be some division amongst the jurors when they enter that deliberation room. Strategies for persuasion do very little for the attorney in this scenario. Either they were persuaded or they were not. Now, the jurors need to figure out how to resolve the division and render a verdict. Continue reading