“A verdict is a product of what jurors choose to focus on.” This mantra has been drilled into my head since my early days of working on my doctorate in Legal Communication and Psychology. The extraordinary simplicity of the statement causes it to teeter on the brink of cliché, but as my favorite author David Foster Wallace once said, “the most obvious, important realities are often the ones that are hardest to see and talk about.” Clichés are clichés for a reason: they speak to simple truths. Sometimes, however, these simple truths are so simple that they are easy to ignore, but to steal another line from Wallace, I’d ask you to “bracket for just a few minutes your skepticism about the value of the totally obvious.”
Jurors’ focus is zero-sum. If jurors are focused on one thing, they are not focused on something else. This is critical once you consider the research that suggest jurors remember as little as 10% of what they heard over the course of trial by the time they reach deliberations. Any given case has hundreds or thousands of pieces of information associated with it. This is true of even the simplest cases. It may not feel that way to the attorneys, but that is because the attorneys have already determined what he or she believes is important about the case (i.e. he or she has already established a focus). Consequently, many facts and a lot of testimony will be forgotten or ultimately have no impact on deliberations. Focus serves as the gatekeeper for what is considered important and unimportant, which plays a critical role in what is remembered and discussed during deliberations. Continue reading →
Last month, I wrote about the importance of juror note-taking and raised the question of how an attorney might exert influence over a juror’s note-taking through his or her trial presentation. The fundamental concern was that, despite numerous studies and opinions about the value of allowing jurors to take notes, little attention has been given to how the way in which jurors take notes impacts their use and value during deliberations. This concern stemmed from a recent shadow jury experience I had where I was able to watch the various ways in which the jurors took notes during trial. Some jurors’ note-taking appeared to be completely random with no observable pattern. These jurors appeared to take notes on issues that each side might agree were completely irrelevant. Conversely, they failed to take notes on issues that we felt were extremely important. Other jurors furiously took notes, accumulating their own little transcription of the trial.
The problem is that neither of these note-taking styles are helpful. The random approach provides no structure or map for jurors to draw on during deliberations. The transcription approach buries key issues in the multitude of pages, making it difficult for the juror to locate key items when he or she needs to defend against opposing advocates in deliberations. This can create momentum for the other side and change the course of deliberations. Continue reading →
From our earliest days on earth, we learn about contrast, difference, and fit. Whether it’s simple games like “which one is not like the other” or trying to fit different-shaped blocks into different-shaped holes, difference plays a critical role in our development and connection to the world around us. As we grow older and develop connections to the social fabric around us, contrast, difference, and fit gain more prominence in defining and understanding our place in the world. For example, scholars say gossip functions as an expression of our values against another’s. So while we may actually be talking about another person when we gossip, at its heart we are saying that person is different from us. Nearly everything we do involves differentiation. It happens on the levels of basic visual perception, social interaction, and self-understanding. In other words, it is the most natural thing we do.
For this reason, contrast and difference should play central roles in the development of the case presentation and the “story” at trial. There’s an old maxim that a verdict is the product of what jurors choose to talk about. This is one of, if not the most important principle that trial attorneys should understand because it is about focus, which is zero-sum. If jurors are focused on one thing, they are not focused on another. And the more jurors focus on something, the more critical they become of it. In other words, if jurors spend two hours of deliberation time discussing something, it is going to be a critical discussion of it. Jurors simply do not spend that kind of time heaping praise on something. Consequently, the case presentation should try to control the focus, or what the jurors talk about during deliberation. There are endless filters through which any set of case facts can be viewed, with each filter leading to a different outcome. In other words, jurors can put on blue-tinted glasses and see blue, put on green-tinted glasses and see green, etc. Difference and contrast in case presentation are the most effective ways to control the filter and consequently, the focus of discussion in deliberations. Continue reading →