*Previously published our Jury Economics column in the January 2020 issue of the King County Bar Bulletin.
By Thomas M. O’Toole, Ph.D. and Kevin Boully, Ph.D.
Then-Stanford Psychology graduate student Elizabeth Newton conducted a fascinating experiment over a decade ago when she divided participants into groups she dubbed “tappers” and “listeners.” The tappers were asked to select from a list of well-known Americana songs and then tap the tune for the listener assigned to sit across from them. The tappers could not say or hum anything. All they could do was tap their finger. The listener’s job was to guess what song was being tapped by the tapper. The tappers predicted that the listeners would guess the correct song 50% of the time, but when all of the results were compiled, the listeners were only able to guess the correct song 2.5% of the time.
The study was a lesson in communication. For the tappers who could hear the song in their heads as they tapped it out, it was easy to overestimate how obvious the song was to the listeners, who could not hear the song in their head. The listeners lacked the context that made it so easy for the tappers to think the song they were trying to communicate was obvious. The same thing happens at trial, with attorneys taking the role of the tappers and jurors taking the role of listeners. We have worked to address this challenge for years, but in this month’s column, we want to explore it a little deeper because it is easy to overlook just how difficult it is for jurors to hear the song in the heads of the trial teams. Some of these barriers have nothing to do with the case, the attorneys, or anything that is actually happening in the courtroom. A better understanding of these barriers helps attorneys present their cases in ways that provide jurors with clear vision of the key issues in the case.
The first principle of jury economics is that jury decision-making is egocentric. We can broaden this principle and argue that the juror experience is not only egocentric, but it starts before jurors ever hear a single thing about the case. While attorneys tend to think about a juror’s experience beginning when he or she walks in the courtroom, it actually starts well before that. It starts when jurors receive notice that they have to set aside a few days of their busy lives to travel to the courthouse. This is significant because people are busier than they ever have been, with many feeling like they are struggling to stay above water in life. The way they perceive a trip to the courthouse, and certainly any lawsuit they may hear as a juror, is influenced by the way they feel and where they are in their own life at the time new information is received. Regardless, they make the commitment to show up, perhaps because they have deferred jury service too many times and have no other choice.
For the downtown courthouse, they have to figure out how they are going to get downtown. They can drive, but the cost of daily parking will far exceed the pay for jury duty, and they are probably not sure where to park once they find the courthouse. They can take the bus, but then they have to figure out which buses to take, when they have to catch them, and where to get dropped off. Perhaps going downtown makes them nervous. Perhaps they worry that they might be the next victim of violence near the courthouse (if they have been following the local news). However, they overcome all of these obstacles and arrive at the courthouse, just wanting to get their jury service done with so they can get back to their busy lives.
Then they sit in the jury room and wait, sometimes for hours, which is incredibly frustrating because it can feel like a total waste of time. Finally, they get called up to the courtroom where they are told for the first time that, if they are picked, the trial will last longer than they had anticipated, perhaps even by a matter of weeks. They panic when the judge denies their request for hardship, having no idea of what this means for their life. While the judge did not find it compelling that they cannot miss work because of important projects they are working on, they know it matters. Maybe it affects their end-of-the-year bonus. Maybe it means they cannot take those couple of weeks off next month that they had been planning on. Regardless, they feel like total havoc has been wreaked on their lives and they have no idea what they are going to do. This is before they have ever heard the attorneys speak or have any idea what the case is about. Their starting point is a feeling of being personally overwhelmed and brainstorming how they can make the next several days or weeks of their life work. This creates disinterest, impatience, and distraction. It creates obstacles for listening and for truly hearing what attorneys believe they are saying.
The trial begins and the jurors are given introductions to the case and the key issues, but they receive no pre-instructions or meaningful guidance for how they are supposed to think about those issues. Because the jury instructions are not read until the end of trial, they have no idea how to determine what is least and most important. While they sit there, the attorneys tap and tap away, seeming not to care at all that the jurors have no idea what they are talking about or why it is important. They take notes, but because they do not know how they are supposed to legally decide the case, their notes will end up being totally random jottings that are difficult for them to sort through in a meaningful way when they get back in the deliberation room.
