“Getting Out the Vote” in Deliberations

Voting booths at Hermosa Beach City Hall during California Primary

By Jill D. Schmid, Ph.D.

“Voter turnout was not as high as I had wanted” – Sanders
“Trump takes Upstate as voter turnout exceeds expectations.”
“Cruz has a real shot of winning…but only if turnout doesn’t exceed the record in 2012…”

You can’t turn on the TV without hearing some kind of statement about voter turnout – some candidates want it, while others hope it stays low. You’re either a candidate who is hoping you can motivate those who are not regular participants in the political process to come out and vote or you are hoping that apathy reigns and only the established base shows up. While it might be politically advantageous for a few candidates to try to suppress the vote, generally, the best strategy is to not only engage your base, but to also do everything possible to motivate the wider voting public to get out and act.

The same is true of your jury. While you can hope that there might be a few on the panel you consider your “base” (i.e. those who have experiences and attitudes that favor your view of the case), more likely you have a group of “undecideds” and you are going to have to do whatever you can to engage and motivate them to not only support your position, but to actively and persuasively participate in deliberations. Think of it this way: there might be people who believe, “Hmmm, that Bernie Sanders seems like he’d be a great president.” Or “Never thought Trump could be President, but that makes sense!” However, if they sit at home and do not act on their belief, then these candidates cannot win. If you have a juror who was swayed to your point of view during the trial, but during deliberations sits back and lets opposing jurors who are more passionate lead the charge, then your efforts are all for naught.

If there was only one question that we could use to focus our case strategy efforts it might be: Since deliberation is the most important argument in trial, and it occurs without you (counsel), how are we both arming and motivating jurors to act in our favor? Act means “argue our case, assert our themes, point to our evidence, remember our best testimony, and fill out the verdict form in our favor.” While there are a few things critical to these efforts, in this blog I want to focus on only one thing: creating passion – the “motivation” part of the equation.

In politics, some people become passionate because of a key issue or overall theme. Perhaps it is Trump’s “I’m going to build the best wall you’ve ever seen” view of immigration or his anti-establishment rhetoric. Perhaps it iss Sanders’ “Greed is not good,” attack on Wall Street or his “Revolution” theme. Perhaps it is Cruz’s, “Gun control is hitting what you’re aiming at” view of gun legislation or his “Christian conservative” values. Each candidate is trying to tap into a value a voter holds above all others – safety, individual rights, community, altruism, minority rights, anti-government, etc. The best candidates (not “best” as in most qualified) tie the value to their entire campaign – it becomes a campaign about something such as “Making America Great Again.”

In trial, you must find a value that jurors will fight for – an issue tied to a value that creates passion and motivation to fight for your client during deliberation. Over the years of watching mock jurors deliberate and interviewing jurors following trials, one thing is clear: they voted as they did because they believed their vote was advancing justice or upholding a treasured value. What is also clear is that those who “gave in” did so because they did not have the same passion as those on the other side. They had no value to fight for or they just didn’t care.

I’ll use a patent infringement case as an example. You might wonder, what value could possibly be found in a boring, technical, complex patent infringement case. The tendency to stick with a technical case can be tempting if it appears the “law” is on your side. There is no way, however, to motivate jurors to support a “technical” win. I take that back – it would work with my husband – a very literal and objective individual, but you are not likely to get a jury of six – eight computer scientists/engineers on your panel. For the jury you are likely to have, you will need a value to accompany your technical case.

For the plaintiff, perhaps it is invention story and all of its entrepreneurial and Americana appeal. The “theft” of the “true inventor’s” “hard work” by a “greedy” large corporation for their own “profits” can be quite compelling and something worth fighting for. A defense response focused on the differences between the patented invention and the company’s product, is technically solid, but to jurors sounds a lot like, “We copied it, but we were smart enough to work the loophole” (also known as the “We screwed you fair and square” defense).

Instead, the defense needs a competing value – something that defense-oriented jurors can latch onto in deliberations and ride to a defense win. Targeting the supposed invention story presents a lot of opportunities – is there even a “person” behind this invention? Or is it simply a big company that looked for a way to “make money for doing nothing”? (The patent troll case.) Jurors want to reward ingenuity, but they don’t want to reward “using a patent as a weapon to shut down legitimate competition.” A “defense of the integrity of the PTO” and the “legitimate use of patents” is a value worth upholding, especially since the PTO seems to be one of the only government bureaucracies that people still hold in high esteem.

The bottom-line is that a smart, “armed,” yet quiet juror who does not vocally fight for you in deliberation is like the voter who “thinks” Rubio should be the nominee, but doesn’t vote. Ask yourself throughout trial, “What am I doing to ‘get out the vote’ in deliberation? How am I instilling enough passion that these jurors will truly want to act on what I have to say?” If all you have is “the law” (“I’ve got great jury instructions!”), then you just might get beat by the passionate rhetoric of a Trump-like opponent.