By Thomas M. O’Toole, Ph.D.
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