By this point, the jurors are desperate for anything they can dig their fingers into, such as an anchor that will help them understand how to think about the case. This is where economic decision-making takes place. The jurors essentially look for short-cuts. There is simply no way that they can process everything that is being thrown at them, in part because it is so difficult to understand what is important. For example, one of the attorneys spends a significant amount of time laying foundation with a witness. The questions seem basic and unnecessary because jurors do not understand the obligation to lay foundation. Instead, they are bored and they tune out for moments at a time, wondering what they are going to eat for dinner or what they are going to do after dinner.
And as they watch the attorneys fumble with the technology, they not only get increasingly frustrated with the abuse of their time, they consider how what they’re seeing may make their job easier. One attorney uses an elmo, which they have not seen anyone use since college. The other attorney uses a more contemporary software program, but clearly is not well-versed in it as evidenced by the fact that he keeps having to apologize for showing them the wrong documents or photos. Jurors sit there and wonder how, in the age of iPads, Amazon, and the endless list of social media tools, this attorney cannot successfully operate what seems like pretty simple software. But all the attorney can offer them is a self-deprecating joke about being technologically-inept, which does not impress them. Even worse, it slows everything down and wastes time, which only reminds them of how frustrated they are that they had to give up days or weeks to serve on the jury. If this simple shortcut to analysis helps them make a decision about the case, they can move on to putting their energy toward other thoughts and problems they need to solve in their lives, even while sitting in the jury box.
As they look for shortcuts, symbolic decision-making comes into play. Certain facts and testimony become more important to them than others because of what those facts and testimony symbolize to the jurors. Perhaps a statement by the plaintiff leaves them with the impression that the plaintiff absolutely refuses to admit to mistakes or accept any accountability for those mistakes. This is a character trait that one juror absolutely cannot stand, so it becomes a trigger to a strong, emotional feeling about the case. It reminds him too much of a co-worker he got in an argument with just last month and, because this is an employment case with questions about the plaintiff’s work ethic, this stands out more than some of the other evidence to the contrary. Consequently, the case becomes a case about mistakes and accountability to the juror through this symbolic transaction that takes place through the presentation of the evidence.
When the trial finally ends, the judge spends forty-five minutes reading them instructions that they sure wish they would have had at the start of trial. Perhaps as they finally hear one of the key instructions, they realize that they have been thinking about a key issue in the case in the totally wrong way. However, they do not get to see any of the testimony transcripts back in deliberations, so it is too late for them to go back and try to make sense of the testimony through this new framework.
They enter the deliberation room and a whole new social dynamic emerges. Now jurors are tasked with tapping their tune for the other jurors and hoping they hear the same song. Some of their fellow jurors are talkers, while others remain quiet. Some of the talkers are good at articulating their thoughts, while others tend to say confusing things. There is disagreement in the group, which suggests that deliberations may take a while, perhaps even a few days. At one point, they feel like they may have reached a breakthrough when they realize they need to ask the judge a question, knowing the answer will help them get over their disagreements, but the judge tells them she cannot give them any more information on the issue in question.
Each of the jurors has to make a decision. Are they motivated enough to keep fighting for how they feel about the case, or is it better to just give in and get jury duty done with? Even if they are motivated, do they feel like they know how to argue with other jurors in a way that might change some minds? Eventually, some of the jurors cave, giving them just enough to meet the decision rule to render a verdict and end the whole experience.
The point of this detailed day in the life of a juror is not to highlight the inconvenience of jury duty or suggest that jurors are doing something wrong. In fact, jurors work very hard to do a good job in deliberations. Instead, it is important for attorneys to understand the reality that jurors bring with them to the courtroom. We would all like to believe that jurors come to the courtroom with a clean slate, give their undivided attention to attorneys throughout the trial, and then apply logic to the objective evidence, but that is not how it happens. Trial is a tremendous burden for jurors and they are overwhelmed by it before they ever hear an attorney speak. However, the attorney does not simply speak and persuade. She taps. And taps. And taps.
Effective persuasion gets beyond this tapping and recognizes (and respects) the reality of the moment that jurors find themselves in at trial. Once this reality is recognized, attorneys can develop presentation strategies that give jurors the context, shortcuts, and motivation that they need to go back and fight for one side over the other in jury deliberations.
Kevin Boully, Ph.D. is a senior consultant at Persuasion Strategies.