Why do jurors talk about some testimony in deliberations, but not other testimony? Why do jurors start deliberations by talking about an issue that is not related to the first verdict form question? Why do they seem to want to talk about the one thing you repeatedly told them was irrelevant? These are important questions, and the answers may help attorneys exert greater control over what jurors spend their time talking about in deliberations. The strategic advantage that would come from this is difficult to overstate. After all, the cliché in our field is that a verdict is a product of what jurors choose to talk about most in deliberations. What they choose to talk about creates momentum for and against the parties in the case, which can often drive the final verdict.
The fundamental idea here is that, when jurors go back into deliberations, they have dozens and dozens of things related to the case that they could potentially talk about. Regardless of what they choose, they are not going to talk about everything. It reminds me of a case not too long ago where I had the opportunity to interview the jurors after the verdict came in. It was a four-week trial and over 1,000 exhibits went into evidence. The jury deliberated for almost three days. After all that deliberation, I asked them how many exhibits they looked at. Eight! Out of the thousand exhibits that were entered, they looked at eight before arriving at their verdict. The discussion in deliberations is similar. When all is said and done, the jury will have only discussed a fraction of the issues they could or should have discussed during their deliberations. Continue reading →
One of the most commonly-cited statistics in communication studies is that verbal communication (i.e. the words that are actually said) constitutes only 7% of how the credibility of a message is determined. 38% is the vocal quality of the message (i.e. tone, etc.), and 55% is the nonverbal component. Some scholars have disputed how these numbers have been interpreted, but research has shown over and over again that how something is said is more important than what is actually said. Setting the research aside, anyone who has ever been in a serious relationship has lived this reality.
For this reason, one of the most important parts of a witness’s testimony is the “eyeball test.” In other words, does he or she look and sound like the kind of person he or she is being portrayed as? One of the most obvious examples of the eyeball test is in medical malpractice cases. So much of jurors’ opinions in medical malpractice cases boil down to them looking at the doctor as he or she testifies and asking themselves if he or she seems like the kind of doctor they would want treating them. If the answer is yes, the jurors will often explain away bad facts. If the answer is no, those bad facts become more salient. Reiterating this phenomenon, a 2018 national survey conducted by Sound Jury Consulting found that 59% of respondents believe they can tell if someone is a good doctor just by meeting him or her and having a conversation. Continue reading →
Over the past few months, I’ve celebrated my 40thbirthday, my 15thyear in the jury consulting industry, and the 5-year anniversary of Sound Jury Consulting. In short, I’m getting older, and as we grow older, the world around us changes. One of the more interesting changes in the world of juries is the increasing number of millennials serving as jurors. Recently, I looked at the venire information from 18 trials in which I picked a jury in King County, Washington (Seattle) over the past 3 years. The sample size was large — over a 1,000 potential jurors. Nearly all of these cases were set to last two or more weeks. Of the 1,000+ individuals who showed up for jury duty, 31% were millennials (i.e. 1 in every 3 people showing up for jury duty in King County is a millennial). Continue reading →
In this episode of The Sniper Defense, Podcast Playbook for Defense Attorneys, Thomas M. O’Toole, Ph.D. discusses strategies for defense attorneys to exert greater influence over the content and structure of jurors’ notes.
If you follow my blogs and publications, you know that one of my common phrases is, “a verdict is the product of what jurors choose to talk about during deliberations.” This is a critical point to consider during your case strategy development process. However, we can simplify this statement even more within the context of jury selection to something along the lines of, “a verdict is the product of who does the talking in deliberations.” Continue reading →