One of the most important components of jury strategy development is also the one that is talked about the least and that is momentum in deliberations. When you dig in and really start to understand and appreciate the critically important role of momentum in deliberations, it can have tremendous implications for your strategy at trial. I have written many times before that too many trial attorneys fail to appreciate that the great debate at trial is not the one that takes place in the courtroom between the opposing attorneys, but the one that takes place in the deliberation room between jurors with opposing views of the case. This means that trial attorneys are not the debaters, but the debate coaches, which means their job is to motivate jurors to want fight for their client in deliberations and then coach those jurors on how to effectively debate those issues. This includes coaching them on where to focus, what to talk about first, and how to effectively talk about it. This “coaching” happens through the way the attorney presents the case to the jurors.
In my experience watching hundreds of mock jury deliberations and interview dozens of actual juries after trial, it is rare that deliberations begin with all jurors in agreement, even when the verdict ends up being unanimous. There is inevitably some disagreement that has to be resolved through discussion and debate, and attorneys need to carefully consider how their strategic choices impact the outcomes of that debate. This is where coaching becomes so important. I’ve always thought attorneys should conduct informal focus groups on their own where they make their argument to non-law professional friends, family, or neighbors, and then ask those individuals to summarize the argument back to them. I think many attorneys would be surprised at how difficult this might be for others. You may have an incredibly impressive argument, but if it is not something that a motivated juror can successfully re-articulate in deliberations, it is not going to be an effective argument and it can cause shifts in momentum.
Momentum is critical in deliberations. It can be lost or won depending on how jurors argue different aspects of the case. A few immediate examples come to mind. First, there is the juror who is persuaded by your case theory but lacks confidence in their ability to go back to deliberations and rearticulate your key arguments (perhaps due to their complexity). Because this juror, who is persuaded by your case theory (and consequently a motivated advocate), lacks confidence in rearticulating your key arguments, they decide to stay quiet in deliberations and let other jurors drive the discussion. If the other, more vocal jurors favor the other side, the momentum in the discussion will now favor the other side.
There is also the scenario where a motivated juror (who favors your client) tries to rearticulate your arguments in deliberations, but screws it up and gets it wrong, perhaps citing the wrong evidence or mis-stating some part of the argument. Because of this error, it is easy for jurors who favor the other side to poke holes in this argument. This can have a devastating effect on the momentum on deliberation. It can kill any motivation that the juror has to argue your case because he or she does not want to have another experience of getting it wrong, which can be embarrassing and deflating. Maybe this loss means your motivated juror has now lost credibility with the rest of the group. Maybe it means your case theory has now lost credibility with the group.
Momentum is critical because it fundamentally influences the final verdict. The dominant voices can drive the final verdict. Jurors who are unsure are more likely to favor the side that seems right, which they determine based on how things are going in deliberations. For example, if a motivated advocate for the defense appears to keep losing arguments in deliberations, the uncertain juror sitting on the sidelines is more likely to favor the plaintiff because, based on the discussion in deliberations, it appears the plaintiff is probably right.
With this in mind, it is so important for attorneys to narrow their arguments before trial. What I mean by this is that the trial team needs to take a close look at their case theory and arguments and figure out what is essential to winning and must be kept versus what is inessential and must be discarded. This may seem obvious, but we routinely see examples of attorneys arguing inessential issues in important cases. The problem with this is that it only creates opportunities for losses in deliberations, which shifts the momentum to the other side. When an attorney focuses time and energy on an issue that is not essential to actually winning the case, they run the risk that one of their motivated advocates on the jury focuses on this in deliberations rather than focusing on the other, much more important arguments. Maybe this inessential argument becomes the first thing the motivated juror wants to talk about in deliberations, but that part of the discussion does not go well for the motivated juror. Jurors favoring the other side are able to poke holes in it. Now, the motivated juror has lost confidence and credibility and the momentum shifts to the other side, all because of an argument that was not necessary for you to prevail.
There is an old saying in our field that, “if everything is important, nothing is important.” But even more important, everything you try to argue creates opportunities for losses and corresponding momentum shifts in deliberations, so the more you try to do, the more opportunities you create for the other side to gain momentum and prevail on the verdict form.
